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2019 DIGILAW 1840 (KAR)

Shambugowda v. T. Malikarjuna

2019-08-14

SHANKAR GANAPATHI PANDIT

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JUDGMENT : Shankar Ganapathi Pandit, J. 1. Claimants are before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 05.09.2012 passed in MVC. No. 311/2012 on the file of the Fast Track Court and Additional MACT., Mysore. 2. Claimants are parents, brother and sister of deceased Shashidar. Claimants filed claim petition under Section 166 of the Motor Vehicles Act for the accidental death of Shashidar. On 30.10.2011, when the deceased was proceeding in a motorcycle bearing registration No. KA-11/K-8243, a maruti swift car bearing registration No. KA-09/Z-9081 came in a rash and negligent manner and dashed to the motorcycle of the deceased, due to which deceased fell down and sustained grievous injuries, as a result, he succumbed to the injuries. It is claimed that the deceased was aged 18 years as on the date of accident and was earning Rs. 9,000/- per month as mason. On issuance of summons, the Insurance Company appeared and filed its statement denying the petition averments. It was contended that the accident was occurred due to rash and negligent driving of the motorcycle by the deceased. It was also contended that the driver of the car had no valid and effective driving license as on the date of the accident. The 2nd claimant examined herself as P.W. 1 and got marked 10 documents. Respondents have not led any evidence. 3. The Tribunal, on assessing the material on record, awarded total compensation of Rs. 2,92,000/- as under: 1 Loss of dependency Rs.2,70,000/- 2 Conveyance Rs.2,000/- 3. For Funeral expenses Rs.10,000/- 4 For loss of love and affection Rs.10,000/- Total Rs.2,92,000/- 4. The claimants not being satisfied with the quantum of compensation are before this court in this appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondent - Insurance Company. Perused the appeal papers. 6. Learned counsel for the appellants contends that the Tribunal committed an error in taking the monthly income of the deceased at Rs. 3,000/-, whereas he was earning Rs. 9,000/- per month as mason. 5. Heard the learned counsel for the appellants and the learned counsel for the respondent - Insurance Company. Perused the appeal papers. 6. Learned counsel for the appellants contends that the Tribunal committed an error in taking the monthly income of the deceased at Rs. 3,000/-, whereas he was earning Rs. 9,000/- per month as mason. He further contended that the deceased was aged 18 years at the time of accident and the Tribunal ought to have taken the age of the deceased to determine the multiplier, whereas the Tribunal has taken the age of the younger parent and has adopted multiplier of 15 to determine the compensation. Further, relying upon the decision of the Supreme Court in the case of magma general insurance COMPANY LIMITED V. NANU RAM AND OTHERS, he submits that the appellants are entitled for filial consortium. Thus, he prays for enhancement of compensation. 7. Per contra, learned counsel for the respondent - Insurance Company would submit that the compensation awarded by the Tribunal is just and proper, which needs no interference. 8. Having heard the learned counsel for the parties and on perusal of the material on record, I am of the view that the claimants are entitled for enhancement of compensation. The accident is of the year 2011, whereas the Tribunal has taken the income of the deceased at Rs. 3,000/- per month which is on the lower side. The claimants have not produced any material or document to indicate the exact income of the deceased. In the absence of any material to indicate the exact income of the deceased, the Court will have to assess the income of the deceased notionally. This Court and the Lokadalat, while determining the compensation for the accident of the year 2011, normally would take Rs. 6,500/- as notional income. In this case also, in the absence of any material to indicate the exact income of the deceased, I deem it appropriate to assess the income of the deceased at Rs. 6,500/- per month notionally. 9. The deceased was aged 18 years as on the date of the accident, whereas the Tribunal committed an error in taking the age of the younger parent to determine the multiplier. The Tribunal considered the age of the mother who was aged 38 years to determine multiplier at 15. 6,500/- per month notionally. 9. The deceased was aged 18 years as on the date of the accident, whereas the Tribunal committed an error in taking the age of the younger parent to determine the multiplier. The Tribunal considered the age of the mother who was aged 38 years to determine multiplier at 15. It is settled law that as on this date to determine the multiplier, the age of the deceased has to be considered. As such, as the deceased was aged 18 years, the applicable multiplier would be 18. Further, the Magma's case referred to supra would provide for filial consortium to the parents. In the present case, claimant Nos. 1 and 2 are parents of the deceased. They have lost the love, affection and companionship of the deceased son who was aged 18 years. Hence, they would be entitled for Rs. 40,000/- under the head filial consortium. As the deceased was bachelor, deduction at 50% is rightly taken by the Tribunal. Thus, the claimants would be entitled for the following modified compensation: 1 Loss of dependency (6500x50%x12x18) Rs.7,02,000/- 2. Conveyance & Funeral Expenses Rs.30,000/- 3. Loss of fillal consortium Rs.40,000/- Total Rs.7,72,000/- Thus, the claimants would be entitled for compensation of Rs. 7,72,000/- as against Rs. 2,92,000/- awarded by the Tribunal with interest as awarded by the Tribunal. The apportionment and deposit of compensation shall be as ordered by the Tribunal. Accordingly, this appeal is allowed in part.