Smt Lakshmamma Vs Sri Ramakrishna

THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE-2, NO.2912, SRIKANTESWARA PLAZA, 1^ST MAIN, SARASWATHIPURAM, MYSURU-570 009.

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…RESPONDENTS

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(BY SRI. RAVISH BENNI, ADVOCATE FOR R2, R1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.09.2019 PASSED IN MVC NO. 1200/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MALAVALLI,PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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HC-KAR

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ORAL JUDGMENT

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This appeal has been filed by the claimants against the judgment and award dated 13.09.2019 passed by the Senior Civil Judge and MACT, Malavalli (for short `Tribunal'), in MVC No.1200/2016 seeking enhancement of compensation.

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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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The brief facts of the case of both the parties before the Tribunal were that :

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On 14.09.2016, at about 11:45 a.m., the deceased Chikkadasegowda met with an accident due to rash and negligent driving of crane bearing registration No.TN-09-BL7552, due to which the petitioner sustained fatal injuries and succumbed to injuries.

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It is further case of the claimants that the deceased

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was aged 60 years and earning Rs.20,000/- by running a petty shop. He was contributing his earnings towards maintenance of the family. Claimants are the wife and children of the deceased.

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HC-KAR

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With these reasons, they prayed to award compensation of Rs.37,10,000/-.

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5. Respondent No.1 was the owner and respondent

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No.2 was the insurer of the offending crane. Respondent No.1 remained exparte before the Tribunal.

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The respondent No.2-insurer filed its written statement, denying the averments of the claim petitioner. It denied its liability to pay the compensation on the ground that accident occurred due to the negligence of rider of tricycle. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the

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Tribunal framed necessary issues, for its determination.

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The claimants to prove their case examined two witnesses as PW-1 and PW-2 and marked 10 documents, as per Exs.P-1 to P-10. The respondent examined one witness as RW-

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1 and marked the documents as Exs.R1 and R2.

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HC-KAR

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The Tribunal after hearing both the parties and

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appreciating the evidence on record, awarded Rs.7,88,000/- as

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compensation under following heads:

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Particulars	Amount in Rs.
Loss of dependency	6,48,000
Loss of consortium	25,000
Loss of love and affection	70,000
Transport, funeral and obsequies	15,000
ceremony expenses
Loss of estate	15,000
Loss of expectancy	15,000
Total	7,88,000

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10. Heard the arguments of the learned counsel appearing for the claimants as well as learned counsel for respondents.

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11. The fact of the accident and death of

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chikkadasegowda in the said accident are not in dispute. The main contention of the learned counsel for the appellant is that the Tribunal has not assessed the income of the deceased properly. The Tribunal accepted the age of the deceased as 60 years but has not added future prospects of 10% as held by the Hon'ble Apex Court in the case of National Insurance Co. Ltd.,

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HC-KAR

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vs Pranay Sethi¹ . He further contends that deceased left behind six dependants i.e wife, sons and daughters. The Tribunal deducted 1/3^rd instead of 1/5^th towards personal expenses. He further contended that the amount of compensation awarded under head loss of consortium and love and affection is meagre and law laid down by the Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram² is not followed. Therefore, prayed to allow the appeal and enhance the compensation.

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12. Learned counsel for respondent No.2-insurer vehemently contends that the claimant Nos.2 to 6 are major sons and might be having their own source of income and they shall not be considered as dependants of the deceased. The Tribunal rightly deducted 1/3^rd of the income of the deceased towards personal expenses and this does not call for interference. He further contends that the Tribunal has awarded proper amount of compensation under the head 'loss of consortium' and 'loss of love and affection', and it also does not call for interference. He further contends that the insurer

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1 (2017) 16 SCC 680

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2 (2018) ACJ 2782

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HC-KAR

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died at the spot. T herefore, the claimants are not entitled to compensation for loss of expectancy of life, and the amount awarded under that head is liable to be set aside. He further contends that although the insurer has not filed any appeal against the impugned judgment, this Court, under Order 41 Rule 22 of the CPC, may still examine the issue of just compensation and the award of amounts under unspecified heads.

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13. Looking at the impugned judgment and materials placed on record, the contention of the appellant is partly acceptable. The Tribunal has taken the income as Rs.9,000/per month, which is on the lower side. Following the chart prepared by the Karnataka State Legal Services Authority, the notional income of the deceased is taken as Rs.9,500/- per month. Undisputedly, the deceased was aged about 60 years at the time of accident and therefore as per the law laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra), 10% of his income has to be added towards his future prospects. The same is not considered by the Tribunal. The claimants were six in number, who are said to be residing

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HC-KAR

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together in the same house. Learned counsel for the appellant submits that in the petition averments, it is mentioned that they were dependent on the income earned by the deceased. Under these circumstances, it cannot be concluded that they were not dependent solely on the ground that they were majors. As per the judgment of the Hon'ble Apex Court, in the case of Sarla Verma vs Delhi Transport Corporation and others,³ as well as Pranay Sethi (referred supra), 1/4^th has to be deducted towards personal expenses. The multiplier applicable to the facts of the present case is '9'. On the basis of the aforesaid factors, the amount of compensation is recalculated under the head `loss of dependency'

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14. As per the law laid down in Pranay Sathi's case (supra) and Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram⁴ , the claimants being wife and children are entitled to compensation under the conventional heads. Hence, claimant Nos.1 to 6 are entitled to compensation under the head `loss of consortium' and remaining conventional heads.

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3 (2009) 6 SCC 121

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4 (2018) ACJ 2782

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HC-KAR

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15. Accordingly, the following compensation is

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awarded:

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Particulars	Amount in Rs.
Loss of dependency (Rs.9500+10%x12x9x3/4)	8,46,450
Loss of consortium(Rs.40,000x6)	2,40,000
Funeral expenses	15,000
Loss of estate	15,000
Total	11,16,450
Amount awarded by the Tribunal Enhancement Rounded off-	7,88,000 3,28,450 3,29,000

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Thus, the claimants are entitled for enhanced

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compensation of Rs.3,29,000/- with interest at 6% p.a. on the enhanced amount from the date of petition till its realization.

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It is not in dispute that respondents are jointly and

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severally liable to pay the compensation.

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Accordingly, I proceed to pass the following:

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HC-KAR

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ORDER

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i) The Appeal is allowed in part . ii) The judgment and award dated 13.09.2019 passed by the Senior Civil Judge and MACT, Malavalli in MVC.No.1200/2016 stands modified.

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iii) The claimants are entitled to enhanced compensation of Rs.3,29,000/with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization excluding the delayed period of 94 days in filing the appeal.

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