Smt Latha P vs M/S Cauvery Mineral Water (P) Ltd
2021 Latest Caselaw 2020 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 28TH DAY OF MAY, 2021

                          BEFORE

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

                  M.F.A.NO.1514/2014 (MV)

BETWEEN:

SMT. LATHA P.,
W/O LATE SHANMUKHA K.E @ SHANMUGA,
AGED ABOUT 25 YEARS,
R/AT NO.E-298/73, 8TH MAIN,
ITTUMADU, BSK 3RD STAGE,
BENGALURU-560 085.
                                           ... APPELLANT
             (BY SRI VENKATESHA C., ADVOCATE)
AND:

1.     M/S. CAUVERY MINERAL WATER (P) LTD.,
       NO.91, MAGADI MAIN ROAD,
       ANJANANAGAR,
       BENGALURU-560 091.
       REPT. BY ITS MANAGER/PROPRIETOR.

2.     THE ORIENTAL INSURANCE CO. LTD.,
       REGIONAL OFFICE,
       VP-IV, 1ST 'A' CROSS,
       POLICE STATION ROAD,
       1ST STAGE, PEENYA INDUSTRIAL ESTATE,
       BENGALURU-560 058.
                                          ... RESPONDENTS

       (BY SRI A.RAVISHANKAR, ADVOCATE FOR R2;
VIDE ORDER DATED 13.12.2016, R1-NOTICE DISPENSED WITH)
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     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06.12.02013
PASSED IN MVC.NO.7441/2012 ON THE FILE OF THE IX
ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM,
MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU,
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.

This appeal is filed by the claimant challenging the

judgment and award dated 06.12.2013 passed in

M.V.C.No.7441/2012 on the file of the IX Additional Small

Causes and Additional MACT, Bengaluru ('the Tribunal' for short)

questioning the quantum of compensation.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the deceased had

met with an accident in the year 2012 i.e., on 23.10.2012 at

about 7.15 p.m. due to rash and negligent driving of the driver

of the Canter bearing registration No.KA-02-C-5754. The

deceased had sustained injuries and succumbed to the injuries

on account of the accident. Hence, the claim petition was filed

before the Tribunal claiming compensation. It is contended in

the claim petition that he was the owner cum driver of auto

rickshaw and was earning Rs.15,000/- per month and due to

untimely death of deceased, the claimant, who is the wife of the

deceased has lost the earning member of the family. The said

claim petition was resisted by filing the objection statement

before the Tribunal denying the accident as well as the liability

and income of the deceased. The claimant, in order to

substantiate her claim, examined herself as P.W.1 and another

witness as P.W.2 and got marked the documents at Exs.P1 to

P15. The respondents have not led any evidence before the

Tribunal. The Tribunal, after considering both oral and

documentary evidence allowed the claim petition partly by

granting the compensation of Rs.5,10,000/- with interest at the

rate of 6% per annum from the date of petition till realization.

Being aggrieved by the quantum of compensation, the present

appeal is filed.

4. Learned counsel appearing for the appellant would

vehemently contend that the Tribunal has committed an error in

taking the income of the deceased at Rs.5,000/- per month

despite Exs.P11 and P12, the RC Book and driving licence were

produced before the Tribunal to show that he is the owner cum

driver of the auto rickshaw. Hence, it requires interference of

this Court. Learned counsel would also vehemently contend that

the compensation awarded on the other heads is also meagre.

Hence, the same is to be revisited.

5. Per contra, learned counsel appearing for the

respondent-Insurance Company would vehemently contend that

no document is placed before the Tribunal to show that he was

earning Rs.15,000/- per month. The Tribunal, taking note of

the year of the accident, has rightly considered the income of

the deceased as Rs.5,000/- per month. Hence, it does not

require interference of this Court.

6. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for the respondent-

Insurance Company, the points that would arise for the

consideration of this Court are:-

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

(ii) What order ?

Points No.1 and 2:-

7. Having heard the respective counsel and also on

considering the material available on record, though the learned

counsel for the appellant contend that the deceased was aged

about 25 years, on perusal of Ex.P12, it discloses that the date

of birth of the deceased is shown as 20.05.1973. Hence, it is

clear that as on the date of the accident, the deceased was aged

about 39 years and the Tribunal has rightly applied the multiplier

as 15. However, failed to take note of the fact that Ex.P11, the

notarized copy of the RC of auto rickshaw bearing registration

No.KA-01-AA-4056 stands in the name of the deceased and the

driving license at Ex.P12 also discloses that he was holding the

driving licence in respect of LMV and 3 wheeler Cab. Hence,

there is a force in the contention of the learned counsel for the

appellant that the deceased was the owner cum driver of the

auto rickshaw.

8. When there is no proof regarding the income and

when the accident had taken place in the year 2012, the notional

income is to be taken at Rs.7,000/-. Apart from that when the

deceased was the driver cum owner of the auto rickshaw and

when he is having the skill of driving, as held by the Division

Bench of this Court in MFA No.4151/2017 vide order dated

06.02.2020, an amount of Rs.1,500/- is to be added to the

income of the deceased when he was holding a driving licence

apart from being the owner of the auto rickshaw. Ex.P11

discloses that the deceased is the owner of the auto rickshaw

and hence, an additional amount of Rs.1,000/- is to be added to

the income and by adding the same, it comes to Rs.9,500/- per

month.

9. The deceased was aged about 39 years and self

employed having the ownership of auto rickshaw and was driving

the said auto rickshaw by himself. Hence, 40% of the income

i.e., Rs.9,500x40%=Rs.3,800/- is to be added towards the

future prospects. By adding 40% of the income of the deceased

i.e., (Rs.3,800+Rs.9,500), it would come to Rs.13,300/- per

month. It is not in dispute that the claimant, who is the wife of

the deceased is the only dependent. When the deceased is

having only one dependent, 50% of his income is to be deducted

towards personal and living expenses, which has been rightly

considered by the Tribunal. After deducting 50% of the income

i.e., (Rs.13,300x50%), it would come to Rs.6,650/- per month.

By applying the relevant multiplier as 15, the 'loss of

dependency' would come to Rs.11,97,000/- (Rs.6,650x12x15).

The claimant is also entitled for the compensation of Rs.70,000/-

on the other conventional heads in view of Pranay Sethi's case

and hence, an additional amount of Rs.70,000/- is awarded

under the other conventional heads. Accordingly, the claimant

is entitled for the total compensation of Rs.12,67,000/- as

against Rs.5,10,000/-.

10. 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.12,67,000/- 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 6 weeks' from today.

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

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

Sd/-

JUDGE PYR