IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH 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.1064/2018 (MV)
BETWEEN :
1. SRI SHRIDHARA ACHARYA
S/O LATE BABU ACHARYA,
AGED ABOUT 68 YEARS,
R/AT 4-42, GANESH PRASAD NIVAS,
NEAR MAHALINGESHWARA TEMPLE,
SHIRTHADY VILLAGE & POST,
MANGALURU TALUK-575004.
2. SMT.KAMALAKSHI
W/O SRI SHRIDHARA ACHARYA,
AGED ABOUT 56 YEARS,
R/AT 4-42, GANESH PRASAD NIVAS,
NEAR MAHALINGESHWARA TEMPLE,
SHIRTHADY VILLAGE & POST,
MANGALURU TALUK-575004.
3. SRI SANTHOSH
S/O SRI SHRIDHARA ACHARYA,
AGED ABOUT 35 YEARS,
R/AT 4-42, GANESH PRASAD NIVAS,
NEAR MAHALINGESHWARA TEMPLE,
SHIRTHADY VILLAGE & POST,
MANGALURU TALUK-575004
4. SRI SATHISHA
S/O SHRIDHARA ACHARYA,
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AGED ABOUT 33 YEARS,
R/AT 4-42, GANESH PRASAD NIVAS,
NEAR MAHALINGESHWARA TEMPLE,
SHIRTHADY VILLAGE & POST,
MANGALURU TALUK-575004 ...APPELLANTS
(BY SMT.HALEEMA AMEEN, ADV. FOR
SRI ASHOK KUMAR SHETTY K., ADV.)
AND :
1. Mr. DINESH R.K.,
S/O RAMAPPA,
AGED ABOUT 47 YEARS,
R/AT SWASTHIK NILAYA,
SUVARNA COMPOUND,
JYOTHINAGARA, KUDUPU POST,
MANGALORE TALUK-575004
2. THE BRANCH MANAGER
THE ORIENTAL INS. CO. LTD.,
SATHISH COMPLEX, GROUND FLOOR,
BEHIND SB OPP: GOVINDA DAS COLLEGE,
SURATHKAL, MANGALURU-575004
3. Mrs. R.VEERAMANI
W/O RAJENDRA,
AGED ABOUT 46 YEARS, R/AT NO.10,
ABRAHAM PANDITHAR NAGARA,
4TH STREET, MELAVELI,
SHIVAJI NAGARA,
TANJAVOORU DISTRICT,
TAMILNADU-613009
4. BRANCH MANAGER
ROYAL SUNDARAM ALLIANCE
INSURANCE COMPANY LTD.,
NO.113/114, SRI THEYAGARAYA ROAD,
4TH FLOOR, MEENA KAMPALA ARCAS,
T.NAGAR, CHENNAI-600017 ...RESPONDENTS
(BY SRI S.Y.SHIVALLI, ADV. FOR R-2;
SRI H.S.LINGARAJ, ADV. FOR R-4;
R-1 & R-3 SERVED.)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
01.08.2017 PASSED IN MVC No.482/2016 ON THE FILE OF THE
MEMBER, MACT, 1ST ADDITIONAL SENIOR CIVIL JUDGE,
MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 01.08.2017 passed in MVC No.482/2016 on the file of the Motor Accidents Claims Tribunal and I Additional Senior Civil Judge, Mangaluru, D.K. [Tribunal for short].
2. The claimants averred in the claim petition that on 14.10.2015, Harish Acharya met with the road traffic accident while driving his Maruti 800 car bearing registration No.KA-05-MF-4135 from Mangalore to Mudabidri owing to the actionable negligence of the bus bearing registration No.KA-19-AA-6559 which was coming from the opposite direction. It was alleged that -4- at the same time, a Tipper bearing registration No.TN- 49-AR-8146 which was coming from behind the car also dashed against the car from its behind, due to the negligent driving of the driver of the said vehicle. As a result, the victim sustained grievous head injuries. Immediately he was shifted to Alvas Hospital, Mudabidre and thereafter to AJ hospital, Mangalore. However, the doctors at AJ hospital declared him as dead.
3. It was contended that the deceased was aged about 29 years at the time of the accident and was a professional videographer cum photographer. He was earning an income of Rs.30,000/- p.m. The untimely death of the deceased has caused great hardship to the claimants who have lost financial assistance and future dependency etc. On these grounds, claimants sought for the compensation.
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4. On issuance of summons, the respondent Nos.1 and 3 have not appeared and hence, they were placed exparte. The respondent Nos.2 and 4 have appeared through their respective counsel and filed their written statements.
5. The respondent No.2 - insurer of the bus has contended that the accident occurred due to the negligence of the deceased. The driver of the bus was not holding valid and effective driving licence on the date of the alleged accident. Hence, the said insurer is not liable to pay the compensation to the claimants besides taking a defence that the compensation claimed by the claimants is highly exorbitant and baseless.
6. The respondent No.4 - insurer of the lorry denying the allegations made in the claim petition, contended that the negligence of the driver of the bus was the cause for the accident and not that of the driver of the lorry. Admitting the issuance of policy, it was -6- stated that the liability if any, is subject to terms and conditions stipulated in the policy. The specific defence taken was that the driver of the lorry was not having driving licence to drive the same. Hence, the insurer is not liable to pay the compensation to the claimants. It was contended that the compensation claimed is exorbitant, arbitrary and baseless. Accordingly, both the respondent Nos.2 and 4 sought for dismissal of the petition.
7. On the basis of the pleadings, issues were framed by the Tribunal and answered in terms of the reasons recorded in the impugned judgment, awarding total compensation of Rs.8,93,000/- with interest at 9% p.a., from the date of petition till realization directing the respondent No.2, the insurer of the bus and the respondent No.4, the insurer of the Tipper Lorry to deposit the compensation amount in the ratio of 50:50. -7-
8. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred the present appeal.
9. Learned counsel for the appellants argued that the Tribunal has determined the monthly income of the deceased at Rs.8,000/- p.m., which is unreasonable having regard to the nature of the occupation of the deceased i.e., videography and photography. It was submitted that the compensation awarded under the different heads is abysmally low and accordingly, sought for enhancement of the compensation.
10. Learned counsel for the insurer justifying the impugned judgment and award, argued that the Tribunal has awarded just and reasonable compensation. There is no scope for further enhancement.
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11. Having heard the learned counsel for the parties and perusing the material on record, the point that arises for our consideration is:
Whether the compensation awarded by the Tribunal at Rs.8,93,000/- with interest at the rate of 9% p.a., from the date of petition till realization is justifiable in the facts and circumstances of the case?
12. The main controversy relates to the determination of income by the Tribunal. Having regard to the date of the accident and in the absence of proof of income of the deceased, we deem it appropriate to assess the monthly income of the deceased notionally at Rs.9,000/- referring to the chart prepared by the Karnataka State Legal Services Authority. Adding 40% towards the future prospects, the total income would be Rs.12,600/-. Applying the multiplier of 16 considering the age of the deceased as 31 years and deducting 50% towards the personal and living expenses of the -9- deceased, as he was a bachelor, the loss of dependency would work out to Rs.12,09,600/- [12,600 x 12 x 16 x 1/2].
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 2020 [SCC ONLINE SC 720], the claimants are entitled to compensation of Rs.1,10,000/- under the conventional heads viz., Rs.80,000/- towards filial consortium [Rs.40,000/- each to the parent]; Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate.
14. For the reasons aforesaid, the total compensation awarded by the Tribunal is re-assessed as under:
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Amount [in Sl.No. Particulars Rs.]
1. Loss of dependency 12,09,600/-
Loss of Filial Consortium
2. 80,000/-
[Rs.40,000/- each to the parent]
3. Loss of Estate 15,000/-
4. Funeral expenses 15,000/-
Total 13,19,600/-
Thus, the claimants shall be entitled to total compensation of Rs.13,19,600/- with interest at the rate of 6% per annum on the enhanced compensation from the date of the claim petition till the date of realization.
15. 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.13,19,600/- as against Rs.8,93,000/- which shall carry interest at the rate of 6% per annum on the enhanced
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compensation from the date of the claim petition till its realization.
iii) However, the apportionment of liability equally on respondent Nos.2 and 4 in the ratio of 50:50 remains intact.
iv) The portion of the order of the Tribunal inasmuch as liability, payment, apportionment and disbursement remains intact.
v) Both the insurance companies shall deposit the amount determined as aforesaid equally in the ratio of 50:50 before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
vi) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
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vii) Draw modified award accordingly.
viii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE NC.