Shobha K Vs Anand

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 10-3-2021 PASSED IN M.V.C. NO.851 OF 2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, AND MEMBER, M.A.C.T., MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL IS 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 HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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

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This appeal is filed by the claimants aggrieved by the

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judgment and award dated 10-3-2021 passed in M.V.C. No.851 of 2019 on the file of the VII Additional District and Sessions Judge, Mysuru, whereby, the Tribunal awarded a sum of Rs.18,32,552/- as compensation with interest at the rate of 6% per annum from the date of petition till the date of deposit.

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HC-KAR

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For the sake of convenience, the parties herein shall

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be referred to in terms of their status before the Tribunal.

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Brief facts of the case are that on 5-5-2019 at 11.30 a.m., Sri Nanjundaswamy K.S. (hereinafter referred to as 'deceased') was proceeding in his motorcycle, bearing Registration No.KA-55 H-5220, at old Mysuru-Bengaluru Road towards Columbia Asia Junction, the driver of lorry, bearing Registration No.KA-10 7788, drove it in a rash and negligent manner, came from opposite direction and dashed against the motorcycle of the deceased. The deceased fell down and sustained grievous injuries. Immediately, he was shifted to Columbia Hospital, but the Doctor declared him as

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'brought dead'. Due to his death, wife and children lost their dependency and hence, claimed compensation on various heads.

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Heard Sri Shantharaj K., learned counsel for the appellants-claimants, Sri C. Shankar Reddy, learned counsel for respondent No.2-Insurance Company and perused the judgment and award of the Tribunal.

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HC-KAR

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Learned counsel for the appellants-claimants has contended that prior to the accident, the deceased was working as a car driver and earning a sum of Rs.20,000/- and in order to substantiate this aspect, the claimants have furnished the driving licence, which is marked as Ex.P9. However, the Tribunal has considered the income of the deceased at Rs.13,250 per month, which is on lower side. Hence, he prays to enhance the compensation.

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Per contra , the learned counsel for respondent No.2Insurance Company, supports the impugned judgment and award of the Tribunal and submits that considering the oral and documentary evidence on record, the Tribunal awarded just and reasonable compensation under each heads, which does not call for interference at the hands of this Court. Thus, he prays to dismiss the appeal.

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As there is no dispute regarding the death of the deceased in a road traffic accident occurred on 5-5-2019 due to rash and negligent driving of the lorry, bearing Registration No.KA-10 7788, by its driver and

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HC-KAR

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liability of the insurer of the offending vehicle, the only point

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that arises for our consideration in this appeal is:

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“Whether the quantum of compensation awarded

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by the Tribunal is just and reasonable or does it call for enhancement?”

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After hearing both the learned counsel and perusal

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of the impugned judgment and award of the Tribunal, we are of the view that the compensation awarded by the Tribunal is not just and reasonable and it is on lower side. The Tribunal

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has taken the income of the deceased at Rs.13,250/- per month without any proof. No documentary evidence is placed on record with regard to income of the deceased. In the absence of any proof of income, taking note of the Circular issued by the Karnataka Legal Services Authority as well as

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the High Court Legal Services Committee, Bengaluru, we deem it appropriate to reassess the notional income of the deceased at Rs.14,000/- per month.

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HC-KAR

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As per the dictum of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680 , 25% of the income has to be added towards future prospects, which comes to Rs.3,500/- (14,000 X 25%). Thus, the total salary would be Rs.17,500/- per month (14,000 + 3,500), annually it will be Rs.2,10,000/- (17,500 X 12). There are three dependents, as such 1/3^rd of income of the deceased has to be deducted towards his personal expenses, i.e. Rs.2,10,000 X 1/3 = Rs.70,000/-. After deduction, the amount to be contributed to his family would be Rs.1,40,000/- (2,10,000/minus 70,000/-). Considering the age of the deceased, ‘13’ multiplier would be applicable. Thus, the compensation payable under the head of ‘loss of dependency’ would be Rs.18,20,000/- (1,40,000 X 13).

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In the case of Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and Others reported in (2018) 18 SCC 130 , the Hon’ble Apex Court by referring to the decision of the Constitution Bench in Pranay Sethi's case, stated supra, has discussed about granting the

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HC-KAR

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compensation under the head of ‘loss of consortium’ and has also issued guidelines for grant of ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’. The claimants are the wife and children of the deceased. In view of the ratio laid down by the Hon’ble Apex Court in the aforesaid decision, the claimants are entitled to compensation of Rs.1,20,000/(Rs.40,000/each) towards ‘loss of consortium’ as against Rs.80,000/- awarded by the Tribunal.

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Further, Rs.15,000/- towards 'funeral expenses' and Rs.15,000/- towards 'loss of estate' awarded by the Tribunal are maintained.

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Thus, the claimants are entitled for the following

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compensation:

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HEADS	Rs.
Loss of dependency	18,20,000.00
Funeral expenses	15,000.00
Loss of estate	15,000.00
Loss of consortium (Rs.40,000 X 3 dependents)	1,20,000.00
TOTAL	19,70,000.00
Less: Compensation awarded by the Tribunal	18,32,552.00
ENHANCED COMPENSATION	1,37,448.00

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HC-KAR

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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.19,70,000/- as against Rs.18,32,552/- awarded by the Tribunal with interest at the rate of 6% per annum on the additional compensation of Rs.1,37,448/- from the date of filing the claim petition till the date of realisation.

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iii. Respondent No.2-Insurance Company is directed to deposit the additional compensation together with interest within four weeks from the date of receipt of a copy of this judgment.

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