IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.2169/2019 (MV)
BETWEEN :
1. PADMAVATHI
W/O LATE THIMMAIAH,
AGED ABOUT 31 YEARS
2. YOGESH
S/O LATE THIMMAIAH,
AGED ABOUT 17 YEARS
3. PRIYANKA
D/O LATE THIMMAIAH,
AGED ABOUT 14 YEARS
APPELLANT No.2 & 3 ARE MINORS
REP BY APPELLANT NO.1 MOTHER.
4. JAYAMMA
W/O LATE GANGASWAMY
@ GANGASWAMAIAH,
AGED ABOUT 63 YEARS
R/AT GOKULA VILLAGE,
KASABA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT
NOW R/AT NO.56,
HANUMARAIAH HOUSE,
MARAGONDANAHALLI,
SULIKERE POST,
-2-
KENGERI HOBLI,
BANGALORE SOUTH TALUK-560060 ...APPELLANTS
(BY SRI MUSHTAQ AHMED, ADV.)
AND :
1. SHIVALINGAIAH
S/O RAMAIAH J.C.,
AGED ABOUT 53 YEARS,
R/AT GOTTIGERE VILLAGE,
HUTHRIDURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT.
2. IFFCO TOKIO GENERAL
INSURANCE CO. LTD.,
NO.1586, OPP. BEO OFFICE,
1ST FLOOR, K.R.ROAD,
VIDYANAGAR, MANDYA-571400
REP BY ITS MANAGER,
T.P.SECTION,
IFFCO TOKIO GENERAL
INSURANCE CO. LTD.,
NO.8, K.S.M.F.BUILDING,
3RD BLOCK, CUNNINGHAM ROAD,
BANGALORE-560052 ...RESPONDENTS
(BY SRI S.V.HEGDE MULKHAND, ADV. FOR R-2;
NOTICE TO R-1 DISPENSED WITH.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
28.09.2018 PASSED IN MVC No.6591/2016 ON THE FILE OF
THE I ADDITIONAL SMALL CAUSES JUDGE & MACT,
BENGALURU (SCCH-11) PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
-3-
JUDGMENT
This appeal is directed against the judgment and award dated 28.9.2018 passed in MVC No.6591/2016 on the file of the I Additional Small Causes Judge & MACT, Bangalore (SCCH-11) [Tribunal for short].
2. The claimants instituted the petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of Thimmaiah in the road traffic accident.
3. It was averred by the claimants that on 6.3.2016 at about 10.45 p.m. while the deceased Thimmaiah and his brother were travelling towards Kunigal side in Autorickshaw bearing Reg. No.KA-06-D- 417 (offending vehicle), near tank bund of Bidanagere village, the driver of the offending vehicle drove the vehicle in a high speed in a rash and negligent manner due to which the said auto toppled on the left side of the road, as a result the deceased Thimmaiah and his -4- brother Somashekar sustained injuries. Thimmaiah succumbed to the fatal injuries at the spot.
4. It was contended that Thimmaiah was aged about 32 years and was an employee of Winner Burge Factory at Anchepalya, Kunigal Taluk. He was earning monthly salary of Rs.25,000/- and Rs.6,000/- as O.T. charges. He was owning the agricultural land of 5 acres having 1000 coconut trees and 1000 arecanut trees. His annual income was more than Rs.8,00,000/-. The deceased was contributing the income to the maintenance of his family. Due to the untimely death of the deceased, the claimants/dependents have suffered financially and mentally.
5. On these set of facts and grounds, the claimants have sought for compensation.
6. In pursuance to the notice issued by the Tribunal, the respondent Nos.1 and 2 appeared -5- through their counsel and filed their separate objection statement denying the petition averments. The main defence set up by the insurer was that the 1st respondent knowingly well that the driver of the auto had no valid and effective driving licence, had entrusted the vehicle.
7. On the basis of the pleadings issues were framed and answered in the affirmative allowing the petition in part awarding total compensation of Rs.16,82,800/- with interest @ 9% p.a. from the date of petition till its realization.
8. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred this appeal.
9. Learned counsel for the claimants/appellants submitted that the Tribunal has determined the monthly income at Rs.8,000/- per -6- month notionally despite cogent evidence placed on record to establish the factum of income of the deceased. It was argued that the compensation awarded under the conventional heads is abysmally low.
10. Learned counsel for the insurer made an endeavour to justify the impugned judgment and award. It was contended, the Tribunal on appreciation of the oral and documentary evidence has awarded just compensation and the same does not call for any further enhancement and accordingly prayed for dismissal of the appeal.
11. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records.
12. It is borne out from the PM report, Ex.P7 that the deceased was aged about 32 years at the time of the accident. Though the claimants contended that -7- the deceased was drawing monthly salary of Rs.25,000/- and OT charges of Rs.6,000/-, no substantial evidence was placed to prove the same. In the absence of the cogent evidence, this Court finds it safe to refer to the chart prepared by the Karnataka State Legal Services Authority to re-determine the monthly income of the deceased notionally which would be Rs.9,500/-. Adding 40% of the same towards future prospects, applying the multiplier of 16 taking the age of the deceased as 32 years, deducting 1/4th of the income towards personal and living expenses of the deceased, the loss of dependency would be Rs.19,15,200/- (Rs.9500 + 3800 x 12 x 16 x 3/4).
13. In terms of the ruling of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) and New India Assurance Company Limited V/s. Somwati and Others reported in 2020 SCC online -8- SC 720, the claimants are entitled to compensation of Rs.1,90,000/- under conventional heads.
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 19,15,200
2. Loss of spousal Consortium 40,000
3. Loss of filial consortium 40,000
4. Loss of Estate 15,000
Loss of parental consortium
5. 80,000
(Rs.40000 to each child)
6. Funeral expenses 15,000
Total 21,05,200
Thus, the claimants are entitled to total compensation of Rs.21,05,200/-.
14. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.21,05,200/- (Rupees Twenty One Lakhs Five Thousand Two Hundred Only) as against Rs.16,82,800/- with interest at the rate of 6% per annum on the -9- enhanced compensation from the date of the claim petition till its realization.
iii) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
iv) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
vi) Draw modified award accordingly.
vii) All pending I.As. stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE Dvr: