Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 296 (KAR)

Venkataravanappa v. M. Muneer Ahmed

2010-03-05

ARAVIND KUMAR

body2010
Judgment :- 1. Though the matter is listed for orders, by consent of the learned counsel for the parties, the appeal is taken up for Final Hearing and also as the matter is of the year 2007. 2. The legal heirs of the deceased Rajakumar namely, father and mother are questioning the correctness and legality of the judgment and award passed in MVC 5196/2006 dated 05.04.2007. 3. The facts in nutshell are as follows: On 29.07.2006 Sri. Rajakumar @ Raja, son of appellants 1 and 2 was said to have been standing by the side of the road at Siddepalli Cross, Chintamani Kencharlahalli road to proceed to Chintamani at about 8.30 a.m. and at that point of time, a private bus bearing Reg.No.KA-02-A-9497 is said to have been driven in a rash and negligent manner came and dashed against the said Rajakumar on account of which he was knocked down and sustained grievous injuries. He was shifted to R.L. Jalappa Hospital at Kolar after administering first aid at Government Hospital. He is said to have been succumbed to the injuries on 12.30 noon on the same day during the course of the treatment. On account of the death of their son, the parents filed a claim petition in MVC 5199/2006 under Section 163 (A) of MV Act, 1988 claiming compensation of Rs.6 lakhs from the owner and insurer of the bus. The first respondent, the owner of the bus remained exparte before the Tribunal and the 2nd respondent Insurance Company appeared and filed its written statement whereunder it admitted the issuance of insurance policy to the offending vehicle, but challenged the liability of the respondent to indemnify the insured. On the basis of the pleadings, the Tribunal framed the following issues: 1. Whether the petitioners prove that on 29-07-2006, at about 8.30 a.m. the accident occurred at Siddepalli Cross Chintamani-Kencharlahalli road is due to the rash and negligent driving of the driver of the private bus bearing registration No.KA-02-A-9497 and the deceased succumbed due to the injuries sustained in the said accident as alleged? 2. Whether the petitioner further prove that they are entitled for compensation amount? If so, how much and from whom? 3. What order or award? The claimants in support of their claim examined the first claimant, father of the deceased as PW.1 and got marked Exs.P.1 to P.14. 2. Whether the petitioner further prove that they are entitled for compensation amount? If so, how much and from whom? 3. What order or award? The claimants in support of their claim examined the first claimant, father of the deceased as PW.1 and got marked Exs.P.1 to P.14. The respondents did not lead any oral evidence or produced any documents in support of their claim. On the basis of the pleadings and evidence on record, the Tribunal allowed the petition in part and awarded a total compensation of Rs.1,66,397/- under the following heads: Loss of dependency Rs.1,60,000-00 Funeral expenses & transportation of corpse Rs.2,000-00 Loss of estate Rs. 2,500-00 Medical expenses Rs. 1,897-00 Total ---------------- Rs.1, 66,397-00 It is this judgment and award which is now assailed in the appeal. 4. I have heard Sri.N.Gopalakrishna, learned counsel appearing for the appellants and Sri. A.K. Bhat, learned counsel appearing for Respondent No.2. Notice to Respondent No.1 has been dispensed with by this Court. 5. Sri. Gopalakrishna contends that Tribunal committed an error in taking into consideration the notional income indicated in the Second Schedule to Section 163-A as the income of the deceased and thus, committed an error in awarding compensation which is on the lower side and it ought to have taken the income of the deceased driver at Rs.3,250-00 when there was evidence to establish the fact that the deceased was a driver by profession and Ex.P.12 had been produced in support of the same. He would also contend that higher rate of interest ought to have been awarded. 6. Per contra. Sri. A.K. Bhat, learned counsel appearing for Respondent No.2 would support the judgment and award passed by the Tribunal and submits that it does not require to be enhanced and accordingly seeks for dismissal of the appeal. 7. Having heard the learned counsel for the parties, the only issue that arises for consideration in this appeal is: (1) Whether the compensation awarded by the Tribunal in MVC No.5199/2006 dated 05-04-2007 is just and reasonable or is it required to be modified/enhanced? (2) What order? 8. The facts pleaded before the Tribunal with regard to the accident, issuance of policy and the age of the deceased is not in dispute. Hence, the facts are not being dealt while considering the contention raised by the learned counsel for the appellants. 9. (2) What order? 8. The facts pleaded before the Tribunal with regard to the accident, issuance of policy and the age of the deceased is not in dispute. Hence, the facts are not being dealt while considering the contention raised by the learned counsel for the appellants. 9. It is seen from the award that Tribunal has considered the notional income of the deceased and awarded the compensation by taking the income of the deceased at Rs.15,000/- p.a. and awarded the compensation accordingly. The upper limit of the income of the deceased that can be taken into consideration in a petition under Section 163-A cannot exceed Rs.40,000-00 p.a. and admittedly, in the instant case, the deceased was a driver as evidenced by the driving license produced at Ex.P.12. Hence, I am of the considered opinion that considering the date of accident and Ex.P.12, the income of the deceased can be safely arrived at Rs.3,000-00 p.m. and accordingly, it is held so. 10. In view of the income having been arrived at Rs.3,000-00 p.m., the deduction of 1/3 towards the personal expenses as required to be deduced is deducted and the income of the deceased is arrived at Rs.2,000-00 p.m. and the compensation payable is recomputed. After taking the income of the deceased at Rs.2.000-00, the compensation that would become payable by Respondent No.2 would be Rs.3,84,000-00 i.e., by applying the multiplier of 16. (2,000 x 12 x 16 = 3,84,000-00) and accordingly the same is awarded. In so far as the compensation awarded under the other heads is in consonance with Second Schedule of the Act and the same does not call for any interference. Accordingly, the following order is passed: Order The appeal is allowed in part. The compensation awarded under the heading loss of income to the dependents is modified and enhanced from Rs. 1,60,000-00 to Rs.3,84,000-00 and same shall carry interest at the rate of 6% p.a. from the date of petition till date of payment. Accordingly, the following order is passed: Order The appeal is allowed in part. The compensation awarded under the heading loss of income to the dependents is modified and enhanced from Rs. 1,60,000-00 to Rs.3,84,000-00 and same shall carry interest at the rate of 6% p.a. from the date of petition till date of payment. Out of the enhanced compensation, a sum of Rs,1,00,000-00 with proportionate interest is apportioned to the share of Appellant No.1 and the balance Rs.1,24,000-00 with proportionate interest is apportioned to the share of Appellant No.2 Out of the said amount as apportioned above, 40% of the same shall be kept in Fixed Deposit in the names of appellants in any Nationalized Bank of their choice for a period of five years and the appellants would be entitled to draw periodical interest and the balance 60% with proportionate interest shall be released in favour of the appellants 1 and 2 as ordered hereinabove. No order as to costs.