IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.8318/2016 (MV) BETWEEN:
DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE NEW MUSLIM HOSTEL COMPOUND SARASWATHIPURAM, MYSORE NOW REPRESENTED BY REGIONAL MANAGER ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, # 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD BANGALORE-560 025 ...APPELLANT (BY SRI A.N.KRISHNA SWAMY, ADVOCATE) AND:
1. SMT. BHAGYAMMA W/O K C PUTTASWAMACHARI NOW AGED ABOUT 41 YEARS 2. K C PUTTASWAMACHARI S/O LATE SANNACHARI NOW AGED ABOUT 51 YEARS 3. B P SUSHMITHA D/O K C PUTTASWAMACHARI NOW AGED ABOUT 17 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN/MOTHER THE 1ST RESPONDENT HEREIN ALL R/O BEVINAHALLI VILLAGE KOTHATHI HOBLI MANDYA TALUK & DISTRICT-571 478 4. T.H.MOHAMMED S/O HUSSAIN SHOP NO.2, BANK HALL NEW KALASIPALYAM MARKET BANGALORE-560 009 ...RESPONDENTS (BY SRI P.MAHESHA, ADVOCATE FOR R1 TO R3; R4 IS SERVED & UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.09.2016 PASSED IN MVC NO.52/2015 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, CJM, MANDYA, AWARDING A COMPENSATION OF RS.33,00,035/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the Insurance Company challenging the judgment and award dated 17.9.2016 passed in MVC.No.52/2015 by I Additional Senior Civil Judge and CJM, Mandya, questioning the quantum of compensation awarded to the claimants therein.
2. Facts leading to filing of the claim petition are as under:
The claimants who are the parents and sister of deceased Shivakumar filed the claim petition in MVC.No.52/2015. The case of the claimants was that on 13.11.2014, the deceased Shivakumar was proceeding as a pillion rider on the motorcycle bearing Regn.No.KA- 11/Y-2401 which was being driven by Yogesh, the claimant in MVC.No.53/2015 from Bevinahalli to Mysuru road. At about 10.15 a.m., near the petrol bunk at Yeliyur Kodi, on Mysuru-Bengaluru road, the offending lorry bearing Regn.No.KA-01/C-5794 driven by its driver in a rash and negligent manner came and hit the motorcycle on the right side, as a result of which, the motorcycle fell down along with the rider and the deceased who was run over by the lorry succumbed to the injuries on the spot. Hence, the claimants filed the claim petition claiming compensation of Rs.33,20,000/- contending that the deceased was aged 19 years and was a carpenter by profession. He was working at Sri Vinayaka Wood Industries, Mandya and was earning a daily wages of Rs.500/- and Rs.100/- towards food and traveling charges.
On receipt of summons, the appellant-Insurance company contested the claim petition and stoutly denied the entire averments made in the claim petition. Further, it was specifically averred that the driver of the lorry did not possess a valid and effective driving licence at the time of the accident, and as such, sought for dismissal of the claim petition.
Based on the rival contentions, the following issues were framed:
1. Whether the petitioner proves that on 13.11.2014 at about 10.15 a.m near the Petrol Bunk, Yellyur Kodi on Mysore- Bangalore Road, the accident took place due to actionable rash and negligent driving of Lorry bearing No.KA-01/C- 5794 by its driver and B P Shivakumar succumbed injuries in the accident?
2. Whether the petitioner is entitled for compensation? If so, at what rate, from whom?
3. What order or decree?
The claimants, in support of their contention, led in oral evidence and also produced documentary evidence. The appellant-Insurance Company did not adduce any oral evidence, however, produced the policy in respect of the insurance coverage of the offending lorry.
The Tribunal, having appreciated the oral and documentary evidence available on record, assessed the income of the deceased at Rs.500/- per day without assigning any reasons. Further, the Tribunal without deducting any amount towards personal expenses of the deceased, who was a bachelor, determined the compensation payable under the head of ‘loss of dependency’ at Rs.32,40,000/-. Further, it has awarded Rs.55,035/- towards funeral expenses and Rs.5,000/- towards transportation of the dead body. It has awarded a total compensation of Rs.33,00,035/- to the claimants with interest @ 9% per annum. Being aggrieved by the impugned judgment and award of the Tribunal, the appellant-Insurance Company has preferred this appeal questioning the quantum of compensation awarded.
3. Learned Counsel appearing for the appellant- Insurance Company contended that the income arrived by the Tribunal is in the absence of any clinching evidence and no reasons are assigned in assessing the income of the deceased at Rs.15,000/- per month. It is further contended that the Tribunal has grossly erred in not deducting 50% of the income towards personal expenses of the deceased as admittedly the deceased was a bachelor. As such, the compensation determined under the head of ‘loss of dependency’ suffers from serious infirmity, and hence, would seek interference by this Court.
4. On re-appreciation of the oral and documentary evidence, we find that there is force in the submission made by the learned counsel for the appellant-Insurance Company. It can be gathered from the impugned judgment that the Tribunal has not assigned any reasons while assessing the income of the deceased at Rs.15,000/- per month. In the absence of any clinching evidence produced by the claimants, the Tribunal ought to have taken the notional income as adopted by the Legal Services Authority. In terms of the said chart, the income of the deceased is assessed at Rs.8,500/-per month. Further, 40% of the income has to be added towards future prospects, which works out to (8,500/-+3400/-) Rs.11,900/-. Since the deceased was a bachelor, 50% has to be deducted towards his personal expenses which works out to (Rs.11,900/-x50/100)=Rs.5,950/-. Having regard to the age of the deceased, the multiplier of 18 adopted by the Tribunal is just and proper. Thus, the total loss of dependency works out to (Rs.5,950/-x12x18) =Rs.12,85,200/-. Claimant Nos.1 and 2 being the parents of the deceased are entitled to an amount of Rs.30,000/- under the other heads.
5. In the light of the above said discussions, the appeal is allowed in part. Respondent Nos.1 and 2/Claimant Nos.1 and 2 are entitled to a total compensation of Rs.13,15,200/- along with interest @ 6% per annum from the date of petition till the date of payment as against Rs.33,00,035/- with interest @ 9% p.a. awarded by the Tribunal.
Sd/- JUDGE Sd/- JUDGE *alb/-