Mrs Hemalatha Vs Anthony Raj

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.02.2017 PASSED IN MVC NO.160/2016 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE AND XIX ACMM MEMBER-MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and

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HON'BLE MR. JUSTICE VENKATESH NAIK T

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NC: 2025:KHC:36501-DB MFA No. 3751 of 2017

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Heard learned counsel for the appellants and learned counsel for the respondents.

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The appellants-claimants have filed this appeal for enhancement of compensation being aggrieved by the judgment and award passed in MVC.No.160/2016 on the file of XXI Additional SCJ & XIX ACMM Member, MACT, Bangalore (SCCH-23) (for short, 'Tribunal') dated 09.02.2017.

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For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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Brief facts of the case are that, on 30.09.2015 around 9.10 pm, the appellant's husband was travelling on Mandya-Bangalore highway, in the car bearing Reg.No.KA04-MA-325, at that time the driver of the car drove the vehicle in a rash and negligent manner, lost control and came to right side of the road and crossing over the center

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HC-KAR

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median and dashed against KSRTC bus bearing Reg.No.KA-09-F-5249. As a result Mr.Mahesh Kumar (hereinafter referred to as 'the deceased') who was travelling in the said car and the car driver sustained multiple grievous injuries and succumbed to injuries on the spot. The said car belongs to respondent No.1 and is insured with respondent No.2. This led to registration of FIR and Investigation. Hence, the claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988.

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Sri Shripad V Shastri, learned counsel for the appellants vehemently contended that, the Tribunal has committed an error from deducting a sum of Rs.13,134/from the Gross salary of the deceased. The gross salary of

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the deceased including deduction towards his 'personal and living expenses' including Income Tax and Professional Tax.

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Further, the Tribunal has committed an error while deducting a sum of Rs.13,174/- on the premise that first

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NC: 2025:KHC:36501-DB MFA No. 3751 of 2017

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HC-KAR

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claimant being the widow wife would receive the said amount as pension on account of the death of her husband.

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Further, the Tribunal has also committed an error while deducting 1/3^rd from remaining amount of Rs.13,174/- - Rs.4,391/-(1/3^rd )=Rs.8,783/-. So the net monthly income of the deceased is Rs.8,783/-.

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Further, the Tribunal has not awarded fair and reasonable compensation under other conventional heads. Hence, he prays to allow the appeal.

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Smt. Geetharaj along with Sri Nikhil J, learned counsel for the Insurance Company vehemently supports the impugned judgment and award passed by the Tribunal and submits that the Tribunal considered the oral and documentary evidence on record and awarded just and reasonable compensation under each head which does not call for any interference on the hands of this Court. Thus, they pray for dismissal of the appeal.

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HC-KAR

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Having heard learned counsels for both the parties and on perusal of the appeal papers along with the original records, the point that would arise for our consideration in the appeal is:

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Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?

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In the instant appeal, the respondent-Insurance Company has not disputed the accident in question, the cause of death of the deceased and the liability to pay compensation to the claimants.

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Insofar as the quantum of compensation is considered, the Tribunal has considered the income of the deceased at Rs.39,503/- per month. The accident is of the year 2015 and the deceased was aged about 53 years at the time of accident. The deceased was working as FDA in Commissioner for public instructions (educational department of the Karnataka Government) and he was earning monthly salary of Rs.39,503/-. Thus, the annual

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HC-KAR

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income of the deceased comes to Rs.4,74,036/(Rs.39,503 x 12) and he was an income tax assessee and he was paying income tax.

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After standard exemption of Rs.2,50,000/-, the income of the deceased comes to Rs.4,51,433/- per annum.

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The Tribunal has not considered the future prospects of the deceased. The Hon'ble Supreme Court in the case

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of NATIONAL INSURANCE CO. LTD. Vs. PRANAY SETHI reported in (2017) 16 SCC 680 has held that, if the deceased is within the age group of 50 - 60 years, and

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a Government employee, then 15% of the income of the deceased would be added as future prospects. Hence, the future prospects comes to Rs.5,19,147/- (Rs.4,51,433 + 15%).

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The deceased had three dependants, hence 1/3^rd shall be deducted towards his personal and living expenses and 2/3^rd has to be considered for determining the

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HC-KAR

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compensation. Thus, 2/3^rd of Rs.5,19,147/- would be

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Rs.3,46,098/-.

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The deceased was aged about 53 years as on the date of accident. Hence, the applicable multiplier is '11'.

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Thus, the loss of dependency is reckoned as under:

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Rs.3,46,098 x 11 = Rs.38,07,084/-

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The Tribunal has committed an error by not awarding fair compensation under conventional heads. In view of the judgment of Hon'ble Apex Court in the case of MAGMA GENERAL INSURANCE CO. LIMITED VS. NANU RAM ALIAS CHUHRURAM AND OTHERS reported in (2018) 18 SCC 130 and PRANAY SETHI's case (supra) , the claimants are entitled towards ‘loss of consortium’ at Rs.40,000/- each which comes to the total of Rs.1,20,000/-, Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- for ‘funeral expenses’.

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HC-KAR

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Thus, the claimants are entitled for the following compensation:

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HEADS	Rs.
Loss of dependency	38,07,084
Loss of consortium	1,20,000
Funeral expenses	15,000
Loss of estate	15,000
TOTAL	39,57,084
Less: Compensation awarded by the Tribunal	12,59,356
ENHANCED COMPENSATION	26,97,728

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In the result, we pass the following:

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O R D E R

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i. The appeal is allowed-in-part .

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ii. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove. The claimants are entitled for a total compensation of Rs.39,57,084/- as against Rs.12,59,356/- awarded by the Tribunal with interest at the rate of 6% per annum on the enhanced compensation of Rs.26,97,728/- from the date of filing of the claim petition till the date of its realisation.

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