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2019 DIGILAW 1515 (KAR)

Malu Raju Hunshimarad v. Milind R. Naik

2019-07-02

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The claimants being aggrieved by the Judgment and Award dated 20.01.2015 passed in M.V.C. No. 1164 of 2014 by the Fast Track Court-II and Additional M.A.C.T. Belagavi (for short the ‘Tribunal’) have filed this appeal. 2. It is the case of the claimants before the Tribunal that on 06.06.2013 at 18.15 hours near Kondaskopp cross, on National Highway-4, the driver of the Tipper bearing registration No. GA-05/T-8978, owned by first respondent and insured with second respondent, drove the same in a rash and negligent manner and dashed to the motorcycle bearing registration No. KA-22/EF-6807 owned by the 1st respondent, wherein the husband of the 1st petitioner, father of petitioner Nos. 2 to 4 as well as son of petitioner No. 5 namely Raju sustained fatal injuries and died on the spot. Therefore, the claimants filed claim petition against the owner and insurer of the offending vehicle claiming compensation amount of Rs. 25,00,000/-. 3. In pursuance of the notice respondent Nos. 2 and 3 appeared through their counsels. Respondent No. 1 remained absent and was placed ex-parte. Respondent No. 2 filed the written statement denying the total averments made in the claim petition. However, admitted issuance of policy of insurance in respect of the offending vehicle. He has denied all other allegations and contended that the accident occurred due to the rash and negligent driving of driver of the other vehicle. The driver drove the vehicle without wearing helmet. Therefore, he prayed for dismissal of the petition. Respondent No. 3 has not filed any written statement. 4. On the basis of the pleadings of the parties, the Tribunal framed the issues. In support of their claim petition, the petitioner No. 1 got examined as PW-1 and got marked eight documents as Ex.P.1 to Ex.P.8. Thereafter, respondent No. 2 examined two witnesses as RW-1 and 2 and got marked one document as Ex.R-1. 5. The Tribunal after hearing both the parties, passed the impugned judgment awarding compensation amount of Rs. 12,15,000/- with interest at the rate of 9% p.a. from the date of petition till the date of realization. Respondent Nos. 1 and 2 were ordered to pay compensation jointly and severally. 6. The claimants being dissatisfied with the impugned Judgment and Award have filed this appeal seeking enhancement of compensation on the ground that the Tribunal has considered the income of the deceased at Rs. Respondent Nos. 1 and 2 were ordered to pay compensation jointly and severally. 6. The claimants being dissatisfied with the impugned Judgment and Award have filed this appeal seeking enhancement of compensation on the ground that the Tribunal has considered the income of the deceased at Rs. 6,500/- per month which is on the lower side and 50% of the income of the deceased ought to have been awarded for future prospects and the deduction towards personal expenses ought to have been made 1/10th of the income. 7. Heard the learned counsels for the appellants and respondent No. 2-Insurer. 8. A short question which arises for consideration in this appeal is as to whether the appellants-claimants have made out grounds for enhancement of the compensation? 9. The respondent No. 2-insurer has not challenged the liability saddled against him, therefore this Court need not consider the question of liability in this appeal. The claimants have contended before the Tribunal that the deceased was aged about 30 years as on the date of accident and was earning Rs. 10,000/- per month by working as bar binder and was maintaining family consisting of six members. However, claimants have not produced any positive evidence to prove the income of the deceased. Therefore, the Tribunal has considered the notional income of the deceased at Rs. 6,500/- per month. Considering the age and occupation of the deceased and year of the accident i.e. 2013 and in view of the guidelines provided for the settlement of cases before the Lok-Adalath, it is just and necessary to consider the income of the deceased at Rs. 8,000/- per month for the purpose of awarding compensation. 10. Further, in view of the Judgment in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) AIR SC 5157, the claimants are also entitled for addition of 40% of the income of the deceased towards future prospects. Accordingly, the just compensation is awarded considering the income of the deceased at Rs. 8,000/- per month and addition 40% of Rs. 3,200/- taken as future prospects, the total income comes to Rs. 11,200/- out of which, 1/4th has to be deducted towards personal and living expenses of deceased, thereby the income comes to Rs. 8,400/- which has to be multiplied by 12 and 17; therefore a sum of Rs. 17,13,600/- (Rs. 8,400/- x 12 x 17) awarded towards loss of dependency. 3,200/- taken as future prospects, the total income comes to Rs. 11,200/- out of which, 1/4th has to be deducted towards personal and living expenses of deceased, thereby the income comes to Rs. 8,400/- which has to be multiplied by 12 and 17; therefore a sum of Rs. 17,13,600/- (Rs. 8,400/- x 12 x 17) awarded towards loss of dependency. Further, a sum of Rs. 70,000/- is awarded under the conventional heads. Petitioner Nos. 2, 3 and 4 are the minor children of the deceased and they are entitled for compensation towards loss of love and affection at the rate of Rs. 50,000/- each in view of the Judgment in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram and Others, (2018) ACJ 2782, accordingly, a sum of Rs. 50,000/- each is awarded under this head. Claimant No. 5 being mother of the deceased, she is also entitled for parental consortium amount of Rs. 40,000/- as held in the case stated supra. Thus, the claimants are entitled for total compensation amount of Rs. 19,73,600/- as against Rs. 12,15,000/- awarded by the Tribunal. The point for consideration in this appeal is answered accordingly. In the result, this Court proceed to pass the following: ORDER The Miscellaneous Second Appeal is allowed in part. The Judgment and Award dated 20.01.2015 passed in M.V.C. No. 1164 of 2014 by the Fast Track Court-II and Additional M.A.C.T. Belagavi is modified. The appellants-claimants are awarded total compensation amount of Rs. 19,73,600/- along with interest at the rate of 6% per annum from the date of petition till its realization. The respondent No. 2-Insurer is directed to deposit the compensation amount before the concerned Tribunal within a period of eight weeks from this day.