Karnataka High Court
Smt. Saroja vs Janardhanaraju C on 26 July, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 4766 OF 2013 (MV)
C/W
M.F.A. CROB 132 OF 2014(MV)
IN M.F.A. NO. 4766 OF 2013:
BETWEEN:
1. SMT. SAROJA
W/O LATE HANUMANTHU
AGED ABOUT 31 YEARS
2. SNEHA
D/O LATE HANUMANTHU
AGED ABOUT 13 YEARS
3. SANJAIAH
S/O LATE HANUMANTHU
AGED ABOUT 11 YEARS,
4. LAKSHMAMMA
W/O HUCHEGOWDA
AGED ABOUT 65 YEARS
5. HUCHEGOWDA
S/O HANUMANTHEGOWDA
AGED ABOUT 70 YEARS
2
ALL ARE RESIDING AT
KACHANAYAKANAHALLY VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TALUK - 573 201.
SINCE 2ND AND 3RD APPELLANTS ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER
S,T. SAROJA W/O LATE HANUMANTHU AS
MINOR GUARDIAN.
... APPELLANTS
(BY SRI. CHETHAN B, ADVOCATE )
AND
1. JANARDHANARAJU C
MAJOR,
RESIDENT OF NO.51/2,
2ND CROSS, MUNESHWARA NAGARA
PADMANABHANAGARA,
BANASHANKARI
BENGALURU.
2. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE
CO., LTD., NO.105:A,
1ST FLOOR, SEERSA PLAZA,
NO.136, RESIDENCY ROAD,
BENGALURU.
... RESPONDENTS
(BY SRI. E. I SANMATHI, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 14.05.2012 PASSED IN
MVC NO. 1952/2008 ON THE FILE OF THE MEMBER,
ADDITIONAL MACT, ADDITIONAL SENIOR CIVIL JUDGE,
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
3
IN M.F.A. CROB 132 OF 2014:
BETWEEN:
THE MANAGER,
BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
NO.105:A, 1ST FLOOR, SEERSA PLAZA,
NO.136, RESIDENCY ROAD,
BENGALURU - 560025.
...CROSS OBJECTOR
(BY SRI. E. I. SANMATHI, ADVOCATE)
AND:
1. SMT. SAROJA
W/O LATE HANUMANTHRAJU
AGED ABOUT 34 YEARS
2. SNEHA
D/O LATE HANUMANTHRAJU
AGED ABOUT 14 YEARS
3. SANJAIAH
S/O LATE HANUMANTHRAJU
AGED ABOUT 12 YEARS,
4. LAKSHMAMMA
W/O HUCHEGOWDA
AGED ABOUT 66 YEARS
5. HUCHEGOWDA
S/O HANUMANTHEGOWDA
AGED ABOUT 71 YEARS
RESPONDENTS NO.1 TO 5
ARE RESIDING AT
KACHANAYAKANAHALLY VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TALUK - 573 201.
4
SINCE 2ND AND 3RD APPELLANTS ARE MINORS
REPRESENTED BY THEIR NATURAL MOTHER
S,T. SAROJA W/O LATE HANUMANTHU AS
MINOR GUARDIAN.
6. JANARDHANRAJU C, MAJOR
RESIDENT OF NO.51/2
2ND CROSS, MUNESHWARA NAGARA,
PADMANABHANAGAR.
BANSHANKARI, BENGALURU - 560070.
...RESPONDENTS
THIS MFA CROB IN MFA NO. 4766/2013 FILED
UNDER ORDER 41 RULE 22 CPC R/W SEC.173(1) OF THE
MV ACT, AGAINST THE JUDGMENT AND AWARD DATED
14.05.2012 PASSED ON MVC NO.1952/2008 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA CONNECTED WITH MFA CROB IS
COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
The appeal by the claimants in M.F.A. No.4766/2013 and the Cross Objection No.132/2014 by the insurer, challenge the judgment and award dated 14.05.2012 made by the Additional M.A.C.T. Hassan, allowing M.V.C. No. 1952/2008, whereby a compensation of Rs.7,60,700/- with interest at the rate of 6% p.a. has been awarded with 5 the condition of apportionment in the ratio of 30:25:25:20 amongst the claimants interse.
2. The brief facts stated are that:
a) On 23.05.2008 at 5.30 p.m. when Hanumanthu was repairing lorry bearing No.KA-46-855 in Aravinda Motors Workshop, Hassan, another lorry bearing Registration No.KA-51-2889 came from back driven in a rash & negligent manner and dashed against him, due to which he sustained fatal injuries and succumbed to the same. The L.Rs. of the deceased being widow, minor children and both parents had presented the claim petition in M.V.C. No.1952/2008, which was stoutly resisted by the insurer by filing the Written Statement.
b) To prove the claim, from the claimants side, the first claimant Smt. Saroj widow of the deceased was examined as PW-1 and three other persons were examined as PW-2, PW-3 and PW-4. PW-2 Rangaswamy happened to be an eye-witness and PW-3 and PW-4 happened to be the co-employees of the deceased. From the claimant's side 16 6 documents came to be marked as per Ex.P-1 to P-16, which included police papers, post-mortem report and salary certificate of the deceased. From the side of the insurer or the owner of the offending vehicle, none was examined as a witness nor any document was got marked.
c) The M.A.C.T. after adverting to the pleadings of the parties and after adverting the evidentiary material, both oral and documentary, made the impugned judgment & award that are in challenge by the claimants on the ground of inadequacy of compensation and by the insurer on the ground of excessive award of compensation.
3. The learned counsel for the appellants-claimants submits that the award of compensation is to much on the lower side despite their being abundant evidence available on record. He also draws my attention to paragraph 61 of the judgment of the Apex Court in "National Insurance Company vs. Pranay Sethi and others" reported in AIR 2017 SC 5157 and paragraphs 8 and 9 of the judgment in HEMRAJ vs. ORIENTAL INSURANCE COMPANY LTD., reported in 2018 ACJ 5, to contend that the compulsive 7 additional component had not been adverted to while arriving at the notional income of the deceased.
4. The learned counsel for the insurer pressing into service his appeal, vehemently contends that the M.A.C.T. has grossly erred in taking the bonus component also as a part of the income of the deceased. Secondly, he also states that no addition component plea will arise in this case inasmuch as the deceased was not in the permanent employment of Aravind Motors Workshop.
5. I have heard the learned counsel for the appellants- claimants and the learned counsel for respondent-insurer and perused the appeal papers.
6. The Apex Court in the case of Pranay Sethi (supra) and the subsequent case of Hemraj (supra) has held that whether it is actual income, established income or notional income, the addition has to be made in the varying percentages depending upon the age group to which the deceased belongs. In the present case, the age of the deceased being 33 years and 40% addition has to be made 8 to the wages taken by the M.A.C.T. for working out the compensation under the head 'loss of future income'. If 40% is added, the compensation awardable works out to be:
Annual Income : Rs.60,060-00
40% Future Income : Rs.24,024-00
------------------
Revised annual income : Rs.84,084-00 Deduction for personal expenses : Rs.21,021-00
--------------------
Income of the deceased : Rs. 63,063 -00
-------------------
Loss of dependency
63,063 X 12 = : Rs.10,09,008-00
Amount already awarded : Rs. 7,20,720-00
-----------------
Enhanced compensation : Rs. 2,88,288-00
------------------
As per the calculation memo furnished by the
appellant and not dissented to by the insurer.
7. The contention of the learned counsel for the insurer that the bonus does not constitute part of the income of the employee, is difficult to accept, inasmuch as it is a statutory contribution for the benefit of the employees. 9 This is under the Payment of Bonus (Amendment) Act, 2015. Therefore no fault can be found in adding he component of bonus for working out the income of the deceased. The other contention that the income of the deceased is taken on a higher side does not merit acceptance in view of the evidentiary material on record.
8. In the above circumstances, the claimants appeal is partly allowed. The Insurer's Cross Objection is dismissed. The impugned judgment & award are modified by enhancing the compensation from Rs.7,20,720/- to Rs.10,09,008/-. Accordingly the claimants are entitled to an enhanced compensation of Rs.2,88,288/- (Rupees two lakh eighty eight thousand two hundred and eighty eight only) with 6% annual interest thereon.
Sd/-
JUDGE Snb/