Smt Gangamma Vs the Deputy Commissioner

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.11.2019 PASSED IN MVC NO. 350/2019 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Whether the compensation awarded to the claimants/appellants under the impugned award in MVC No.350/2019 on the file of VI Additional District and Sessions Judge, Tumakuru is just is the question involved in this case.

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Appellant No.1 is the wife and appellant Nos.2 and 3 are the daughters of deceased Lakshmaiah. On 07.12.2018, at 1.00 p.m., when deceased Lakshmaiah was standing by the side of the road in bus stop near Shivashankar Medical College, situated in the jurisdiction of Tumakuru Rural Police Station, a Mahindra Scorpio car bearing registration No.KA-06-P-9533 hit

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him and caused grievous injuries. He was shifted to Siddhartha Medical College Hospital. He succumbed to the injuries on the same day at 2.00 p.m. in the hospital.

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The appellants filed MVC No.350/2019 contending that the deceased was working as a Mason and earning 15,000/- per month. They claimed that they were dependent on his income and due to his sudden death, they have suffered damages to the tune of 30 lakhs. They claimed that the respondent being the owner of the car is liable to pay the said compensation.

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The respondent contested the petition denying the occurrence of accident, due to the actionable negligence on the part of the driver of the car, age, occupation, income of the deceased and its liability to pay the compensation.

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Before the Tribunal, the 1^st claimant was examined as PW.1 another witness was examined as PW.2 and Exs.P1 to P11 were marked. The respondent did not adduce any evidence. The Tribunal on hearing the parties, by the impugned award held that the accident and consequential death of Lakshmaiah occurred due to the actionable negligence on the

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part of the driver of car bearing No.KA-06-P-9533 which was owned by the respondent. The Tribunal notionally assessed the income of the deceased at 9,500/-, considered his age as 54 years, added 10% to the income of the deceased by way of future prospects, deducted 1/3<sup>rd</sup> out of his income for his personal expenses, applied ‘11’ multiplier and awarded compensation of 9,19,644/- towards loss of dependency. The Tribunal in all awarded compensation of `10,05,000/- under different heads as follows:

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Loss dependency	9,19,644/-
Loss of consortium	40,000/-
Loss of estate	15,000/-
Funeral expenses	15,000/-
Loss of Love and affection	15,000/-
Total	10,04,644/-
	Rounded of 10,05,000/-

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Sri Gopal Krishna, learned counsel for the

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appellants submits that the evidence on record shows that the claimant was working as a Mason. Hence, the notional income assessed by the Tribunal is on the lower side. He further

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submits that the compensation awarded on the other heads is on the lower side.

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Per contra, Sri Narasimhan Sampath, learned

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CGSC., submits that there was no proof of age of the deceased, he would have been aged about 60 years. He submits that the notional income considered by the Tribunal and the compensation awarded on other heads are just one.

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The respondent has not challenged the finding of the Tribunal that Lakshmaiah died in the accident caused by the driver of car bearing No.KA-6-P-9533 due to his actionable negligence. The relationship of the claimants with the deceased

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and the respondent owning the offending car is also not in dispute. Though it is contended that the deceased was aged 60 years, to substantiate the same, no evidence was adduced. As against that the postmortem report shows that the deceased was aged 54 years. Even PW.1 in her cross examination stated that at the time of accident, the deceased was aged 54 years. Therefore, the Tribunal was justified in considering the age of the deceased as 54 years.

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9. Though the claimant contended that the deceased

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was earning 15,000/- per month by doing Masonry work, no evidence was adduced to prove the actual income. The accident has taken place in the year 2018. Considering the age of the deceased, nature of his work and wage rates at the relevant point of time, notional income considered by the Tribunal is on the lower side. It is just to consider the notional income of the deceased as 12,500/-. As per the judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi & Ors.¹ and considering the age of the deceased, 10% has to be superadded to the income of the deceased by way of future prospects. As the deceased had three dependants, in view of the judgment of Hon’ble Supreme Court in the case of Sarla Verma & Ors. vs. Delhi Transport Corporation & another² , 1/3^rd has to be deducted out of the income for his personal expenses and applicable multiplier is 11. Therefore, the compensation payable on the head of loss of dependency is (12,500/- + 1,250 = 13,750 X 2/3 = 9,167/- X 12x11 =) `12,10,044/-.

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1 AIR 2017 SC 5157

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2 2009 (6) SCC 121

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As per the judgment of the Hon’ble Supreme Court

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in the case of Pranay Sethi (supra) and Magma General Insurance Company Ltd. v. Nanu Ram³ , the claimants are entitled to the compensation of 40,000/- each on the head of loss of consortium with escalation at 10%. They are entitled to compensation of 15,000/- + `15,000/- under the head of loss of estate and funeral expenses with escalation at 10%.

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For the aforesaid reasons, just compensation

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payable is as follows:

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Sl. No.	Heads		Amount awarded by this Court (`)
1.	Loss of dependency		12,10,044/-
2.	Loss of consortium		1,32,000/-
3.	Loss of estate		16,500/-
4.	Funeral expenses		16,500/-
	Total		13,75,044/-
	Less: awarded Tribunal	by	10,05,000/-
	Enhancement		3,70,044/-

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Hence, the claimants are entitled for enhanced compensation of `3,70,044/- with interest @ 6% per annum.

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3 2018 (18) SCC 130

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13. Hence, the following:

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ORDER

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The appeal is partly allowed.

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Claimants are held entitled to enhanced compensation of `3,70,044/- with interest thereon at 6% p.a. from the date of petition till its realization.

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Respondent shall deposit the enhanced compensation before the Tribunal within six weeks from the date of receipt of copy of this judgment.

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On such deposit, the Tribunal shall digitally release the said amount to the claimants in the ratio of shares apportioned by the Tribunal under the impugned award.

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Registry shall transmit the records to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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BS

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List No.: 1 Sl No.: 37

Smt Gangamma v. the Deputy Commissioner

Case brief

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Smt Gangamma v. the Deputy Commissioner

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