1. Since these three appeals arise out of the common judgment, they are heard together and disposed of by this common judgment.

2. These appeals are filed under Section 173(1) of the Motor Vehicles Act (for short ` the') challenging the judgment and award dated 08.04.2015 passed in MVC Nos.433 and 437 of 2013 by the Senior Civil Judge and Motor Accident Claims Tribunal Humnabad, (for short hereinafter referred to as `the Tribunal').

3. Parties are referred to as per their ranking before the Tribunal.

4. Facts giving rise to filing of these appeals are as under:

4.1. That on 07.04.2013, at about 3.30 p.m. the deceased Gundappa after taking medical treatment to the Bhavani and Pooja from the concerned doctor were proceeding towards the house on his motorcycle bearing registration No.KA-39/J- 2885 slowly and cautiously on the left side of the road and when they reached near KEB Power House, Chidri By pass on NH-9 road, at that time, the driver of the car bearing registration No.MH-15/DM-4697 came from opposite direction in a high speed and in a rash and negligent manner and dashed to the motorcycle. Due to which, the said accident took place and all of them sustained grievous injuries and the said Gundappa died on the spot and Bhavani was immediately shifted to Government Hospital, Humnabad and after giving first aid when she was taken to Solapur Hospital for further treatment, on the way, she died. The petitioners being legal representatives of Gundappa and Bhavani have filed claim petitions under Section 166 of theseeking for compensation on account of death of Gundappa and Bhavani in the road traffic accident.

4.2. The respondent Nos.1 and 2 filed separate written statements denying the averments made in the petitions with regard to the nature of accident, age and income of the deceased Gundappa and Bhavani and submitted that the claim of the petitioners in both the case is highly excessive and exorbitant. Respondent No.2 contended that the deceased Gundappa was riding the motorcycle in a rash and negligent manner by violating the traffic rules for which it is not liable to pay any compensation and prayed to dismiss the claim petitions.

5. Both the claim petitions were clubbed and on the basis of the pleadings, the Tribunal framed the issues and common evidence was recorded. The petitioners, in order to prove their case, examined petitioner No.1 in MVC No.433/2013 as PW-1 and petitioner No.1 in MVC No.437/2013 as PW-2 and got exhibited documents namely Ex.P1 to Ex.P15. The respondents have not led any evidence either oral or documentary.

6. The Tribunal after recording the evidence and considering the material on record, allowed the claim petitions in part and awarded compensation of Rs.14,02,400/- in MVC No.433/2013 and Rs.9,92,000/- in MVC No.437/2013 and further held that respondent Nos.1 and 2 are jointly and severally liable to pay compensation and directed respondent Nos.1 and 2 to deposit the compensation amount.

7. Respondent No.2 has filed the appeals in MFA No.200808/2015 and MFA No.200809/2015 challenging the judgment and award passed by the Tribunal on the ground of liability. The petitioners in MVC No.437/2013 have also filed appeal in MFA No.200937/2016 seeking for enhancement of compensation.

8. Heard the learned counsel for the petitioners and learned counsel for respondent No.2/Insurance company in both the cases.

9. Learned counsel for respondent No.2 submits that the compensation awarded by the Tribunal is on the higher side. She submits that the deceased-Gundappa was riding the motorcycle in a rash and negligent manner and three members were proceeding on the motorcycle, due to which, the deceased lost control over the motorcycle and dashed to the car. The deceased himself was negligent. The Tribunal without considering the said aspect has fastened liability on the respondent-Insurance company and she prays to allow the appeals filed by the Insurance Company and to dismiss the appeal filed by the petitioners.

10. Per contra, learned counsel for the petitioners submits that the compensation awarded by the Tribunal is on the lower side. They further submit that the charge sheet is filed against the driver of the offending vehicle and there was no negligence on the part of the rider of the motorcycle and submits that the liability fastened on the Insurance company is just and proper and does not call for interference. Learned counsel for the petitioners placed reliance on the judgment of the Division Bench of this Court in MFA No.102268/2019 disposed off on 13.11.2020. On these grounds, he prays to allow the appeal filed by the petitioners and to dismiss the appeal filed by the Insurance Company.

11. I have perused the records and considered the submissions made by the learned counsel for the parties. The point that arises for consideration is with regard to liability and quantum of compensation.

12. It is not in dispute that deceased Gundappa died in the road traffic accident occurred on 07.04.2013 due to rash and negligent driving of the offending vehicle by its driver. In order to establish that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle, the petitioners have produced copy of FIR marked as Ex.P1. Ex.P1, discloses that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. The tribunal was justified in recording a finding that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle.

13. Insofar as liability is concerned, it is the case of the respondent No.2 that the accident was occurred due to rash and negligent riding of the deceased Gundappa, as there was triple riding and he lost control over the motorcycle and dashed to the offending vehicle and there was no negligence on the part of the offending vehicle. In order to substantiate the said contention, the respondent No.2 has not examined any witness. Further, the petitioners have produced police papers. From perusal of police papers, it clearly goes to show that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. Further, there was no negligence on the part of the rider of the motorcycle. Hence, the tribunal was justified in saddling the liability jointly and severally on the respondents, I do not find any grounds to interfere with the said finding.

14. Insofar as quantum of compensation in MFA No.200808/2015 is concerned, the petitioners contended that deceased Gundappa was having tea shop and earning Rs.15,000 p.m. In support of their contention, the petitioners have not tendered any evidence. In the absence of any evidence or proof of income, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2013, the tribunal has taken notional income has to be taken at Rs.6,000/- p.m. as per chart. To the aforesaid amount, as the deceased was aged 34 years, the tribunal has committed an error in considering the future prospects by adding 50% which is on the higher side and the same needs to be reduced 40% of the said amount has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in AIR 2017 SC 5157 . Thus, the monthly income comes to Rs.8,400/-. Out of which, considering that there are five dependents, I deem it appropriate to deduct 1/4th of the said income towards personal expenses of the deceased and therefore, the monthly income of the deceased comes to Rs.6,300/-. Taking into account the age of the deceased which was 34 years at the time of accident, multiplier of 15 has to be adopted as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 . Therefore, the petitioners are entitled to a sum of Rs.11,34,000/- (6,300 x 12 x 15) on account of loss of dependency as against Rs.9,72,000/- awarded by the Tribunal.

15. In addition, the petitioners are entitled to Rs.15,000/- on account of `loss of estate' and Rs.15,000/- on account of `funeral expenses'.

16. Hence, the compensation awarded by the tribunal is Rs.14,02,400/- which is reduced to Rs.11,64,000/- along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization of amount. Hence, the compensation awarded by the tribunal is reduced to Rs.2,38,400/-.

17. Insofar as quantum of compensation in MVC No.437/2013 is concerned, it is contended that the deceased Bhavani was milk vending work and earning Rs.5,000/- per month. In order to substantiate the claim of the petitioners, the petitioners have not produced any records to establish the income. In the absence of any evidence or proof of income, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2013, the notional income has to be taken at Rs.7,000/- p.m. as per chart. The Division Bench of this Court in MFA No.102268/2019, observed that the deceased was aged 17 years as on the date of the accident. He might not be an adult but he cannot be considered as a child, which is observed at paragraph Nos.10 and 11 as under;

"10. Admittedly, the deceased was aged 17 years as on the date of the accident. He might not be an adult but he cannot be considered as a child. He has to be considered as an adolescent. Section 2 (i) and (ii)of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (for short “ the”) defines as follows:

“(i) “adolescent” means a person who has completed his fourteenth year of age about has not completed his eighteenth year;

“(ii) “child” means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), whichever is more.”

11. Section 3 of theprohibits employment of a child in certain occupations and processes. The said Act does not prohibit the adolescent of 17 years to involve in a milk vending business. The deceased and his family from rural area and it is common for a person of 17 years to be involved in milk vending or similar occupations. The Tribunal has completely lost sight of this fact and the reasoning is contrary to and in the teeth of the statutory provisions."

18. Thus considering the law laid down by the Division Bench of this Court in the aforesaid judgment, since the deceased was 15 years as on the date of the accident, but she cannot be considered as child. Thus, the age of the petitioner is taken as 15 years as on the date of the accident. The notional income of the deceased is taken as Rs.7,000/- p.m. as per chart issued by the Karnataka State Legal Services Authority for the accident of the year 2013.

19. In view of the law laid down by the Constitution Bench of the Supreme Court in National Insurance Co., Ltd., vs. Pranay Sethi and others reported in AIR 2017 SC 5157 , to the aforesaid amount, 40% has to be added on account of future prospects as the deceased was aged about 15 years. Thus, the monthly income comes to Rs.9,800/-. Out of which, it is appropriate to deduct 50% towards personal expenses as the deceased was bachelor and therefore, the monthly income comes to Rs.4,900/-.

20. As on the date of the accident, the deceased was aged 15 years, as per the decision of Hon'ble Apex Court in the case of SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER, reported in (2009) 6 SCC 121, and the Division Bench of this Court in MFA No.102268/2019 stated supra, the multiplier applicable to the age group of the petitioner is 18. Therefore, the petitioners are entitled to a sum of Rs.10,58,400/-(4,900/- x 12 x 18) on account of loss of dependency as against Rs.9,72,000/- awarded by the Tribunal.

21. Thus, the petitioners are entitled to compensation of Rs.10,58,400/- on account of `loss of dependency'.

22. In addition, the petitioners are entitled to Rs.15,000/- on account of `loss of estate' and Rs.15,000/- on account of `funeral expenses'.

23. In view of the law laid down by the Hon'ble Supreme Court in Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in 2018 ACJ 2782 , each of the petitioners are entitled for compensation of Rs.40,000/- under the head of `loss of consortium', which comes to Rs.80,000/-.

24. Thus the petitioners are entitled to a total compensation of Rs.11,68,400/- as against Rs.9,92,000/- awarded by the tribunal. Hence, the petitioners are entitled for enhanced compensation of Rs.1,76,400/-.

25. In view of the above discussions, I proceed to pass the following;

ORDER

(a) The appeal in MFA No.200808/2015 and MFA No.200937/2016 are allowed in part.

(b) The appeal filed by the Insurance Company in MFA No.200809/2015 is dismissed.

(c) The judgment and award passed by the tribunal is modified.

(d) The compensation awarded by the tribunal in MFA 200808/2015 is reduced to Rs.11,64,000/- from Rs.14,02,400/-. The petitioners in MFA No.200808/2015 are entitled to compensation of Rs.11,64,000/- along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization of amount and the tribunal is directed to refund the excess amount of Rs.2,38,400/- in favour of respondent-Insurance Company.

(e) The petitioners in MFA No.200937/2016 are entitled to a total compensation of Rs.11,68,400/- as against Rs.9,92,000/- awarded by the tribunal

(f) The petitioners are entitled for enhanced compensation of Rs.1,76,400/- along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization of amount.

(g) Respondent No.2, Insurance Company is directed to deposit the enhanced compensation amount along with interest, within a period of eight weeks from the date of receipt of copy of this order.