IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 3404 OF 2015 (M V) CONNECTED WITH MFA NO. 3405 OF 2015 (MV) MFA NO. 3404/2015 BETWEEN 1. SUDHA W/O LATE SWAMY AGED ABOUT 23 YEARS 2. PRARTHANA D/O LATE SWAMY AGED ABOUT 1 YEAR 3. DEVASHETTY S/O LATE RACHASHETTY AGED ABOUT 51 YEARS 4. MALLIGAMMA W/O DEVASHETTY AGED ABOUT 41 YEARS (APPELLANT NO.2 BEING MINOR REPRESENTED BY HER NATURAL GUARDIAN MOTHER 1ST APPELLANT) ALL ARE R/AT BHEEMANABEEDU VILLAGE GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT PIN: 571303. ... APPELLANTS (BY SRI. K. M. SANATH KUMARA - ADV.) AND 1. AMANJEET SINGH S/O MANJINDER SINGH NO. 290, SHAHIN NAGAR INDORE CITY – 2, INDORE MADYAPRADESH STATE.
2. THE GENERAL MANAGER SBI GENERAL INSUREANCE CO., LTD., NO. 3/1, GROUND FLOOR RUKMINI TOWERS NEAR SWATHI HOTEL PLAT FORM ROAD SHESHADRIPURAM BANGALORE-560020. ... RESPONDENTS (BY SRI. RAVI .S. SAMPRATHI - ADV., FOR R-2 NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 26.10.2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.01.2015 PASSED IN MVC NO. 20/2014 ON THE FILE OF THE DISTRICT AND SESSION JUDGE AND MACT, CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO. 3405/2015 BETWEEN 1. BHAGYA W/O LATE GOPALASHETTY AGED ABOUT 22 YEARS 2. MADESHA S/O LATE GOPALASHETTY AGED ABOUT 5 YEARS 3. RATNAMMA W/O SIDDASHETTY @ KAMANNA AGED ABOUT 46 YEARS (APPELLANT NO.2 MINOR, REPRESENTED BY HIS NATURAL GUARDIAN MOTHER 1ST APPELLANT) ALL ARE R/AT BHEEMANABEEDU VILLAGE GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT PIN – 571303. … APPELLANTS (BY SRI. K. M. SANATH KUMARA - ADV.) AND 1. AMANJEET SINGH S/O MANJINDER SINGH NO. 290, SHAHIN NAGAR INDORE CITY – 2, INDORE MADYAPRADESH STATE PIN:914056.
2. THE GENERAL MANAGER SBI GENERAL INSUREANCE CO., LTD., NO. 3/1, GROUND FLOOR RUKMINI TOWERS NEAR SWATHI HOTEL PLAT FORM ROAD SHESHADRIPURAM BANGALORE-560020. ... RESPONDENTS (BY SRI. RAVI .S. SAMPRATHI - ADV., FOR R-2 NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 02.12.2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.01.2015 PASSED IN MVC NO. 21/2014 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE AND MACT, CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both the side, the same are taken up for final disposal.
2. MFA No.3404/2015 is preferred by the appellants/claimants against the common judgment and award dated 14.01.2015 passed by the Tribunal in MVC No.20/2014 seeking enhancement of the compensation.
3. MFA No.3405/2015 is preferred by the appellants/claimants against the common judgment and award dated 14.01.2015 passed by the Tribunal in MVC No.21/2014 seeking enhancement of the compensation.
4. The factual matrix of the appeals are as under:
It is stated in the claim petition that on 22.11.2013 at about 10.15 a.m. deceased Swamy was riding his motor cycle with one Gopalashetty as a pillion rider from Begur towards Gundlupet. At Raghavapura 1st cross on Ooty-
Mysore road, lorry bearing Reg.No.MP-09-HF-5189 driven by its driver in rash and negligent manner dashed against the motor cycle in which deceased Swamy and his friend Gopalshetty were traveling. As a result of the accident, the lorry ran over the deceased and they sustained grievous injuries and died at the spot. The petitioners being the LRs of the deceased persons and who were depending upon the sole earnings of the deceased and due to their untimely death, filed the claim petitions before the Tribunal seeking compensation.
5. On issuance of summons, first respondent remained absent and was placed exparte in both the cases. Second respondent – insurer appeared before the court and filed objection statement separately in both the cases denying the petition averments and sought for dismissal of the petitions.
6. Based upon the pleadings and objection statement, the Tribunal framed the issues. In order to substantiate their respective cases, petitioners in both the petitions lead common evidence by filing their respective affidavits. Petitioner No.1 – Sudha in MVC No.20/2014 examined herself as PW.1 and Petitioner No.1 – Bhagya in MVC No.21/2014 examined herself as PW.2 and got marked Exs.P1 to P8. Respondent No.2 did not choose to lead any evidence nor produced any documents. The Tribunal after hearing learned counsel for the petitioners as well as the respondent – insurer and on evaluation of oral and documentary evidence on record, passed the common judgment awarding compensation of Rs.9,86,000/- with interest @ 9% p.a. from the date of petition till realisation in MVC No.20/2014 and compensation of Rs.9,71,000/- with interest @ 9% p.a. from the date of petition till realisation in MVC No.21/2014. It is this common judgment which is challenged under these appeals by urging various grounds.
7. Learned counsel for the appellants in both the appeals contends that impugned judgment and award passed by the Tribunal is not just and proper and the same requires modification. Having regard to the year of accident and avocation of the deceased persons, the Tribunal ought to have taken more income while calculating the compensation. Further, the Tribunal has not considered the future prospects of the income of the deceased persons. Further the compensation awarded towards loss of consortium and love and affection is on lower side and the same is required to be enhanced by intervention of this Court. Further, he contends that the compensation awarded by the Tribunal on all other heads is on lesser side and needs to be enhanced.
8. Per contra, learned counsel for the respondent – insurer contends that driver of the offending lorry did not possess any valid driving licence as on date of accident. The accident occurred due to rash and negligent driving of the rider of the motor cycle. Further, the compensation claimed by the petitioners is highly excessive and not based on actual facts. The tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the deceased persons and awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeals.
9. In this context of the contentions taken by the learned counsel for the appellants as well as learned counsel for the respondent – insurer and on careful evaluation of the material on record, it is relevant to state here that there is no dispute with regard to death of deceased persons namely Swamy and Gopalshetty in a road traffic accident. Further, the Tribunal on evaluation of evidence of PW.1 and PW.2 supported by documentary evidence such as Ex.P3 – Spot mahazar, Ex.P4- IMV Report, Ex.P5 – PM Report, Ex.P6 – Charge sheet, Ex.P7- P.M.Report and Ex.P8-sketch, held that the accident occurred due to the rash and negligent driving of the offending lorry and that the petitioners have proved that deceased Swamy and Gopalshetty died at the spot on 22.11.2013 due to the grievous injuries sustained in the said accident.
10. In MFA 3404/2015, the appellants are the wife, minor daughter and parents of deceased Swamy. Deceased Swamy was a Mason and doing agriculture work. Hence, the Tribunal by considering his avocation, has taken notional income of Rs.6,000/- p.m. After deduction of 1/3rd income towards personal expenses and taking multiplier of 17, the Tribunal has calculated the compensation under the head loss of income at Rs.8,16,000/-. Having regard to the avocation of deceased Swamy, the year of accident and his age, the notional income assessed by the Tribunal appears to be on lower side and the same is enhanced to Rs.8,000/-. Further, the Tribunal has not considered the aspect of future prospects as held by the Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi reported in AIR 2017 SC 5157 and the same needs to be considered in this
Rs.7,467 x 12 x 17 = 15,23,268/-
11. In so far as compensation to be awarded under the conventional heads with reference to Pranay Sethi’s case as stated supra, it should not be more than Rs.70,000/-.
12. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation by this Court
Therefore, in all the claimants in MFA No.3404/2015 are entitled to Rs.15,93,268/- as against Rs.9,86,000/- and the enhanced compensation would be Rs.6,07,268/-
13. In MFA 3405/2015, the appellants are the wife, minor son and mother of deceased Gopalshetty. Deceased Gopalshetty was also a Mason and doing agriculture work. Hence, the Tribunal by considering his avocation has taken notional income of Rs.6,000/- p.m. After deduction of 1/3rd income towards personal expenses and taking his age as 28 years by adopting multiplier of 17, the Tribunal has assessed the compensation under the head loss of income at Rs.8,16,000/-. Having regard to the avocation of deceased, the year of accident and his age, the notional income assessed by the Tribunal appears to be on lower side and the same requires enhancement in this case also. Accordingly, it is enhanced to Rs.8,000/-. Further, the Tribunal has not considered the aspect of future prospects as held by the Hon’ble Apex Court in Pranay Sethi’s case stated supra and the same needs to be considered in this appeal. Accordingly, the compensation under the head loss of income would work out as under:
Income per month 8,000 Add: future prospects @ 40% 3,200 11,200 Less: 1/3rd personal expenses 3,733 7,467 Rs.7,467 x 12 x 17 = 15,23,268/-
14. Under the conventional heads, the compensation to be awarded should not be more than Rs.70,000/- as held by the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra.
15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation by this Court
Therefore, in all the claimants in MFA No.3405/2015 are entitled to Rs.15,93,268/- as against Rs.9,71,000/- and the enhanced compensation would be Rs.6,22,268/-
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER MFA No.3404/2015 and MFA No.3405/2015 filed by the appellants/claimants are allowed in part. The impugned judgment dated 14.01.2015 passed by the Tribunal in MVC No.20/2014 and 21/2014 is hereby modified.
The appellants/claimants in MFA No.3404/2015 are entitled for enhanced compensation of Rs.6,07,268/- with interest @ 6% p.a. from the date of petition till realisation.
The appellants/claimants in MFA No.3405/2015 are entitled for enhanced compensation of Rs.6,22,268/- with interest @ 6% p.a. from the date of petition till realisation.
The Respondent-insurer shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to awarding rate of interest @ 9% p.a., apportionment and deposit is concerned, shall remain unaltered.
Registry is hereby directed to forward the LCR to the concerned Tribunal, forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB