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Karnataka High Court · body

2019 DIGILAW 147 (KAR)

Arun v. Sh Bherulal Jat

2019-01-10

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. These two appeals are filed by the claimants in two separate claim petitions being aggrieved by the common judgment and award dated 06.04.2013 passed by MACT-VII, Bijapur in MVC No. 1336/2011 and MVC No. 1337/2011 respectively. Therefore, these two appeals are heard together and disposed of by common judgment. 2. For the sake of convenience, the parties are referred to with their rank before the Tribunal. 3. It is the case of the claimants before the Tribunal that on 02.09.2011 at about 10.30 p.m. near Tiwary petrol pump on Bijapur Almatti road, the deceased Siddu was driving the car bearing No. KA-28/B-2466 coming towards Bijapur from Hitnalli along with deceased in MVC No. 1490/2011 one Abdul-salam, at that time truck bearing Regn.No.RJ-06/GA-5259 came from opposite direction in a rash and negligent manner and dashed to the car. Due to the said impact both sustained severe injuries and latter succumbed to the said injuries. The deceased Siddu was aged about 22 years and he was earning income of Rs. 7,500/- per month. Therefore, the claimant who is the mother of the deceased Siddu claimed compensation of Rs. 15,00,000/-. 4. The claimant in MVC No. 1337/2011, Arun being the owner of the car has claimed compensation / damages of Rs. 7,00,000/- on the ground that due to the accident his vehicle was completely damaged and that the accident in question occurred only due to the rash and negligent driving of the truck by its driver. 5. In pursuance of the notice issued to respondent No. 1 the owner of the truck and respondent No. 2 insurer of the said vehicle appeared before the Tribunal and filed their separate written statements, denying the material averments made in the claim petitions. They have denied that the accident was due to the rash and negligent driving of the truck. Further they have contended that the accident was due to the rash and negligent driving of the car and that the deceased was not holding valid and effective driving licence to drive the car. They have also denied the age, avocation and income of the deceased Siddu. Therefore, the both the claim petitions deserve to be dismissed against respondent Nos. 1 and 2. 6. They have also denied the age, avocation and income of the deceased Siddu. Therefore, the both the claim petitions deserve to be dismissed against respondent Nos. 1 and 2. 6. Along with these two claimants, the legal representatives of other deceased Abdulsalam had also filed MVC No. 1490/2011 and all these three claim petitions were clubbed together and common evidence was recorded and disposed of by common judgment by the Tribunal. 7. On the basis of the pleadings of the parties, the Tribunal framed the issues. PW1 to PW6 were got examined on behalf of the 3 claimants and they have got marked 18 documents. Respondent No. 2 has produced copy of the insurance policy at Ex.R1. The respondents have not produced any oral evidence. The learned Member of the Tribunal after hearing all the parties passed the impugned judgment awarding compensation of Rs. 6,78,000/- to the claimant-petitioner in MVC No. 1336/2011 and Rs. 9,35,000/- to the petitioner in MVC No. 1337/2011 together with interest at 6% per annum from the date of petition till realization. 8. The claimant in MVC No. 1336/2011 has filed MFA No. 31390/2013 seeking enhancement of compensation and the claimant in MVC No. 1337/2011 has filed MFA No. 31391/2013. However the claimants in MVC No. 1490/2011 have not joined the appellants in these appeals. 9. The appellant-claimant in MFA No. 31390/2013 has stated that the Tribunal has not properly and correctly appreciated the material on record and the income of her deceased son was not considered at Rs. 7,500/- per month, but the Tribunal has taken his meager income of Rs. 4,500/- per month. The compensation awarded on other heads is also on lower side. 10. The appellant in MFA No. 31391/2013 has contended in his appeal memo that the Tribunal has not properly and correctly appreciated the material evidence on record and has awarded lessor compensation. He has spent more than Rs. 6,74,112/- for the repairs of his Mahindra Logan Luxury Taxi bearing Regn.No.KA-28/B-2466. Therefore, the said amount ought to have been awarded as compensation. 11. The learned counsel for the appellant in both the appeals submitted that the learned Member of the Tribunal has awarded lessor compensation in both the cases and the same may be enhanced. 6,74,112/- for the repairs of his Mahindra Logan Luxury Taxi bearing Regn.No.KA-28/B-2466. Therefore, the said amount ought to have been awarded as compensation. 11. The learned counsel for the appellant in both the appeals submitted that the learned Member of the Tribunal has awarded lessor compensation in both the cases and the same may be enhanced. In MFA No. 31390/2013, the learned counsel submitted that the Tribunal has not awarded 40% of the income towards future prospects and the compensation awarded on conventional heads is also on lower side. 12. In MFA No. 31390/2013, the claimant has contended before the Tribunal that her deceased son Siddu was aged about 22 years and he was earning more than Rs. 7,500/-per month. However, she has not produced any acceptable evidence to prove the income of the deceased. The Tribunal has taken the age of the deceased Siddu as 25 years as shown in the PM report Ex.P5 since the claimant has not produced any other documents. It is also admitted that the deceased Siddu was not married and he was a bachelor. Considering the age of the deceased Siddu as 25 years, the proper multiplier applicable as per the principle laid down in Sarla Varma's case ( AIR 2009 SC 3104 ) is 18. The Tribunal has considered the income of the deceased at Rs. 4,500/- per month on a guess work. The claimant has stated that her son was working as a driver, but his driving licence was not produced. The accident occurred in the year 2011. Considering the cost of living in that year, it is just and necessary to consider the income of the deceased as Rs. 6,000/- per month and it is also necessary to add 40% of the income towards future prospects as per the dictum laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others, reported in, AIR 2017 SC 5157 . Thus, Rs. 2,400/- towards 40% of the future prospects being added to Rs. 6,000/-. The total income of the deceased comes to Rs. 8,200/- per month. Since the deceased was bachelor 50% of his income has to be deducted towards his personal and living expenses. Therefore, Rs. 4,200/- is net income of the deceased for the purpose of assessing loss of dependency. The loss of dependency comes to Rs. 6,000/-. The total income of the deceased comes to Rs. 8,200/- per month. Since the deceased was bachelor 50% of his income has to be deducted towards his personal and living expenses. Therefore, Rs. 4,200/- is net income of the deceased for the purpose of assessing loss of dependency. The loss of dependency comes to Rs. 9,07,200/- (4200 x 12 x 18 = 9,07,200). The claimant is entitled for compensation of Rs. 15,000/- towards loss of estate and another Rs. 15,000/- towards funeral expenses. Thus, the claimant is entitled for total compensation of Rs. 9,37,200/- as against compensation awarded by the Tribunal at Rs. 6,78,000/-. Therefore, the claimant is entitled for enhanced compensation of Rs. 2,59,000/- together interest at 6% per annum from the date of petition till realization. The award needs to be modified accordingly. 13. In MFA No. 31391/2013, it is not disputed that the claimant is the owner of the car bearing No. KA- 28-B-2466 which met with accident and that the accident occurred due to the rash and negligent driving of the truck bearing No. RJ-06/GA-5259. The claimant has produced RC Book of his vehicle at Ex.P8, Tax Card at Ex.P9, Insurance at Ex.P10, Form Nos. 49 & 47 at Ex.P11 and Ex.P12. The claimant claimed damages of Rs. 7.00. 000/-. He has got examined an expert witness PW6 Sameer Dhanashetty who has issued the Ex.P18 inspection valuation report of the car belonged to the claimant. Ex.P17 is the Tax Invoice under which the claimant purchased the car for Rs. 5,78,400/-. PW6 who has inspected the damaged car and has given valuation report as per Ex.P18 has deposed before the Court that the value of the car is Rs. 3,70,000/- and he assessed actual value of the car at Rs. 80,000/- due to the damages. Ex.P13 is the estimation issued by Sutaria Auto Centre Hubli and the claimant is claiming damages of Rs. 7.00. 000/- on the basis of this document. It is observed by the Tribunal that the photographs produced by the claimant in respect of the car goes to show that till the date of recording the evidence of the claimant it was not at all got repaired and it is in complete damaged condition only. Therefore, only on the basis of the estimation, the claimant cannot claim damages. It is observed by the Tribunal that the photographs produced by the claimant in respect of the car goes to show that till the date of recording the evidence of the claimant it was not at all got repaired and it is in complete damaged condition only. Therefore, only on the basis of the estimation, the claimant cannot claim damages. On the other hand, the depreciation value as per the inspection valuation report Ex.P18 has to be relied on for the purpose of awarding damages. PW6 being the competent witness who has issued Ex.P18 has deposed to these facts. Therefore, the Tribunal has properly appreciated the evidence and has come to the conclusion that the claimant is entitled for damages of Rs. 3,70,000/- and a sum of Rs. 25,000/- towards non-availability of the car after the accident for the use of the claimant. Thus, the Tribunal has properly awarded compensation/ damages of Rs. 3,95,000/- which needs no interference by this Court. Therefore, this appeal being devoid of merits is liable to be dismissed. Accordingly, I proceed to pass the following... ORDER 1. MFA No. 31391/2013 is dismissed. MFA No. 31390/2013 is partly allowed. 2. The claimant is entitled for enhanced compensation of Rs. 2,59,200/- with interest at 6% per annum from the date of petition till realization. 3. The respondent No. 2 is hereby directed to deposit the enhanced compensation amount with interest within eight weeks. 4. The order as to disbursement and deposit as passed by the Tribunal holds good.