IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.6859/2019(MV) BETWEEN:
THE BRANCH MANAGER CHOLAMANDALAM M .S GENERAL INSURANCE COMPANY LIMITED No.16/17, NIRAMALA BUILDING OPP:COSMOPOLITAN CLUB DOUBLE ROAD, BELLARY-583 101.
BY THE CLAIMS MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED UNIT No.04, NINTH FLOOR (LEVEL-06) “GOLDEN HEIGHTS” COMPLEX 59TH ‘C’ CROSS, INDUSTRIAL SUBURB RAJAJINAGAR 4TH ‘M’ BLOCK BENGALURU-560 010.
BY IT’S SENIOR MANAGER-CLAIMS. (BY SRI O MAHESH, ADVOCATE) AND:
1 . MARAGANAGAMMA ..APPELLANT AGE 36 YEARS W/O LATE DHANUNJAYA 2 . M .D. ANJEYAYA MINOR, AGED ABOUT 15 YEARS S/O LATE DHANUNJAYA M B 3 . OBAMMA M D MINOR AGED ABOUT 13 YEARS D/O LATE DHANUNJAYA M B 4 . SHARAVANI M D MINOR AGED ABOUT 11 YEARS D/O LATE DHANUNJAYA M B 5 . MARAKKA AGED ABOUT 66 YEARS W/O LATE MANDIBHEEMAIAH RESPONDENTS No.2 TO 4 ARE MINORS REPRESENTED BY THEIR NATURAL MOTHER GUARDIAN RESPONDENT No.1.
ALL R/O KONAPURA VILLAGE MOLAKALMURU TALUK CHITRADURGA DISTRICT-577 501.
NOW AT PRESENTLY AT 15TH CROSS, KALIDASA BEDI MALAPPANAHATTI CHITRADURGA TALUK & DISTRICT-577 501.
6 . NARASIMHADU BHARNE AGED ABOUT 41 YEARS S/O B PEDDA ANJENAYA RESIDING AT No.1/101 HPC DEPOT, SITIGIL VILLAGE, GUNTHAKAL ANANTHAPUR DISTRICT-410 123. ANDRAPRADESH.
…RESPONDENTS THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2019 PASSED IN MVC No.313/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, CHALLAKERE, AWARDING COMPESNATION OF Rs.9,64,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL DATE OF REALIZATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is posted today for Admission, having regard to the circumstances of the case, the same is taken up for final disposal.
The appeal is directed against the judgment and award dated 1.6.2019 passed in MVC NO.313/2018 by the learned Senior Civil Judge and MACT, Challakere, wherein the claim petition came to be allowed in part and an amount of Rs.9,64,000/- together with interest at 9% p.a. from the date of petition till its realization came to be awarded and directed the insurance company to deposit the same.
2. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings held by them before the Tribunal.
3. The facts leading to filing of the claim petition before the Tribunal are:
That on 16.2.2018 at about 5.15 p.m. Dhanunjaya, husband of 1st petitioner was proceeding as pillion rider of motor cycle bearing Reg.No.AP.02.AS.8708 on Hospet - Bellary road, when they came near KPTCL gate, Kudthini, was hit by the speedy lorry bearing reg.No.AP.04.Y.8282 which came from opposite direction in a rash and negligent manner. Due to which, husband of 1st petitioner died on the spot.
4. It is stated that, prior to the accident deceased was aged 45 years, Transport Guide by profession and getting Rs.30,000/- per month and hale and healthy. Petitioners being the wife, children and mother of deceased were entirely depending on him. They claimed compensation of Rs.30.00 lakhs.
5. Before the Tribunal, 1st respondent failed to appear and he was placed exparte and 2nd respondent appeared and resisted the petition.
6. Learned member on the basis of the oral evidence of PW1 and documentary evidence of Ex.P1 to P14 on behalf of petitioners and Ex.R1 on behalf of Insurance Company, allowed the petition in part and granted compensation of Rs.9,64,000/- considering the monthly income of the deceased at Rs.6,000/- as against the claim of Rs.30,000/-, deducting Rs.1,200/- for his personal expenses and applying 15 multiplier, awarded Rs.8,64,000/- towards loss of dependency and also awarded Rs.1,00,000/- towards conventional heads and directed the Insurance Company to deposit the same. Being aggrieved by the same, the Insurance Company is in appeal.
7. Learned counsel Sri. O. Mahesh appearing for the appellant-Insurance Company would submit that the learned member should have deducting 1/4th towards personal and living expenses and deduction of 1/5th is exorbitant. Further he submits that age of the deceased is stated as 45 years in the claim petition,. However, the learned member considered as 38 years in para-28 of his judgment on the basis of Ex.P5 inquest panchanama, wherein his age is mentioned as 38 years. He would further submit that Rs.1,00,000/- awarded towards conventional heads is on higher side.
8. The ground urged by the appellant-Insurance Company that deceased was aged 45 years is concerned, I am not inclined to accept this age when better reliable document in the form on inquest report and PM report confirming the age at 38 years is available. In this connection, error which are technical or typographical error or incorrect statement made due to oversight has no place for consideration in the light of the first hand documents which are relied in the form of PM report and inquest report.
9. Insofar as income is concerned, deceased Dhanunjaya was working as Transport guide. The consideration is at Rs.6,000/- per month as against the claim of Rs.30,000/-. The deduction for personal expenses is considered at 1/5th. Learned counsel for Insurance Company would submit that deduction of 1/5th amounts to be unreasonably on the higher side and it should have been lesser one at 1/4th. The leading judgment of the Apex Court confirm time and again that deduction in respect of personal expenses wherein there are five dependents, should be 1/4th and this appears to be acceptable. However, the material head of future prospects are not considered for reckoning the loss of dependency. It is clearly a material lapse as it is an application of legal mind that the future prospects are granted basing on each of the deceased. In this connection, the age of the deceased is stated to be 38 years and the prescribed future prospects considering the avocation of deceased would be 40%. Then the monthly income goes up to 6,000/- + 2,400/- = 8,400/-
, in which, 1/4th (2,100/-) is deducted for personal and living expenses, net income for consideration would be Rs.6,300/-. In which event, the compensation towards loss of dependency would be Rs.11,34,000/- (6,300/- x 12 x 15) and Rs.70,000/- is granted towards conventional heads. The calculation made above is purely on the basis of the direct legal principles available on the matter. Be it personal and living expenses or future prospects or conventional heads.
10. The respondents-claimants have not preferred appeal and they were not before the court. No matter, there is no impediment for consideration of the just and fair compensation even though they have not preferred the appeal. What is to be kept in mind for the Tribunals or Court is that fair and just compensation should reach the victim’s dependants who suffered because of untimely death of their bread earner. That has been the object of Motor Vehicles Act which is a Social Legislation.
11. Insofar as negligence is concerned, it is stated that a deceased Dhanunjaya volunteered to the accident. The contention of negligence is also raised by the learned counsel for the appellant-Insurance Company. In these circumstances, the grounds urged by the learned counsel for the Insurance Company is that, deceased was pillion rider and the rider was Bhimsena and it was strenuously submitted that whenever the accident is stated to have occurred the person who naturally receives fatal injuries will be the rider and not the pillion rider. Here, I am unable to understand what exactly does it mean.
12. Insofar as Negligence is concerned, the negligence is a breach of legal duty to take care of one self and others. It is a don’t care attitude or indifference wherein negligent person does not care for series of consequences of his action or inaction. Another point canvassed by the learned counsel is that, rider of the vehicle was not wearing helmet. In the light of what is observed above, I do not find that negligence should be attributed to the rider in respect of liability to pay compensation. I am convinced to confirm that fair and just compensation would be Rs.12,04,000/- which consists of enhanced compensation of Rs.2,40,000/- which insurance company is liable to pay.
13. Insofar as appeal is concerned, when the fate of the appeal is known in the preliminary hearing itself, there is no necessity of taking the appeal further. Hence, I find the appeal is liable to be rejected. Accordingly, it is rejected.
However, the appellant-Insurance Company is directed to pay the enhanced compensation of Rs.2,40,000/- over and above the compensation granted by the Tribunal together with interest at 9% p.a. from the date of petition till its realization.
The impugned judgment and award is modified to that effect.
As the claimants are not represented, the Taluk Legal Services Authority is hereby directed to coordinate and ensure that the compensation reaches the claimants without pilferage. In this connection issue intimation to the concerned Taluk Legal Services Authority.
Amount in deposit be transmitted to the jurisdictional tribunal, forthwith.
tsn* Sd/- JUDGE