The main legal point established in the judgment is the re-assessment of compensation based on the deceased's actual income and the liability of the insurance company to pay the compensation.

JUDGMENT :

K. Somashekar, J.

1. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is heard for final disposal.

2. This appeal is preferred against the judgment and award dated 5.5.2010 rendered by the Tribunal in MVC No.867/2008 seeking enhancement of compensation.

3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 29.01.2008 at about 11.30 a.m. deceased Hanumanthaiah was traveling to Sangenahalli from Pochakatte along with one P.H.Ngaraju in an auto bearing Regn.KA-06 B 4231 and when the said auto was moving in Doddabidra - Chikkabidare road, at that time the driver of the said auto drove the same in a rash and negligent manner with high speed as a result the auto capsized and caused the accident. Due the said impact, Hanumanthaiah died in the hospital. Prior to the accident, Hanumanthaiah was hale and healthy, he was carrying agriculture work and used to earn Rs.8,000/- p.m. The entire family was depending upon his income. Due to the untimely death of Hanumanthaiah, the claimants being the wife, daughters and sons of the deceased, filed the claim petition seeking compensation.

4. After service of notice, second respondent appeared before the Tribunal but did not file written statement. First respondent being the insurer of the offending vehicle, filed written statement, denying the petition averments and sought for dismissal of the claim petition.

5. On the basis of pleadings, the Tribunal framed issues. In order to substantiate their case, first claimant got examined herself as PW.1 and examined one eye witness as PW.2 and got marked 15 documents as per Ex.P1 to P15. On behalf of the respondents, RW.1 was examined and Exs.R1 and R2 were got marked. After hearing the arguments advanced by learned counsel for the parties and on appreciation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.3,91,000/- with interest @ 6% p.a. from the date of petition till payment. Further, the liability was fastened on second respondent being the owner and the petition against the first respondent insurer came to be dismissed. Being not satisfied with the compensation awarded by the Tribunal, the claimants are before this Court seeking enhancement by urging various grounds.

6. Learned counsel for appellants has taken me through the evidence of PW.1 - Siddamma, wife of the deceased and the documents relied upon by them for seeking enhancement of compensation. He contends that the award passed by the Tribunal is on lower side, inadequate and contrary to the facts, evidence and probabilities of the case. Hence, the same is liable to be enhanced by this Court. Further, he contends that the compensation by the Tribunal in a sum of Rs.3,51,000/- towards loss of dependency is very much on lower side having regard to the avocation of the deceased and that he was the only earning member in the family. Further, the compensation awarded under the conventional heads is also inadequate and the same needs to be enhanced, keeping in view the age of the children of the deceased.

7. Further, he contends that the accident is not disputed by the insurer, but the dispute is only with regard to the permit of the auto at the time of accident. The Tribunal has gone unnoticed of the law laid down by the Hon'ble Apex Court in catina of cases and has fixed the responsibility only on the driver of the offending auto at the time of passing the award. Further, he contends that the Tribunal has not followed schedule-II of M.V.Act and Rules. On all these grounds, learned counsel for the appellants seeks for interference of this Court and prays for allowing the appeal by enhancing the compensation.

8. Per contra, learned counsel for the insurance company contends that the driver of the offending auto was not holding vali