Smt. Sujathamma @ Muragamma vs Andhra Pradesh State Road ...
2021 Latest Caselaw 2002 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 27TH DAY OF MAY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.6940/2012(MV)

BETWEEN:

1.   SMT. SUJATHAMMA @ MURAGAMMA
     W/O LATE B.RAJAPPA,
     AGED ABOUT 38 YEARS,

2.   GOPI S/O LATE B.RAJAPPA
     AGED ABOUT 17 YEARS,

3.   MINA D/O LATE B.RAJAPPA
     AGED ABOUT 15 YEARS,

4.   MANJUNATHA S/O LATE B.RAJAPPA
     AGED ABOUT 12 YEARS,

5.   SATHISH S/O LATE B.RAJAPPA
     AGED ABOUT 10 YEARS,

     THE APPELLANTS NO.2 TO 5 ARE MINORS
     REP. BY THEIR MOTHERS-CUM-NATURAL
     GUARDIAN SMT.SUJATHAMMA @ MURUGAMMA,
     1ST APPELLANT.

     ALL ARE R/AT C/O BABU,
     1ST MAIN, KURUBARPET, KOLAR.
                                           ... APPELLANTS

           (BY SMT.SUGUNAR R. REDDY, ADVOCATE)
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AND:

ANDHRA PRADESH STATE ROAD CORPORATION
V.C & M.D. MUSHIRABAD,
HYDERABAD.
                                            ... RESPONDENT
               (BY SRI D.VIJAYAKUMAR, ADVOCATE)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.09.2011
PASSED IN MVC NO.200/2009 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, MACT, KOLAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                            JUDGMENT

Though the matter is listed for admission today, with the

consent of both the learned counsel for the parties, it is taken up

for final disposal.

2. This appeal is filed challenging the judgment and

award dated 23.09.2011, passed in M.V.C.No.200/2009, on the

file of the II Additional Senior Civil Judge and MACT at Kolar

('the Tribunal' for short), questioning the quantum of

compensation

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case is that on 24.07.2009

at about 2.45 p.m. near AMC Check Post, Baireddipalli, on

Baireddipalli-V.Kote NH-219 Road, Chitoor District, one

Ramakrishnareddy was riding a Hero Honda bearing registration

No.A.P.03/G-2186 along with the deceased B.Rajappa, who was

the pillion rider, returning from Pedda Garegapalli and at that

time, the APSRTC bus bearing registration No.A.P.10/Z-6195

which was driven by its driver in a rash and negligent manner

caused the accident. As a result, they have sustained multiple

fatal injuries and succumbed to the said injuries. Hence, the

claim petition is filed by wife and children of the deceased.

5. The main contention in the claim petition is that the

deceased was earning Rs.250/- per day by doing mason work

and the family members have lost the bread earner of the

family. The said application is opposed by the respondent by

filing the objection statement. The claimants, in order to

substantiate their claim, have examined a witness as P.W.1 and

got marked documents at Exs.P1 to P9. Respondent examined a

witness as R.W.1 and got marked documents at Exs.R1 to R4.

The Tribunal, after considering both the oral and documentary

evidence, awarded the compensation of Rs.4,40,000/- with

interest at the rate of 6% per annum. Being aggrieved by the

quantum of compensation, the present appeal is filed by the

claimants.

6. Learned counsel appearing for the appellants would

vehemently contend that the accident was taken place in the

year 2009 and at that time, the deceased was earning Rs.250/-

per day, which comes to Rs.7,500/- per month. The Tribunal

has grossly erred in calculating the loss of dependency by

assessing the income of the deceased as Rs.100/- per day and

taking the notional income at Rs.3,000/- per month. Learned

counsel also would vehemently contend that the Tribunal has not

awarded any compensation under the head of 'future prospects'.

The deceased was aged about 39 years and hence, it is

appropriate to consider 50% towards the 'future prospects'.

7. Per contra, learned counsel appearing for the

respondent would submit that taking note of the income of the

deceased at Rs.100/- per day, the loss of dependency was

calculated and the accident is of the year 2009. Learned

counsel also would submit that it is not appropriate to award

50% towards 'future prospects'. Taking note of the age of the

deceased as 39 years, it would be appropriate to award 40% of

the income instead of 50% towards the 'future prospects'.

8. Having heard the learned counsel for the respective

parties, the point that would arise for the consideration of this

Court is:-

(i) Whether the Tribunal has committed an error in not granting the just and reasonable compensation and whether it requires interference of this Court ?

9. Having heard the respective counsel and also on

perusal of the records, the occurrence of the accident is not in

dispute but the dispute is only with regard to the quantum of

compensation. Learned counsel appearing for the appellants

has rightly pointed out that the Tribunal has grossly erred in

taking the notional income of the deceased at Rs.3,000/- per

month, which ought to have been Rs.5,000/-, in the absence of

any documentary proof regarding the income of the deceased.

Though it is claimed that the deceased was earning Rs.250/- per

day, no material is placed before the Court to substantiate the

same. Assessing of the notional income is only on the guess

work for the purpose of calculating the compensation under the

head of 'loss of dependency'. It is also pointed out that no

compensation under the head of 'future prospects' has been

awarded while assessing the compensation under the head of

'loss of dependency'. Hence, there is a force in the contention

of the learned counsel for the appellants that the compensation

under the head of 'future prospects' is to be awarded.

10. Having taken note of the notional income of the

deceased at Rs.5,000/- per month and adding 40% of the

income i.e., (Rs.5,000x40%=Rs.2,000) towards the 'future

prospects' as the avocation of the deceased was a mason work,

the income of the deceased would come to Rs.7,000/- per

month. The income to the extent of 1/4th i.e.,

(Rs.7,000x1/4=Rs.1,750/-) is to be deducted towards 'personal

and living expenses', as the claimants, who are the wife and

children of the deceased are the dependents and by doing so,

the income would come to Rs.5,250/-. By applying the relevant

multiplier as 15, the compensation under the head of 'loss of

dependency' would come to Rs.9,45,000/-

(Rs.5,250x12x15=Rs.9,45,000/-).

11. Learned counsel appearing for the appellants would

vehemently contend that the compensation of Rs.40,000/- under

other conventional heads, in view of the judgment of the Apex

Court in Magma's case, is to be awarded towards consortium for

wife, Rs.40,000/- each towards parental consortium and

Rs.30,000/- is to be awarded towards 'loss of estate' and 'funeral

expenses'. Learned counsel appearing for the respondent would

submit that the larger bench of the Apex Court in Pranay

Sethi's case awarded an amount of Rs.70,000/- towards the

'conventional heads' and hence, the same may be awarded.

12. Having heard the respective counsel with regard to

the compensation, which ought to have been awarded by the

Tribunal under the 'conventional heads' and in view of the

principles laid down in Pranay Sethi's case, wherein it is held

that an amount of Rs.70,000/- is to be awarded under the

'conventional heads' in the case of death of a bread earning

member of the family, this Court has to take note of the

principles laid down by the larger bench of the Apex Court in

Pranay Sethi's case. Hence, an amount of Rs.70,000/- is

awarded under the 'conventional heads'. Accordingly, the

appellants are entitled for a total compensation of

Rs.10,15,000/- (Rs.9,45,000+Rs.70,000) as against

Rs.4,40,000/-.

13. In view of the discussion made above, I pass the

following:-

ORDER

(i) The appeal is allowed in part.

              (ii)    The judgment and award passed by the
      Tribunal       is     modified       by       granting    the    total

compensation of Rs.10,15,000/- with interest at the rate of 6% per annum from the date of petition till realization.

(iii) Respondent-Insurance Company is directed to deposit the amount within 8 weeks' from today.

(iv) In all other respects, the award of the Tribunal shall remain unaltered regarding apportionment.

(v) Registry to transmit the Trial Court Records to the concerned Tribunal, forthwith.

(vi) The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.

Sd/-

JUDGE

PYR