IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO.5379 OF 2016 (MV) BETWEEN:
THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE, VISHNU PRAKASH BUILDING, 2ND FLOOR, UDUPI THROUGH ITS BENGALURU REGIONAL OFFICE NO.44/45, RESIDENCY ROAD BENGALURU-560025 REPRESENTED BY ITS DEPUTY MANAGER ... APPELLANT (BY SRI. S V HEGDE MULKHAND, ADVOCATE) AND 1. MR. SUDARSHAN SHETTY S/O LATE SURESH SHETTY AGED ABOUT 40 YEARS, R/O. MAINDADY HOUSE, NIDDODI POST AND VILLAGE, MANGALORE TALUK-575 004.
2. JOKIM J CORREA S/O JOHN CORREA AGED ABOUT 54 YEARS, R/O JOHN HOUSE, NIDDODI, KALLAMUNDKOOR VIA MOODABIDRI D.K-574227.
3. GEETHA D/O. LATE SURESH SHETTY AGED ABOUT 36 YEARS, R/O DOOR NO.2-20 MAINDADY HOUSE, NIDDODI POST AND VILLAGE, MANGALORE TALUK-575004.
4. SMT THRIPTI D/O LATE SURESH SHETTY AGED ABOUT 32 YEARS, R/O DOOR NO.2-20 MAINDADY HOUSE, NIDDODI POST AND VILLAGE, MANGALORE TALUK-575004.
... RESPONDENTS (BY SRI. G RAVISHANKAR SHASTRY, ADVOCATE FOR R1, R3 AND R4 R2 SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.4.2016 PASSED IN MVC NO.686/2013 ON THE FILE OF THE MACT, II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K., AWARDING A COMPENSATION OF Rs.3,38,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the Insurance Company challenging the judgment and award dated 16.05.2016 passed by MACT., and II Additional Senior Civil Judge, Mangaluru in MVC No.686/2013 whereby, the Tribunal has granted compensation of `3,38,000/- with 9% interest per annum.
2. On 30.01.2013, the deceased Kiran Shetty was proceeding as pillion rider on a motor cycle bearing registration No.KA-19-EF-4771 from the side of Niddody towards Mudabidre and the same was ridden by his friend one Mr.Deepak very slowly on the extreme left side of the road by observing rules and regulations of the traffic. At about 8.30 am., when they reached near Puthigepadavu Bus stand, the drive of the bus bearing registration No.KA-19-D-1738 driven the same in high speed, rash and negligent manner and dashed against the motor cycle in which Sri.Kiran Shetty was sustained grievous injuries to his head and other parts of the body. Immediately, the deceased was taken to A.J.Hsopital, Mangaluru for treatment and admitted as inpatient. Inspite of better treatment given by the doctors, the deceased was succumbed to injuries on 01.02.2013. After that claimants who are brother and sisters of the deceased have filed a claim petition before the Tribunal in MVC No.686/2013.
3. On service of notice, the insurance company has filed the objections before the Tribunal. Based on the pleadings of the parties, the following issues have been framed.
Issues:
1) Whether the petitioner proves that late Kiran Shetty died due to the accidental injuries which occurred on 30.01.2013 at about 8.30 am near Puthigepadavu bus-stand Puthighe village, Mangaluru taluk on account of rash and negligent driving of the driver of the Bus bearing Reg.No.KA-19-D-1738?
2) Whether the 2nd respondent proves that the petition is bad for non-joinder of necessary parties viz., the insured and insurer of the motor cycle bearing Reg.No.KA-19-EF-4771?
3) Whether the 2nd respondent further proves that the alleged accident occurred only due to the rash and negligent diving of the rider of the motor cycle bearing Reg.No.KA-19-EF-4771 and the rider and the deceased were guilty of major contributory negligence?
4) Whether the petitioner is entitled for the compensation from the respondents as claimed in the petition?
5) What order or award?
The answers to the aforesaid issues are as under:
Issue No.1:- In the Affirmative Issue No.2:- In the Negative Issue No.3:- In the Negative Issue No.4:- Partly affirmative Issue No.5:- As per final order for the following.
4. To establish their case, they have examined three witnesses and marked eight documents. On the other hand the insurance company has not examined any witness and they marked one document as Ex.R1 – Insurance policy.
5. On appreciation of oral and documentary evidence, the Tribunal has granted compensation of `3,38,000/- with 9% interest per annum. Being aggrieved by the same, the insurance company has filed this appeal for reduction of compensation.
6. Sri. S.V.Hegde Mulkhand, learned counsel for the appellant submitted that at the time of accident, the deceased Kiran Shetty was aged about 32 years and he was an unmarried. The claimants are his brother and sisters. The claimants were not depending upon deceased Kiran Shetty. They have their agricultural land and they are cultivating paddy and coconut trees and Sudarshan Shetty is also engaged in loading work and earning `350/- to `400/- per day and they have not produced any material to show the same. Without considering this aspect of the matter, the Tribunal has wrongly granted compensation of `2,68,000/- in the category of ‘loss of dependency’. Hence, he has sought for allowing the appeal.
7. Per contra, learned counsel appearing for the claimant submits that as per Ex.P8 – ration card, deceased Kiran Shetty and the claimants were living as a joint family.
In his evidence as PW1 and in the claim petition they have specifically stated that the entire family of the deceased was depending on the income of the deceased. After considering the material available on record, the Tribunal has rightly granted compensation in the category of ‘loss of dependency’. Hence, he has sought for dismissal of the appeal.
8. On the basis of the contention of the parties, the following points arises for consideration before this Court:
(i) Whether the Tribunal is justified in granting the compensation in the category of loss of dependency?
(ii) What order?
9. It is not in dispute that on 30.01.2013 the deceased Kiran Shetty was proceeding as a pillion rider of motor cycle bearing registration No.KA-19-EF-4771 from the side of Niddody towards Mudabidre. Same was ridden by his friend Mr.Deepak after following the rules and regulations of the traffic. At that time, the driver of the bus bearing registration No.KA-19-D-1738 driven in a high speed and rash and negligent manner, dashed against the motor cycle, due to which the deceased Kiran Shetty has sustained grievous injuries to his head and other parts of the body. Immediately Kiran Shetty was taken to A.J.Hospital and admitted as inpatient. Inspite of treatment given by the doctors, the deceased was succumbed to injuries on 01.02.2013.
10. The claimants have examined three witnesses.
Sri.Sudarshana Shetty – the claimant himself has been examined as PW1. In the claim petition, it is specifically stated that the entire family of the deceased were depending upon the income of the deceased. The entire future and prospectus of the deceased as well as his family is destroyed due to the sudden death of Sri.Kiran Shetty K. and also in the deposition PW1 has specifically stated that they are all depending upon the deceased for their livelihood. In addition to that they have produced Ex.P-8, Ration card to show that they are living together as joint family. In the cross- examination, the appellant has not elicited any information from PW-1.
11. Taking into consideration all these aspects of the matter, the Tribunal has rightly come to the conclusion that the moral, financial, social, brotherhood support of the deceased to the family, sisters and their children is to be considered and to such an extent, the claimant and sisters of the deceased were depending upon the deceased, can be inferred. Therefore, it can be held that the Tribunal has rightly granted compensation under the head "loss of dependency". Hence, point No.2 is answered accordingly.
12. In the result, appeal is dismissed. The amount in deposit is ordered to be transferred to the Tribunal for disbursement.
Sd/- JUDGE GH/DM