IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE L.NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO.8099 OF 2016 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.7909 OF 2016 IN MFA NO.8099/2016 BETWEEN:
1. SMT. SUMA W/O LATE MANJUNATHA S AGED ABOUT 30 YEARS 2. M.PREETHAM S/O MANJUNATH S AGED ABOUT 10 YEARS 3. PRETEEKSHA D/O MANJUNATHA S AGED ABOUT 6 YEARS ALL ARE R/AT NO.11 VENUGOPALNAGAR SAPTHAGIRI LAYOUT BENGALURU NORTH NAGASANDRA POST BENGALURU – 560 073 … APPELLANTS (BY MR.VASANTHAPPA, ADVOCATE) AND:
1. M/S. ICICI LOMBARD GENERAL INSURANCE CO.LTD.
MOTOR CLAIMS HUB NO.89, 2ND FLOOR, SVR COMPLEX NEAR AYYAPPA TEMPLE HOSUR MAIN ROAD, MADIWALA BENGALURU – 560 068 REPRESENTED BY ITS MANAGER 2. SMT.ROOPA W/O LATE JAGADISH AGED ABOUT 31 YEARS R/AT NO.316, NEAR HONNALAMM TEMPLE II CROSS, VINAYAKANAGARA BENGALURU – 560 073 3. SMT.JAYAMMA W/O LATE SHESHAGIRI AGED ABOUT 61 YEARS R/AT NO.116, INDIRANAGAR GANGONDANAHALLI MAIN ROAD NEAR SIDDARTHA SCHOOL NAGASANDRA POST GANGONDANAHALLI BENGALURU – 560 073 … RESPONDENTS (MR.B.C.SHIVANNE GOWDA, ADVOCATE FOR RESPONDENT NO.1 MR.MADHUKAR NADIG, ADVOCATE FOR RESPONDENT NO.3 NOTICE TO RESPONDENT NO.2 DISPENSED WITH) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.7.2016 PASSED IN MVC NO.3915/2015 ON THE FILE OF THE 21ST ADDITIONAL SMALL CAUSE JUDGE & 19TH ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.7909/2016 BETWEEN:
THE MANAGER M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. REGIONAL OFFICE, NO.89, 4TH FLOOR SVR COMPLEX, MADIWALA HOSUR MAIN ROAD, BANGALORE NOW REP. BY ITS LEGAL MANAGER M/S ICICI LOMBARD GIC LTD. REGIONAL OFFICE, THE ESTATE 9TH FLOOR, DICKENSON ROAD M.G.ROAD, BANGALORE – 42 … APPELLANT (BY MR.B.G.SHIVANNE GOWDA, ADVOCATE) AND:
1. SMT. SUMA W/O LATE MANJUNATHA S AGED ABOUT 30 YEARS 2. M.PREETHAM S/O MANJUNATH S AGED ABOUT 10 YEARS 3. PRETEEKSHA D/O MANJUNATHA S AGED ABOUT 6 YEARS 2ND AND 3RD RESPONDENTS ARE MINOR REPRESENTED BY MOTHER I.E. RESPONDENT NO.1 ALL ARE R/AT NO.11 VENUGOPALNAGAR SAPTHAGIRI LAYOUT BENGALURU NORTH NAGASANDRA POST BENGALURU – 560 073 4. SMT.ROOPA W/O LATE JAGADISH AGED ABOUT 31 YEARS R/AT NO.316, NEAR HONNALAMM TEMPLE II CROSS, VINAYAKANAGARA BENGALURU – 560 073 5. SMT.JAYAMMA W/O LATE SHESHAGIRI AGED ABOUT 61 YEARS R/AT NO.116, INDIRANAGAR GANGONDANAHALLI MAIN ROAD NEAR SIDDARTHA SCHOOL NAGASANDRA POST GANGONDANAHALLI BENGALURU – 560 073 … RESPONDENTS (MR.VASANTHAPPA, ADVOCATE FOR RESPONDENT NOS.1 TO 4 RESPONDENT NOS.2 AND 3 ARE MINORS MR.MADHUKAR NADIG, ADVOCATE FOR RESPONDENT NO.5) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.7.2016 PASSED IN MVC NO.3915/2015 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSE JUDGE & XIX ACMM, MEMBER MACT, BENGALURU, AWARDING COMPENSATION OF RS.35,92,050/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The claimants have filed MFA No.8099 of 2016, seeking enhancement of compensation awarded by the Tribunal in MVC No.3915 of 2015, by the judgment and award dated 16.7.2016. MFA No.7909 of 2016 is filed by the insurance company seeking modification of the judgment and for reduction of the compensation.
2. It is stated that on 29.8.2015, while Manjunath S - the deceased was traveling in a car bearing No.KA-02-MH- 1950 near Thaggiguppe village, Kasaba hobli, Magadi taluk, due to rash and negligent driving of the driver, the said car turtle and fell into the road side ditch. As a result, the deceased sustained grievous injuries. The deceased was taken to the hospital and the doctor declared him dead. The wife and children of the deceased, had filed a claim petition seeking compensation. The Tribunal had awarded compensation of `35,92,050/-.
3. The learned counsel for the claimants submitted that the deceased was carrying on business. He was proprietor of a private company by name M.N.Engineers at T.Dasarahalli, Bengaluru and was earning about `4,00,000/- per annum. Due to the accident, the claimants have lost the bread winner of their family. In order to substantiate the same, the claimants have produced Ex.P19 – electricity bills of the factory M.N.Engineers, Ex.P20 – factory phone bill, Ex.P21 – income tax returns for the year 2014-15 and balance sheet, Ex.P22 – savings bank account statement of the deceased from 4.8.2014 to 31.7.2015, Ex.P24 – current account statement from 1.12.2011 to 29.1.2016 and Ex.P25 – ten VAT returns. It is submitted that all the documents and material prove that the deceased was running a private company and earning `4,00,000/- per annum. Therefore, the appeal is filed seeking compensation of `50 lakh.
4. The insurance company had filed their written statement denying the age, business and income of the deceased.
5. The learned counsel for the insurance company submitted that the vehicle was not insured with the respondent; the driver of the said car was rash and negligent in driving the car and has contributed for the accident. The driver was not having valid driving licence on the date of accident. Therefore, it is submitted to reduce the compensation awarded by the Tribunal.
6. Heard the learned counsel for the respective parties.
7. The Tribunal had framed an issue as to whether the claimants prove that the deceased died in a road traffic accident that occurred on 29.8.2015, while he was traveling in a car bearing registration No.KA-02-MH-1950, due to rash and negligent act of driving of the driver of the said car and answered it in affirmative.
8. The accident and result of the accident is not in dispute. For awarding compensation, the claimants have to prove the income and validity of the driving licence of the driver and policy of the vehicle. Possessing of the driving licence and insurance policy are not in dispute. The insurance company has admitted the policy.
9. In the circumstances, this Court has to decide on the question of quantum of compensation awarded by the Tribunal. To prove the business of the deceased, the claimants have produced VAT registration certificate, electricity bills and telephone bill of the factory, income tax returns, savings bank account statements, current account statement, VAT returns; records, invoices, challans and tax invoices of the factory. The claimants have stated that the deceased was earning `4,00,000/- per annum. However, the claimants have not produced the split amount of income for the purpose of calculation of income per month. On the basis of the material evidence, the Tribunal has assessed the income of the deceased at `26,048/-, including the future prospects. The same is not correct. Therefore, the income of the deceased is taken as `20,037/-. The age of the deceased was 42 years. The appropriate multiplier would be 14. If 1/4th of the income is deducted towards personal expenses of the deceased, the loss of dependency would be `25,24,704/- (15028 x 12 x 14). Hence, `25,24,704/- is awarded towards ‘loss of dependency’ as against `32,82,048/- awarded by the Tribunal.
10. The Tribunal has awarded `10,000/- towards transportation of dead body and funeral expenses. The same is just and proper and is retained.
11. The Tribunal has awarded `50,000/- towards loss of consortium to the claimant No.1. The same is on the lesser side. Considering the age of the deceased and the loss caused to the claimants additional compensation of `50,000/- is awarded under the head ‘loss of consortium to the claimant No.1’.
12. The compensation of `2,00,000/- awarded by the Tribunal towards loss of love and affection to the claimant Nos.2 and 3, is just and proper.
13. Therefore, the claimants are entitled to compensation as follows:
Loss of dependency Transportation of dead body and funeral expenses Loss of consortium to the claimant No.1 Loss of love and affection to the claimant Nos.2 and 3 Loss of love and affection to 3rd respondent TOTAL 14. MFA No.8099/2016 filed by the claimants is dismissed and MFA No.7909/2016 filed by the insurance company is allowed in part. The claimants are entitled to compensation of `28,84,704/-.
Sd/- JUDGE AHB