IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF FEBRUARY 2019 BEFORE:
THE HON’BLE MR.JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.1001 OF 2015 (MV) BETWEEN:
The Branch Manager, The Oriental Insurance Co. Ltd., Sharada Complex, Opp. KSRTC Bus Stand, Chitradurga, Through its Hubballi Regional office, Sumangala Complex, Lamington Road, Hubballi-580 020.
Represented by its Deputy Manager. ... Appellant (By Sri.S.V.Hegde Mulkhand, Advocate) AND:
1. Gurumurthy, S/o. Sejappa, Aged about 46 years, 2. Gowramma, W/o. Gurumurthy, Aged about 41 years, 3. Malamma, D/o. Gurumurthy, Aged about 20 years, All are r/o Near Barageramma Temple, Holalkere Road, Chitradurga-577 501.
4. Syed Sadath, S/o. Syed Bakshi, Major r/o First Main Road, Behind TMK Compound, Chelugudda, Chitradurga-577 501. ... Respondents (By Sri.M.T.Jagan Mohan, Advocate for R1-R3; Notice to R4 dispensed with) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated:15.10.2014 passed in MVC No.18/2014 on the file of the II Additional Senior Civil Judge and Additional MACT-V, Chitradurga, awarding compensation of Rs.4,94,500/- with interest @ 7.5% p.a., from the date of petition till date of deposit.
This Miscellaneous First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the claimants-Respondents No.1 to 4. Perused the records.
2. The insurance company has preferred this appeal, challenging the quantum of compensation awarded in the impugned judgment dated 15.10.2014 passed by the II Addl. Senior Civil Judge and Addl. MACT-V, Chitradurga in MVC No.18/2014, seeking reduction in the compensation awarded by the tribunal.
3. The facts of the case are that on 18.07.2013, when the deceased Dayananda was proceeding on a motor-cycle bearing Reg.No.KA-16/S-7543 from Malappanahatty to Chitradurga, the rider of the motor-cycle bearing No.KA-16/Q-313 came in a rash and negligent manner and dashed against him. Due to the impact, he sustained grievous injuries and shifted to District Hospital, Chitradurga. Thereafter, shifted to SSIMS Hospital, Davanagare and after first aid treatment, again shifted to Kasturba Hospital, Manipal and died while taking treatment on 20.07.2013.
4. After service of notice, Respondent No.1-owner of the offending vehicle did not participate in the proceedings. The insurer appeared and contested the claim petition. During the enquiry before the tribunal, the claimants have established the occurrence of the accident and contributory negligence is held to be 50% on the part of each of the owners of both the vehicles. Therefore, 50% liability is fixed on the insurer and the owner of the offending vehicle jointly and severally.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligent driving of both vehicles. Taking the income of the deceased at Rs.6,000/- p.m., deducting 1/3rd towards his personal and living expenses and deducting 50% towards contributory negligence since the deceased was aged 18 years, applied the multiplier 18 relying upon SARLA VERMA AND OTHERS v/s.DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009(6) SCC PAGE 121 and arrived at loss of dependency. Thus, awarded total compensation of Rs.9.89,000/- with interest at 7.5% per annum from the date of petition till the date of realization under the following heads:
Rs.
i) Loss of Dependency 8,64,000-00 ii) Loss of love and affection 1,00,000-00 iii) Transportation of dead body, cremation and obsequies ceremonies 25,000-00 Total Rs.9,89,000-00 6. The learned counsel for the appellant vehemently submitted that the Tribunal was not justified in deducting 50% of income of the deceased towards his personal and living expenses and has erred in assessing the income of the injured at Rs.4,000/- p.m., as he was a student and that the compensation awarded towards the heads loss of dependency and loss of love and affection are on the higher side and prays for setting aside the impugned judgment and reduction in the compensation.
7. Per contra, the learned counsel appearing for the claimants submitted that the Tribunal, on appreciation of the documentary evidence and material on record, has rightly assessed the income of the deceased at Rs.4,000/- p.m., and awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that the claimants being the legal representatives of the deceased are the dependents of the deceased who was aged 18 years and prior to the date of accident on 18.07.2013, he was a student studying II year PUC. The Tribunal has taken the notional income of the deceased at Rs.4,000/- p.m. Under such circumstances, the Tribunal having regard to the fact that the accident was of the year 2013, has rightly taken notional income of the deceased at Rs.4,000/- p.m. Applying the principles laid down in Munnalal Jain and another Vs Vipin Kumar Sharma and others reported in (2015)6 SCC 347, 50% of notional income has to be added. Hence, income of the deceased comes to Rs.6,000/- p.m. Since the deceased was a bachelor, after deducting 50% towards personal expenses, applying multiplier 18 as deceased was aged 18 years, loss of dependency comes to Rs.6,48,000/- (Rs.3,000/- x 12 x 18).
The Tribunal has awarded a sum of Rs.1,00,000/- towards loss of love and affection, which is reasonable. A sum of Rs.25,000/- is awarded towards transportation of dead body, cremation and obsequies ceremonies and it is upheld relying upon the ratio laid down National Insurance Company Ltd. vs. Pranay Sethi and others reported in AIR 2017 SC 5157. Thus, total comes to Rs.7,73,000/- and if 50% is deducted towards contributory negligence, compensation comes to Rs.3,86,500/-.
9. Therefore, for the aforesaid reasons, the appeal is allowed in part. In modification of the impugned judgment and award dated 15.10.2014 passed by the II Addl. Senior Civil Judge land Addl. MACT-V, Chitradurga in MVC No.18/2014, the compensation payable to the claimant is reduced from Rs.4,94,500/- to Rs.3,86,500/-.
Respondent-insurer shall deposit the compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered. The amount already deposited, if any, shall be adjusted. The amount in deposit before this court and the lower court records shall be transmitted to the tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/- JUDGE bnv*