IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K. SUDHINDRARAO M.F.A. No.4216/2019 (MV) BETWEEN:
The Claim Manager, Sriram General Insurance Company Limited, E-8, EPIP, RIICO Industrial Area, Seethapur, Jaipura, Rajasthana – 302 022. By Shriram General Insurance Co. Ltd., 5\4, 3rd Cross, S.V. Arcade, Belakanahalli Main Road, Opp: Banneraghatta Main Road, II M.B. Post, Bengaluru – 560 076. Appellant (By Sri. O. Mahesh, Advocate) AND:
1. Chandrashekar, Aged 29 years, S/o. Late Shivanna @ Kavali Shivanna @ Shivakumar, 2. Gangadhara, Aged 25 years, S/o. Late Shivanna @ Kavali Shivanna @ Shivakumar, 3. Kumari Shwetha, Aged 23 years, D/o. Late Shivanna @ Kavali Shivanna @ Shivakumar, All are R/at Mandalkhan Street, Tarikere Town, Tarikere Taluk – 577 101.
4. Srinivasa P.L., Aged about 32 years, S/o. Lakshman, R/at Savemaradi Colony, Amruthapura Hobli, Tarikere Taluk, Now R/o C/o Palaksha, Door No.9, S. Lakkihalli, Tipaturu, S.S.M.D.S, Tumakur District – 572 101.
5. M.S. Umesh Patel, Aged 49 years, S/o. Sidramappa, R/at Makanahalli Village, Tarikere Taluk – 572 101. Respondents This MFA is filed under Section 173(1) of Motor Vehicle Act, against the judgment and award dated 06.06.2018 passed in MVC No.399/2015 on the file of the Senior Civil Judge & Prl. JMFC, MACT, Tarikere, awarding compensation of Rs.13,55,000/- with interest at 6% p.a, from the date of petition till the date of deposit.
This MFA coming on for Orders, this day, the Court delivered the following:
J U D G M E N T The appeal is filed by the Insurance company seeking to set aside the judgment and award dated 06.06.2018 passed in MVC No.399/2015 by the Senior Civil Judge & Prl. JMFC & MACT, Tarikere.
2. The details of the accident are, on 07.06.2015 at about 09.45 P.M. near Lakshmi Hotel situated at Kodi Camp in Tarikere Town, the driver of tractor bearing registration No.KA- 18/T-2173 drove the same in a rash and negligent manner and dashed to the Bajaj M-80 motor cycle bearing registration No. KA-18/H-3801 of Shivanna who was coming from the opposite direction due to which Shivanna fell down and sustained grievous injuries on his head, chest and face. When he was being shifted to Government Hospital, Tarikere, on the way he succumbed to injuries. Initially, the wife of the deceased and his children filed claim petition and during the pendency, wife is reported dead and their children proceeded with the petition.
3. The data available is that the deceased Shivanna was working as a bus agent in Siddarameshwara Motors since 1992 and he was getting salary of Rs.15,000/- per month and daily allowance of Rs.150/- per month. He was aged 52 years on the date of death.
4. Initially, the United India Insurance Company Limited (UIICL) is arrayed as respondent No.3 and thereafter it was deleted and present appellant/respondent No.3 is impleaded as respondent, but he did not appear before the Tribunal and placed exparte.
5. The Tribunal has awarded the compensation of Rs.13,55,000/-, fastening liability on the insurer/appellant, which is challenged in this appeal.
6. Learned counsel for appellant-Insurance company submits that the appellant in the capacity of respondent No.3 before the Tribunal had made an application for setting aside the ex-parte order and to grant him an opportunity and that the application itself was not entertained by the learned Member and he came to know about the liability only on the date when he received the notice of execution.
7. The Tribunal has considered the income of the deceased at Rs.15,000/- per month and deducted 1/3rd of his income towards personal expenses. However, the Tribunal has not awarded compensation under future prospects, to which the claimants are entitled. As the deceased was a salaried employee, 10% of the salary towards future prospects has to be considered. Thus, an addition of Rs.1,500/- has to be added to the salary of the deceased. Thus, the salary of the deceased is considered as below:
Salary of the deceased - Rs.15,000/-
+ 10% towards future prospects + Rs 1,500/- Net income = Rs.16,500/-
- 1/3rd towards personal expenses - Rs. 5,500/-
= Rs.11,000/-
Thus, loss of dependency would be:
Rs.11,000 x 12 x 11 = Rs.14,52,000/-
+ Conventional heads + Rs. 30,000/-
Total compensation = Rs.14,82,000/-
- Compensation already awarded by the Tribunal - Rs.13,55,000/- Enhancement = Rs.1,27,000/-
Insofar as the submission made by the learned counsel for the appellant-insurance company regarding non-service or the defective service of the claim notice to the present appellant is concerned, the learned Member has already noted in the judgment at para no.3 that inspite of service of notice to respondent No.3-insurance company, it did not appear before the court and hence, respondent No.3 was placed exparte. Hence, no grounds are established to admit and go ahead with the further proceedings in the case.
8. The liability in tandum is not in dispute. The loss of dependency is established. Insofar as the quantum of compensation is concerned, a fair and just compensation is calculated by this Court @ Rs.14,82,000/-. Compensation granted by the Member is @ Rs.13,55,000/-. Thus, there is a deficiency of Rs.1,27,000/-.
9. The fact of the matter is that there is no appeal by the claimants seeking enhancement. The present appeal is by the Insurance Company challenging the granting of compensation. No matter the absence of appeal by the claimant is not a sine qua non for considering just and fair compensation under the Motor Vehicles Act, a social legislative, the object of which is to identify and grant the compensation on merits, which need not be considered as separate cause of action.
10. In the circumstances, the appeal does not deserve to be proceeded further. Thus, liable to be rejected. Accordingly, appeal is rejected.
11. At this stage, compensation granted by the Tribunal is enhanced by Rs.1,27,000/- together with interest at the rate of 6% from the date of petition, till payment.
12. Since the claimants are not represented by the counsel, Taluk Legal Services Authority, Tarikere, be informed to collect the details from the office of the Tribunal and cause notice to the claimants and ensure that the compensation amount including enhancement amount is received by the claimants. The disbursement be made in accordance with the apportionment order made by the Member.
13. The Insurance Company is directed to deposit total compensation including the enhanced amount, less if any already deposited within a period of four weeks from the receipt of the certified copy of the judgment.
Amount in deposit is ordered to be transmitted to the claims Tribunal.
Sd/- JUDGE SV