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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SHANKAR GANAPATHI PANDIT, J.
Shambugowda and Ors. – Appellant
Versus
T. Malikarjuna and Ors. – Respondents
MFA No. 10409 of 2012
Decided On : 14-08-2019
Advocate Appeared:
For the Appellant :Srinivasa D.C., Advocate
For the Respondents:Arun Ponnappa, Advocate
Headnote:
Motor Vehicles Act - Section 166 – Motor accident claim - Accident was occurred due to rash and negligent driving of motorcycle - Claimants are parents brother and sister of deceased - Claimants filed claim petition under Section 166 of Motor Vehicles Act for accidental death - When deceased was proceeding in a motorcycle a swift car bearing came in a rash and negligent manner and dashed to motorcycle of deceased due to which deceased fell down and sustained grievous injuries as a result he succumbed to injuries - It is claimed that deceased was aged eighteen years as on date of accident and was earning per month as mason - On issuance of summons Insurance Company appeared and filed its statement denying petition averments - It was contended that accident was occurred due to rash and negligent driving of motorcycle by deceased - It was also contended that driver of car had no valid and effective driving license as on date of accident - 2nd claimant examined herself as P.W. 1 and got marked documents - Respondents have not led any evidence – Held, Learned counsel for parties and on perusal of material on record court of view that claimants are entitled for enhancement of compensation - Whereas Tribunal has taken income of deceased per month which is on lower side - Claimants have not produced any material or document to indicate exact income of deceased - In absence of any material to indicate exact income of deceased Court will have to assess income of deceased notionally - This Court and Lokadalat while determining compensation for accident normally would take as notional income - In this case also in absence of any material to indicate exact income of deceased court deem it appropriate to assess income of deceased per month notionally - Deceased was aged eighteen years as on date of accident whereas Tribunal committed an error in taking age of younger parent to determine multiplier - Tribunal considered age of mother who was aged years to determine multiplier - It is settled law that as on this date to determine multiplier age of deceased has to be considered - As such as deceased was aged eighteen years applicable multiplier – Further Magmas case referred to supra would provide for filial consortium to parents - In present case claimant Nos. 1 and 2 are parents of deceased - They have lost love affection and companionship of deceased son who was aged eighteen years – Hence they would be entitled for under head filial consortium - As deceased was bachelor deduction is rightly taken by Tribunal - Appeal is allowed
JUDGMENT :
Shankar Ganapathi Pandit, J.
1. Claimants are before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 05.09.2012 passed in MVC. No. 311/2012 on the file of the Fast Track Court and Additional MACT., Mysore.
2. Claimants are parents, brother and sister of deceased Shashidar. Claimants filed claim petition under Section 166 of the Motor Vehicles Act for the accidental death of Shashidar. On 30.10.2011, when the deceased was proceeding in a motorcycle bearing registration No. KA-11/K-8243, a maruti swift car bearing registration No. KA-09/Z-9081 came in a rash and negligent manner and dashed to the motorcycle of the deceased, due to which deceased fell down and sustained grievous injuries, as a result, he succumbed to the injuries. It is claimed that the deceased was aged 18 years as on the date of accident and was earning Rs. 9,000/- per month as mason. On issuance of summons, the Insurance Company appeared and filed its statement denying the petition averments. It was contended that the accident was occurred due to rash and negligent driving of the motorcycle by the deceased. It was also contended that the driver of the car had no valid and effective driving license as on the date of the accident. The 2nd claimant examined herself as P.W. 1 and got marked 10 documents. Respondents have not led any evidence.
3. The Tribunal, on assessing the material on record, awarded total compensation of Rs. 2,92,000/- as under:
| 1 | Loss of dependency | Rs.2,70,000/- |
| 2 | Conveyance | Rs.2,000/- |
| 3. | For Funeral expenses | Rs.10,000/- |
| 4 | For loss of love and affection | Rs.10,000/- |
|
| Total | Rs.2,92,000/- |
4. The claimants not being satisfied with the quantum of compensation are before this court in this appeal.
5. Heard the learned counsel for the appellants and the learned counsel for the respondent - Insurance Company. Perused the appeal papers.
6. Learned counsel for the appellants contends that the Tribunal committed an error in taking the monthly income of the deceased at Rs. 3,000/-, whereas he was earning Rs. 9,000/- per month as mason. He further contended that the deceased was aged 18 years at the time of accident and the Tribunal ought to have taken the age of the deceased to determine the multiplier, whereas the Tribunal has taken the age of the younger parent and has adopted multiplier of 15 to determine the compensation. Further, relying upon the decision of the Supreme Court in the case of magma general insurance COMPANY LIMITED V. NANU RAM AND OTHERS, he submits that the appellants are entitled for filial consortium. Thus, he prays for enhancement of compensation.
7. Per contra, learned counsel for the respondent - Insurance Company would submit that the compensation awarded by the Tribunal is just and proper, which needs no interference.
8. Having heard the learned counsel for the parties and on perusal of the material on record, I am of the view that the claimants are entitled for enhancement of compensation. The accident is of the year 2011, whereas the Tribunal has taken the income of the deceased at Rs. 3,000/- per month which is on the lower side. The claimants have not produced any material or document to indicate the exact income of the deceased. In the absence of any material to indicate the exact income of the deceased, the Court will have to assess the income of the deceased notionally. This Court and the Lokadalat, while determining the compensation for the accident of the year 2011, normally would take Rs. 6,500/- as notional income. In this case also, in the absence of any material to indicate the exact income of the deceased, I deem it appropriate to assess the income of the deceased at Rs. 6,500/- per month notionally.
9. The deceased was aged 18 years as on the date of the accident, whereas the Tribunal committed
