Karnataka High Court
Smt Saraswathi vs The Manager on 29 May, 2013
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 29th day of May, 2013
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE B SREENIVASE GOWDA
MISCELLENEOUS FIRST APPEAL No. 3052 of 2011 (MV)
BETWEEN:
1 Smt. Saraswathi
Aged 37 years
W/o Late B. Krishna
2 K. Byravi
Aged 17 years
D/o late B. Krishna
3 K. Deekshitha
Aged 11 years
D/o Late B. Krishna
2nd and 3rd appellants being minor
Reptd. By their mother appellant
No.1 above.
All are residing at No.23
2
Brindavan, Opp: Rapsri
Subramanyapura Main Road
Bengaluru-560 061
...Appellants
(By Sri Girimallaiah, Advocate)
AND:
1 The Manager
Iffco Tokio General Insurance Co Ltd.,
KSCMF Building, III floor
III Block, No.8
Cunningham Road
Bangalore-52
2 Mr. B. Chandru @ Chandrachari
S/o Basavachari
NO.148, Kadirenahalli
New Colony II Stage
Bengaluru - 560 070
...Respondents
(By Sri A.N. Krishna Swamy, Advocate for R-1
R-2 notice dispensed with)
This MFA filed under Section 173(1) of MV Act against
the Judgment and Award dated 13.09.2010 passed in MVC
No.5264/2006 on the file of the XIX Addl. SCJ & MACT,
Bangalore, partly allowing the claim petition for compensation
and seeking enhancement of compensation.
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This MFA coming on for admission this day,
N. KUMAR J., delivered the following:
JUDGMENT
Heard. Appeal is admitted. With the consent of the learned Counsel appearing for the parties, it is taken up for final disposal.
2. For the purpose of convenience, the parties are referred to as they are referred to in the claim petition.
3. This is a claimants' appeal seeking enhancement of compensation for the death of the sole bread earner of the family.
4. The deceased B. Krishna, was proceeding in a car bearing No.KA-05-MD-4765. The driver of the car drove the vehicle in a rash and negligent manner and while proceeding on Harohalli-Kanakapura road, NH 209 at Hanumanthanagar he lost control over the vehicle and dashed against tractor- 4 trailer bearing No.KA-05-T-5019 from behind. The car driver and the deceased sustained grievous injuries. Immediately, the deceased was shifted to Rajashekar Hospital at J.P. Nagar, Bangalore, where he succumbed to injuries.
5. The deceased was aged about 38 years. He was running a factory under the name and style of 'Sneha Plastics' at Kadirenahalli and earning Rs.30,000-00 per month. He was contributing Rs.20,000-00 to the family maintenance. Therefore, on his death, his wife and children claimed compensation in a sum of Rs.40 lakhs.
6. After service of notice, the first respondent- Insurance Company filed written statement contesting the claim. However, they did not deny the accident nor the insurance coverage to the car in question.
7. On the aforesaid pleadings, the Tribunal framed the following three issues:
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1. Whether the petitioners prove that on 21.7.2006 at about 10.15 p.m. when the deceased was proceeding in the car bearing no.KA-05-MD-4765 on Harohalli-Kanakapura road, NH-209 Road, near Hanumanthanagar, at that time, the driver of the said car drove the same at high speed in a rash and negligent manner and dashed against tractor-
trailer from its behind, as a result of which, he died as alleged?
2. Whether the petitioners are entitled for compensation? If so, at what rate and from whom?
3. What order or decree?"
8. The claimants, in order to substantiate the claim, examined the first claimant as P.W-1 and an eye witness as 6 P.W-2. They produced 13 documents, which are marked as Exs.P-1 to P-13. On behalf of respondents, no evidence was adduced.
9. The Tribunal on consideration of the aforesaid oral and documentary evidence on record, held that the accident was on account of rash and negligent driving by the driver of the car and therefore the claimants have established actionable negligence. Therefore they are entitled to compensation. Thereafter, it took note of the fact that deceased was running an industry and manufacturing agarabathis. He has filed income tax returns showing taxable income of Rs.1,51,468-00 and he has paid tax of Rs.3,311-00 and Rs.7,855-00 for the assessment year 2005-06 as per Ex.P-12. The Tribunal took the monthly income of the deceased at Rs.10,000-00 and annual income at Rs.1,20,000-00. Deducting 20% out of the same, it arrived at Rs.96,000-00 as income per annum. It deducted 1/3rd of the said amount towards personal expenses. It took the age of the deceased as 38 years based on the post 7 mortem report, applied the multiplier of 14, and awarded a sum of Rs.8,96,000-00 under head of loss of dependency. It also awarded a sum of Rs.15,000-00 towards loss of consortium, Rs.15,000-00 towards loss of love and affection to the minor children, Rs.15,000-00 towards loss of estate and Rs.15,000-00 towards funeral and transportation of dead body. It also awarded Rs.57,500-00 towards medical expenses. Thus in all, it awarded a sum of Rs.10,13,500-00 as compensation.
10. Aggrieved by the said award, the claimants have preferred this appeal.
11. The learned Counsel for the appellants assailing the impugned award contends that the Tribunal was not justified in deducting 20% out of the net income towards income tax or for any other purpose. The correct multiplier applicable was 15 and not 14. The claimants are also entitled to an additional amount by way of future prospectus. 8 Therefore he submits that the award passed by the Tribunal requires modification and compensation is to be enhanced.
12. Per contra, the learned Counsel appearing for the Insurance Company supported the impugned award.
13. From the aforesaid facts and rival contentions, the point that arise for consideration in this appeal is:
" Whether the claimants have made out a case for enhancement of compensation ? "
14. The facts are not in dispute. The deceased was aged about 38 years. He was running an industry and manufacturing agarabathis. He has filed income tax returns showing taxable income of Rs.1,51,468-00. However the taxable income from his business was Rs.1,18,615. He had paid income tax in a sum of Rs.6,670-00. Thus, the net income of the deceased on the date of the accident was 9 Rs.1,12,000-00. 1/3rd of the same is to be deducted towards personal expenses. Therefore the loss of income to the family was Rs.75,000-00 p.a. Having regard to the age of the deceased being 38, the multiplier applicable is 15 and not 14. Therefore the claimants are entitled to a sum of Rs.11,25,000-00 under the head of loss of dependency, whereas, the tribunal has awarded Rs.8,96,000-00. Therefore the claimants are entitled to Rs.2,29,000-00 as additional compensation under the said head. The Tribunal has awarded just compensation under other conventional heads including medical expenses. Therefore no case is made out for interference.
15. As the deceased was in business, which is fluctuating in nature, it is not possible to award any amount under the head of future prospectus. Therefore the claimants are entitled to succeed only the aforesaid extent. Hence, we pass the following order:
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Appeal is allowed in part.
In addition to what has been awarded by the Tribunal, the claimants are entitled to an additional compensation of Rs.2,29,000-00 with interest at 6% p.a. from the date of claim petition till the date of payment. Parties to bear their own costs.
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JUDGE Sd/-
JUDGE ksp/-