Karnataka High Court
Smt Jyothi vs Gopal Shetty on 17 July, 2012
Bench: N.K.Patil, S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JULY 2012
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.12001 OF 2005 (MV)
BETWEEN:
1. Smt.Jyothi,
W/o Late Kenchappa Shetty,
Aged about 38 Years.
2. Master Karthik,
S/o Late Kenchappa Shetty,
Aged about 15 Years.
3. Master Shreyas,
S/o Late Kenchappa Shetty,
Aged about 11 Years,
Appellant Nos.2 & 3 are
Minors, represented
by their mother and natural
Guardian, Smt.Jyothi,
i.e., appellant No.1.
All are R/at C/o Prabhakar,
KSRTC Driver, Near Garody,
Kankanady,
MANGALORE. ... APPELLANTS.
(By Sri.Dayanand S.Patil, Adv.)
2
AND:
1. Gopal Shetty,
S/o Sheshappa Shetty,
Occ: Coffee Planter,
Owner of Jeep bearing
Registration No.KA-18/M-4977,
SANGAMESHWARA POST.
2. The Manager,
United India Insurance Co., Ltd.,
Thogariakal Circle, I.C.Road,
CHICKMAGALORE DT.
3. The Branch Manager,
New India Assurance Company Ltd.,
Panduranga Complex,
Kollapuramma Tank Street,
CHICKMAGALORE. ...RESPONDENTS.
(By Sri.P.B.Raju, Adv. for R-2,
Sri.S.J.Chouta, Adv. for R-3,
Respondent No.1 - Served)
*-*-*-*-*-*-*-*
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, against the Judgment and Award dated
25.05.2005 passed in MVC No.1962/2002 on the file of the
Principal District Judge, Member, MACT, D.K., Mangalore,
partly allowing the Claim Petition for compensation and
seeking enhancement of compensation.
This appeal coming on for Final Hearing this day,
N.K.PATIL J., delivered the following:
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JUDGMENT
This appeal by the appellants is against the common Judgment and Award dated 25.05.2005 passed in MVC No.1962/2002 on the file of the Principal District Judge and MACT, D.K., Mangalore.
2. The Tribunal by its common Judgment and Award, has awarded a sum of Rs.9,04,200/- with interest at 6% p.a., from the date of the petition till realisation. Being dissatisfied with the quantum of compensation, the appellants have presented this appeal seeking enhancement.
3. Brief facts leading to this appeal are that the appellant No.1 is the wife, appellant Nos.2 and 3 are the children of the deceased Kenchappa Shetty and they have filed a Claim Petition before the Tribunal under Section 166 of the Motor Vehicles Act, against the owner and insurer of the vehicle, contending that the deceased was hale and healthy prior to the date of the accident and working as S.D.A., in the High School, drawing a gross salary of Rs.7,765/- p.m. He was the 4 sole bread earner in the family and due to his untimely death, the appellant No.1 has lost her life partner at an young age and the appellant Nos.2 and 3 have lost the love and affection apart from social and moral support. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other materials available on file, has allowed the same in part and awarded the compensation in a sum of Rs.9,04,200/- with interest at 6% p.a., from the date of petition till realisation. Not being satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal seeking enhancement of compensation.
4. The submission of the learned counsel appearing for the appellants at the outset is that the impugned Judgment and Award is liable to be set aside, on the ground that the quantum of compensation awarded under loss of consortium, loss of love and affection and funeral expenses is on the lower side. Further he submitted that in view of the judgment of 5 the Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation Ltd., & another reported in 2009 ACJ 1298, loss of future prospects has to be taken at 30% and the compensation has to be re-assessed by modifying the impugned Judgment and Award.
5. Per contra, learned counsel appearing for the respondent No.3 - Insurance Company submitted that the compensation awarded by Tribunal under all the heads is just and proper and interference by this Court is not called for.
6. Learned counsel appearing for the respondent No.2 submitted that respondent No.2 is not a necessary party to the proceedings, as no liability has been fastened on it.
7. After careful perusal of the material available on record threadbare, including the impugned Judgment and Award passed by the Tribunal, it emerges that the occurrence of accident and the resultant death of the deceased in the 6 accident are not in dispute. The appellants are none other than the wife and children of the deceased and they have filed the Claim Petition contending that the deceased was working as S.D.A. in a High School and drawing a salary of Rs.7,765/- p.m. As rightly pointed out by the learned counsel appearing for the appellants, in view of the well settled law laid down in Sarla Verma's case (supra), the appellants are entitled to a sum of Rs.10,094/-p.m, out of which, if 1/3rd is deducted towards the personal and living expenses of the deceased, the net income would come to Rs.6,729/- per month. The proper multiplier applicable to the case on hand is 13. Therefore, we re-determine compensation towards loss of dependency at Rs.10,49,724/- (Rs.6,729 x 12 x 13) instead of Rs.7,64,192/- awarded by the Tribunal and accordingly it is awarded.
8. Having regard to the facts and circumstances, we deem it fit to award a sum of Rs.45,000/- towards loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses. Further the amount 7 awarded towards medical expenses including Rs.1,25,000/- is on the lowerside. The appellants might have spent considerable amount towards the medical expenses of the deceased. Accordingly, we award a sum of Rs.1,50,000/- towards medical expenses.
9. For the foregoing reasons, the impugned Judgment and Award passed by the Tribunal is liable to be modified. The total compensation payable comes to Rs.12,44,724/- and the break-up is as follows:
Towards loss of dependency Rs.10,49,724/-
Towards conventional heads Rs. 45,000/-
Towards medical expenses Rs. 1,50,000/-
Total Rs.12,44,724/-
10. Accordingly the appeal filed by the appellants is allowed in part and the impugned Judgment and Award passed by the Tribunal in MVC No.1962/2002 is hereby modified, awarding a sum of Rs.3,40,524/- in addition to the amount awarded by the Tribunal with interest at 6% p.a., from the date of the petition till realisation.8
The Insurer is directed to deposit the enhanced compensation with interest within a period of four weeks from the date of receipt of a copy of this Judgment and Award.
Out of the enhanced compensation of Rs.3,40,524/-, a sum of Rs.2,00,000/- with proportionate interest, shall be invested in Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant No.1 for a period of five years and renewable for another five years with liberty to her to withdraw the interest accrued on it, periodically.
The remaining sum of Rs.1,40,524/- with proportionate interest shall be released in favour of the first appellant immediately on deposit by the Insurer.
Office to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE AGV.