Smt Mery Vs the Managing Partner

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17/11/2018, PASSED IN MVC NO.1149/2017, ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AND MEMBER, MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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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 MRS JUSTICE K.S.MUDAGAL and

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M. POONACHA)

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The above appeal is filed by the claimants challenging the judgment and award dated 17.11.2018 passed in MVC No.1149/2017 on the file of the II Additional Senior Civil Judge and MACT, Hassan¹ , seeking for enhancement of the quantum of compensation. The Tribunal vide its judgment and award, allowed the claim petition filed by the claimants in part and awarded a compensation in a sum of `13,30,000/- together

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1 Hereinafter referred to as the ‘Tribunal’

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with interest at 8% pa., and directed respondent No.2/insurer to pay the compensation awarded.

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The parties will be referred to as per their ranks

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before the Tribunal for the sake convenience.

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It is the case of the claimants that one Kumar² on 19.05.2017 was proceeding on vehicle bearing No. KA-05-X4544 along with one Sri. Rangegowda near Madenuru cross when a lorry bearing No. KA-20-B-1370 came from behind and hit the vehicle in which the deceased was traveling causing the accident in question. As a result of the accident, the deceased sustained grievous injuries and succumbed to the same. The wife, daughter, son and mother of the deceased filed the claim petition claiming compensation for the death of the deceased. The owner and insurer of the lorry were arrayed as respondent Nos.1 and 2 before the Tribunal.

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Claimant No.1 was examined as PW.1 and a witness as PW.2. Ex.P.1 to Ex.P.12 were marked in evidence. No oral or documentary evidence was adduced by the respondents. The Tribunal vide its judgment and award dated 17.11.2018 held that the driver of the lorry was responsible for causing the

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2 Hereinafter referred to as the “Deceased”

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accident in question and awarded total compensation of `13,30,000/- together with interest at 8% p.a., and directed respondent No.2 – insurer to pay the compensation awarded. Being aggrieved and seeking for enhancement of compensation the claimants have filed the above appeal.

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Heard learned counsel Sri H.J.Ananda for the appellants/claimants and learned counsel Smt.H.R.Renuka for respondent No.2/insurer. Respondent No.1/owner is served and unrepresented.

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It is contention of learned counsel for the claimants that income of the deceased assessed by the Tribunal is on the lower side. It is further contended that the compensation awarded on loss of consortium and other conventional heads is on the lower side.

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Per contra , learned counsel for the respondent No.2/insurer submits that the compensation awarded by the Tribunal is just and proper. It is further submitted that the interest awarded by the Tribunal is excessive.

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The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused.

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The deceased is stated to be a mason and agriculturist. The claimants have produced the certificate issued by the Secretary of Karnataka Building Construction Laborers Union (Ex.P.11) wherein it is stated that the deceased is working as mason and earning 650/- per day. The claimants have also produced RTC extract (Ex.P.9) to show that claimant was owning 2 acres of agriculture land. However, the said documents do not in any manner indicate the income of the deceased. The Tribunal has assessed income of the deceased at 9,000/- per month. Having regard to the avocation of the deceased, date of the accident and the then price index it is just and proper that the notional income of the deceased be reassessed as `11,000/- per month.

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The deceased was aged 44 years as is forthcoming from the Aadhaar card (Ex.P.12). Hence, 25% of the income is taken towards future prospects, having regard to the judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd V/S Pranay Sethi And Ors³ . Since there are four dependents, 1/4^th is deducted towards personal expenses having regard to the judgment of Hon’ble Supreme

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3 ” (2017)16 SCC 680”

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Court in the case of Sarala Verma (Smt) And Others V/S Delhi Transport Corporation And Another⁴ . Hence, the

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income for assessment of loss of dependency is reassessed as (11,000/- + 25% X ¾) 10,313/-. Having regard to the age of the deceased, the multiplier of ‘14’ assessed by the Tribunal is just and proper. Hence, the loss of dependency is re-assessed as (10,313/- X 12 X 14) 17,32,584/- as against `12,60,000/awarded by the Tribunal.

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The claimants are entitled to loss of consortium in terms of the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company V/S Nanu Ram Alias Chubru Ram And Ors⁵ ., and the loss of consortium is re-assessed with an escalation of 10% as (44,000/- X 4) 1,76,000/- as against 40,000/- awarded by the Tribunal. The compensation towards loss of estate and funeral expenses is required to be re-assessed at 16,500/each as against 15,000/- each awarded by the Tribunal.

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In view of the aforementioned, the compensation is re-assessed as follows:

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4 “(2009) SCC 121”

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5 “(2018)18 SCC 130 “

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Sl.No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1.	Loss of dependency	1260000.00	1732584.00
2.	Loss of consortium	40000.00	176000.00
3.	Loss of estate and love and affection	15000.00	16500.00
4.	Loss of funeral expenses	15000.00	16500.00
	Total	1330000.00	1941584.00

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Hence, the compensation awarded by the Tribunal is enhanced by (19,41,584/- - 13,30,000/-) `6,11,584/-. Interest on the enhanced amount is required to be awarded at 6% pa.

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Hence, the following:

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ORDER

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i. The appeal is allowed in part;

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ii. The appellants/claimants are entitled to enhanced compensation of `6,11,584/- with interest thereon at 6% per annum from the date of petition till realization;

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iii. Respondent No.2 – insurer shall deposit the enhanced compensation before the Tribunal within four weeks from the date of receipt of this order;

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iv. On such deposit, the Tribunal shall digitally release the enhanced compensation. The award of the Tribunal with regard to apportionment of the shares of the claimants is maintained.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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PNV/ ND

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List No.: 1 Sl No.: 41

Smt Mery v. the Managing Partner

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Smt Mery v. the Managing Partner

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