Smt Anitha Vs Kumar

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.01.2018 PASSED IN MVC NO.2205/2017 ON THE FILE OF THE 3^RD ADDITIONAL SENIOR CIVIL JUDGE & MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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NC: 2026:KHC:8859 MFA No. 8529 of 2018

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HC-KAR

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ORAL JUDGMENT

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I.A.No.1/18 filed seeking condonation of delay of 161

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days in filing the appeal. Learned counsel for the respondent gives his no objection for condonation of delay subject to no interest being granted for the delayed period of 161 days on the enhanced amount.

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For the reasons stated in the affidavit, the delay of 161 days is condoned. I.A.No.1/18 is allowed.

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The present appeal seeks to challenge an award dated 22.01.2018 passed in MVC No.2205/2017 by learned III Addl. Senior Civil Judge and MACT, Bengaluru (hereinafter referred as ‘Impugned Award’). By the Impugned Award a compensation of Rs.14,88,000-00 has been awarded along with interest at 9% per annum. The appeal has been filed by the appellants/claimants seeking to challenge the compensation awarded.

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The brief facts relevant for adjudication of this case was that on 21.03.2017 at about 4.30 a.m. the deceased

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HC-KAR

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Ashok was riding a motorcycle bearing Registration No.KA13-U-1058. When he reached near Bargur Hand Post, Old Circle Road, Channarayapattna Taluk, Hassan District, it is stated that at that time a lorry bearing Registration No.KA02-AB-3537 stated to be driven in a rash and negligent

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manner, collided with the motorcycle. As a result of the collision, the deceased sustained grievous injuries and died on the spot. The postmortem examination was conducted at the Government Hospital, Channarayapatna. It is the case of the appellants/claimants that the deceased was aged 36 years and was working as an agriculturist and vegetable vendor, earning Rs.25,000/-per month. It is stated that he is survived by his wife, two children and his parents, who are senior citizens and were dependent on the income of the deceased.

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The claim petition was contested by the owner of the offending vehicle as well as the Insurance Company before

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the learned Trial Court. On the basis of the pleadings

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HC-KAR

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between the parties, the learned Trial Court framed the

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following issues:

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“1. Whether the petitioners prove that Sri. Ashok S/o Nanjegowda died due to injuries sustained by him in a motor vehicle accident that was taken place on 21-32017, at about 4.30 A.M, near Baraguru Hand Post, on Hassan old Circle Road, Channarayapatna Circle Taluk, Hassan district involving lorry bearing registration No.KA02-AB-3537 belonging to Respondent No.1 and the said vehicle insured with 2nd respondent?

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2 Whether the petitioners prove that, the accident has mainly occurred due to the rash and negligent driving of the driver of the said vehicle?

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3. Whether the petitioners prove that, themselves and respondent No.3 & 4 are the legal heirs and the dependents of the deceased?

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4. Whether the petitioners are entitled for compensation as prayed? if so, at what rate and from whom?

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5. What order or award?”

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The wife of the deceased was examined as plaintiff PW1

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and 11 documents filed in support of her complaint were exhibited on Ex-P1 to P11, including a copy of the F.I.R., panchnama, MV report and chargesheet.

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The Insurance Company examined its officer as RW1 and the mother of deceased was examined as RW2. Based on the evidence on record, the learned Trial Court gave a finding that the rash and negligent driving of the lorry driver was proved

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HC-KAR

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and it also found that there was no breach of the insurance policy, thus the Insurance Company is liable to make payment.

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The learned Trial Court took the income of the deceased at Rs.7,500/- p.m. and applied the multiplier of 15 since the deceased was 36 years old with reduction of 1/4^th to award the

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following compensation:

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Compensation Head	Compensation Amount
Towards loss of dependency	Rs.14,18,000-00
Towards loss of consortium	Rs. 40,000-00
Towards loss of estate	Rs. 15,000-00
Towards transportation of dead body, funeral and obsequies ceremony expenses	Rs. 15,000-00
Total	Rs.14,88,000-00

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8.1. As stated above, Respondent No.2 Insurance Company

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was made liable to pay compensation.

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Learned counsel for the appellants/claimants has filed the present appeal seeking to challenge the award on four grounds. Firstly, it is submitted that the loss of dependency was wrongly calculated. The accident occurred in the year 2017 and as per

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HC-KAR

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Notional Income Chart, the income ought to have been Rs.11,000/- per month and not Rs.7,500/- per month as assessed by the learned Trial Court. Secondly, it is contended that the loss of consortium has been granted only to one member. However, since there are five dependents, consortium ought to have been awarded at Rs.2,00,000/- in total. Thirdly, it is urged that the addition towards future prospects requires enhancement in view of the correct notional income. Lastly, it is contended that 10% escalation ought to have been awarded.

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Learned counsel for the respondent fairly submits that the award on notional income has not been assessed in accordance with prevailing Notional Income Chart. He further submits that the amounts awarded towards future prospects would also require to be enhanced based on the age of the deceased.

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A perusal of the Impugned Award shows that although the loss of dependency has been calculated taking the Notional Income Chart at the rate of Rs.7,500/- p.m. and future prospects also have been calculated on that amount. Since the deceased was aged 36 years, in terms of judgement in Sarla

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HC-KAR

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Verma vs. Delhi Transport Corporation and another¹ and

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National Insurance Corporation Limited vs. Pranay Sethi²

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the future prospects were required to be added at 40% and the multiplier of 15 was also to be accorded. Accordingly, the loss

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of dependency would be Rs.20,79,000-00 as follows:

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(i) Income as per Notional Income Chart - Rs. 11,000-00

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(ii) Add future prospects -40% - Rs. 4,400-00

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(iii) Deduction for personal expense - Rs.15,400X12X15X1/4 Rs.20,79,000-00

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In addition, Filial Consortium for five members at

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Rs.40,000/- each is to be added that sums up to Rs.2,00,000/-.

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The loss of estate and funeral expenses at Rs.15,000/- has been correctly awarded.

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Accordingly, the revised compensation to be awarded is as follows:

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Compensation Heads	Compensation Amount
Towards loss of dependency	Rs.20,79,000-00
Towards loss of filial consortium	Rs. 2,00,000-00
Towards loss of estate	Rs. 15,000-00
Towards funeral and obsequies ceremony expenses	Rs. 15,000-00
Total	Rs.23,09,000-00

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1 (2009) 6 SCC 121

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2 (2017) 16 SCC 680

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HC-KAR

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Accordingly, the Court proceeds to pass the following directions:

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ORDER

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(i) The appeal is allowed.

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(ii) The Impugned Judgment and Award dated 22.01.2018 passed in MVC No.2205/2017 by learned III Addl. Senior Civil Judge and MACT, Bengaluru is modified to the extent that the appellant/petitioner is entitled to compensation of Rs.23,09,000/- along with interest at the rate of 9% per annum from the date of petition till the date of realization.

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