IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A. No.7957 OF 2017 (MV) C/W M.F.A.CROB.NO.69/2018 In MFA.No.7957/2017 BETWEEN:
United India Insurance Company Limited Regional Office, Krushi Bhavan Hudson Circle, Bengaluru 560009 Represented By Its Deputy Manager A K Sinha …Appellant (By Sri L.Sreekanta Rao, Advocate) AND:
1. Smt Latha W/o Late Satish Aged about 30 years, 2. Kum S Monisha D/o Late S Sathish Aged about 10 years, 3. Mas Udaya Kumar S/o Late Sathish Aged about 8 years, 4. M V Shivananjappa S/o Late Veerappa Aged about 68 years, 5. Smt Soubhagyamma W/o M Shivananjappa Aged about 63 years Respondent Nos.1 to 5 are all Residing At Sathanur Village, Sathanur Hobli, Kanakapura Taluk, Ramanagaram District-562126 Respondent Nos.2 and 3 are minors Represented by their mother and natural Guardian 6. Sadar Ahmed S/o Safijan Chikkamalagudu Malavalli Taluk, Mandya District -562127 .... Respondents (R4 deleted as per the order of Hon’ble Court dated 08.03.2019) (R1 to R3 & R5 are treated as LRs of R4) (By Sri.Shripad V.Shastri, Advo. for R1 to 3 and 5, R2 and 3 minors represented by R1, R4-dead, R-1, 2, 3, & 5 are legal heirs of R4, R6-notice is dispensed with v/o dated 28.03.2018) MFA Filed U/S 173(1) Of MV Act against the Judgment And Award Dated:11.07.2017 Passed In MVC No.547/2016 on the file of The VIII Additional Small Causes Judge And XXXIII ACMM, Member- MACT, Bengaluru(SCCH-5), awarding compensation of Rs.22,79,000/- with interest at 9% P.A. from the date of petition till realization.
In MFA.Crob.No.69/2018 BETWEEN:
1. Smt Latha W/o Late S. Satish Aged about 31 years, 2. Kum. Monisha D/o Late S Sathish Aged about 11 years, 3. Mas Uday Kumar S/o Late Sathish Aged about 9 years, 4. Mr. M V Shivananjappa S/o Late Veerappa Aged about 69 years, (Since dead, Cross objector Nos.1, 2 3 and 5 are treated as his LRs) 5. Smt Soubhagyamma W/o M.V.Shivananjappa Aged about 64 years All the above cross objectors are R/at Sathanur Village & Post, Sathanur Hobli, Kanakapura Taluk, Ramanagaram District-562126 Cross objector Nos.2 and 3 are minors Represented by their mother and natural Guardian Smt. Latha .... Cross Objectors (By Sri.Shripad V.Shastri, Advocate) AND:
1. United India Insurance Company Limited Regional Office, Krushi Bhavan Hudson Circle, Bengaluru 560009 Represented By Its Deputy Manager A K Sinha 2. Sardar Ahmed, Major in aged, S/o Safi Jan, Chikkamalagudda, Malavalli Taluk, Mandya District. …. Respondents (By Sri.Sreekanta Rao, Adv. for R1, Notice to R2 is dispensed with) MFA.Crob in MFA.No.7957/2017 passed U/o 41 Rule 22 of CPC, against the Judgment and award dated 11.07.2017 passed on MVC.No.547/2016 on the file of the 8th Additional Small Cause Judge & 33rd ACMM, MACT (SCCH-5), Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These M.F.A. and MFA.Crob coming on for orders this day, the Court delivered the following:
J U D G M E N T MFA No.7957/2017 is filed by the Insurance Company and MFA CROB No.69/2018 is filed by the claimants challenging the judgment and award dated 11.07.2017 passed by VIII Additional Small Causes Judge and the MACT (SCCH-5) at Bengaluru in MVC.No.547/2016, whereby the Tribunal has granted a compensation of Rs.22,79,000/- with interest @ 9% p.a. from the date of petition till realization.
2. Brief facts of the case:
On 25.12.2015 at about 8.05 A.M., the deceased was riding his motor cycle bearing registration No.KA42-J-6390 from Sathanur to Nanjangud on T.Narasipura Nanjangud road near Aldur gate. When he reached near Aldur gate, at that time, the driver of bus bearing registration No.KA01-A-456 came from Aldur gate in a rash and negligent manner and dashed against the bike. As a result, deceased sustained severe head injuries and injuries all over the body. Immediately after the accident, he had been shifted to Government Hospital, T.Narasipura wherein first aid treatment was given and thereafter, he was shifted to K.R.Hospital, Mysore and thereafter to NIMHANS Hospital. During the course of treatment he succumbed to the injuries on 28.12.2015. Hence, wife, two children and parents of the deceased filed claim petition before the MACT seeking compensation.
3. To establish their case, the claimants have examined two witnesses and marked 27 documents. On the other hand, Insurance Company has neither examined any witnesses nor marked any documents. On appreciation of oral and documentary evidence, the Tribunal has granted the compensation of Rs.22,79,000/- with interest @ 9% from the date of petition till realization. Being aggrieved by the same, the Insurance Company and claimants have filed the present appeal and cross appeal.
4. Sri L.Sreekanta Rao, learned counsel appearing for the appellant-Insurance Company submits that while calculating the ‘loss of dependency’, the Tribunal has wrongly taken 30% of income as future prospects. In view of law laid down by the Hon’ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi and Others reported in (2018) 8 SCC 492, it should be 25%.
Further, he has contended that under the ‘conventional head’, the Tribunal has granted a compensation of Rs.11,25,000/- which is contrary to the law laid down by the Hon’ble Supreme Court as per the law laid down in Pranay Sethi’s case (supra). With this he prays for allowing the appeal filed by the Insurance Company.
5. Per Contra, learned counsel for the claimants submits that even though, deceased was running a cycle shop and also doing cable T.V. Maintenances and earning a sum of Rs.25,000/- p.m., the Tribunal has erred in taking only Rs.7,000/- per month as notional income. Further, the Tribunal has erred in taking 30% of the income towards future prospects instead of 40%. Therefore, he prays for allowing the cross appeal.
6. Heard learned counsel for the parties and perused material on record.
7. It is not in dispute that deceased Sri S.Sathish died due in the accident occurred on 25.12.2015 due to rash and negligent driving of the bus bearing registration No.KA01-A-456 by its driver.
8. As on the date of accident, the deceased was aged about 41 years and he was running a cycle shop. Even though the claimants have claimed that deceased was earning Rs.25,000/- per month, they have not produced any documents to establish that the same. Under these circumstances, the Tribunal was left with no other option, but to take the income of the deceased notionally. This Court in catena of cases has relied upon the chart prepared by this Court for assessing the notional income of the injured or the deceased as a guideline. According to the chart, for an accident of the year, 2015, the income should be taken notionally as Rs.9,000/- per month. Therefore, the learned Tribunal is unjustified in assessing the deceased’s income as merely as Rs.7,000/- per month, rather than Rs.9,000/- per month. Therefore, this Court enhances the income of the deceased from Rs.7,000/- to Rs.9,000/- per month.
9. As per the decision of the Hon’ble Supreme Court in the case of Pranay Sethi (stated supra), in case the deceased was self-employed or on a fixed salary, an addition of 25% of the established income should be the warrant where the deceased was between the age group of 40-50 years. Hence, the "loss of dependency" needs to be recalculated.
Total Income - 11,250 LESS: 1/4th towards personal expenses - 2,813 Actual Income 8,437 Loss of dependency (Rs.8,437X12X14 -
Rs.14,17,416 10. A bare perusal of the impugned award clearly reveals that the learned Tribunal has granted Rs.1,00,000/- towards ‘loss of consortium’, Rs.5,00,000/- towards ‘loss of estate’ and Rs.25,000/- towards ‘funeral expenses’ and Rs.5,00,000/- towards "loss of love and affection".
11. Keeping in mind, the law established by the Hon’ble Supreme Court in the case of Pranay Sethi (supra), the compensation granted under the conventional heads needs to be recalculated by this Court. Accordingly, a sum of Rs.40,000/- is awarded towards ‘loss of consortium’, Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘funeral expenses’.
In respect of "loss of love and affection", compensation of Rs.5,00,000/- granted by the Tribunal is on the higher side. Accordingly, the same is reduced to Rs.80,000/- (i.e., Rs.20,000 each to claimant Nos.2 to 5) The compensation of Rs.7,000/- granted by the Tribunal under the head “medical expenses” remains undisturbed.
12. Thus, the claimants are entitled for the
The compensation of Rs.22,79,000/- granted by the Tribunal is reduced to Rs.15,74,416/-.
13. Accordingly, MFA No.7957/2017 filed by the Insurance Company is allowed in part. MFA CROB No.69/2018 filed by the claimants is disposed of. The judgment and award dated 11.07.2017 passed by VIII Additional Small Causes Judge and the MACT (SCCH- 5) at Bengaluru in MVC.No.547/2016, stands modified.
14. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 9% per annum, from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of the certified copy of this judgment.
15. The apportionment shall be made in terms of the award of the Tribunal.
16. The amount deposited by the Insurance Company before this court shall be transferred to the concerned Tribunal forthwith.
I.A.No.1/2018 filed in MFA 7957/2017 does not survive for consideration and accordingly, it is dismissed.
Sd/- JUDGE rv