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2019 DIGILAW 1102 (KAR)

Bharathi AXA GIC Ltd. v. Savithramma

2019-06-04

H.T.NARENDRA PRASAD

body2019
JUDGMENT : H.T. Narendra Prasad, J. Mfa No.1720/2018 is filed by the Insurance Company challenging the judgment and award dated 26.04.2017 passed by the Senior Civil Judge and XIX MACT, Tiptur (hereinafter referred to as 'the Tribunal' for short) in MVC No.593/2014, whereby the Tribunal has granted a compensation of Rs.16,07,000/- with interest @ 6% p.a. Claimants have also preferred MFA No.4024/2019 against the same judgment and award seeking enhancement of compensation. Since the challenge is to the same judgment, both the appeals are clubbed, heard together and are being disposed of by this common order. 2. Brief facts of the case: On 13.12.2013 at about 12.30 p.m. deceased Ravikumar was riding his motor cycle bearing registration No.KA-44-H-2497 from Petrol Bunk, when he was proceeding in front of Kalpataru Institute of Technology on N.H.206 Road to go to Sharadanagara by crossing Hassan Circle carefully and slowly, at that time, the driver of the lorry bearing registration No.KA- 09-B-0496 driven by its driver in a rash and negligent manner dashed against the motor cycle. Due to the impact, Ravikumar sustained grievous injury all over the body and died at the spot. The claimants being mother, wife and children of deceased have filed a claim petition in MVC No.593/2014 before the Tribunal. To establish their case, they have got examined two witnesses and got marked 15 documents. On the other hand, the insurance company neither examined any witnesses nor marked any documents. On appreciation of oral and documentary evidence, the Tribunal has granted a compensation of Rs.16,07,000/- with interest @ 6% p.a. Being aggrieved by the same, the Insurance Company has filed MFA No.1720/2018 seeking reduction of compensation awarded by the Tribunal and claimants have filed MFA No.4024/2019 seeking enhancement of compensation. 3. Sri. Chandrasehkaraiah .B, learned counsel appearing for the claimants submits that at the time of the accident, deceased was aged about 31 years and he was doing Mason Work and was earning Rs.50,000/- p.m. The Tribunal was not justified in assessing the notional income of the deceased as Rs.7,000/- p.m. The Tribunal has granted lesser compensation under the other categories, which is contrary to the law laid down by the Hon'ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi, (2017) AIR SC 5157. Hence, he sought for enhancement of compensation. 4. Pranay Sethi, (2017) AIR SC 5157. Hence, he sought for enhancement of compensation. 4. Per contra, learned counsel appearing for the Insurance Company submits that even though the claimants claimed that deceased was earning Rs.50,000/- p.m., they have not produced any documents to establish their claim. He further contended that in view of the law laid down by the Hon'ble Supreme Court in Pranay Sethi's case (supra), since the deceased at the time of accident was aged about 31 years, claimants are entitled for 40% of future prospects. The Tribunal has erred in taking future prospects at 50%. Hence, he seeks reduction of the compensation awarded by the Tribunal. 5. Heard the learned counsel for the parties and perused the records. 6. It is not in dispute that deceased Ravikumar died in a road traffic accident occurred on 13.12.2013, due to the rash and negligent driving of the driver of the lorry bearing registration No.KA-09-B-0496. Even though the claimants claimed that prior to the accident deceased was earning Rs.50,000/- p.m., they have not produced any documents to establish their claim. Under the circumstances, the Tribunal was left with no other option, but to asses the income of the deceased notionally. While assessing the notional income, the Tribunal has taken the income of the deceased as Rs.7,000/- p.m., which is on the lower side. In the catena of decisions, this Court has relied upon the chart prepared by the Lok-Adalath. As per the chart prepared by the Lok-Adalath, for an accident of the year 2013, notional income of Rs.8,000/- has been fixed. Accordingly, Rs.8,000/- per month is taken. In Pranay Sethi's case, the Hon'ble Supreme Court has categorically held that in case deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. In the case on hand, the deceased was aged about 31 years at the time of the accident. Hence, the tribunal is not justified in taking 50% towards future prospects. In view of the law laid down by the Hon'ble Apex Court in Pranay Sethis's case, future prospects of 40% has to be taken. In the case on hand, the deceased was aged about 31 years at the time of the accident. Hence, the tribunal is not justified in taking 50% towards future prospects. In view of the law laid down by the Hon'ble Apex Court in Pranay Sethis's case, future prospects of 40% has to be taken. Accordingly, loss of dependency has been recalculated as under:- Monthly income of the deceased 8,000/- Add: 40% towards future prospects 3,200/- 11,200/- LESS: 1/4th towards personal expenses 2,800/- Actual monthly income 8,400/- Multiplier 16 Loss of dependency (8,400 x 16 x 12) 16,12,800/- 7. As per the law laid down by the Hon'ble Supreme Court in Pranay Sethi's case, wife of the deceased is entitled for Rs.40,000/- under the category of loss of consortium and Rs.15,000/- each towards funeral expenses and loss of estate. In view of the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram and others, (2018) ACJ 2782, the claimants i.e., mother, daughter and son of deceased are entitled for Rs.40,000/- each towards loss of love and affection. 8. Accordingly, the appeals are partly allowed. The judgment and award passed by the Tribunal is modified as under: Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Loss of Dependency 15,12,000/- 16,12,800/- Loss of consortium to wife 30,000/- 40,000/- Loss of love and affection 55,000/- 1,20,000/- Loss of Estate - 15,000/- Funeral expenses 10,000/- 15,000/- Total 16,07,000/- 18,02,800/- 9. This Court while condoning the delay has held that the claimants are not entitled to interest for the delayed period of 606 days in filing the appeal. 10. The Insurance Company is directed to deposit with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization (excluding the period of 606 days), within a period of four weeks from the date of receipt of the certified copy of this judgment. The Tribunal is directed to disburse the amount in terms of the award passed by the Tribunal after due verification. 11. The amount in deposit is directed to be transmitted to the Tribunal, forthwith.