IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.9633 OF 2012 [MV] CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO.9076 OF 2012 [MV] IN MFA NO.9633/2012:
BETWEEN 1. MR. T.G.KEMPANNA @ KEMPAIAH, S/O. GANGAPPA, AGED ABOUT 72 YEARS, 2. SMT. AKKAYYAMMA, W/O. T.G.KEMPANNA @ KEMPAIAH, AGED ABOUT 67 YEARS, BOTH ARE RESIDENTS OF DODDATUMAKURU VILLAGE, MADHURE HOBLI, TAL: DODDABALLAPURA, DIST: BANGALORE. ... APPELLANTS [BY SRI. C.S.HIREMATH, ADVOCATE] AND 1. MR. K.VENKATESH, S/O. DODDAKAKAPPA, AGED ABOUT 50 YEARS, RESIDING AT #148, AMRUTHAHALLI VILLAGE, NEAR KATTARAMA TEMPLE, SHAKANAGAR POST, BANGALORE-560 092.
2. THE MANAGER, THE UNITED INDIA INSURANCE CO. LTD., #487/1, C.M.H. ROAD, [ABOVE INDIAN OVERSEAS BANK] NEAR AMAR JYOTHI NURSING HOME, INDIRANAGAR 1ST STAGE, BANGALORE-560 038. ... RESPONDENTS [BY SRI. K.S.VENKATARAMANA, ADVOCATE FOR R1.
SRI. B.A.RAMAKRISHNA, ADVOCATE FOR R2] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.07.2012 PASSED IN MVC NO.5046/2010 ON THE FILE OF THE VIII ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMNET OF COMPENSATION.
* * * IN MFA NO.9076/2012: BETWEEN UNITED INDIA INSURANCE COMPANY, NO.487/1, CMH ROAD, INDIRANAGAR 1ST STAGE, BANGALORE-560 038, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KRISHI BHAVAN, BANGALORE-560 001. ... APPELLANT [BY SRI. B.A.RAMAKRISHNA, ADVOCATE] AND 1. SRI. T.G.KEMPANNA @ KEMPAIAH, S/O. GANGAPPA, AGED ABOUT 72 YEARS, 2. SMT. AKKAYAMMA, W/O. T.G.KEMPANNA, AGED ABOUT 67 YEARS, BOTH ARE RESIDING AT DODDATUMAKURU VILLAGE, MADURE HOBLI, DODDABALLAPURA TALUK, BANGALORE DISTRICT.
3. SRI. K.VENKATESH, S/O. DODAKAKAPPA, MAJOR BY AGE, R/AT NO.148, AMRUTHAHALLI VILLAGE, NEAR KATTARAMMA TEMPLE, SAHAKARNAGAR POST, BANGALORE-560 092. ... RESPONDENTS [By SRI. C.S.HIREMATH, ADVOCATE FOR R1 & R2.
SRI. K.S.VENKATARAMANA, ADVOCATE FOR R3] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.07.2012 PASSED IN MVC NO.5046/2010 ON THE FILE OF THE VIII ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.3,27,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN COURT.
* * * THESE MFAs ARE COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.9633/2012 is filed by the claimants and MVC No.9076/2012 is filed by the Insurance company. Both the appeals are directed against the Judgment and Award dated 12.07.2012 passed in MVC No.5046/2010 on the file of the MACT-V, Court of Small Causes, Bengaluru City, wherein the Tribunal has awarded a total compensation of Rs.3,27,000/- with interest at 6% p.a. for the death of one Padmamma in a road traffic accident.
2. I have heard the learned counsel appearing on both side.
3. Brief facts of the cases are that;
On 17.04.2010 at about 6.45 p.m., the deceased Padmamma and her mother were crossing the road near Government Hospital, Doddaballapura. During that time, the driver of a tipper lorry bearing reg. No.KA-04/B-3425 by driving the said vehicle in a rash and negligent manner dashed against both of them and the tipper lorry ran over the head of deceased Padmamma. Due to the said impact, Padmamma died at the spot and her mother sustained bodily injuries.
The claimants are the parents of deceased Padmamma. The claim petition was filed seeking a total compensation of Rs.25,00,000/- for the death of Padmamma. Before the Tribunal, the parents of the deceased were examined as P.Ws.1 and 2. The brother of the deceased was examined as P.W.3. Exs.P1 to 17 were marked in their evidence.
The claim petition was opposed by the Insurance Company by filing the written statement. However, on behalf of the Insurance Company, no witnesses were examined and no documents were marked.
The Tribunal after considering the overall evidence on record awarded a total compensation of Rs.3,27,000/- with interest at 6% p.a. from the date of petition till the date of deposit.
4. It is the contention of the learned counsel appearing for the claimants that the deceased Padmamma was having an income of Rs.1,00,000/- p.m. from her poultry farm and therefore, the income taken by the Tribunal at Rs.3,000/- p.m. is not justified. It is further contended that the claimants have established that the deceased was aged about 42 years by producing two documents viz., Exs.P10 and 16 - I.D. cards, however, the Tribunal has taken the age of the deceased as 50 years while calculating the loss of dependency. He submits that the total compensation awarded is meagre and accordingly seeks to enhance the compensation awarded by the Tribunal by modifying the Judgment and Award passed therein.
Per contra, learned counsel appearing for the Insurance Company vehemently contended that deceased Padmamma was not at all having any income from the poultry farm as the said poultry farm was owned by her father. He submits that the parents of the deceased were not depending on the income of the deceased since the deceased was married. It is his contention that the husband of the deceased is alive and therefore, the claim petition itself was not maintainable for non-impleading the husband as one of the respondent. He would also contend that there is absolutely no evidence to establish the income of the deceased and therefore, the Tribunal was not justified in awarding the compensation to the claimants and accordingly seeks to allow the appeal filed by the Insurance Company and to dismiss the appeal filed by the claimants.
5. It is the case of the claimants that on 17.04.2010 at 6.45 p.m. when the deceased and her mother were crossing the road near Government Hospital, Doddaballapura, a tipper lorry bearing reg. No.KA-04/B-3425 driven by its driver in a rash and negligent manner dashed against them and the lorry ran over the head of the deceased. The said accident in which the deceased breathed her last owing to the actionable negligence on the part of the driver of the offending vehicle is not in dispute. The vehicle was insured.
6. It is the contention of the learned counsel appearing for the Insurance Company that when the deceased was married and the husband is alive, then the parents could not have maintained a claim petition without making the husband of the deceased as a party to the claim petition. It is also his contention that the parents were not depending on the income of the deceased and therefore, they are not entitled for any compensation. To appreciate the said contention raised by the learned counsel, it is relevant to appreciate the evidence adduced in this regard by the claimants. P.W.1 is the mother of the deceased, P.W.2 is the father of the deceased and P.W.3 is the brother of the deceased. The evidence on record discloses that the deceased was married about 25 years ago and she was staying along with her parents for the last 20 years. The whereabouts of the husband of the deceased was not known. The deceased was not having any issues. The husband of the deceased was from Doddaballapura but he was not residing at Doddaballapura. The evidence in this regard is consistent and there is nothing elicited in the cross-examination so as to discard the said evidence given by the witness. The material on record clearly discloses that the deceased got married about 25 years ago with one Muniyappa of Doddaballapura. However, his whereabouts are not known for the last two decades and since then the deceased was staying along with her parents.
7. The learned counsel for the Insurance Company contended that the husband of the deceased ought to have been a necessary party in the claim petition. However, from the material on record it is clearly established that the whereabouts of the husband of the deceased was not known for over 20 years and the deceased was living separately with her parents. The same shows that the husband was not at all depending on the deceased. Therefore, impleading the husband in the claim petition will not serve any purpose.
When it is categorically pleaded by the parents of the deceased that the husband of the deceased was not at all residing with her husband, then the husband is not entitled for any compensation.
8. According to the claimants, the deceased was earning a sum of Rs.1,00,000/- p.m. from the poultry farm. However, the evidence of P.Ws.1 to 3 goes to show that the deceased was working in an agricultural land as well as the poultry farm which was owned by P.W.2. P.W.2 has deposed that he is still running the poultry farm. As such, it cannot be said that the deceased was having an income of Rs.1,00,000/- p.m. from the poultry farm. The Tribunal has taken the notional income of the deceased at Rs.3,000/- p.m. considering that she was an agriculturist. However, considering the facts and circumstances of the case and also that the accident has occurred in the year 2010, the notional income of the deceased can be taken at Rs.5,500/- p.m.
9. The appellants are relying on Exs.P10 and 16 viz., two I.D. cards to contend that the deceased was aged about 42 years at the time of the accident. The said I.D. cards are in respect of the year 2007-08. The accident has occurred in the year 2010. However, in the deposition, the witnesses have stated that the deceased was aged about 50 years. Therefore, there is no consistency with regard to the age of the deceased. The Tribunal after considering the post- mortem report which is marked as Ex.P8 has taken the age of the deceased as 47 years as on the date of accident, which is in my view is just and proper.
10. Considering that the deceased was aged about 47 years at the time of the accident, an additional 25% to the income has to be added towards future prospects. The appropriate multiplier is ‘13’. The material on record clearly discloses that the claimants were not wholly depending on the deceased. The deceased was married and she was not having any issues. The poultry farm was owned by the father of the deceased i.e., one of the claimants herein and the deceased was working in the said poultry farm and therefore it cannot be said that the deceased was contributing 2/3rd of her income to the welfare of her parents. In the facts and circumstances of the present case, I deem it appropriate to deduct 50% of the income towards personal expenses of the deceased and accordingly, the claimants are entitled for a compensation of Rs.5,36,250/- [Rs.6,875 x 50% x 12 x 13] towards loss of dependency as against Rs.3,12,000/- awarded by the Tribunal. A sum of Rs.30,000/- is awarded towards loss to the estate, transportation of the dead body and funeral and obsequies expenses. A sum of Rs.40,000/- is awarded towards loss of love and affection. In all, the claimants are entitled for a total compensation of Rs.6,06,250/- as against Rs.3,27,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER MFA No.9633/2012 is allowed in part. M.F.A. No.9076/2012 is dismissed. The Judgment and Award dated 12.07.2012 passed in MVC No.5046/2010 on the file of the MACT-V, Court of Small Causes, Bengaluru City, is hereby modified.
The appellants/claimants are entitled for a compensation of Rs.6,06,250/- with interest at 6% p.a. from the date of petition till the date of deposit as against Rs.3,27,000/- awarded by the Tribunal. The amount shall be deposited by the Insurance Company within a period of four weeks from the date of receipt of a copy of this Judgment.
The amount in deposit before this Court shall be transmitted to the Tribunal.
Sd/- JUDGE.
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