IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A NO.8875 OF 2017 (MV) BETWEEN:
1. Smt.Sunandamma, W/o late Manjunatha, Aged about 25 years, 2. Kushal, S/o late Manjunatha, Aged about 07 years, 3. Smt.Kariyamma, W/o late Neralappa @ Eranna, Aged about 57 years, 2nd Appellant is minor, Represented by her natural Mother and guardian – 1st appellant, All are residents of Oojagunte, Gollarahatti Village, Kasaba Hobli, Sira Taluk – 572 137.
… Appellants (By Sri. Shantharaj K, Advocate) AND 1. The Managing Director M/s. V R L Logistics Ltd., Regd. and Administrative Office, Bengaluru Road, Varur Hobli, Dharwad District – 580 001.
2. The Branch Manager, United India Insurance Company Ltd., Branch Office, P.B. No.54, 1st Floor, Jayadeva Complex, B.H.Road, Tumkur City – 572 101.
… Respondents (By. Sri. Jwala Kumar, Advocate for R.2; Notice to R1 is d/w v/o dtd 12.12.17) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 16.03.2017 passed in MVC No.705/2015 on the file of the Senior Civil Judge & Additional MACT, Sira, partly allowing the claim petition for compensation and seeking enhancement of compensation and etc.
This appeal coming on for Admission this day, the court delivered the following:
J U D G M E N T Heard. Admit.
2. This appeal by the claimants is directed against the impugned judgment and award dated 16.03.2017, whereby the Tribunal awarded total sum of Rs.9,92,000/- in favour of the appellants on account of the death of late Manjunatha in a fatal road accident that occurred on 03.01.2015.
3. Though the matter is listed for admission, with the consent of both sides, the matter is taken up for final disposal.
4. Both counsel submits that the occurrence of the accident as well as the coverage of the policy to the offending vehicle are not in dispute. The present appeal is restricted to the quantum of compensation awarded by the Tribunal.
5. Learned counsel for appellants submits that the Tribunal committed an error in taking the notional income of the deceased as Rs.7,500/- instead of Rs.11,000/- as per the judgment and award dated 28.11.2017 passed by this Court in MFA No.7961/2017, which arose out of the same accident. It is, therefore, contended that by virtue of the aforesaid judgment and award, it would be just and proper to take the notional income of the deceased as Rs.11,000/- per month.
6. Consequently, it is contended that the Tribunal committed an error in not adding 40% towards the future prospects in the light of the judgment of the Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi reported in (2017) SC 5157, in view of the fact that the deceased was aged about 25 years on the date of the accident. It is also contended that the Tribunal committed an error in deducting 20% on account of contributory negligence despite the fact that in aforesaid MFA No.7961/2017 (MVC No.800/2015) arising out of the same accident, this Court affirmed the findings of the Tribunal that there was no contributory negligence on the part of the deceased. Under these circumstances, the appellants request this Court to enhance the compensation awarded in favour of the appellants as submitted supra.
7. Per contra, learned counsel for respondents would support the impugned judgment and award.
8. I have given my careful consideration to the rival submissions and perused the materials on record. As rightly contended by the learned counsel for the appellants, the notional income for the purpose of assessing loss of dependency is to be taken as Rs.11,000/- per month in the light of the judgment and award dated 28.11.2017 passed by this Court in MFA No.7961/2017, wherein it was held as follows;
“Heard the learned counsel for both the parties. Appeal is for enhancement of compensation. Mother is the only claimant. Deceased claimed to be died in road accident at the age of 22 years. As per the evidence of the mother he was doing sheep business and agricultural coolie and was earning about Rs.15,000/- per month. This has been objected by the respondent and stated that income has not been proved, no one has been examined. The Tribunal has assessed the income of the deceased as Rs.7,500/-. The respondents support the order of the Tribunal.
2. In the backdrop of the case and also having gone through the certified copy of the LCR, produced by the appellant, it is examined and found that a notional income of the appellant should have been assessed around Rs.11,000/- per month. Therefore the compensation under the head loss of dependency is Rs.11,88,000/- (11,000x1/2x12x18). Under the conventional heads Rs.40,000/- is awarded. In total compensation comes to Rs.12,28,000/- (Rupees Twelve Lakhs Twenty Eight Thousand Only) which shall carry interest as awarded by the Tribunal. Rs. 8,00,000/- (Rupees Eight Lakhs Only) is to be deposited in the Nationalized Bank for a period of ten years and the remaining amount is to be credited to the bank account of the claimant. The appellant is entitled to draw interest periodically.”
Accordingly, the national income for the purpose of assessing loss of dependency is to be taken as Rs.11,000/- per month.
9. Learned counsel for the appellants is right in contending that that the Tribunal has committed an error in not adding 40% toward loss of future prospects as held by the Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi Pranaysathi stated supra.
10. Accordingly, for the purpose of assessing the loss of dependency 40% of the aforesaid notional income of Rs.11,000/- is to be added, which comes to Rs.15,400/-. By deducting 1/3rd towards personal expenses, sum of Rs.10,267/- is to be reckoned for the purpose of assessing loss of dependency. Thus, the appellants are entitled Rs.10,267 x 18 = Rs.22,17,672/- towards loss of dependency.
11. Learned counsel for the appellants is also correct in contending that the Tribunal come to a wrong conclusion that 20% is to be deducted towards contributory negligence. In this context, he invited my attention to the aforesaid judgment and award passed in MFA No.7961/2017 (MVC No.800/2015), which was affirmed by this Court coupled with the undisputed fact that the deceased Manjunatha involved in the present case as well as the deceased Eranna who was involved in MFA No.7961/2017, were both pedestrians who had died by virtue of the very same accident. Under these circumstances, it is clear that the Tribunal committed an error in coming to the conclusion that the deceased Manjunatha was guilty of contributory negligence to the extent of 20% particularly when there was absolutely no legal or acceptable evidence adduced by the respondents to establish that the deceased Manjunath was guilty of contributory negligence. Under these circumstances, I am of the opinion that the findings of the Tribunal that 20% is to be deducted towards contributory negligence is liable to be set-aside. Accordingly, the compensation has to be re-worked as hereunder;
Loss of dependency Rs.22,17,672.00 Consortium Rs. 1,00,000.00 Funeral Expenses and Transportation Rs. 15,000.00 Loss of estate Rs. 15,000.00 Total Rs.23,47,672.00 12. The Tribunal has awarded a sum of Rs.9,92,000/-. Thus, the appellants are entitled to additional compensation of Rs.13,55,672/- with interest at 6% p.a. from the date of claim petition till realization. In view of the aforesaid discussions, I pass the following;
ORDER (i) The appeal filed by the claimants is hereby partly allowed.
(ii) The impugned judgment and award dated 16.03.2017 passed by the Tribunal in MVC No.705/2015 is hereby modified.
(iii) The appellants are entitled additional enhanced compensation of Rs.13,55,672/- together with interest at 6% p.a. from the date of claim petition till realization.
(iv) The entire compensation is to be paid by respondent No.2 – Insurance Company, who will deposit the said amount within a period six weeks from today.
(v) The apportionment of the enhanced compensation amount is to be done as per the directions of the Tribunal.
Sd/- JUDGE NBM