IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1st DAY OF SEPTEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.4511 of 2009 C/W MISCELLANEOUS FIRST APPEAL CROB NO.105 OF 2012 (MV) IN MISCELLANEOUS FIRST APPEAL NO.4511 of 2009 BETWEEN:
DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, UDUPI NOW REPRESENTED BY ITS REGIONAL MANAGER ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, #44/45 LEO SHOPPING COMPLEX, RESIDENCY ROAD BANGALORE-560 025 …APPELLANT (BY SHRI.A.N.KRISHNA SWAMY, ADVOCATE) AND:
1. U.M.BHASKER SHETTY NOW AGED ABOUT 65 YEARS 2. SMT.RAJEEVI B.SHETTY W/O.U.M.BHASKER SHETTY NOW AGED ABOUT 56 YEARS 3. SMT.AMBA C. HEGDE W/O.CHETAN HEGDE NOW AGED ABOUT 32 YEARS 4. SHUBHA SHETTY D/O.U.M.BHASKER SHETTY, NOW AGED ABOUT 26 YEARS ALL R/A.BALEMANE OF HAKLADY VILLAGE, KUNDAPURA TALUK 5. S.S.SATHISH S/O.S.SHIVANNA MAJOR, R/O.SAVEKAR NAGAR SHIMOGA SHIMOGA DISTRICT …RESPONDENTS (BY SHRI.MAHESH KIRAN SHETTY, ADVOCATE FOR RESPONDENT No.2;
NOTICE TO RESPONDENTS NO.1, 3 AND 4 SERVED, BUT UNREPRESENTED;
NOTICE TO RESPONDENT NO.5 IS DISPENSED WITH, VIDE ORDER DT:26.07.2011) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 06.02.2009 PASSED IN MVC NO. 157/2005 ON THE FILE OF CIVIL JUDGE (SR.DN.) & MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING A COMPENSATION OF RS.8,15,000/- WITH INTEREST 6% P.A. FROM THE PETITION TILL REALISATION.
IN MISCELLANEOUS FIRST APPEAL CROB NO.105 OF 2012 BETWEEN:
1. SRI.U.M.BHASKAR SHETTY AGED ABOUT 68 YEARS S/O LATE THIMMAPPA SHETTY APPELLANT No.1 IS DEAD AND APPELLANTS No. 2 TO 4 ARE LEGAL HEIRS AND ARE ON RECORD.
2. SMT.RAJEEVI B. SHETTY AGED ABOUT 59 YEARS W/O.U.M.BHASKAR SHETTY 3. SMT.AMBA C. HEGDE AGED ABOUT 35 YEARS W/O.CHETHAN HEGDE 4. KUM.SHUBHA SHETTY AGED ABOUT 30 YEARS D/O.U.M.BHASKAR SHETTY ALL ARE R/O.BALEMANE OF HAKLADY VILLAGE, KUNDAPURA TALUK …CROSS OBJECTORS (BY SHRI.MAHESH KIRAN SHETTY, ADVOCATE) AND:
1. S.S.SATHISH S/O.S.SHIVANNA MAJOR R/O.SAVEKAR NAGAR SHIMOGA-577 201 SHIMOGA DISTRICT 2. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, UDUPI UDUPI DISTRICT-575 201 REP. BY ITS DIVISIONAL MANAGER …RESPONDENTS (BY SHRI.A.N.KRISHNA SWAMY, ADVOCATE FOR RESPONDENT No.2; NOTICE TO RESPONDENT No.1 IS DISPENSED WITH VIDE ORDER DT:16.10.2014) THIS MFA CROB IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.02.2009 PASSED IN MVC NO.157/2005 ON THE FILE OF CIVIL JUDGE (SENIOR DIVISION) & AMACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA A/W MFA CROB COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The appeal in M.F.A.No.4511 of 2009 is filed by the Insurer and M.F.A.Crob No.105 of 2012 is filed by the claimants respectively, challenging the judgment and award dated 6.2.2009, in MVC No.157 of 2005, on the file of the Civil Judge (Sr.Dn.) & Addl. MACT, Kundapura.
2. Heard Shri A.N.Krishnaswamy, learned counsel for the insurer and Shri Mahesh Kiran Shetty, learned counsel for the claimants.
3. Briefly stated the facts of the case are that one Dr.Rohith Kumar Shetty, was riding his motor cycle on December 4, 2004 in Anandapuram Village, Sagar District and at that time, a tanker bearing Registration No.KA-14- 8864 dashed against the said motor vehicle. The rider of the motor cycle sustained grievous injuries and died on the spot. The parents and sisters of the deceased presented the instant claim petition, claiming compensation Rs.34,20,000/-.
4. On appreciation of evidence, the Tribunal awarded a sum of Rs.8,15,000/- to the claimants.
5. Shri A.N.Krishnaswamy, learned advocate, arguing in support of the appeal filed on behalf of the insurer, urged a solitary ground that the Tribunal erred in deducting 1/3rd of the income of the deceased towards his personal expenditure. He contended that, it is settled position that in case where the deceased was a bachelor, 50% will have to be towards his personal expenses.
6. In support of cross-objections for enhancement, Shri Mahesh Kiran Shetty, urged two grounds. Firstly, that the deceased was a Ayurvedic Doctor and is earnings ought to have been taken at least at Rs.10,000/- per month. Secondly, that the multiplier ‘17’ ought to have been applied in consonance with the judgment of the Hon’ble Supreme Court in the case of Munnalal Jain and another v. Vipin Kumar Sharma and others, reported in 2015 ACJ 1985. However, he did not dispute the position in law regarding deduction of 50% in case of a bachelor.
7. I have given my careful consideration to the submissions made by the learned Counsel for the parties and perused the material papers.
8. Shri A.N.Krishnaswamy is right in his submission that in the case of death of a bachelor, 50% of the earnings will have to be deducted towards his personal expenditure unless cogent material is placed before the court to deviate from the same.
9. Shri Mahesh Kiran Shetty is also right in his submission that the multiplier of 17 ought to have been applied keeping in view of the ratio of the judgment in the case of Munnalal supra.
10. If the multiplier of 17 is applied, the loss of dependency would work out to Rs.8,16,000/-. The Tribunal, in all has awarded a sum of Rs.8,15,000/-. The Tribunal has awarded a compensation of Rs.30,000/- towards loss of estate. The compensation towards loss of dependency having been awarded, it was not permissible for the Tribunal to award compensation towards loss of estate. In any event, the total compensation awarded is just and appropriate and hence, the appeal filed by the insurance company does not merit any consideration.
11. Further, no grounds have been made out to condone the delay of 710 days in filing the cross-objections.
12. In the result, the following order:
i) The appeal filed by the insurer is dismissed;
ii) I.A.1 of 2012 filed for condononation of delay in filing the cross-objection is dismissed. Consequently, the cross- objection is, also, dismissed.
iii) The amount in deposit in this Court by the insurer is ordered to be transferred to the Claims Tribunal, for disbursement, in accordance with law.
No costs.
Sd/- JUDGE Yn.