DILEEP G v. YOGESH G., by GAVRIBIDANUR

(BY SRI. C. SHANKARA REDDY, ADVOCATE FOR R2; …RESPONDENTS - 2 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 V/O. DATED 07.03.2024, NOTICE TO R-1 IS DISPENSED WITH) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.12.2019 PASSED IN MVC NO. 1309/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is preferred by the appellant - claimant challenging the judgment & award dated 12th December 2019 passed in MVC No.1309/2018 on the file of the Senior Civil Judge and Addl. MACT, Sira (for short 'the Tribunal). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal.

2. Parties to the appeal shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are as under: - 3 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 One Eramma was proceeding on a motorcycle bearing registration No.KA.EP.5290 as a pillion rider on

9.9.2018. Due to the rash and negligent riding of the bike by its rider, pillion rider sustained fatal injuries. She was shifted to the District Hospital, Tumkur and later while shifting to Bangalore for better treatment, she died. Therefore, claim petition came to be filed by the legal representatives seeking compensation.

3.1 On service of notice, Respondent No.1 did not file written statement. Respondent No.2 filed written statement denying the averments made in the claim petition including age, avocation, income and negligence attributed against driver of the offending vehicle. It is also pleaded that deceased/pillion rider was not wearing helmet, due to which she succumbed to the injuries. On these grounds sought for dismissal of the claim petition.

3.2 Based on the pleadings, the Tribunal framed the relevant issues for consideration. - 4 - NC: 2024:KHC:9696 MFA No. 1406 of 2022

3.3 In order to substantiate the issues and establish the case, the claimant No.2 examined herself as PW.1 and got marked Ex.P1 to Ex.P6. The respondents did not adduce any evidence nor produced any documents on their behalf.

3.4 On the basis of the material evidence, both oral and documentary and after hearing learned counsel for the parties, the Tribunal awarded total compensation of Rs.15,82,000/- alongwith interest at the rate of 7% per annum and directed the respondent No.2/insurer to deposit the compensation within one month.

3.5 Being aggrieved by the meager and inadequate compensation awarded by the Tribunal, the claimant is before this Court seeking enhancement of compensation.

4. It is the vehement contention of learned counsel for the appellant that the income of the appellant assessed by the Tribunal is on the lower side and the compensation awarded under different heads is not in accordance with - 5 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 the material on record. Therefore, he seeks to allow the appeal and enhance the compensation.

5. Per contra, learned counsel representing the insurance company contends that there is no error, illegality or perversity in the impugned judgment and award passed by the Tribunal. He further contends that the Tribunal awarded just and reasonable compensation under all heads, in accordance with the material evidence, both oral and documentary and the same does not call for interference.

6. Having heard the learned counsel for the parties and perused the material on record, it is seen that the claimant has produced the documents as per Exs.P1 to P6, which clearly depict registration of the FIR and laying of charge sheet against rider of the offending vehicle and same has not been challenged or controverted. Therefore, the tribunal rightly attributed the negligence against rider of the offending vehicle. - 6 - NC: 2024:KHC:9696 MFA No. 1406 of 2022

7. Now coming to the question of age, avocation and income of the claimant, though the claimant pleaded that the deceased was doing flower vending business during her life time and earning Rs.30,000/- per month, no material is placed before the Court with regard to the same and proof of income. In the absence of the same, the Tribunal has taken the income of the claimant to be Rs.9,000/- per month, whereas the Legal Services Authority chart prescribes the notional income of Rs.12,500/- per month for the accident of the year 2018. Accordingly, the same is taken as income for computation in the present case as against Rs.9,000/- taken by the Tribunal. The Tribunal has rightly added 40% of income as future prospects and deducted one-third towards personal and living expenses, which does not call for interference. Therefore, the income would come to Rs.11,667/- [{Rs.12,500 + Rs.5000 (40%)} - Rs.5833 (one-third)]. The deceased was aged 38 years as on the date of accident and the appropriate multiplier would be '15', which is rightly applied by the tribunal and the same - 7 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 does not call for interference. Therefore, loss of dependency would be Rs.21,00,060/- (Rs.11,667 x 12 x 15) as against Rs.15,12,000/- awarded by the Tribunal.

8. The Tribunal awarded Rs.40,000/- towards loss of consortium and towards love and affection, which does not call for interference. However, as per the decision of the Hon’ble Supreme Court the case of National Insurance Company Limited -vs- Pranay Sethi and others reported in (2017)16 SCC 680, 10% escalation for one block period on the same to be awarded under this head, which would come to Rs.4,000/- (10% of Rs.40,000). Therefore, in all, claimant would be entitled to Rs.44,000/- (Rs.40000 plus Rs.4000) under this head.

9. The Tribunal awarded Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and transportation, which does not call for interference. However, 10% escalation for one block period on the same to be awarded under this head, which would come to Rs.3,000/- (10% of Rs.30,000). Therefore, in all, the - 8 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 claimant would be entitled to Rs.33,000/- (Rs.30,000 + 3,000) under this head.

10. It is submitted by learned counsel for the appellant that during the pendency of the claim petition itself, the 1st claimant/Govindaraju (husband of the deceased) died. It is forthcoming in paragraph-15(b) of the impugned judgment passed by the Tribunal. Even the present appeal is preferred by claimant No.2 only as clamant No.1 has died and appellant/claimant No.2 is the only dependent legal heir of the deceased. Therefore, the impugned judgment insofar as the apportionment of compensation in the ratio of 25: 75 to claimant Nos.1 and 2 is hereby modified and the appellant/claimant No.2 - Dileep .G s/o late Govindaraju is entitled for entire compensation amount.

11. In view of the above, the appellant would be entitled to a total compensation of Rs.21,77,060/- as against Rs.15,82,000/- awarded by the Tribunal, as mentioned in the table below: - 9 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 Sl. No. Head of compensation 1 Loss of dependency Amount of compensation awarded Rs.21,00,060-00 2 Loss of consortium and love Rs. 44,000-00 and affection 3 Towards funeral and Rs. 16,500-00 transportation expenses 4 Loss of estate Total Rs. 16,500-00 Rs. 21,77,060-00

12. Accordingly, I pass the following: O R D E R The appeal is allowed in part. The impugned Judgment & Award dated 12th December 2019 passed by the Tribunal in i) ii) MVC No.1309/2018, is modified. iii) The appellant would be entitled to total compensation of Rs.21,77,060/- (Rupees twenty-one lakhs seventy-seven thousand sixty only) as against Rs.15,82,000/- awarded by the Tribunal. iv) The interest awarded by the tribunal at the rate of 7% per annum on the compensation amount of Rs.15,82,000/- is left undisturbed. - 10 - NC: 2024:KHC:9696 MFA No. 1406 of 2022 v) The enhanced compensation amount shall be paid with interest at 6% per annum by the respondent no.2/insurer within a period of four weeks from the date of receipt of copy of this judgment. vi) The impugned judgment insofar as apportionment of compensation in the ratio of 25: 75 to claimant Nos.1 and 2 is hereby set aside and the appellant/claimant No.2 - Dileep .G s/o Govindaraju is entitled for entire compensation amount. vii) The compensation amount shall be released in favour of the appellant/claimant No.2 as per the terms of the Tribunal upon proper identification. viii) All other terms and conditions stipulated by the Tribunal shall stand intact. Sd/- JUDGE GSS List No.: 1 Sl No.: 17