Shashikala K Vs Raghu

THE MANAGING DIRECTOR, CHOLAMANDALA M.S.GENERAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, 230,^5TH CROSS 12^TH MAIN ROAD SARASWATHIPURAM MYSURU-570 009.

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…RESPONDENTS

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(BY SRI.MURALIDHAR NEGAVAR, ADVOCATE FOR R2, VIDE ORDER DATED 12.04.2023, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.07.2020 PASSED IN MVC NO. 903/2019 ON THE FILE OF THE C/C III ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU, 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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ORAL JUDGMENT

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This appeal has been filed by the claimants being aggrieved by the judgment and award dated 17.07.2020 passed by the III Addl.District Judge and MACT at Mysuru (for

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NC: 2025:KHC:44607 MFA No. 4012 of 2020

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HC-KAR

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short `Tribunal'), in MVC No.903/2019 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 28.06.2019 at about 5.45 p.m, near BBC Colony Gate, Mysuru, deceased Kantharaju met with an accident due to rash and negligent driving of Bolero vehicle bearing registration No.KA-45-3031. As a result, the said Kantharaju sustained severe injuries and succumbed to injuries.

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It is the further case of the claimants that the deceased was aged 32 years and was earning Rs.25,000/- per month by working as a coolie. He was contributing his earnings to the family. Claimants are the wife, minor daughters and aged parents. With these reasons, they prayed to award compensation of Rs.29,00,000/-.

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Respondent No.1 was the owner and respondent No.2 was the insurer of the offending vehicle.

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HC-KAR

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Respondents denied the contentions of the claim petitioners. Respondent No.2 denied its liability to pay the compensation on the ground that accident occurred due to the negligence of rider of the motor cycle. 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 one witness as PW-1 and marked 10 documents as per Exs.P-1 to P-10. The respondent No.1 examined one witness as RW-1 and got marked the documents as Ex.R1 to R4.

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The Tribunal after hearing both the parties and

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appreciating the evidence on record, awarded Rs.15,92,600/-

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as compensation under following heads:

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Particulars	Amount in Rs.
Loss of love and affection	70,000
Transportation and funeral expenses	25,000
Loss of dependency	14,97,600
Total	15,92,600

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HC-KAR

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Being dissatisfied with the award passed by the Tribunal, the claimants have filed the present appeal seeking enhancement of the compensation.

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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 Kantharaju in the said accident are not in dispute. The Tribunal assessed the age of the deceased as 32 years and took notional income as Rs.9,000/- per month, applied multiplier as '16' and deducted 1/3^rd towards personal expenses and in all awarded compensation of Rs.15,92,600/-.

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12. T he Tribunal, after assessing the materials available

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on record, held that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver. The said finding is not challenged by respondents. Hence, there is no need to reconsider the same.

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13. The claimants contend that the deceased was

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earning Rs.25,000/- p.m. They were unable to substantiate the

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same. Therefore, the Tribunal has taken notional income of the deceased as Rs.9,000/-p.m., which appears to be on the lower side. Following the chart prepared by the Karnataka State Legal Services Authority, the notional income of deceased is taken as Rs.14,000/- per month. There is no dispute in respect of age and multiplier applicable.

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14. The Tribunal has added 30% of his income towards future prospects. As per the law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd., -vs- Pranay Sethi¹ , the Tribunal ought to have added 40% income towards future prospects, since the deceased was aged about 32 years at the time of the accident.

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15. The deceased left behind him four dependants. Widow, minor daughter and parents. Therefore, the Tribunal ought to have deducted 1/4^th of his income towards personal expenses instead of 1/3^rd . Undisputedly, multiplier applicable in this case is '16'. On the basis of the aforesaid factors, the amount of compensation is recalculated under the head `loss of dependency'.

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1 (2017) 16 SCC 680

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HC-KAR

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16. It is the further submission of learned counsel for the appellant that, as per the law laid down in Pranay Sethi's case (supra) and in the case of Magma General Insurance Co. Ltd., -vs- Nanu Ram Alias Chuhru Ram,² the amount of compensation awarded under the conventional heads are also on the lower side. Therefore, prayed to enhance the same.

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17. As per the law laid down in Pranay Sathi's case (supra) and Magma General Insurance Co. Ltd., case (supra), the Tribunal ought to have awarded compensation under the head loss of consortium to each claimant. In view of the above said reasons, the compensation awarded by the Tribunal requires re-assessment and enhancement.

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awarded:

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Particulars	Amount in Rs.
Loss of dependency	28,22,400
(Rs.14,000+40%x12x16x3/4)
Loss of consortium(40,000x4)	1,60,000
Funeral expenses	15,000
Loss of estate	15,000
Total	30,12,400

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2 (2018) SC 1247

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HC-KAR

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Amount awarded by the Tribunal	15,92,600
Enhancement	14,19,800
Rounded off-	14,20,000

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Thus, the claimants are entitled to enhanced

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compensation of Rs.14,20,000/- 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 respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Therefore, both the respondents are jointly and severally liable to pay the compensation.

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21. Accordingly, I proceed to pass the following:

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 17.07.2020 passed in MVC.No.903/2019 by the III Addl.District Judge and MACT, Mysuru, stands modified.

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iii) The claimants are entitled to enhanced compensation of Rs.14,20,000/- with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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