Mallesha Vs Reshma K S

THE APPELLANT BECOME UNSOUND DUE TO ACCIDENTAL INJURIES HENCE THE APPELLANT IS REP. BY HIS MOTHER SMT. SEEGAMMA W/O PUTTAMALLANAYAKA R/AT DODDIDUVADI VILLAGE KOLLEGAL TALUK CHAMARAJANAGAR DISTRICT - 571 303.

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…APPELLANT

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(BY SRI. SANATH KUMARA K.M. ADV.,)

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AND:

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RESHMA K.S. D/O SHIVAPRASAD K.G.

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HC-KAR

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MAJOR

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R/AT 233-G, 4TH STAGE NETHAJI NAGAR MANDYA NAGAR- 571 401.

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THE DIVISIONAL MANAGER IFFCO - TOKIO GENERAL INSURANCE COMPANY LTD., NO. 846, NEW KANTHARAJ URS ROAD ABOVE SRI BAKERY AKSHAYA BANDAR KUVEMPUNAGARA MYSURU - 570 0014.

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…RESPONDENTS

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(BY SRI. E.I. SANMATHI, ADV., FOR R2 NOTICE TO R1 IS D/W ON 24.05.2023)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 31.01.2018 PASSED IN MVC NO.262/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO.6356/2018:

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BETWEEN:

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SMT. LAKSHMI W/O LATE MADESHA AGED ABOUT 27 YEARS.

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MASTER SHIVAPRASAD S/O LATE MADESHA AGED ABOUT 7 YEARS.

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MASTER KIRANKUMAR S/O LATE MADESHA AGED ABOUT 5 YEARS.

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HC-KAR

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SMT. CHANDRAMMA W/O SHIVARAJU AGED ABOUT 52 YEARS.

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SRI. SHIVARAJU S/O LATE BOLANAYAKA AGED ABOUT 57 YEARS.

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APPELLANTS NO.2 AND 3 ARE MINORS REP. BY THEIR MOTHER 1^ST APPELLANT.

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ALL ARE R/AT DODDIDUVADI VILLAGE KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT-571 305.

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...APPELLANTS

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(BY SRI. SANATH KUMARA K.M. ADV.,)

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AND:

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RESHMA K.S. D/O SHIVAPRASAD K.G. MAJOR, R/AT 233-G 4TH STATE, NETHAJI NAGAR MANDYA NAGAR 571401.

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THE DIVISIONAL MANAGER IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD, NO. 846 NEW KANTHARAJ URS ROAD ABOVE SRI. BAKERY AKSHAYA BANDAR KUVEMPUNAGARA MYSORE 570014.

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...RESPONDENTS

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(BY SRI. E.I. SANMATHI, ADV., FOR R2 V/O/DTD:17.03.2026 NOTICE TO R1 IS D/W)

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:31.01.2018, PASSED IN MVC NO.259/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., & MACT, KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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These appeals are filed by the claimants seeking enhancement of compensation being aggrieved by the common judgment and award dated 31.01.2018 passed in MVC Nos.259/2016 c/w MVC No.262/2016 on the file of Senior Civil Judge & JMFC., and MACT, Kollegal, (for short, ‘Tribunal’).

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Though these appeals are listed for orders, with the consent of the learned counsel for the parties, they are taken up for final disposal.

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Sri.Sanath Kumara K.M., learned counsel for

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the appellants submits that the Tribunal in both the cases has committed a grave error in assessing the income of

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HC-KAR

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the injured at Rs.4,500/- per month and the income of the deceased at Rs.9,000/- per month. He submitted that the income of the injured and of the deceased is required to be re-assessed appropriately. Insofar as the income of the deceased is concerned, he submitted that Ex.P-6 Driving licence of transport vehicle is produced to show that the deceased was working as a driver and used to drive Mahadeshwara bus, hence, he seeks to re-assess the income of the deceased at Rs.15,000/- per month. He further submitted that the Tribunal, in the case of injuredclaimant, has failed to add 40% of the assessed income towards the loss of future prospects. Hence, he seeks to re-assess compensation in both the cases appropriately by allowing the appeals.

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Per contra, Sri.E.I.Sanmathi, learned counsel for the respondent-Insurance Company in both the appeals supports the impugned judgment and award of the Tribunal and submits that in the case of injuredclaimant the Tribunal was fully justified in awarding

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HC-KAR

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compensation under all the heads by assessing the disability at 100%, hence, there is no scope to enhance the compensation. It is submitted that in the case of death, the claimants have failed to produce any acceptable evidence with regard to the income of the deceased to

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show that he was a driver by vocation and mere production of driving licence is not sufficient to assess his income. Hence, he submits that the award of compensation by the Tribunal in both the cases is just and proper and needs no enhancement. Hence, he seeks to dismiss both the appeals.

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I have heard the arguments of the learned counsel appearing on both the sides and meticulously perused the material available on record.

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The only point that would arise for consideration in these appeals are :

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HC-KAR

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" Whether the common judgment and award passed by the Tribunal calls for any interference?"

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It is not in dispute that the claim petition has been filed by the injured in MVC No.262/2016 and the wife, children and parents of the deceased, who are the legal representatives of deceased have filed MVC No.259/2016, seeking for compensation for the injury as well as the death in the respective cases. The parties do not dispute with regard to the accident and the liability. Hence, the re-production of the facts may not be necessary.

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Insofar as in MVC No.262/2016 filed by the injured-claimant, it is the case of the injured that the Tribunal, considering the nature of injury suffered, has assessed the disability at 100%, assessed the income at Rs.4,500/- per month but it has failed to add 40% of the assessed income under the head of loss of future prospects of the injured. Therefore, the compensation is

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HC-KAR

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required to be re-assessed by re-assessing the income and by adding 40% towards the assessed income under the head of loss of future prospects. The injured was aged about 30 years at the time of accident, hence, the appropriate multiplier would be 17. Hence, the compensation under the head of loss of future income due to disability is re-assessed as under:

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Rs.9,500 + 40% x 17 x 12 x 100% = Rs.27,13,200/-

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The compensation awarded under other heads in MVC No.262/2016 is unaltered. Thus, the appellantinjured would be entitled to the modified compensation as under:

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HEADS	AMOUNT (in Rs.)
Medical expenses	3,99,000
Pain and sufferings, conveyance charges, future medical expenses, nourishment charges, etc.,	75,000
Loss of future income	27,13,200
Future attendant's charges	3,06,000
Total	34,93,200

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HC-KAR

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Thus, the appellant-claimant in MVC No.262/2016 is entitled to a total compensation of Rs.34,93,200/- as against Rs.16,98,000/- awarded by the Tribunal.

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Insofar as MVC No.259/2016, the Tribunal has

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assessed the income of the deceased at Rs.9,000/- per month. Admittedly, the claimants have failed to produce any cogent and acceptable evidence to prove the income of the deceased. The contention that the deceased was a driver by vocation and was having a driving licence to drive transport vehicle and used to earn Rs.15,000/- per month cannot be accepted as the appellants-claimants failed to examine any independent witness to prove the vocation or the income of the deceased before the Tribunal. Ex.P6, the driving licence to drive the transport vehicle, cannot be the sole basis to determine the income of the deceased. Hence, in the absence of proof of income of the deceased, the income of the deceased is notionally re-assessed at Rs.9,500/- per month placing reliance on

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HC-KAR

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the notional income chart prepared by the KSLSA. The deceased was aged about 33 years at the time of accident. Hence, claimants are entitled to addition of 40% under the head of loss of future prospects and appropriate multiplier would be 16. The claimants are the wife, children and parents of the deceased, hence appropriate deduction would be 1/4^th towards the personal and living expenses of the deceased. Thus, the claimants are entitled to compensation under the head of loss of dependency, which is re-assessed as under:

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Rs.9,500 + 40% x 12 x 16 x ¾ = Rs.19,15,200/-.

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The claimants, who are the wife, children and

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parents, are entitled to consortium at the rate of Rs.40,000/- plus 10% escalation i.e., Rs.40,000 + 10% = Rs.44,000 x 5 = Rs.2,20,000/- . The claimants are also entitled to compensation under the head of loss of estate and funeral expenses at Rs.15,000/- respectively with 10% escalation i.e., Rs.16,500/- respectively. Thus, the

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HC-KAR

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claimants would be entitled to the modified compensation

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as under:

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Particulars	Amount (in Rs.)
Loss of dependency	19,15,200
Loss of estate	16,500
Funeral expenses	16,500
Loss of consortium (44,000 x 5)	2,20,000
Total	21,68,200

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Thus, the appellants-claimants in MVC No.259/2016

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is entitled to a total compensation of Rs.21,68,200/- as against Rs.15,21,000/- awarded by the Tribunal.

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In the result, this Court proceeds to pass the

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following:

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ORDER

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a) Appeals are allowed in part .

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b) The impugned judgment and award of the

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Tribunal in MVC No.262/2016 is modified

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to an extent that the appellant-claimant is

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entitled to a total compensation of

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HC-KAR

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Rs.34,93,200/- as against

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Rs.16,98,000/- awarded by the Tribunal.

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c) The impugned judgment and award of the Tribunal in MVC No.259/2016 is modified to an extent that the appellants-claimants are entitled to a total compensation of Rs.21,68,200/- as against Rs.15,21,000/- awarded by the Tribunal.

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d) The enhanced compensation amount in both the cases shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

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e) The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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