The Manager Vs Smt Rathna

THE MANAGER, THE ORIENTAL INSURANCE CO.LTD., JAYADEVA HOSPITAL, B.H.ROAD, TIPTUR, TUMKUR DISTRICT. NOW REPRESENTED BYM/S THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, 2^ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBBALLI - 580 020, REPRESENTED BY ITS REGIONAL MANAGER.

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…APPELLANT

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Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA

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(BY SRI. SURESH K.,ADVOCATE)

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AND:

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SMT RATHNA W/O.SRI. SADASHIVA ACHAR AGED ABOUT 50 YEARS

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SRI. J GIRISH S/O SRI. JANARDHANA ACHAR AGED ABOUT 44 YEARS

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SMT. SANDYA W/O SRI. RAVI ACHAR AGED ABOUT 41 YEARS

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HC-KAR

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SMT. GAYATHRI, W/O SRI. SUBBARAYA ACHAR AGED ABOUT 39 YEARS

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SRI. RAGHAVENDRA ACHAR, S/O SRI. JANARDHANA ACHAR AGED ABOUT 37 YEARS

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SMT. SOWNYA W/O SRI GURURAJ AGED ABOUT 35 YEARS

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ALL ARE PERMANENTLY RESIDING AT BESIDE LAKSHMIDEVI TEMPLE, CHIKKA GARADI BEEDI, HASSAN- 573 201.

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ALL THE PETITIONERS ARE PRESENTLY RESIDING AT MAHALAKSHMI LAYOUT, GAYATHRU BADAVANE, CHANNARAYAPATNA TOWN, HASSAN DISTRICT- 573 201.

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SMT. MEENAKSHI W/O SRI C.P.KUMAR AGED ABOUT 46 YEARS R/O MAHALAKSHMI LAYOUT, CHANNARAYAPATNA.

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…RESPONDENTS

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(BY SRI. A.K. BHAT, ADVOCATE FOR SRI. S.RAJU, ADVOCATE FOR R2, R1, R3 TO R7 ARE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.11.2014 PASSED IN MVC NO.731/2014 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, ADDITIONAL MACT, CHANNARAYAPATNA, AWARDING A COMPENSATION OF RS.3,99,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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HC-KAR

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IN MFA NO. 3689/2016

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BETWEEN:

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SMT. RATHNA W/O SADASHIVA ACHAR, AGED ABOUT 51 YEARS,

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SRI.J.GIRISH S/O JANARDHANA ACHAR, AGED ABOUT 45 YEARS,

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SMT.SANDYA W/O RAVI ACHAR, AGED ABOUT 42 YEARS,

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SMT.GAYATHRIS W/O SUBBARAYA ACHAR, AGED ABOUT 40 YEARS,

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SRI.RAGHAVENDRA ACHAR W/O JANARDHANA ACHAR, AGED ABOUT 58 YEARS,

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SMT.SOWMYA W/O GURURAJ, AGED ABOUT 36 YEARS,

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ALL ARE PERMANENTLY RESIDING AT BESIDE LAKSHMIDEVI TEMPLE, CHIKKA GARADI BEEDI, HASSAN.

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ALL THE APPELLANTS NO.1 to 6 ARE PRESENTLY RESIDING AT MAHALAKSHMI LAYOUT, GAYATHRI BADAVANE, CHANNARAYAPATNA TOWN, HASAN DISTRICT - 574 101.

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...APPELLANTS

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(BY SRI. A.K BHAT, ADVOCATE FOR SRI. RAJU S, ADVOCATE )

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HC-KAR

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AND:

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SMT MEENAKSHI W/O C.P.KUMAR, AGED ABOUT 48 YEARS, R/AT MAHALAKSHMI LAYOUT, CHANNARAYAPATNA-572 159.

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THE MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, JAYADEVAL HOSPITAL, B.H.ROAD, TIPTUR TUMKUR DISTRICT-572 131.

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BRANCH OFFICE, THE MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, SUBASH SQUARE, HASSAN- 574 101.

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...RESPONDENTS

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(BY SRI. K SURESH, ADVOCATE FOR R2, R1-SERVED, BUT UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.11.2014 PASSED IN MVC NO.731/2014 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MACT, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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HC-KAR

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ORAL COMMON JUDGMENT

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These appeals arise out of judgment and award dated 7^th November 2014, passed by the Fast Track Court and Addl.M.A.C.T., Channarayapatna, (for short `Tribunal'), in MVC No.731/2014. Claimants filed MFA.No.3689/2016 and the Insurance Company filed MFA.No.79/2014. Insurer challenged the said judgment on the ground of non-joinder of necessary parties and entitlement of the claimants to claim compensation. Claimants have filed the appeal for enhancement of compensation.

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Both the appeals arise out of common judgment and award, therefore they are taken up together for disposal.

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Though appeals are slated for admission, with

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consent of learned advocates appearing for both the sides, they are taken up for final disposal.

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HC-KAR

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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Brief facts of the case are that, on 06.05.2012, at about 7.00 p.m., deceased Rajanna was traveling in a Bolero Jeep bearing registration No.KA-13-M-8834, from Hassan to Channarayapatna. When they reached near Katharighatta gate, on National Highway No.48, driver of the said jeep drove the vehicle in a rash and negligent manner and hit the Santro car bearing registration No.KA18-N-8069, as a result of which Rajanna sustained grievous injuries and succumbed to the injuries at the spot. The deceased was aged about 30 years and he was a mechanic in TVS Showroom and earning Rs.12,000/- per month. He was contributing his earnings to the member of his family i.e., claimants. With these reasons, claimants prayed to award the compensation of Rs.16 lakhs.

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Claimants are sisters and brothers of the deceased Rajanna. Respondent No.1 is the owner and respondent

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HC-KAR

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No.2 is the insurer of Bolero Jeep bearing registration

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No.KA-13-M-8834.

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Before the Tribunal, respondent Nos.1 and 2 filed the written statement denying contents of the claim petition. Respondent No.1 further contended that the vehicle was insured with respondent No.2 and respondent No.2 is liable to pay the compensation in case the claim petition is allowed.

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Respondent No.2-insurer contended that petition is bad for non-joinder of necessary parties. The accident had taken place exclusively due to the rash and negligent driving by Santro car by its driver, therefore, respondents are not liable to pay the compensation. The amount of compensation claimed is highly exorbitant. Its liability is restricted to the terms and conditions of the insurance policy and also the driver of the jeep was not holding effective and valid driving licence to drive the vehicle. With these reasons, prayed to dismiss the claim petition.

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HC-KAR

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From the rival contentions of the parties, the

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Tribunal framed necessary issues.

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Claimants to prove their case, examined one witness as PW-1 and marked 8 documents as per Exs.P-1 to P-8. The respondents have not led any oral evidence, but marked one document as Ex.R-1.

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After hearing both parties and appreciating the pleadings and evidence on record, the Tribunal partly allowed the petition by holding that accident had taken place due to negligence of driver of Bolero vehicle. The Tribunal also held that claimants being the dependants are entitled to claim compensation. Tribunal assessed the notional income of the deceased as Rs.4,500/- per month; taken the age of PW-2 i.e., petitioner No.2 as 43 years, determined the multiplier as `14' and after deducting 50% of the income towards personal expenses since the deceased was unmarried, awarded compensation under

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HC-KAR

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the head `loss of dependency' and awarded total

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compensation of Rs.3,99,000/- as below :

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Loss of dependency	Rs.3,78,000/-
Cremation and obsequies	Rs.20,000/-
Transportation of dead body	Rs.1,000/-
Total	Rs.3,99,000/-

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Same is challenged in these appeals by both the

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parties.

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12. Heard the arguments of the learned counsel appearing for the claimants as well as the insurer.

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13. Learned counsel for the claimants contends that the Tribunal ought to have applied the multiplier by taking the age of the deceased and not by considering the age of petitioner No.2. He further contends that, according to the contentions of the claimants, deceased was earning Rs.12,000/- per month, but the Tribunal has taken income as Rs.4,500/- per month, which is on the lesser side. He further contends that even if the contention of the

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HC-KAR

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claimants is not proved, then Tribunal could have considered the notional income as per the chart prepared by the Karnataka State Legal Services Authority.

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14. It is further stated that, as per the law laid down in the case of National Insurance Co. Ltd., -vs- Pranay Sethi¹ , amount of compensation is not awarded under the conventional heads. With these reasons, prayed to enhance the amount of compensation.

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15. Learned counsel for the insurer vehemently contends that merely charge sheet is filed against the driver of the Bolero vehicle is not a ground to accept the same. The hand sketch map and spot mahazar reveals that Santro car came on the wrong side of the road and hit the Bolero vehicle, because of which, the Bolero vehicle jumped from maiden and went to the right side of the road. It clearly indicates that accident had taken place due to negligence of driver of the Santro vehicle. Inspite

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1 (2017) 16 SCC 680

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HC-KAR

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of taking defence in the written statement, claimants have not impleaded owner and insurer of the Santro car. Therefore, claim petition is bad for non-joinder of necessary parties.

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16. Learned counsel for the insurer further contends that claimants are not dependent on the deceased. They are all brothers and sisters and Class-2 heirs. Considering the same, Tribunal has taken the multiplier on the basis of age of petitioner No.2. The said finding is incorrect. As per the evidence of PW-1, deceased was elder to him. Even in Ex.P-1, the age of the deceased is mentioned as 50 years. Therefore, his age may be considered as 50 years to apply multiplier. He further contended that the calculation of the compensation by the Tribunal is correct and there is no need to interfere in the amount of compensation awarded. With these reasons, prayed to dismiss the claim petition.

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HC-KAR

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17. Following points arises for consideration:

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(i) Whether the claim petition is bad for non-joinder of necessary parties?

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(ii) Whether the Tribunal is justified in holding that the accident had taken place due to sole negligence of driver of the Bolero Jeep bearing registration No.KA-13-M-8834?

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(iii) Whether the amount of compensation awarded by the Tribunal is just and reasonable?

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(iv) What order?

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Point No.1 & 2 :

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18. The fact of occurrence of the accident and the

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death of Rajanna in the said accident are not in serious dispute. According to the claimants, the accident occurred due to negligence of the driver of the Bolero Jeep; And according to the insurer, accident had taken place due to contributory negligence of driver of both the vehicle and contribution of driver of the Santro car was more. In view of these circumstances, necessary parties are not

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impleaded by the claimants.

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HC-KAR

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19. It is pertinent to note that charge sheet was filed against the driver of the Bolero Jeep for causing the accident in question. Respondent No.2-insurer has not examined any of the witnesses to the accident to rebut the evidence of PW-1 or to show that final report submitted by

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the Investigating Officer is incorrect. There are no materials to overcome the charge sheet and its enclosures. Learned counsel for the insurer mainly relies on Ex.P-4 to show that Santro car was going at the wrong side of the road. In Ex.P-3, it is shown that road repair work was under progress; therefore, one side of the road was closed and vehicles were plying on other side of the road. In view of the said fact, it cannot be held that driver of the Santro vehicle was going at the wrong side of the road. If that was the case, the Investigating Officer ought to have noted the same in the charge sheet. Therefore, prima facie there are no materials to believe that driver of the Santro car has also contributed in causing the accident in question.

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HC-KAR

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20. Claimants were third parties and deceased was also a third party. Even if it is considered that the accident had taken place due to contributory negligence of driver of both the vehicles, then both are joint tortfeasors. Hence, the claimants can claim compensation from either of the joint tortfeasor and therefore, non-inclusion of owner and insurer of Santro vehicle is not fatal to the case of the claimants.

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21. Learned counsel for the claimants has relied upon judgment of Hon'ble Apex Court in the case of Khenyei -vs- New India Assurance Company Limited and others,² and the Full Bench judgment of this Court in the case of Karnataka State Road Transport Coporation, by its Managing Director -vs- Arun @ Aravind and others³ . In both these judgments, Full Bench of this Court, as well as Apex Court, have held that claimant can claim the compensation from either of the joint tortfeasor and there

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2 (2015) 9 SCC 273

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3 ILR 2004 KAR 26

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HC-KAR

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is no need to include both the joint tortfeasors as parties in the claim petition. The principle of law laid down in the above said two cases are applicable to the facts of the present case. Hence, claim petition does not suffer from defect of non-joinder of necessary party.

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22. The Tribunal based on these facts, rightly held that the accident had taken place due to rash and negligent driving of the Bolero Jeep by its driver, the same does not call for any interference by this Court. Accordingly, point Nos.1 and 2 are answered in the affirmative.

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Point No.3 :

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23. It is not in dispute that claimants are brothers and sisters of the deceased Rajanna, who was unmarried. They contend that they were in financial difficulties and deceased used to share his income with them. There are no materials to disbelieve the said contention. Therefore, though they may not be Class-1 heirs and direct legal

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HC-KAR

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heirs of the deceased, but, they are all Class-2 heirs under Hindu Law and depending upon earnings of deceased.

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24. In the case of National Insurance Company Ltd.,

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-vs- Birender and others,⁴ it is held by the Hon'ble Apex Court that dependency does not mean that they are completely depending upon the earnings of the deceased. Even married sons and daughters are also covered under the expression `legal representative'. The law laid down in the above said judgment is applicable to the facts of the present case. Therefore, claimants are entitled to claim the compensation.

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25. The age of deceased at the time of the accident is stated as 30 years in the claim petition. Even in post mortem report, his aged is mentioned as 30 years. From the other materials on record, it appears the said fact is incorrect. He is elder to petitioner No.2. Petitioner No.2's age is mentioned as 43 years and elder sister's age is

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4 AIR 2020 SC 434

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HC-KAR

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mentioned as 49 years. Therefore, the age of the deceased must be above the age of 43 years or below the age of 49 years. Therefore, the age of the deceased as stated in Ex.P-1 as 50 years is also incorrect. Considering the available materials on record, age of the deceased is taken between 44 to 48 years. The suitable multiplier applicable in this case is `14’ as per Pranay Sethi's case (supra).

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26. Claimants are not able to prove that deceased was earning Rs.12,000/- per month by working as a Mechanic in TVS showroom. Therefore, the Tribunal has assessed the notional income as Rs.4,500/- per month. It is on the lower side. If we follow the chart of notional income prepared by the KSLSA, then his notional income can be taken as Rs.7,000/- per month.

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27. Learned counsel for the claimants contend that 25% of the earning of the deceased has to be added towards future prospects. It is seriously disputed by the

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HC-KAR

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learned counsel for the insurer. Learned counsel for the claimants relies upon the judgment of Hon'ble Apex Court in the case of Pranay Sethi's case (supra). As per the law laid down in the said judgment, if deceased is below 50 years and self employed, then 25% of his income shall be added towards future prospects. Same is applicable to the facts of present case.

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28. Claimants are brothers and sisters of the deceased and deceased was unmarried. Therefore, 50% of his income shall be deducted towards personal expenses. On the basis of the above said figures, loss of dependency is calculated.

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29. As held in Pranay Sethi's case (supra), claimants are entitled for the compensation under the conventional heads. The learned counsel for the claimants submits that each claimants are entitled to Rs.40,000/- towards loss of consortium. It is pertinent to note that claimants are brothers and sisters. Hence, all of them together are

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HC-KAR

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entitled for Rs.40,000/under the head `loss of consortium'.

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30. In view of the above discussion, following

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amount of compensation is awarded :

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Particulars	Amount in Rs.
Loss of dependency	7,35,000/-
(Rs.7,000/-+25%=Rs.8,750/- x 12x14 = Rs.14,70,000/50% =Rs.7,35,000/-)
Loss of consortium	40,000/-
Loss to the estate	15,000/-
Towards funeral expenses	15,000/-
Total	8,05,000/-
Less : Amount awarded by the Tribunal	3,99,000/-
Enhancement -	_________ 4,06,000/-

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Thus, claimants are entitled to enhancement of Rs.4,06,000/-, along with interest at 6% p.a. on the enhanced amount from the date of petition till its realization. Accordingly, point No.3 is answered partly in the affirmative.

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HC-KAR

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This Court vide order dated 20.04.2017, condoned

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the delay of 435 days in filing the appeal in MFA.No.3689/2016, however, interest is not denied.

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Undisputedly, the respondent No.1 being the owner and respondent No.2 being the insurer are liable to pay the said amount.

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In the result, I proceed to pass the following:

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ORDER

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i) MFA.No.3689/2016 filed by the claimants and MFA.No.79/2015 filed by the Insurance Company are allowed in-part.

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ii) The judgment and award dated 7^th November 2014, in MVC.No.731/2014, passed by the Fast Track Court and Addl.M.A.C.T., Channarayapatna, stands modified.

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iii) The claimants are entitled for enhanced compensation of Rs.4,06,000/-, along 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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