Karnataka High Court
Smt Vijaya W/O Late Vittal Shetty vs The Managing Director on 20 July, 2012
Author: N.K.Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JULY, 2012,
: BEFORE :
THE HON'BLE MR. JUSTICE N.K. PATIL
M.F.A.NO. 9665 OF 2011 (MV)
Between:
1. Smt. Vijaya,
W/o. Late Vittal Shetty,
Aged about 36 years,
R/at. Chamethimaru House,
Lchlampady Village and Post,
Puttur Taluk, D.K., District,
Pin Code-574 229.
2. Kum. Vijetha,
Aged about 12 years,
D/o. Late Vittal Shetty,
R/at. Chamethimaru House,
Ichlampady Village and Post,
Puttur Taluk, D.K., District,
Pin Code-574 229.
3. Kum. Babitha,
Aged about 10 years,
D/o.Late Vittal Shetty,
R/at. Chamethimaru House,
Ichlampady Village and Post,
Puttur Taluk, D.K., District,
Pin Code-574 229.
4. Sanjeetha,
Aged about 8 years,
D/o. Late Vittal Shetty,
(Rep. by their natural guardian
mother-appellant No.1)
2
R/at. Chamethimaru House,
Ichlampady Village and Post,
Puttur Taluk, D.K., District,
Pin Code-574 229.
5. Smt. Kalyani,
Aged about 64 years,
W/o. Thukkappa Shetty,
R/at. Chamethimaru House,
Ichlampady Village and Post,
Puttur Taluk, D.K., District,
Pin Code-574 229.
... Appellants
(By Shri. Yashodar Shetty, for Acara Law Chambers)
And:
1. The Managing Director,
K.S.R.T.C.,
K.R. Road,
Bangalore-25.
2. The Oriental Insurance Co., Ltd.,
Divisional Office,
Beauty Plaza,
Balmatta Road, Hampankatta,
Mangalore-1.
... Respondents
(By Shri. K.Nagaraj, Advocate for R1;
Shri. B.S. Umesh, Advocate for R2)
This MFA is filed U/S 173(1) of MV Act, against the
Judgment and Award dated: 15/11/2010 passed in MVC
No.1018/2007 on the file of the Member, Motor Accident
Claims Tribunal, Puttur, D.K., partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
3
This MFA coming on for Admission, this day, the Court
delivered the following:
JUDGMENT
This appeal by the claimants is directed against the judgment and award dated 15th November 2010 passed in MVC No.1018/2007 by the Member, Motor Accident Claims Tribunal, Puttur, D.K., (for short, 'Tribunal') for enhancement of compensation on the ground that, the compensation of `5,84,000/- awarded in favour of the claimants as against their claim for `12,00,000/-, is inadequate.
2. The facts in brief are that, the claimant No.1 is the wife, claimant Nos.2 to 4 are the children and claimant No.5 is the mother of deceased Vittal Shetty. They filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, at about 5:00 P.M, on 12-04-2007, when the deceased along with his relatives was travelling in his Bajaj M 80 bearing No.KA- 19/L-8119 from Nelyadi towards Ichilampady in NH-48, when he reached a place called Periyashanthi with an 4 intention to take diversion to Ichilampady road by giving signal for the same and yet to take turn, a KSRTC Bus bearing Registration No.KA-1/F-8261, being driven by its driver in a rash and negligent manner, came from the wrong side of the road and hit the motor bike from the back side and due to the impact, the deceased died on the spot.
3. It is the case of the appellants that, the deceased was aged about 38 years and was a mason by profession and also a milk vendor, earning totally a sum of `9,000/- per month and was hale and healthy prior to the accident. On account of the untimely death of the deceased, the first appellant has lost her life partner, the children have lost the love and affection, inspiration and guidance and the mother has lost the social and moral support and therefore, they have to be compensated reasonably.
4. On account of the death of the deceased, the appellants filed the claim petition before the Tribunal, seeking compensation against the respondents. The 5 said claim petition had come up for consideration before the Tribunal on 15th November, 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `5,84,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal before this Court, seeking enhancement of compensation.
5. I have gone through the grounds urged in the memorandum of appeal and heard the learned counsel appearing for appellants and also the Insurer, for quite some time.
6. After hearing learned counsel appearing for the appellants and Insurer, and after careful perusal of the judgment and award passed by the Tribunal, I am of the view that the Tribunal has erred in not assessing reasonable income of the deceased. The deceased was 6 aged about 38 years and working as a mason and also doing milk vending business, earning a sum of `9,000/- per month. But, the Tribunal has disbelieved the same on the ground that the appellants have not produced any documentary evidence. The accident is of the year 2007. Therefore, having regard to the age, avocation, number of dependents and also the year of accident, I re-assess the income of the deceased at `6,000/- per month.
7. During the course of arguments, learned counsel appearing for appellants drew my attention to the latest decision of the Hon'ble Apex Court in the case of Santosh Devi Vs. National Insurance Company Limited and others (Civil Appeal No.3723/2012, arising out of S.L.P.(C)No.24489/2010) (AIR 2012 SCW 2892), wherein, at paragraph 14, the Apex Court has held after referring to Sarla Verma's case (2009 ACJ 1298) and other relevant judgments, that 'Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also 7 get 30% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.' Further, the Hon'ble Apex Court has categorically observed that "In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment etc. would remain the same through out his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor....."
8. In the case on hand, admittedly, the deceased was working as a Mason and also milk vendor. I have already re-assessed the monthly income at `5,000/-, to meet the ends of justice. Accordingly, in view of the judgment of the Hon'ble Apex Court in Santosh Devi Vs. National Insurance Company Ltd. and others (supra), I add 30% to the monthly income of the deceased, towards future prospects. Accordingly, the 8 total monthly income would be `6,500/- (`5,000/- + `1,500/-). As the deceased was aged about 38 years, the proper multiplier applicable is '15' as per the decision of the Hon'ble Apex Court Sarla Verma's case (2009 ACJ 1298) as against '14' adopted by Tribunal. As the number of dependents are five, I deduct 1/4th (i.e. `1,625/-) towards the personal expenses of the deceased. Accordingly, if 1/4th (i.e. `1,625/-) is deducted from `6,500/- towards his personal expenses, the net income would be `4,875/- per month. Thus, the compensation towards loss of dependency would work out to `8,77,500/- (i.e. `4,875/- x 12 x'15') as against `5,04,000/- awarded by Tribunal.
9. Further, the Tribunal has erred in awarding a sum of `80,000/- towards conventional heads. The same is on the higher side. As per the decision of the Apex Court in Sarla Verma's case (supra), I award a sum of `45,000/- towards conventional heads, such as loss of consortium, loss of estate, loss of love and 9 affection and transportation and funeral expenses as against `80,000/- awarded by Tribunal.
Thus, the total compensation would come to `9,22,500/- as against `5,84,000/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization.
10. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellants is allowed in part. The impugned judgment and award dated 15th November 2010 passed in MVC No.1018/2007 by the Member, Motor Accident Claims Tribunal, Puttur, D.K., is hereby modified, awarding a sum of `3,38,500/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal.
The second respondent /Insurer is directed to deposit the enhanced compensation of `3,38,500/-, with interest thereon at 6% per annum, excluding interest for the delayed period of 245 days in filing the 10 appeal, within three weeks from the date of receipt of copy of the judgment and award.
Immediately on such deposit by the Insurer, a sum of `75,000/- each with proportionate interest shall be deposited in the name of the appellant Nos.2, 3 and 4 - children of deceased (i.e. `75,000/- x 3 = `2,25,000/-), in Fixed Deposit, in any scheduled/Nationalized Bank, till they attain the age of 25 years, with liberty reserved to the first appellant to withdraw the periodical interest.
A sum of `75,000/- with proportionate interest shall be deposited in the name of the first appellant - wife of deceased, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable for another ten years, with liberty reserved to the first appellant to withdraw the periodical interest.
Remaining sum of `38,500/- with proportionate interest shall be released in favour of the appellant Nos.1 and 5, in equal proportion, immediately.
Office to draw award, accordingly.
SD/-
JUDGE BMV*