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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF OCTOBER 2020 BEFORE THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY MISCELLANEOUS FIRST APPEAL CROB. NO.77 OF 2010 (MV-D) IN MISCELLANEOUS FIRST APPEAL No.2458/2010
BETWEEN:
SMT. CHANDRAKALA B. SHETTY W/O LATE BALAKRISHNA SHETTY AGED ABOUT 46 YEARS RESIDING AT LAXMINAGAR APARTMENTS, NEAR P.V.S. BUILDING, MANGALORE – 575 001.
KUM. SHAMIKA D/O LATE BALAKRISHNA SHETTY, AGED ABOUT 22 YEARS, RESIDING AT LAXMINAGAR APARTMENTS, NEAR P.V.S. BUILDING, MANGALORE-575 002.
... CROSS OBJECTORS (BY SRI. NISHITH KUMAR SHETTY, ADVOCATE)
AND:
MADUSUDAN S/O M.S.DURAIRAJ, R/AT B-204, JULIEBHAGH APARTMENTS, PANDESHWAR CROSS ROAD, MANGALORE-575 001.
2 2. BRANCH MANAGER THE NATIONAL INSURANCE COMPANY LTD., 1ST FLOOR, EMJAY'S COMPLEX BALMATTA, MANGALORE-575002.
… RESPONDENTS (BY SRI.L.SRIKANTA RAO, ADVOCATE FOR RESPONDENT NO.2; VIDE ORDER DATED 12.01.2016 SERVICE OF NOTICE UPON RESPONDENT NO.1 IS DISPENSED WITH)
THIS MFA.CROB IN MFA NO.2458/2010 IS FILED UNDER ORDER 41 RULE 22(1) OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND AWARD DATED 27.11.2009 PASSED IN MVC NO.454/2007 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-II, DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA.CROB COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:
J U D G M E N T
This Cross-objection is filed by the claimants seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal (hereinafter referred to as ‘the Tribunal’ for the sake of brevity), Dakshina Kannada, Mangaluru. The appeal filed by
3 the insurer in MFA No.2458/2010 challenging the quantum of compensation was dismissed by this Court on 07.01.2016.
The claimant No.1 is the wife and claimant No.2 is the handicapped daughter of one Balakrishna Shetty, who was knocked down by a Maruti Car bearing registration No.KA-19-N-4459 on 18.02.2007 at about 5:30 a.m. As a result of the injuries, the husband of claimant No.1 was shifted to a hospital, where he died. The claimants contended that the decesed was a retired bank employee and that he was also transacting in shares and was earning substantial sums of money. They also contended that the deceased was looking after the lands belonging to the family. They contended that the deceased was drawing pension of a sum of Rs.6,953/-. Thus, the claimants sought compensation of a sum of Rs.20,00,000/- from the insured and the insurer.
4 3. Before the Tribunal, the claimant No.1 was examined as PW.1 and a Bank Manager was examined as PW.2 and PW.3 was a manager of a secondary share market operator. Claimants marked Exs.P1 to P16. The Tribunal based on the available evidence, considered the income of the deceased at a sum of Rs.10,606/- and awarded the following compensation:
Sl. No. Heads under which compensation was awarded Amount (in Rs.) 1 Loss of Dependency 7,63,700/- 2 Loss of consortium 20,000/- 3 Loss of love and affection 20,000/- 4 Towards loss of estate 15,000/- 5 For funeral and obsequies ceremonies 15,000/-
TOTAL 8,33,700/-
Learned counsel for the cross-objectors – claimants contended that the Tribunal had not taken into account the income of the deceased generated
5 from the agricultural land. He contended that even if the services of the deceased was quantified at a sum of Rs.100/- per day as an agricultural labourer, the income must have been increased to a sum of Rs.13,606/- and the Tribunal had failed to consider the same. He also contended that claimant No.2 was a physically handicapped child. Therefore, the loss of love and affection has to be considered liberally.
Per contra, learned counsel for respondent No.2 submitted that the deceased was drawing pension of a sum of Rs.6,953/- and even after his death, claimant No.2 continues to draw pension and she would do so during her life time. He contended that notwithstanding the above, the Tribunal had taken the pension along with the profits that the deceased had earned from share business as his income and the Tribunal passed the award granting just compensation.
6 6. Having given my anxious consideration to the facts and evidence on record, it is clear from Exs.P11, P12 (share certificates) and Ex.P15 (Income Tax Returns) that the deceased was transacting in shares and for the assessment year 2006-07, he had earned profit of Rs.42,000/-. Therefore, the claimants were entitled to claim the loss of future prospects that the deceased would have generated if he was alive. I find that the Tribunal has failed to pass an award regarding future prospects in view of the judgment of the Apex Court in the case of National Insurance Company vs. Pranay Sethi reported in ((2017) 16 SCC 680). Even if 15% of the income as declared by the Tribunal is taken into consideration, then the total income of the deceased would be a sum of Rs.12,197/- (Rs.10606/- + Rs.1591) and if 1/3rd of the same is deducted towards his personal expenses, then the total loss of dependency to which claimants
7 would be entitled to is Rs.8,78,148/- (Rs.8131 x 12 x 9). Since the cross-objector No.2 is a handicapped child, the loss of love and affection must have been immense. Thus, the compensation awarded by the Tribunal in so far as cross-objector Nos.1 and 2 is concerned, is liable to be enhanced. Consequently, as against Rs.20,000/- awarded by the Tribunal to each of claimant Nos.1 and 2, a sum of Rs.55,000/- each is awarded to: cross-objector No.1 towards loss of consortium and cross-objector No.2 towards loss of love and affection. Further, a sum of Rs.25,000/- is awarded towards loss of estate and another sum of Rs.25,000/- is awarded for funeral and obsequies of the deceased and same is tabulated as follows: Sl. No. Heads under which compensation was awarded Amount (in Rs.) 1 Loss of Dependency 8,78,148/- 2 Loss of consortium to cross- objector No.1 / claimant No.1 55,000/-
8 3 Loss of love and affection to cross-objector No.2 / claimant No.2 55,000/- 4 Towards loss of estate 25,000/- 5 For funeral and obsequies ceremonies 25,000/-
TOTAL 10,38,148/-
Thus, the total compensation payable to the claimants would be a sum of Rs.10,38,148/-.
In view of the above, this Cross-Objection is allowed in part and a sum of Rs.10,38,148/- (Rupees Ten Lakhs Thirty Eight Thousand One Hundred and Forty Eight) is awarded as against a sum of Rs.8,33,700/- (Rupees Eight Lakhs Thirty Three Thousand Seven Hundred) awarded by the Tribunal. The enhanced compensation shall carry interest at the rate of 6% from the date of the claim petition till the date of realization. The insurer is directed to deposit the compensation with interest within a period of two
9 months from the date of receipt of certified copy of this order.
Upon such deposit, 50% of the compensation shall be kept in fixed deposit in the name of cross-objector No.2 in any nationalized Bank for a period of five years and the remaining 50% shall be released to the claimant No.1 – cross-objector No.1.
Sd/- JUDGE
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