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IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 3 RD DAY OF JUNE, 2014

B E F O R E

THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

M.F.A.NO.3469/2008 (MV) C/W M.F.A. 6132/2008 (MV)

IN MFA NO 3469 OF 2008

BETWEEN

1. SMT KAMALAXI W/O BABU AGED ABOUT 43 YEARS, OCC;HOUSEHOLD,

2. SHRI BABU S/O CHANABASAPPA NAGANUR AGED ABOUT 51 YEARS, OCC;PVT. SERVICE,

BOTH ARE R/AT BALE KUNDRI (BK) TQ; AND DIST. . ... APPELLANTS

(BY SRI. SANJAY S , ADV.) 2

AND

THE DIVISIONAL MANAGER' NWKRTC, BIJAPUR DIVISION, BIJAPUR. (OWNER OF BUS NO.KA-28/F-1013)

... RESPONDENTS (BY SMT. VEENA HEGDE, FOR M/S RAO ASSOCIATES, ADVS.)

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.11.2007 PASSED IN MVC NO.484/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER, ADDL. MACT, BELGAUM.

IN MFA NO 6132 OF 2008

BETWEEN

NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION, BIJAPUR DIVISION,BIJAPUR. BY ITS DIVISIONAL MANAGER, REP.BY ITS CHIEF LAW OFFICER,

... APPELLANT (BY SMT. VEENA HEGDE, FOR M/S RAO ASSOCIATES)

AND

1. KAMALAXI W/O BABU NAGANUR AGED ABOUT 44 YEARS, R/O. BELGAUM TALUK AND DISTRICT.

2. BABU CHANABASAPPA NAGANUR AGED ABOUT 52 YEARS, 3

R/O.BALEKUNDRI (BK) BELGAUM TALUK AND DISTRICT.

... RESPONDENTS (BY SRI. SANJAY S KATAGERI, ADV.)

THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.11.2007 MADE IN MVC NO.484/2006 BY THE FAST TRACK COURT II AND ADDL. MACT, BELGAUM AND CONSEQUENTLY DISMISS THE CLAIM PETITION IN THE INTEREST OF JUSTICE AND EQUITY.

THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

MFA No.3469/2008 is by the claimants and MFA

6132/2008 is by the respondent, in MVC No.484/2006, on the file of the Addl. MACT at Belgaum.

2. One Kum. Ashwini, aged about 21 years, studying in final year B.E. (Electronics & Communication) at KLS Gogte Institute of Technology, Belgaum, having met with a motor vehicle accident involving NWKRTC bus bearing Registration No.KA-28/F-1013 and sustained fatal injury and succumbed, on 19.11.2005, her parents filed 4

MVC No.484/2006 in the MACT at Belgaum, under S.166 of

Motor Vehicles Act, 1988, claiming compensation of

`30,00,000/- with interest. The case having been contested, based on the pleadings, four issues having been raised, in support of the claim, PWs 1 and 2 having been examined, through whom Exs.P1 to P14 were marked and in opposition, the respondent having examined the driver of the offending bus and marked Ex.R1, the Tribunal, upon appreciation of the evidence, having allowed the claim petition in part, awarding compensation of `10,13,000/- with interest, dissatisfied and feeling aggrieved, the claimants filed MFA 3469/2008. The respondent in the claim petition has filed MFA 6132/2008.

3. Sri Sanjay S. Katageri, learned advocate for the claimants / appellants, contended that the Tribunal has not awarded just and reasonable compensation, by correctly appreciating Exs.P10 & P11 and by applying the correct multiplier of 14 with reference to the age of the mother of the deceased. He submitted that the sum 5

awarded under the conventional heads being meagre and there being no just and reasonable award, enhancement of compensation is called for. Learned counsel placed reliance on a Judgment dated 09.02.2010 passed in MFA

No.294/2006.

4. Smt. Veena Hegde, learned advocate for the respondent / NWKRTC, on the other hand, contended that the deceased being a student and a non earning person, there being an exorbitant Award, interference is called for.

5. Keeping in view the rival contentions and the

record of the case, only point for consideration is, whether,

the Tribunal has passed a just and reasonable Award?

6. Deceased, at the time of accident was a final year engineering student. She had a brilliant career, having secured A1 Grade in CBSC and I Class in the VI semester of Engineering Course. Ex.P10 an appointment

Order, issued in campus selection, by Axes Technologies

(I) Pvt. Ltd. shows that she was assured monthly gross 6

salary of `14,000/- and perks. The salary and perks put together would be `17,990/-. She was asked to confirm on or before 30.09.2006 and immediately after completion of studies to report for duty. However, she died on account of the fatal injury sustained in the accident in question, on

19.11.2005.

7. The Tribunal having taken the income of the deceased at `14,000/- p.m. and by deducting 50% towards the personal expenses and applying multiplier of

12, with reference to the age of the elder parent – father, assessed the loss of dependency at `10,08,000/- and granted `2,500/- towards loss to estate and `2,500/-

towards transportation of dead body and funeral expenses.

In all, Award for `10,13,000/- with interest was passed.

8. In view of Exs.P10 & P11, issued by Axes

Technologies (I) Pvt. Ltd. on 22.09.2005, the Tribunal has committed error in assessing the income of the deceased at `14,000/- p.m. The Tribunal, in view of the said documents, ought to have assessed the income at 7

`17,990/- p.m., since the deceased was selected as a software engineer, in the campus interview conducted, when the deceased was in the final year of B.E.(E & C).

Mother of the deceased being aged about 45 years, the multiplier applicable is 12. By applying multiplier of 14, with reference to the age of the father of the deceased, the

Tribunal has committed an error. There is no just and reasonable award by the MACT, even under the conventional heads.

9. In MFA 294/2006, decided on 09.02.2010, by the Division Bench, the claim petition was lodged on account of the death of the claimant’s son, aged about 21 years, studying in Engineering Course, in a road traffic accident. The Tribunal being of the view that the deceased was a non-earning member, for the purpose of calculation of loss of dependency, took the income of the deceased at

`15,000/- per annum and awarded compensation of

`1,10,500/-. Dissatisfied, the claimants filed MFA 8

294/2006. While allowing the said appeal on 09.02.2010, it has been held as follows:

“ Even though he was not an earning member on the date of the accident while computing the compensation, the Court can consider that in a year or two he would have become the best Metallurgical Engineer and he had a bright future and if he had been appointed as a metallurgical engineer, his income could not be less than 50 to 60 thousand per annum. Be that as it may, since there is no positive evidence in regard to his future income, we would like to consider his income at Rs.20,000/- per month as even an ordinary English speaking boy or girl now a days are getting Rs.15 to 20 thousand per month working in BPOs. Therefore, we are inclined to consider his income as Rs.20,000/- per month. Since the claimants are the parents, 50% of his income is to be deducted towards personal expenditure and loss of dependency to be assessed at Rs.10,000/- per month and RS.1,20,000/- per annum and considering the age of the mother as 45, we have to apply the multiplier of 14 and therefore, the loss of dependency would be Rs.1,20,000/- x 14 = Rs.16,80,000/-. In addition to that appellants are entitled for a sum of Rs.20,000/- under the conventional heads like loss of love and affection, loss of estate, transportation of dead body and funeral expenses. Thus in all the appellants are entitled for a sum of Rs.17,00,000/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit.”

10. In the instant case, there being credible evidence, vide Exs.P10 & P11, the income of the deceased, 9

can be assessed at `18,500/- p.m. 50% has to be deducted towards the personal expenses. The multiplier applicable is 14, keeping in view the age of mother of the deceased. Thus, the loss of dependency, is `15,54,000/-

To the said sum, there has to be addition of `46,000/- under the conventional heads.

In the result, MFA 3469/2008 is allowed. The compensation payable by the respondent is determined at

`16,00,000/- with interest at 6% p.a. from the date of filing of the claim petition till realisation. Consequently,

MFA 6132/2008 being devoid of merit is dismissed. The amount deposited in MFA 6132/2008, be transferred to the

MACT.

Draw modified Award.

SD/- JUDGE sac*