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IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 25 TH DAY OF APRIL 2014

PRESENT

THE HON'BLE MR. JUSTICE N.K.PATIL

AND

THE HON’BLE MR.JUSTICE PRADEEP D. WAINGANKAR

MFA NO.9532 of 2012 (MV)

BETWEEN:

1. REVAMMA W/O BASAPPA AGED ABOUT 59 YEARS.

2. BASAPPA S/O LATE SHIVAPPA AGED ABOUT 71 YEARS.

BOTH ARE RESIDING AT SIDDESHWARA NYAYABELE ANGADI CHAMALAPURA HUNDI NANJANGUD, DISTRICT.

... APPELLANTS (BY SRI. T.A. KARUMBAIAH, ADVOCATE)

AND:

1. GURURAJ S/O G. PUTTEGOWDA AGED ABOUT 44 YEARS R/AT NO.58, 9 TH MAIN 5TH BLOCK, VINAYAKA NAGAR PADUVARALLI, MYSORE.

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2. THE ORIENTAL INSURANCE CO. 1ST MAIN, SARASWATHIPURAM MYSORE BY ITS MANAGER.

3. A.S. NANJUNDASWAMY S/O A.B. SIDDAPPA ALATHUR VILLAGE NANJANGUD TALUK .

4. NEW ASSURANE CO. LTD BRANCH OFFICE AT NO.5 3RD CROSS, R.P. ROAD NANJANGUD, MYSORE DISTRICT BY ITS MANAGER.

... RESPONDENTS (BY SRI. PRAKASH H.C., ADVOCATE FOR R1 SRI. K.K. VASANTH, ADVOCATE FOR R2 SRI. R. RAJAGOPALAN, ADVOCATE FOR R4 R3 SERVED & UNREPRESENTED)

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 6.7.2012 PASSED IN MVC NO.738/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-2, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS MFA COMING ON FOR ADMISSION THIS DAY, N.K. PATIL J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal by the claimants is directed against the impugned judgment and award dated 06.07.2012 passed in MVC No.738/2011 on the file of the Presiding

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Officer, Fast Track Court-II and Member, Additional

MACT, Mysore, (hereinafter referred to as ‘Tribunal’ for short), seeking enhancement of compensation.

2. By its judgment and award, the Tribunal has awarded a sum of Rs.2,27,500/- with interest at 6% p.a., from the date of petition till the date of deposit as against the claim made by the claimants on account of the death of the deceased-Nagendra in the road traffic accident.

3. In brief, the facts of the case are as under:

Claimant Nos.1 and 2 are the parents of the deceased-Nagendra and they have filed a claim petition under Section 166 of MV Act claiming compensation against the respondents on account of the untimely death of the deceased contending that, on 12.01.2011 at about 2.15 pm, the deceased-Nagendra and one

Harisha @ Hari Prasad were travelling along with respondent No.1 in the Maruthi Car from Mysore to

Thandavapura for attending water proof ceiling work to

4 be done near . The Maruthi Car was driven by the respondent No.1 and he is the owner of the same. When they reached in front of Habeeb factory at K.N. Hundi on Mysore-Nanganagud Main Road, the respondent No.1 drove the vehicle in rash and negligent manner and dashed against a parked lorry on the right side foot path of the road. Due to the impact, the car was severely damaged and the inmates of the car also sustained injuries. The deceased-Nagendra sustained severe head injury and he died on the way to the

Hospital. It is the further case of the claimants that, the deceased-Nagendra was aged about 29 years at the time of the accident and was working as Mason, earning

Rs.10,500/- per month. He was the only earning member in the family. Due to his untimely death, claimants have suffered pain and agony and deprived to see the bright future of their son. They have lost moral, social and economic support of the family. Taking into consideration all these factors, they have filed claim petition under Section 166 of the M.V. Act claiming

5 compensation on account of the untimely death of the deceased in a road traffic accident. The said claim petition had come up for consideration before the

Tribunal and the Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs.2,27,500/- as compensation under different heads with interest at 6% p.a., from the date of petition till its realisation. Being dissatisfied with the impugned judgment and award passed by the Tribunal the claimants have presented this appeal seeking relief as stated supra.

4. The submission of Sri. T.A. Karumbaiah, learned counsel appearing for the claimants at the outset is that, the Tribunal has erred in assessing the income of the deceased. Deceased was aged about 29 years at the time of the accident and was working as

Mason, earning Rs.10,500/- per month. He was the only earning member in the family. He used to spend the entire amount for the welfare of the family. He was

6 a committed son. Therefore, he submitted that, income of the deceased may be taken atleast at Rs.7,500/- per month. Further, he submitted that, the Tribunal also erred in awarding lesser compensation towards loss of love and affection and other conventional heads.

Therefore, he submits to enhance the compensation by modifying the impugned judgment and award passed by the Tribunal.

5. Per contra, the learned counsel appearing for the Insurer interalia, contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. It is passed after due appreciation of the oral and documentary evidence available on record. Therefore, interference by this

Court is not called for.

6. After careful consideration of the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award

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“Whether the quantum of compensation awarded by the Tribunal is just and reasonable?”

7. It is not in dispute that the deceased died in the road traffic accident. Claimants are none other than the parents of the deceased. Further, it is not in dispute that, the deceased was aged about 29 years at the time of accident, hale and healthy and by profession he was working as Mason, earning Rs.10,500/- per month. But, the same is not substantiated. Therefore, having regard to the age and avocation of the deceased, we can safely re-assess the income of the deceased at

Rs.6,500/- per month, out of which if 50% is deducted towards personal expenses, it comes to Rs.3250/-. Age of the younger parent i.e., age of the mother was 59 years and the appropriate multiplier is ‘9’. Accordingly, we re-determine ‘loss of dependency’ at Rs.3,51,000/-

(Rs.3,250/- x 12 x 9).

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8. Having regard to the facts and

circumstances of the case as stated above, we deem

it fit to award Rs.20,000/- towards loss of love and

affection at Rs.10,000/- to each claimant,

Rs.25,000/- towards loss of estate and Rs.25,000/-

towards Transportation and funeral expenses. In all, the appellants/claimants are entitled for

Rs.4,21,000/- as against Rs.2,27,500/- awarded by the Tribunal and the break-up is as follows:

Towards loss of dependency Rs. 3,51,000/- Towards loss of love and affection Rs. 20,000/- Towards loss of estate Rs. 25,000/- Towards transportation and Rs. 25,000/- funeral expenses Total Rs. 4,21,000/-

There will be an enhancement of Rs.1,93,500/-

with 8% interest per annum from the date of petition till realisation.

9. In the light of the facts and circumstances of the case as stated above, appeal is allowed in part.

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The impugned judgment and award dated 06.07.2012 passed in MVC No.738/2011 on the file of the Presiding

Officer, Fast Track Court-II and Member, Additional

MACT, Mysore, is hereby modified.

The respondent No.2-Insurance Company is directed to deposit the enhanced compensation with interest at 8% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation of

Rs.1,93,500/-, Rs.1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any

Nationalized or Scheduled Bank, in the name of the appellant No.1-Mother of the deceased for a period of ten years and renewable for another ten years, with liberty to her to withdraw the periodical interest accrued on it.

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Rs.50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or

Scheduled Bank, in the name of the appellant No.2 for a period of five years and renewable for another five years, with liberty to him to withdraw the periodical interest accrued on it.

The remaining Rs.43,500/- with proportionate interest shall be released in favour of the appellant

Nos.1 and 2 in equal proportion, immediately, on deposit by the Insurer.

Office to draw the award, accordingly.

Sd/- JUDGE

Sd/- JUDGE PMR