Karnataka High Court
Shashikala vs M/S Nandi Associates on 29 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.638 OF 2017 (MV)
BETWEEN
1. Shashikala
W/o late Umashankar,
Aged 30 years
2. Milan
S/o late Umashankar,
Aged 6 years
3. Siddlingappa
S/o Chikkagur Siddappa
Aged 67 years
4. Smt. Sarvamangala
W/o Siddalingappa
Aged 59 years
Since the second appellant is
Minor, he is represented by his
Mother and natural guardian
the first appellant viz.,
Smt. Shashikala.
All are residing at
2
Milanahalli, Nelamangala Taluk
Bengaluru Rural District-562 123.
...Appellants
(By Shri K V Shyamaprasada, Advocate)
AND
1. M/s. Nandi Associates
#96, Green Garden
2nd Phase, 3rd Main
Kalkere, Banjara Layout
Horamavu
Bengaluru-560 043
Represented by its Manager
2. M/s. IFFCO-TOKIO General
Insurance Co. Ltd.
Regional office
Represented by its Manager
No.141, 5th Floor
Sri Shanthi Towers
3rd Main, East of NGEF Layout
Kasturinagar
Bengaluru-560 043.
...Respondents
(By Shri H N Keshava Prashant, Advocate for R-2;
R-1 served)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 17.10.2016 passed in MVC No.5091 of 2015 on the
file of the XIII Additional Small Causes Judge and Member MACT,
Bengaluru, partly allowing the claim petition for compensation
and seeking enhancement of compensation.
This Miscellaneous First appeal coming on for hearing, this
day, INDIRESH J., delivered the following:
3
JUDGMENT
This appeal is directed against the judgment and award dated 17th October, 2016 passed in MVC No.5091 of 2015 by the XIII Additional Small Causes Judge and Member Motor Accident Claims Tribunal, Bengaluru (for short, hereinafter referred to as "Tribunal"). The appellants herein are the legal representatives of deceased-Umashankar.
2. For the sake of convenience, the parties in this appeal are referred to as per their status before the Tribunal.
3. The facts of the case in nutshell, are that on 1st December, 2015 at about 12.30 pm, deceased-Umashankar was riding his motor cycle bearing Reg.No.KA-04-ER-1444 from Tumkur towards Benglauru along with pillion rider and when they reached T. Dasarahalli Metro Station, at that time, a lorry bearing Reg.No.KA-53-B-5190 came from behind in a rash and negligent manner and dashed to the motor cycle of the deceased, due to which, Umashankar died on the spot. The jurisdictional has registered FIR in Crime No.195 of 2015 against the driver of the lorry. The claimants have stated that deceased 4 was aged about 36 years and he was working as a teacher and also a lecturer at Divya Jyothi P.U.College and earning Rs.20,000/- per month. Hence, claimants have filed MVC No.5091 of 2015 on the file of the Tribunal seeking compensation of Rs.50,00,000/- from the respondents.
4. After issue of notice to the respondents, respondent No.1 was served, remained absent and accordingly he was placed ex-parte. Respondent No.2-Insurance Company have appeared and filed detailed statement of objections denying the averments made in the claim petition. The Insurance Company admits the issuance of policy in favour of offending vehicle, however, stated that the same is subject to the terms and conditions of the policy and accordingly, sought for dismissal of the claim petition.
5. The Tribunal, after considering pleadings on the record, has framed issues for its consideration. The claimant No.1 has examined herself as PW1 and got marked documents as Exhibits P1 to P23. respondents have not adduced any evidence. The Tribunal, after considering the material on record and the 5 evidence adduced by the parties, by its judgment and award dated 17th October, 2016, has allowed the claim petition in part and ordered that the claimants are entitled for compensation of Rs.12,05,000/- with interest at 9% per annum from the date of petition till realisation. Being not satisfied with the compensation awarded by the Tribunal, the claimants before this Court, in this appeal, seeking enhancement of compensation.
6. We have heard Shri K V Shyamprasad, learned counsel appearing for the appellants and Shri H.N. Keshava Prashant, learned counsel appearing for the respondent No.2-Insurance company.
7. Shri K V Shyamprasad, learned counsel for the appellant-claimants, submitted that the assessment of income by the tribunal at Rs.7,000/- per month is inadequate and without considering the material on record. He further submitted that, the deceased was working as a teacher at Magadi Kempegowda Vidyalaya and was getting a salary Rs.12,000/- per month and he was also a part-time lecturer at Divya Jyothi Pre-University College, Nelamangala and he was getting salary 6 of Rs.15,000/- per month from the said Institution and the same was not considered by the Tribunal. Accordingly, he sought for enhancement in the compensation.
8. Per contra, Shri H N Keshava Prashant, learned counsel appearing for the respondent No.2-Insurance company, submitted that the Tribunal after considering the material on record has passed the impugned judgment and award which does not require any interference in this appeal.
9. We have perused the material on record and gone through the impugned the judgment and award passed by the Tribunal. It is not in dispute that the deceased-Umashankar was riding motor cycle on 1st December, 2015 and met with an accident by the offending lorry bearing Reg. No.KA-33-B-5191. Pursuant to the same, the jurisdictional police have registered FIR in Crime No.195 of 2015 against the driver of the offending vehicle for offence punishable under Section 304 (A), 279 and 337 of the Indian Penal Code. Perusal of Exhibit P1-First Information Report, Exhibit P3-Sketch, Exhibit P4-IMV Report and Exhibit P7-Charge Sheet, would clearly indicate that the 7 deceased died on account of Road Traffic Accident and in view of the same, the finding recorded by the tribunal on issue No.1 is affirmed.
10. Insofar as awarding of compensation is concerned, the claimants have produced Exhibit P9-certificate issued by the Divya Jyoti Pre-University College, Nelamangala which discloses that the deceased was getting salary of Rs.15,000/- per month and also Exhibit P8- establish the fact that deceased was working as a teacher at Magadi Kempegowda Vidyalaya and drawing salary of Rs.12,000/- per month. As per the records, that the deceased was graduate in Bachealor of Education and secured post graduation in Arts (M.A.,B.Ed). Though the claimants have produced Exhibit P8 and P9, the letters issued by respective Institutions with regard to establishing the salary of deceased, however, the author of those documents have not been examined to prove the contents of the letters and in view of the same, we are of the considering opinion that taking the income of the deceased at Rs.12,000/- per month would be just and proper to meet ends of justice. The age of the deceased at 8 the time of the accident was 36 years. Accordingly, as per the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298 the appropriate multiplier would be 15; and 40 percent of the income is to be added towards future prospects. Since there are four dependants, out of income of the deceased one fourth has to be deducted towards his personal expenses. Accordingly, the calculation under the head loss of dependency would be Rs.16,800/- x 12 x 15 x ¾ = 22,68,000/-. Further, the claimants are entitled for compensation of Rs.40,000/- each under the head parental consortium and filial consortium. As per the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700 an amount of Rs.70,000/- is awarded under conventional heads. Hence, the following:
ORDER
1. Appeal is allowed in part;9
2. The judgment and award dated 17th October, 2016 passed in MVC No.5091 of 2015 is modified by enhancing the compensation to Rs.24,18,000/-
in lieu of Rs.12,05,000/- awarded by the Tribunal and enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation;
3. The portion of the order of the Tribunal with respect to liability, apportionment and disbursement, remain unaltered;
4. Registry to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE lnn