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M.F.A.NO.409/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF SEPTEMBER, 2017
PRESENT
THE HON’BLE MR. JUSTICE H.G.RAMESH
AND
THE HON’BLE MRS. JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.409/2013(MV)
BETWEEN :
SMT.G.K.JAYAPADMA
W/O LATE H.NAGARAJ
AGE:39 YEARS
H.N.VISHWAS
S/O LATE H.NAGARAJ
AGED 16 YEARS
KUM.H.N.POOJA
D/O LATE H.NAGARAJ
AGED ABOUT 12 YEARS
H.N.VIKAS
S/O LATE H.NAGARAJ
AGED 6 YEARS
SINCE APPELLANT NO.2 TO 4 ARE MINORS
REPRESENTED THROUGH THEIR
NATURAL GUARDIAN MOTHER
ALL R/O D.NO.779/76-11
SARASWATHI BADAWANE, B BLOCK
2ND STAGE, DAVANGERE
...APPELLANTS
(BY SMT.SAVITHA KULKARNI, ADVOCATE)
M.F.A.NO.409/2013
AND :
MARUTHI S/O SIDAPPA
AGE:MAJOR, DRIVER OF LORRY
R/O SRI RAMA BADAVANE
3RD CROSS, DAVANGERE
B.K.RAVI, S/O B.K.NAGAPPA
OWNER OF LORRY
R/O C/O G.SIDAPPA, NEAR ANJANEYA
TEMPLE, AVARAGERE
DAVANGERE
THE MANAGER
THE ORIENTAL INSURANCE CO., LTD.,
THILUVALLI COMPLEX, P.B.ROAD
DAVANGERE
...RESPONDENTS
(BY SRI M.ARUN PONNAPPA, ADVOCATE FOR R3, NOTICE TO R1 AND R2 IS DISPENSED VIDE ORDER DATED:03.01.2017.)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.08.2012 PASSSED IN MVC NO.714/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT-5, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 04.09.2017 FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
K.S.MUDAGAL, J. :
This claimants’ appeal arises out of the judgment and award dated 29.8.2012 passed by the I Additional Senior Civil Judge and MACT-V, Davanagere in MVC No.714/2011.
M.F.A.NO.409/2013
By the impugned award, the Tribunal has granted compensation of Rs.58,05,936/- with interest at 6% per annum to the claimants payable by the respondents Nos.1 to 3 jointly and severally.
Claimant no.1 is the wife and claimants No.2 to 4 are the children of one H.Nagaraj. He was serving as a Junior Engineer in General Reserve Engineer Force (GREF), Armed Forces at Sikkim. On 22.5.2011 at about 3.30pm, while himself and the first petitioner were proceeding on Honda Activa Scooter No.KA 17/Y-7957 on Harihara- Shimoga Road, near Bhaskar Rao Camp in Harihar Taluk, lorry bearing No.KA-17/A-2586 hit the scooter and caused accident. Nagaraj was riding the scooter. In the accident, Nagaraj suffered injuries and succumbed to the same. Respondent No.1 is the driver, respondent No.2 is the owner and respondent no.3 is the insurer of the lorry involved in the accident.
The claimants filed MVC No.714/2011 contending that the accident occurred due to rash and negligent driving
M.F.A.NO.409/2013
of the lorry by respondent No.1, due to the death of Nagaraj they have suffered destitution and damages. They claimed compensation of Rs.80,75,000/- with interest at 12% per annum.
Respondents contested the petition denying the rashness and negligence on the part of the first respondent, age, occupation and income of the deceased Nagaraj and claim of the petitioners. They further contended that the accident occurred due to rash and negligent riding of the scooter by the deceased himself and he was not holding effective driving licence. The insurer though admitted coverage of the policy contended that the first respondent was not holding a valid driving licence and thereby there is violation of the policy conditions, therefore it is not liable to pay compensation.
In support of their claim, claimants examined PWs.1 and 2 and got marked Exhibits P.1 to P.18. The respondents did not adduce any oral evidence. But they got marked copy of the policy at Exhibit R.1. The Tribunal,
M.F.A.NO.409/2013
by the impugned award, held that the accident has occurred on account of rash and negligent driving of the lorry by the first respondent. The Tribunal further held that due to the accident, the petitioners have suffered loss of dependency etc., and awarded compensation of Rs.58,05,936/- under the following heads: HEADS Amount in Rs. Loss of Dependency 57,85,936.00 Loss of Love and Affection 5,000.00 Consortium 5,000.00 Funeral Expenses 5,000.00 Loss to Estate 5,000.00 TOTAL 58,05,936.00
Smt.Saritha Kulkarni, learned Counsel for the appellants seeks to assail the award on the following grounds:
(1) The Tribunal has deducted 30% towards the tax payable from the income of the deceased which is incorrect.
M.F.A.NO.409/2013
(2) The compensation awarded on the heads of consortium, loss of love and affection and funeral expenses is on the lower side.
Shri Arun Ponnappa, learned Counsel for respondent No.3 contends that the actual income means the income after deduction of the tax. Therefore, he contends that there is no merit in the contention that there should not have been any deduction for the income-tax. He contends that the compensation awarded on the other heads is just and proper.
The respondents are not in appeal questioning the findings on the occurrence of the accident and rashness and negligence on the part of the first respondent or the liability of insurer. Therefore, those findings have attained finality. Having regard to the rival contentions, the question that arises for consideration is whether the compensation awarded is just and proper?
M.F.A.NO.409/2013
There is no dispute that at the time of the accident, the deceased was working in GREF as a Junior Engineer and he was drawing a gross salary of Rs.39,707/- per month at the time of the accident. Thus, his gross annual income was Rs.4,76,484.00. Though the Tribunal holds that the actual income is the income after deduction of the tax, it has not deducted the tax from the income. It has given only deduction of Rs.20,000/- to the savings and has held that his taxable income is Rs.4,56,484/- and then added 30% towards future prospects. Thus, assessed income of the deceased at Rs.5,93,429/-. Thereafter, the Tribunal has deducted 1/4th towards personal expenses of the deceased and assessed his annual income at Rs.4,45,072/- per annum and computed the dependency. 10. The Tribunal has not deducted 30% towards the income-tax as contended by the claimants’ counsel. Even assuming that Rs.20,000/- deduction given by the Tribunal is towards income-tax, that comes to 4.19%. The claimants have not adduced any evidence to show what
M.F.A.NO.409/2013
was the tax payable on the annual income of the deceased. The Tribunal ought to have calculated the annual income of the deceased as follows:- Gross Annual Income Rs.4,76,484.00 30% future prospects as per Rajesh vs. Rajbir Singh’s case Rs.1,42,945.00 GROSS ANNUAL INCOME Rs.6,19,429.00 Minimum 10% deducted from that towards payment of income-tax Rs. 61,942.90
Rs.5,57,487.00
1/4th to be deducted for personal expenses of the deceased as he has four dependants Rs.1,39,372.00 Thus Annual Income Rs. 4,18,115.00
As the deceased was 47 years old, 13 multiplier applies. At that rate, the loss of dependency comes to Rs.(4,18,115x13)54,35,495/-, whereas the Tribunal has awarded Rs.57,85,936.00. Therefore, there is no merit in the contention that the compensation awarded on the head of loss of dependency is on the lower side.
M.F.A.NO.409/2013
The compensation awarded on the heads of consortium, loss of love and affection and towards funeral expenses is on the lower side. The compensation payable on the head of loss of consortium is Rs.1,00,000/-, loss of love and affection to each child, is Rs.25,000/-. The compensation payable on the head of transportation of dead body and funeral expenses is Rs.25,000/-. Therefore, the just and appropriate compensation payable is reassessed as follows:
Loss of Dependency
Rs.54,35,495.00 Loss of Consortium Rs. 1,00,000.00 Love of Love and affection Rs. 75,000.00 Funeral Expenses Rs. 25,000.00 TOTAL Rs.56,35,495.00
For the aforesaid reasons, even on enhancing the compensation on the conventional heads, the just compensation payable comes to Rs.56,35,495.00. However, having regard to the fact that the respondents have not
M.F.A.NO.409/2013
filed any appeal or Cross Objection, questioning the quantum and the interest is awarded only at the rate of 6% per annum, we are not inclined to interfere with the impugned award to the disadvantage of the claimants- appellants. Therefore, the appeal is dismissed. No order as to costs. In view of the disposal of the appeal, I.A.I/2017 stands disposed of.
Sd/- JUDGE
Sd/- JUDGE
nv/hr