1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 07 TH DAY OF DECEMBER 2012 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.5290/2009 A/W MFA CROB NO.136/2010 BETWEEN: THE NEW INDIA ASSURANCE CO. LTD., IIND FLOOR, LAKSHMI BUILDING, NO.14, J.C.ROAD, BANGALORE 560 002 DULY REPRESENTED BY ITS DIVISIONAL MANAGER.... APPELLANT (BY SRI.A.RAVISHANKAR, ADVOCATE) AND: 1. SMT.VASANTHAKUMARI AGED ABOUT 29 YEARS W/O.LATE SHIVARAMU 2. MASTER VINAYKUMAR AGED ABOUT 12 YEARS S/O. LATE SHIVARAMU 3. KUM.SANDYA RANI,
2 AGED ABOUT 9 YEARS, D/O. LATE SHIVARAMU 4. SRI.BYRAPPA @ CHIKKANNA AGED ABOUT 67 YEARS 5. SMT.KALAMMA AGED ABOUT 62 YEARS W/O. SRI.BYRAPPA @ CHIKKANNA RESPONDENT Nos. 2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT.VASANTHAKUMARI RESPONDENT NO.1 HEREIN. ALL ARE RESIDING AT M.GOPALLI, BIDADI HOBLI, RAMANAGAR TALUK, BANGALORE RURAL DISTRICT. 6. SRI.L.NARAYANA REDDY, AGED ABOUT 47 YEARS, S/O. SRI.LAKSHMANA REDDY, NO.14, BIDADI HOBLI, RAMANAGAR TALUK BANGALORE RURAL DISTRICT.... RESPONDENTS (BY SRI.S.RAJU, ADVOCATE FOR RAJU & ASSOCIATES, ADVOCATE FOR R1 TO R5, R6 NOTICE D/W) --------
3 THIS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGEMENT AND AWARD DATED:25.04.2009 PASSED IN MVC.NO.246/2007 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.) AND MACT RAMANAGARA, AWARDING A COMPENSATION OF RS.6,65,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL DEPOSIT. IN MFA.CROB.NO.136/2010 BETWEEN: 1. SMT.VASANTHAKUMARI AGED ABOUT 30 YEARS W/O.LATE SHIVARAMU 2. MASTER VINAYKUMAR AGED ABOUT 13 YEARS S/O. LATE SHIVARAMU 3. KUM.SANDYA RANI, AGED ABOUT 10 YEARS, D/O. LATE SHIVARAMU 4. SRI.BYRAPPA @ CHIKKANNA AGED ABOUT 68 YEARS 5. SMT.KALAMMA AGED ABOUT 63 YEARS W/O. SRI.BYRAPPA @ CHIKKANNA RESPONDENT Nos. 2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT.VASANTHAKUMARI RESPONDENT NO.1 HEREIN
4 ALL ARE RESIDING AT M.GOPALLI, BIDADI HOBLI, RAMANAGAR TALUK, BANGALORE RURAL DISTRICT.... CROSS-OBJECTORS (BY SRI.S.RAJU, ADVOCATE FOR RAJU & ASSOCIATES, ADVOCATE) AND: 1. SRI.L.NARAYANA REDDY, AGED ABOUT 50 YEARS, S/O. SRI.LAKSHMANA REDDY, NO.14, BIDADI HOBLI, RAMANAGAR TALUK BANGALORE RURAL DISTRICT. 2. THE NEW INDIA ASSURANCE CO. LTD., IIND FLOOR, LAKSHMI BUILDING, J.C.ROAD, BANGALORE 560 002 DULY REPRESENTED BY ITS DIVISIONAL MANAGER. (BY SRI.A.RAVISHANKAR, ADVOCATE FOR R2, R1- NOTICE D/W) --------... RESPONDENTS THIS MFA CROB IN MFA.NO.5290/2009 FILED U/O 41 RULE 22 OF CPC, R/W SEC. 173(1) OF MV ACT,
5 AGAINST THE JUDGEMENT AND AWARD DATED:25.04.2009 PASSED IN MVC.NO.246/2007 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.) AND MACT RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMETN OF COMPENSATION. THIS MFA AND MFA CROB ARE COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T This appeal and cross-objection are directed against Judgment and award passed by the Tribunal by MACT at Ramanagar in MVC No.246/2007 dated 25.04.2009 whereunder claim petition filed by claimants came to be allowed in part and a total compensation of Rs.6,65,000/- has been awarded with interest at 6% per annum from the date of petition till date of payment or deposit whichever is earlier. 2. Heard Sri.Ravishankar, learned counsel appearing for insurance company who has also accepted notice for said insurance company in cross-objection
6 No.136/2010. Notice to respondent No.1 has been dispensed with by order dated 07.12.2012. Parties are referred to as per their rank in Tribunal. 3. Claim petition was filed under Section 166 of Motor Vehicles Act seeking compensation of Rs.20,00,000/- interalia contending that, first claimant s husband, father of claimant Nos.2 and 3 and son of claimant Nos.4 and 5 by name Sri.Shivaramu while proceeding as a pillion rider in motor cycle along with Sri.Revanna on 11.05.2007 at about 9.00 a.m., was hit by a Tractor-trailer resulting in said Sri.Shivaramu sustaining grievous injuries and died at the spot. On this ground, claimants sought for payment of compensation. 4. It is contention of Sri.Raju, learned counsel appearing for claimant that, Tribunal erred in awarding abysmally low compensation and it did not consider the income of the deceased at Rs.12,000/- per month and
7 had not taken into account additional income that claimant would have earned in future while calculating loss of dependency and it committed a serious error in construing the income of deceased at Rs.5,000/- per month and prayed for enhancement of compensation in cross-objection. 5. Per contra, Sri.A.Ravi Shankar, learned counsel appearing for Insurance Company would contend that, Tribunal without any discussion whatsoever has considered the income of deceased at Rs.5,000/- per month which is on higher side and said finding is perverse. He also submits that, alleged lands as per Exs.P8 and P9 continue with the family of deceased and it is only managerial and supervisory loss that is caused and as such it was only required to consider same and as such income construed by Tribunal is on higher side. He contends that, Tribunal ought to have
8 taken the notional income of deceased at Rs.3,000/- per month and not Rs.5,000/- per month. 6. In reply, Sri.Raju, learned counsel appearing for claimant would submit that, Division Bench of this Court in MFA No.10401/2007 disposed of on 01.08.2011 has taken the additional income that the deceased would have earned for the purpose of awarding loss of dependency and submits that, same requires to be considered by this Court and compensation be enhanced by modifying the award suitably. He also relies upon Judgment of the Apex Court in case of Ramachandrappa v.manager, The Royal Sundaram Alliance Insurance Company Limited reported in AIR 2011 SC 2951 and contend that, income of coolie has been taken at Rs.4,500/- per month, as such Tribunal ought to have taken income of the deceased at Rs.12,000/- per month by further addition of 30% of future additional income that he would have earned.
9 7. Having heard the arguments of learned advocates appearing for parties and on perusal of the judgment and award passed by Tribunal, it is noticed that, on account of a road traffic accident that occurred on 11.05.2007, husband of first claimant Shivaramu succumbed to the injuries at spot. At the time of his demise, he was aged 34 years as per post mortem report, Ex.P4. To demonstrate that, claimant was carrying on agricultural operations and also animal husbandry, Ex.P7-Pass book issued by Milk Co-operative Producers Society and Exs.P8 and 9, RTC extracts, which relates to land belonging to deceased have been produced. Said Exs.P8 and P9, RTC extracts as observed by Tribunal is standing in name of fourth claimant i.e., father of deceased. Taking note of all these facts, Tribunal has found that from agricultural operations being carried on in said land, probable income that he was earning was considered at Rs.5,000/- per month by the Tribunal and
10 it has also found that on account of his demise, land remained to continue with the claimants and ownership of said land had vested in fourth claimant. Ownership of these lands is with fourth claimant and it is only supervisory charges which claimants have lost on account of demise of Shivaramu. The said finding of the Tribunal cannot be construed as either perverse or erroneous. However, considering the fact that deceased was also carrying on avocation of animal husbandry and on account of non-production of any document or any positive evidence to establish as to what was the actual income earned by claimant by carrying on such avocation, this Court would have to do some amount of guess work and by modest estimate it can be construed that deceased-claimant was earning atleast Rs.500/- per month by doing animal husbandry and as such, same requires to be added to the income of the deceased which was construed by Tribunal at Rs.5000/- and thus, total
11 income earned by deceased would be Rs.5,500/- per month. 8. Tribunal while deducting the personal expenses of deceased has deducted 1/3 rd of income. The fact that, there were main four dependants as on date of demise of Shivaramu and in view of dicta laid down by Apex Court in Sarla Varma vs. Delhi Transport Corporation reported in 2009(6) SCC 121, appropriate deduction requires to be made by taking into consideration that deceased had four dependants and as such 1/5 th has to be deducted and adopted instead of 1/3 rd adopted by the Tribunal and as such Rs.1,100/- requires to be deducted from the monthly income of the deceased and as such monthly income of deceased which requires to be considered would be Rs.4,400/-. Admittedly, deceased was aged about 24 years as per post mortem report and proper multiplier that would be applicable is 16. Thus, taking into consideration these
12 factors, computation of compensation payable is recomputed as under: Rs.5,500-1100=4.400 x 12 x 16= 8,44,800/-. Tribunal has awarded a sum of Rs.6,00,120/- towards loss of dependency and same requires to be reduced and accordingly it is deducted and as such enhanced compensation that would be payable is Rs.2,44,680/- and same is awarded. 9. At this juncture, contention of Sri.Raju, learned counsel appearing for claimants requires to be noticed namely that, 30% was required to be added to the income of claimant and he has relied upon Judgment of Division Bench to buttress his argument which requires to be rightly rejected for the simple reason that in said case, before Division Bench claimant had produced salary certificate as per Ex.P7 and same was reflecting that, he was drawing a salary of Rs.10,450/- per month and as such principles laid down in Sarla
13 Varmas v. Delhi Transport Corporation and others reported 2009(6) SCC 121 and Santosh Devi v. National Insurance Company Ltd and others reported in AIR 2012 SCW 2892, was applied and 30% was added towards future prospects while determining loss of dependency. However, said factual matrix is not present in this case, hence, said judgment would not be of any assistance to the learned counsel for claimants to the facts on hand. 10. It is to be noticed that, insofar as compensation awarded by the Tribunal under conventional heads a sum of Rs.65,000/- has been awarded i.e., 20,000/- towards loss of amenities, Rs.20,000/- towards loss of consortium, Rs.20,000/- towards loss of love and affection and Rs.5,000/- towards transportation and funeral expenses and same is slightly on higher side and this Court has been consistently awarding compensation under Conventional
14 heads to an extent of Rs.40,000/- and as such Rs.25,000/- being in excess, same requires to be scaled down and accordingly, same is reduced. In view of aforesaid reason, following order is hereby passed: O R D E R i) MFA 5290/2009 is allowed in part. Compensation of Rs.65,000/- awarded under Conventional head is reduced to Rs.40,000/-. ii) Cross-appeal No.136/2010 is allowed in part. Additional Compensation of Rs.2,44,680/- is awarded towards loss of dependency which shall carry interest at the rate of 6% p.a. from the date of petition till date of deposit or payment, subject to exclusion of interest for the period of delay of 122 days. iii) iv) No order as to costs. Amount in deposit if any before this Court is ordered to be transmitted to the jurisdictional
15 Tribunal forthwith for disbursement in accordance with law to parties. v) Registry to draw the award accordingly. Sri.Ravi Shankar A. is permitted to file vakalathnama in MFA Crob No.136/2010 for respondent No.2 within a period of three weeks from today. Sd/- JUDGE KSR