Karnataka High Court
Mrs. Devaki W/O Laxmana Poojary, vs Mr. R Paari S/O Ramaswami, on 23 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1907
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL No. 3984/2010 [MV]
BETWEEN:
1. MRS. DEVAKI
W/O LAXMANA POOJARY,
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD WORK,
2. MR. RAMESH,
S/O LAXMANA POOJARY,
AGED 27 YEARS,
OCC: AGRICULTURIST,
BOTH ARE R/O PADYAR HOUSE,
TENKA YEDAPADAVU VILLAGE,
SHIBRIKERE POST,
MANGALORE TALUK, D.K.
... APPELLANTS
(BY SRI. N.S. BHAT, ADV. (PH))
AND:
1. MR. R. PAARI
S/O RAMASWAMI,
MAJOR, R/O NEAR CHOUDESHWARI TEMPLE,
TUMKUR, (REP. BY GPA HOLDER
SHRI H. KRISHNAPPA, S/O HOBLIDAR
GOPALAKRISHNA, MARUTHI NAGAR,
UPPARA BIDI, CHENNAGIRI TALUKA,
DAVANAGERE DISTRICT.
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2. THE NEW INDIA INSURANCE COMPANY,
RAMA COMPLEX, PARAMATHI ROAD,
NAMAKKAL - 637 002,
BY ITS BRANCH MANAGER.
3. LAXMANA POOJARY,
S/O LATE SHANTA POOJARY,
MAJOR, R/O PADYAR HOUSE,
TENKA YEDAPADAVU VILLAGE,
SHIBRIKERE POST,
MANGALORE TALUKA, D.K.
...RESPONDENTS
(BY SRI. R. LOKESH, ADV., FOR R1 (PH);
SRI. S. SRISHAILA., ADVOCATE FOR R2 (VC);
R3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 08.12.2009 PASSED
IN MVC NO. 1130/2007 ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE, MEMBER MACT-IV, D.K.
MANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimants challenging the Judgment and Award passed in MVC No.1130/2007 3 dated 8.12.2009 on the file of the Motor Accident Claims Tribunal, D.K., Mangaluru['Tribunal', for short].
2. The factual matrix of the case is that the claimants have filed claim petition under section 163-A of the Motor Vehicles Act, 1988 ['Act', for short], contending that the deceased was working as a carpenter and he was earning Rs.3,300/- per month and he met with the accident on 8.7.2007 at about 8.30 pm near Petrol pump on the way from Suralpady towards Kaikamba. The said accident was due to the rash and negligent driving of the driver of the Bus bearing registration No.KA-51-2233. In pursuance of the claim petition, notice was issued against Respondent Nos.1 to 3. Respondent Nos.1 and 3 were placed ex parte and Respondent No.2 represented through Counsel denied the fact of the accident and also contended that the accident is a false story, 4 however admitted issuance of policy in respect of the vehicle and denied income of the deceased.
3. The claimants, in order to substantiate their claim, have examined the first claimant as PW.1 and got marked Exhibits.P1 to P5. The Respondents have not adduced any evidence. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition, awarding compensation of Rs.2,48,000/- with 6% interest per annum. Being aggrieved by the Judgment and Award, the present appeal is filed by the claimants contending that the Tribunal has committed an error in awarding meager compensation and not properly awarded under the lead 'loss of dependency'. The Tribunal also ought to have awarded more compensation towards 'funeral expenses' and other conventional heads and it requires interference of this Court.
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4. Learned counsel for the appellants would submit that the Tribunal has committed an error in taking income as Rs.2,500/- per month and he was carpenter and accident took place in the year 2007 and while applying the multiplier wrongly applied the multiplier as '12' taking the age of the mother and hence it requires interference of this Court.
5. Per contra, learned counsel for the respondent-Insurance Company vehemently submits that the claimants have not proved the income and except examining PW.1, no other persons have been examined. Learned counsel also referring to the Judgment of the Division Bench of the Madhya Pradesh High Court in the case of 'SHAMBHAU AND ANOTHER vs. DAULAT RAM AND OTHERS' reported in 2004 ACJ 1809 would submit that the Division Bench of Madhya Pradesh High Court has held that the claimants have not placed any material to substantiate the income of 6 the deceased and hence the Tribunal has rightly taken the income of Rs.2,500/- and there is no need to interfere with the findings of the Tribunal.
6. Having heard the arguments of learned counsel for the appellants-claimants, Counsels appearing for Respondent Nos.1 and 2 and also on perusal of the material on record, the question that would arise for consideration is, [i] Whether the Tribunal has committed an error in not awarding just and reasonable compensation? [ii] What order?
7. Having heard arguments of both respective Counsels and also on perusal of the material on record, the first claimant was examined as PW.1 who is none other than mother of the deceased and in the pleadings, it is stated that he was working as a carpenter and earning Rs.3,300/-. There is force in the contention of 7 the insurance company that in order to substantiate the avocation of the deceased, they have not examined any of the witnesses. However, this Court has to take note of the documents which came into existence immediately after the accident, particularly, in the inquest, avocation of the deceased is mentioned as carpenter and the accident took place in the year 2007. The Court has to take note of the documents which were produced before the Tribunal and this petition is filed under section 163-A of the Act and the Court has to consider the structural formula of awarding just and reasonable compensation. When the claim was made to the extent of income of Rs.3,300/-, in the absence of the document and also taking note of the accident of the year 2007, the Tribunal has to look into the notional income and normally if the accident is of the year 2007, it would be Rs.3,500/- as notional income and this petition is filed under section 163-A of the Act and hence taking note of the averments in the inquest 8 mahazar and year of the accident, it is appropriate to take income as Rs.3,000/-. Hence, income of Rs.3,000/- is taken to calculate loss of dependency. Having taken income of Rs.3,000/-, since this petition is filed under section 163-A of the Act, one-third has to be deducted. After deducting one-third, it comes to Rs.2,000/-. The Tribunal has committed an error in applying the Multiplier as '12' instead of '17' as per the schedule and taking income of Rs.2,000/- the amount comes to Rs.4,08,000/- [3,000 x 1/3 = 2,000 x 12 x 17] and also claimants are entitled for an amount of Rs.4,500/- under other conventional heads. Hence, the claimants are entitled to total sum of Rs.4,12,500/- as compensation.
8. In view of the discussions above, I pass the following:
ORDER [a] Appeal is allowed in part.9
[b] The Judgment and Award of the Tribunal passed in MVC No.1130/2007 dated 8.12.2009 is modified granting compensation of Rs.4,12,500/- with 6% interest.
[c] The respondent-Insurance Company is directed to pay compensation within eight weeks.
[d] The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith.
[e] The office is directed to transmit the trial Court record to Tribunal forthwith.
Sd/-
JUDGE AN/-