(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE) v. BENGALURU-01

Judgment

3. SRI. R.K. NAGARAJU @ NAGARAJ, S/O LATE KALLAPPA, AGED ABOUT 54 YEARS, CHETHAN KUMAR R.N, S/O R.K. NAGARAJU @ NAGARAJ, AGED ABOUT 26 YEARS, DIWAKAR R.K, S/O R.K. NAGARAJU @ NAGARAJ, AGED ABOUT 24 YEARS, ALL ARE RESIDING AT: NO:549/B, MADANAYAKANAHALLI, BANGALORE NORTH TALUK, PERMANENT RESIDING AT: RUDRAPURA VILLAGE, TIPTUR TALUK, TUMKURU DISTRICT-572 101. (BY SRI. SHRIPAD V. SHASTRI, ADVOCATE) …APPELLANTS - 2 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 AND:

2. G. BHADRARADHYA, S/O GANGADHARAIAH .B, NO.76, NH 4, BOVIPALYA, OORUKERE VILLAGE, TUMKUR DISTRICT-572 101. THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, LEO SHOPPING COMPLEX, RESIDENCY ROAD CROSS, M.G. ROAD, BENGALURU-01. …RESPONDENTS

(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2, V/O DT:01.12.2022, NOTICE TO R1 IS D/W) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2018, PASSED IN MVC NO.2567/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM., COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.5154/2018: BETWEEN: THE REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., NO.44/45, LEO SHOPPING COMPLEX, OFF. RESIDENCY ROAD, M.G. ROAD, BENGALURU-560 025. (BY SRI. A.N. KRISHNASWAMY, ADVOCATE) …APPELLANT - 3 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 AND:

2. SRI. R.K. NAGARAJU @ NAGARAJ, S/O LATE KALLAPPA, AGED ABOUT 52 YEARS, R/AT NO.549/B, MADANAYAKANAHALLI, BENGALURU NORTH TALUK, PERMANENT R/AT RUDRAPURA VILLAGE, TIPTUR TALUK, TUMKURU DISTRICT-572 101. SRI. G. BHADRARADHYA, S/O GANGADHARAIAH B, NO.76, NH 4, BOVIPALYA, OORUKERE VILLAGE, TUMKURU DISTRICT-572 101 …RESPONDENTS (BY SRI. SHRIPAD V. SHASTRY, ADVOCATE FOR R1 (VK NOT FILED), V/O DT:01.12.2022, NOTICE TO R2 D/W) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2018, PASSED IN MVC NO.2566/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM., COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, AWARDING COMPENSATION OF RS.2,83,810/- WITH INTEREST AT 9% P.A., FROM THE DATE OF PETITION TILL REALIZATION OF ENTIRE AMOUNT. IN MFA NO.5155/2018: BETWEEN: THE REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., NO.44/45, LEO SHOPPING COMPLEX, OFF. RESIDENCY ROAD, M.G. ROAD, - 4 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 BENGALURU-560 025. (BY SRI. A.N. KRISHNASWAMY, ADVOCATE) …APPELLANT AND:

3. SRI. R.K. NAGARAJU @ NAGARAJ, S/O LATE KALLAPPA, AGED ABOUT 54 YEARS, SRI. CHETHAN KUMAR R.N., S/O R.K. NAGARAJU @ NAGARAJ, AGED ABOUT 26 YEARS, DIWAKAR R.K., S/O R.K. NAGARAJU @ NAGARAJ, AGED ABOUT 24 EYARS, ALL RE R/AT NO.549/B, MADANAYAKANAHALLI, BENGALURU NORTH TALUK, PERMANENT R/AT RUDRAPURA VILLAGE, TIPTUR TALUK, TUMKURU DISTRICT-572 101.

4. SRI. G. BHADRARADHYA, S/O GANGADHARAIAH B, NO.76, NH 4, BOVIPALYA, OORUKERE VILLAGE, TUMKURU DISTRICT-572 101 …RESPONDENTS (BY SRI. SHRIPAD V. SHASTRY, ADVOCATE FOR R1 TO R3, R4 SERVED) THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2018, PASSED IN MVC NO.2567/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM., COURT OF SMALL - 5 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 CAUSES, MEMBER, MACT-7, BENGALURU, AWARDING COMPENSATION OF RS.2,83,810/- WITH INTEREST AT 9% P.A., FROM THE DATE OF PETITION TILL REALIZATION. IN MFA NO.8017/2018: BETWEEN: SRI. R.K. NAGARAJU @ NAGARAJ, S/O LATE KALLAPPA, AGED ABOUT 54 YEARS, RESIDING AT: NO:549/B, MADANAYAKANAHALLI, BANGALORE NORTH TALUK, PERMANENT RESIDING AT: RUDRAPURA VILLAGE, TIPTUR TALUK, TUMKURU DISTRICT. (BY SRI. SHRIPAD V. SHASTRI, ADVOCATE) AND:

2. G. BHADRARADHYA, S/O GANGADHARAIAH .B, NO.76, NH 4, BOVIPALYA, OORUKERE VILLAGE, TUMKUR DISTRICT. THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, LEO SHOPPING COMPLEX, RESIDENCY ROAD CROSS, M.G. ROAD, BENGALURU-01. …APPELLANT (BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2, V/O DT:08.09.2021, NOTICE TO R1 IS D/W) …RESPONDENTS - 6 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2018, PASSED IN MVC NO.2566/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM., COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 28.07.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, P SREE SUDHA J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA CAV JUDGMENT M.F.A. Nos.8014/2018, 8017/2018, 5154/2018 and 5155/2018 are filed against the common award passed by IX Additional Small Causes and Additional MACT Bangalore, in MVC No.2566/2016 C/w. 2567/2016 dated 25.04.2018. Both the claim applications arose out of the same accident dated

16.03.2016. MVC No.2566/2016 is a case of injury and MVC No.2567/2016 is a case of death.

2. M.F.A. Nos.8014/2018 is filed by the claimants against the award passed in MVC No.2567/2016, in which it is contended the Tribunal granted compensation of - 7 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 Rs.8,05,000/- with interest at 9% per annum. Considering the year of accident and occupation of the deceased, the earnings of the deceased are to be taken more than Rs.7,000/- per month. It is further contended that Tribunal has deducted 1/3rd of income towards personal expenses, instead of 50%. It is also stated the Tribunal ought to have granted compensation under the conventional heads like transportation and also for filial consortium as per judgment reported in Civil Appeal No. 9581/2017 dated 18.09.2018.

3. M.F.A. No.5155/2018 is filed by the insurance company against the award passed in MVC No.2567/2016, wherein it is contented that respondent No.1-husband of the deceased is a security guard and not dependent on her income. Respondent Nos.2 and 3 are major sons and cannot be treated as dependents. It is also contended that the rate of interest awarded at 9% per annum is opposed to Section 149(1) of M.V. Act read with Section 34 of CPC. Therefore, requested this Court to set aside the judgment of the Tribunal.

4. Heard the arguments of both sides. - 8 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

5. P.W.1 in his evidence has stated that his deceased wife was aged 43 years and she was hale and healthy. She was working as a tailor in Scotts Garments Ltd., Madavara, Thumkur Road, getting a salary of Rs.10,000/- per month. He filed Ex.P.25-employment ID card, Ex.P.26-PAN card and Ex.P.27-two salary slips. However, P.W.1 has not produced appointment letter of the deceased to prove her income. Though he has stated that the amount was credited in her savings account, bank account number was not produced and bank passbook was also not filed. As per Exhibit Ex.P.20- voters identity card, she was aged 43 years as on the date of death.

6. Regarding the income of the deceased, the Tribunal has taken her notional income as Rs.7,000/- per month. The accident was occurred on 16.03.2016. Learned counsel for the claimants submits that considering the guidelines given to Karnataka State Legal Services Authority, requested this Court to consider the notional income at Rs.9,500/- per month as the - 9 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 accident was occurred in the year 2016. Though evidence was let in regarding the income of the deceased, the Tribunal without considering the same, has taken the notional income at Rs.7,000/- per month. But the said notional income taken by the Tribunal was pertaining to the year of the accident 2012 and 2013. Therefore, this Court finds that it is just and reasonable to take the income of the deceased as Rs.9,500/- per month. As per the guidelines of the Hon’ble Apex Court in dictum of Sarla Verma Vs. Delhi Transport Corporation1, if the deceased was unmarried, 1/3 of his income has to be deducted as there are 2 dependents towards his personal expenses. Thus, the annual income of the deceased after deducting personal expenses comes to Rs.6,333/- per month. The Hon’ble Apex Court in the dictum of National Insurance Company Limited Vs. Pranay Sethi2, held that the future prospects of income of the self-employed deceased shall also be included in determination of the compensation. Thus, considering the age of the deceased, 25% of the income has to 1 (2009) 6 SCC 121 2 (2017) 16 SCC 680 - 10 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 be added towards future prospects and thus the amount would become Rs.7,916/- per month (6333+1583). The multiplier is to be taken as 14. So, the loss of dependency comes to Rs.13,29,930/-.

7. The amounts granted under the conventional heads is just and reasonable, and this Court finds no reason to interfere with the same.

8. With regard to the interest at 9% per annum granted on the compensation by the Tribunal, this Court feels to reduce the same to 6% per annum from the date of petition till the date of realization.

9. Therefore, The award of compensation granted by the Tribunal in M.V.C. No.2567/2016 is modified as under: Heads Amount in Rs.

1. Loss of Dependency

2. Loss of consortium

3. Loss of Love and Affection

4. Towards Funeral Expenses 13,29,930/- 40,000/- 15,000/- 15,000/- Total 13,99,930/- - 11 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

10. In all, the claimants are entitled compensation of Rs.13,99,930/- with interest at 6% p.a. from the date of petition till realization as against Rs.8,05,000/- granted by the Tribunal.

11. Though the learned counsel for the insurance company raised an objection that respondent No.1-husband is not dependent and respondent Nos.2 and 3-sons are major and they are not dependent on the income of the deceased, they lost their wife/mother, when she was aged 43 years. It cannot be compensated in terms of money. Therefore, the argument of the learned counsel for the insurance company cannot be accepted.

12. M.F.A. No.8017/2018 is filed by claimant against the judgment of the Tribunal passed in M.V.C. No.2566/2016, seeking enhancement of compensation in which the claimant has contended that the Tribunal has considered his income as Rs.8,000/- per month and functional disability was restricted to 12%. In view of the injuries sustained by him, he had more than 38% of physical disability. It is further contended less - 12 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 amounts were granted for medical expenses, conveyance, extra nourishment, attendant charges, though he was hospitalized for a longer period and the Tribunal ought to have granted Rs.30,000/- for removal of implants. Therefore, requested this Court for enhancement of compensation from Rs.3,01,810/- to Rs.15,00,000/-.

13. M.F.A. No.5154/2018 is filed by the Insurance Company against the judgment of the Tribunal in M.V.C. No.2566/2016 in which the insurance company has contended that P.W.2 has not treated the first respondent and the disability assessed by him at the rate of 12% is excessive. It is also contended that the amount granted under the head pain and sufferings, mental agony at Rs.70,000/- is excessive and the interest awarded on the compensation at 9% per annum is also opposed to Section 149(1) of M.V. Act read with Section 34 of CPC. Therefore, requested this Court to set aside the judgment of the Tribunal.

14. Heard the arguments of both sides. - 13 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

15. The claimant in this case was examined himself as P.W.1 and also examined the Doctor as P.W.2 and a Medical Record Technician as P.W.3 and filed Exs.P.1 to P.35 to support his version.

16. P.W.1 has stated that he underwent surgery and implants were fixed and he was discharged on 01.04.2016. Again, he was admitted in Victoria Hospital on 16.04.2016 and underwent skin grafting surgery and discharged on 25.04.2016. He filed Ex.P.5-wound certificate, Ex.P.11-discharge summary. The claimant examined P.W.2-Doctor and got marked Ex.P.31- inpatient case sheet through him. The claimant also examined Medical Record Technician as P.W.3 and got marked Exs.P.33 to P.35 through him. It was observed that the claimant took treatment for a period of 25 days and as such, Rs.70,000/- was granted for pain and suffering. P.W.1 also filed Exs.P.12 to 14 i.e. OPD slips, medical bills and medical prescriptions respectively. Based on the same, Rs.20,050/- was granted by the Tribunal towards medical expenses and Rs.10,000/- for special diet and convenience. - 14 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

17. P.W.1 has further stated that he was getting salary of Rs.12,000/- per month and in view of the accident, he could not walk. He produced Exs.P.8 to P.10 and P.21. The Tribunal observed that he has not filed appointment letter or bank account to prove his income. As per Ex.P.10, he was getting a salary of Rs.8,000/- per month and he was aged 50 years as per Ex.P.21. Therefore, the Tribunal assessed the notional income of the claimant as Rs.8,000/- per month. Learned counsel for the claimant contended that in view of the guidelines given to the Karnataka State Legal Services Authority, requested this Court to consider the notional income at Rs.9,500/- per month as the accident was occurred in the year 2016. In this case, the claimant has claimed his income as Rs.12,000/- per month and filed certain documents. But he has not examined the employer and failed to prove the income. As such, the Tribunal has rightly assessed his income as Rs.8,000/- per month and this Court finds no reason to interfere with the said order. - 15 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

18. P.W.2 has stated that the claimant sustained permanent physical disability at 38.39% to the right lower limb and 19.19% to the whole body. He also denied that the fracture of claimant was well united. The Tribunal, considering the age and occupation of the claimant and also the medical records, taken permanent disability of the claimant to the whole body as 12%. Since P.W.2-Doctor assessed the whole body disability as 19.19%, this Court finds it just and unreasonable to consider the said disability for the purpose of calculation of loss of income due to disability at Rs.2,39,491/- (8000 x 19.19% x 12 x 13).

19. Though learned counsel for the insurance company submits that compensation granted under the head pain and suffering is excessive but no amounts were granted under the heads loss of earnings and loss of amenities. Therefore, this Court finds that the amount of Rs.70,000/- granted under the head pain and suffering is reasonable and needs no interference. - 16 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

20. The amounts granted by the Tribunal under the other heads are reasonable and there is no need for interference.

21. Learned counsel for the insurance company submits that interest granted at 9% per annum by the Tribunal is excessive. Hence, this Court feels to reduce the same to 6% per annum from the date of petition till the date of realization.

22. Therefore, The award of compensation granted by the Tribunal in M.V.C. No.2566/2016 is modified as under: Heads Amount in Rs.

1. For pain and sufferings, mental agony 70,000.00

2. Actual Medical Expenses 20,050.00

3. For Special diet and Conveyance 10,000.00

4. For loss of earning during treatment period 32,000.00

5. Loss of income due to permanent disability 2,39,491.00

6. Future Medical expenses 20,000.00 TOTAL 3,91,541.00 - 17 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018

23. Thus, the claimant in M.V.C. No.2566/2016 is entitled for the compensation of Rs. 3,91,541/- with interest at the rate of 6% per annum from the date of petition till the date of realization as against Rs.3,01,810/- granted by the Tribunal.

24. In the result, the following order is passed: (i) All the appeals are allowed in part. (ii) The claimants in M.V.C. No.2567/2016 are entitled compensation of Rs.13,99,930/- with interest at 6% p.a. from the date of petition till realization. (iii) The claimant in M.V.C. No.2566/2016 entitled for the compensation of Rs. 3,91,541/- with interest at 6% p.a. from the date of petition till realization. (iv) The Insurance company is directed to deposit the entire compensation amount awarded in both cases within one month from the date of receipt of copy of this order. - 18 - MFA No. 8014 of 2018 C/W MFA No. 5154 of 2018 MFA No. 5155 of 2018 MFA No. 8017 of 2018 (v) On such deposit, the claimants in M.V.C. No.2567/2016 are permitted to withdraw their share of 1/3rd each along with interest accrued thereon claimant in M.V.C. No.2566/2016 is permitted to withdraw the entire amount along with interest accrued thereon. Sd/- (P SREE SUDHA) JUDGE CS List No.: 1 Sl No.: 57