IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE S G PANDIT MISCELLANEOUS FIRST APPEAL No.4768/2016 (MV) BETWEEN SMT. SUKANYA, WIFE OF LATE NARAYANA AGED ABOUT 46 YEARS R/A ARAKERE VILLAGE, SULTAN & BALLEKERE ROAD, ARAKERE HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT-571438.
SRI NARAYANA S/O THIMMAIAH (SINCE DEAD AFTER JUDGEMENT IN MVC HENCE DELETED) …APPELLANT (A-1 IS THE LR OF A-2 ALREADY ON RECORD) (BY SRI K S NARAYANASWAMY, ADV.) AND 1. SRI RAJU K S/O SRI KARIGOWDA AGED ABOUT 51 YEARS, R/A. ARAKERE VILLAGE AND HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT-571438.
2. THE MANAGER, IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD., C/O KSCARD BANK, VIDYA NAGAR MANDYA-571 401. ... RESPONDENTS (BY SRI E I SANMATHI, ADV. FOR R2. R1 – SERVED UNREPRESENTED.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.02.2016 PASSED IN MVC NO.30/15 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & MACT, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ‘ADMISSION’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant/appellant is in appeal under Section 173(1) of the Motor Vehicles Act seeking enhancement of compensation awarded under the judgment and award dated 29.02.2016 in M.V.C. No.30/2015 on the file of the Principal Senior Civil Judge & MACT, Srirangapatna.
2. The parents of the deceased filed claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.15,00,000/- for the death of their son in a road traffic accident. It is stated that on 28.09.2014 when the deceased was walking on the left side of the Mandya- Arakere-Mysore main road, the driver of the offending tractor- trailer bearing Reg.No.KA-11, T-9702-9703 came in a high speed and in a rash and negligent manner and dashed the deceased, as a result, the deceased fell on the road and the left wheel of the tractor ran over his body causing grievous injuries. Subsequently, due to accident injuries Prasanna, succumbed to the injuries in Bangalore.
3. It is stated that the deceased was aged about 22 years as on the date of accident and was earning more than Rs.15,000/- per month by doing mason work. It is stated that he was a bachelor and he was contributing his entire income to the family. The second respondent insurance company filed its objection denying the petition averments. The second respondent contended that the accident has not taken place due to rash and negligent driving of the tractor but it was due to negligence of the deceased accident took place. It is also stated that the driver of the tractor had no valid and effective driving license as on the date of accident. The tribunal on examination of the material on record both oral and documentary, taking Rs.7,000/- per month as income of the deceased, awarded total compensation of Rs.8,91,000/- along with 9% interest. The tribunal held that the primary liability of paying compensation is on the second respondent insurance company. The claimants not being satisfied with the quantum of compensation awarded by the tribunal are in appeal.
4. Heard the learned counsel for the appellant and learned counsel for the respondent No.1 and respondent No.2 insurance company.
5. The learned counsel for the appellant submits that the tribunal has committed an error by taking only Rs.7,000/- per month as income of the deceased and submits that the deceased was earning more than Rs.15,000/- per month by doing mason work. It is stated that the accident is of the year 2014 and the tribunal has committed an error in determining the income of the deceased. Further, it is contended that the tribunal has not awarded any compensation towards future prospects, which the claimants are entitled to.
6. Per contra, the learned counsel for the insurance company submits that the tribunal has awarded just compensation and it needs no interference.
7. Having heard the learned counsels for the parties and on going through the records the only question which arises for consideration is as to whether the claimants are entitled for enhanced compensation?
8. The accident occurred on 28.09.2014 involving tractor trailer bearing Reg. No.KA-11, T-9702 & 9703. Accidental death of Prasanna is not in dispute in this appeal. The claimants are parents of the deceased Prasanna. It is stated that the father of the deceased died subsequent to judgment and award and before filing the instant appeal. The accident is of the year 2014, the income of the deceased taken at Rs.7,000/- is on the lower side. The tribunal has committed an error in taking Rs.7,000/- per month as income of the deceased. This court and lok-adalaths while settling the motor accident claims of the year 2014 normally would take Rs.8,500/- per month as notional income where no material is produced to indicate the exact income. In the case on hand also there is no material to indicate the exact income of the deceased. Hence, I deem it appropriate to take Rs.8,500/- per month as notional income of the deceased. Further the learned counsel for the appellant contended that the tribunal has not awarded any compensation on the head of future prospects. He submits that the appellant would be entitled for future prospects relying upon the judgment of the Hon’ble Supreme Court in Hem Raj vs. Oriental Insurance Company Ltd. & Others (2018 ACJ 5). A Division Bench of this Court in M.F.A. No.201235/2017 and connected appeal, disposed of on 06.12.2018 following the Hem Raj case at para 19, 20 and 21 has held as follows:-
“19. Per contra, Sri. Basavaraj R. Math, learned counsel has contended that since there was no fixed income earned by the deceased, addition of 40% permitted in PRANAY SETHI’s case would not be applicable and only in case of established income or proved income said addition can be made and as such Tribunal has rightly not taken into consideration loss of future prospects or added 40% of his income as held in PRANAY SETHI case and submits that there is no error committed by the Tribunal in that regard. In the light of these rival contentions, it requires to be noticed that Hon’ble Apex Court in PRANAY SETHI’s case as held to the following effect:
“64. (iv) In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
20. Subsequently in the matter of Hem Raj V/s Oriental Insurance Company Ltd. and others, reported in 2018 ACJ 5, Hon’ble Apex Court has held that there cannot be any distinction where there is positive evidence of income and where minimum income has been determined on guess work in the facts and circumstances of a case. It has been further held that both the situations stands at the same footing. The Hon’ble Apex Court in HEM RAJ’s case has held:
“13. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40 per cent to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50 per cent while the High Court has deleted the same.”
21. In the light of the authoritative pronouncement of the Hon’ble Apex Court in Hem Raj case, we are of the considered view that addition of 40% deserves to be granted and accordingly we do hereby.”
By following the above decision, I hold that, the claimant- mother would be entitled for modified compensation on the head of loss of dependency and future prospects. Considering the fact that the deceased was aged about 22 years at the time of the accident, the multiplier applicable would be 18. The notional income of the deceased is assessed at Rs.8,500/- p.m. and future prospects at 25% has to be added to the income of the deceased. Since the deceased died as a bachelor, 50% of his income has to be deducted towards his personal expenses and remaining 50% has to be taken as his contribution towards his family. If that is so, the compensation under the head ‘Loss of dependency’ comes to Rs.11,47,608/- (8,500 + 25% - 50% = 5313 x 12 x 18 = 11,47,608). Therefore, the appellant is entitled to compensation of Rs.11,47,608/- as against Rs.7,56,000/- towards the ‘loss of dependency’.
9. The tribunal has granted compensation of Rs.1,35,000/- on conventional head which is not disturbed. Thus the claimant would be entitled for total compensation of Rs.12,82,608/- (Rupees Twelve Lakhs Eighty Two Thousand Six Hundred and Eight only) as against Rs.8,91,000/- awarded by the tribunal. The interest and deposit would be as per the judgment and award of the tribunal.
Accordingly, appeal is allowed in part. The judgment and award dated 29.02.2016 passed in M.V.C. No.30/2015 on the file of the Principal Senior Civil Judge & MACT, Srirangapatna is modified. The claimant-mother is entitled to total compensation of Rs.12,82,608/- (Rupees Twelve Lakhs Eighty Two Thousand Six Hundred and Eight only) as against Rs.8,91,000/- with interest at the rate of 9% per annum.
Sd/- JUDGE.
Chs* CT-HR