(BY SRI: N SURENDRA KUMAR, ADVOCATE) v. (BY SRI: K SURESH, ADVOCATE FOR R-2

SMT.BHAGYAMMA W/O LATE NANJUNDEGOWDA AGED ABOUT 36 YEARS SRI K N MANJUNATH S/O LATE NANJUNDE GOWDA AGED ABOUT 17 YEARS SRI K N UMESH S/O LATE NANJUNDE GOWDA AGED ABOUT 13 YEARS APPELLANT NOS.3 AND 4 ARE MINORS, REP BY THEIR NATURAL GUARDIAN AND MOTHER SMT.BHAGYAMMA APPELLANT NOS.1 TO 4 ARE R/AT KODIHALLI GONDENAHALLI POST BELLUR HOBLI NAGAMANGALA TALUK. ...APPELLANTS (BY SRI: N SURENDRA KUMAR, ADVOCATE) 2 AND:

1. SMT V SHANKAR AMMAL W/O VEERARANGAIAH MAJOR,NO.85, TIRICHI ROAD CHENNAI (T.N.) AND NO.22-A PRINCE ARCADE, CATHIDRAL ROAD CHENNAI.

2. THE ORIENTAL INSURANCE CO LTD II FLOOR, 88, ATHURIYUR ROAD TAMIL NADU. ...RESPONDENTS (BY SRI: K SURESH, ADVOCATE FOR R-2, NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER DATED 14.10.2009) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.5.2006 PASSED IN MVC NO.825/1998 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.) AND MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, N.K.PATIL, J., DELIVERED THE FOLLOWING: J U D G M E N T This appeal by the claimants is directed against the common judgment and award dated 18th May 2006 passed in MVC No.825/1998 by the Addl. Civil Judge (Sr.Dn.) and MACT, Mandya. The Tribunal, by its judgment and award has awarded a sum of Rs.7,23,420/- with interest at 8% p.a. from the date of petition till the date of realisation, on account of the death of Nanjundegowda in the road traffic accident that occurred on 27.2.1998 at 3 about 4.15 p.m. due to the rash and negligent driving of the driver of the Gas Tanker bearing registration No.HYW-537 from Mangalore side towards Bangalore on NH-48 near Bellur Cross. The claimants contending that the quantum of compensation is inadequate and it requires enhancement have presented this appeal.

2. The brief facts of the case on hand is that appellant Nos.1 and 2 are the wives and appellant Nos.3 and 4 are the minor children of the deceased. They have filed a claim petition under Section 166 of the MV Act claiming compensation on account of untimely death of the deceased, Nanjundegowda. It is the case of the claimants that the deceased was hale and healthy prior to the accident and that he was the only source of income to the family and due to his untimely death, the claimants have lost security, hope, guidance, love and affection and also social and economic security.

3. The said matter had come up for consideration before the Tribunal, and the 4 Tribunal, in turn, on careful evaluation of the oral and documentary evidence available on record, allowed the same in part, awarding a sum of Rs.7,23,420/- under different heads with interest at 8% p.a. from the date of petition till the date of realisation. Being dissatisfied with the compensation awarded by the Tribunal, the appellants-claimants felt necessitated to present this appeal seeking enhancement of compensation.

4. It is the submission of the learned counsel for the claimants that the Tribunal has erred in not awarding adequate compensation towards loss of dependency and in view of the judgment of the Apex Court in SARLA VERMA's case (2009 ACJ 1298), 30% of the income has to be added to the gross salary of the deceased towards future prospects. Therefore, the loss of dependency has to be re-determined considering this aspect of the matter and applying the multiplier ‘13’ corresponding to the age of the deceased instead of ‘12’ applied by the Tribunal. He also submits that the Tribunal erred in not awarding reasonable compensation towards 5 conventional heads and therefore, the judgment and award passed by the Tribunal is liable to be modified by awarding just and reasonable compensation.

5. As against this, learned counsel appearing for the insurer inter-alia substantiated the impugned judgment and award passed by the Tribunal as just and proper.

6. After careful consideration of the submission made by the learned counsel for the parties and on careful perusal of the impugned judgment and award passed by the Tribunal, the only point that arises for consideration in this appeal is, “Whether the quantum of compensation awarded by the Tribunal is just and reasonable?”

7. The occurrence of accident and resultant death of the deceased are not in dispute. Further, 6 it is not in dispute that the deceased was aged about 50 years at the time of the accident and he was working as Veterinary Inspector in Primary Veterinary Hospital, Kelagere, and drawing salary of Rs.7,443/- p.m. Out of this, if Rs.50/- is deducted towards Professional Tax, the remaining amount comes to Rs.7,393/-. In the light of the judgment of the Apex Court in SARLA VERMA's case (2009 ACJ 1298), if 30% of Rs.7,393/-, that is Rs.2,218/- is added towards future prospects, the net amount comes to Rs.9,611/-. Out of this, if 1/3rd is deducted towards personal expenses of the deceased, the remaining amount would be Rs.6,408/-. As the deceased was aged 50 years, the appropriate multiplier is ‘13’. Accordingly, we re-determine loss of dependency at Rs.9,99,648/- (Rs.6,408/- x 12 x 13). Having regard to the facts of the case, we deem it proper to award Rs.45,000/- under conventional heads, that is loss of love and affection, loss of consortium, loss of estate and transportation and funeral expenses. In all, the claimants are entitled for compensation of Rs.10,44,648/- as against the compensation of 7 Rs.7,23,420/- awarded by the Tribunal. There will be enhancement of Rs.3,21,228/-.

9. For the foregoing reasons, the appeal filed by the appellants is allowed in part. The impugned common judgment and award dated 18th May 2006 passed in MVC No.825/1998 by the Addl. Civil Judge (Sr.Dn.) and MACT, Mandya, is hereby modified, awarding a sum of Rs.3,21,228/- to the claimants with interest at 6% p.a. from the date of petition till the date of realisation, in addition to the compensation awarded by the Tribunal. The insurer is directed to deposit the enhanced compensation amount with interest within three weeks from the date of receipt of a copy of this judgment and award. Out of the enhanced compensation, Rs.2,00,000/- with proportionate interest shall be invested in the name of appellant No.1 in any Nationalised / Scheduled Bank initially for a period of five years and to be renewed for a period of another five 8 years. Appellant No.1 is entitled to withdraw the interest periodically. The remaining amount, i.e. Rs.1,21,228/- with proportionate interest shall be released in favour of appellant Nos.1, 3 and 4 in equal proportion as appellant Nos.3 and 4 must be majors by now, on deposit of the same by the insurer. Draw the award accordingly. Sd/- JUDGE Sd/- JUDGE KM