IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL NO. 7257/2017 (MV) BETWEEN:
The Divisional Manager, Reliance General Insurance Co. Ltd., No.28, East Wing, 5th Floor, Centenary Building, M.G. Road, Bengaluru – 560 001.
Rep. by its Regional Manager.
(By Sri. D. Vijaya Kumar, Advocate) AND:
1. Sri. Mohammed Iqbal @ Iqbal Mohammed, S/o Mohammed Gouse Peer Saab, Aged about 46 years, 2. Smt. Shabeena Bhanu, W/o Mohammed Iqbal @ Iqbal Mohammed, Aged about 41 years, ...Appellant Both are R/at Jamia Masjid Road, Chamarajanagar Town, Chamarajanagar – 571 313.
3. Sri. E.P. Kumar, S/o Periyaswamy, R/at H-6, Periyar Nagar, Erode District, Tamil Nadu – 638 001.
…Respondents This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicle Act, 1989, against the Judgment and award dated 30.06.2017 passed in MVC No.305/2016 on the file of the Principal District and Sessions Judge and MACT, Chamarajanagar, awarding compensation of Rs.10,10,000/- with interest at 6% p.a from the date of petition till the date of realization.
This M.F.A coming on for Orders this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the Insurer of offending lorry bearing registration No.TN-33-AM-5899 challenging the judgment and award of the Tribunal on the ground of negligence and quantum.
2. Heard Sri. D. Vijaya Kumar, learned counsel for the appellant. Perused the judgment and award passed by the Tribunal.
3. The points that arise for consideration in this appeal are:
(i) Whether the Tribunal was justified in law in holding that death of deceased Mohammed Nihal, S/o Mohammed Iqbal @ Iqbal Mohammed is on account of injury sustained by him in the accident occurred on 02.09.2016 due to rash and negligent driving of the offending lorry bearing registration No.TN-33-AM-5899 by its driver?
(ii) Whether compensation of Rs.10,10,000/- with interest at 6% awarded by Tribunal is just and reasonable or does it call for reduction?
4. Sri. D. Vijaya Kumar, learned counsel appearing for the appellant/ insurer of offending lorry submits that though the accident had occurred due to rash and negligent riding of the motor cycle by deceased himself, the Tribunal has committed an error in holding that it had occurred on account of rash and negligent driving of the lorry by its driver.
5. The learned counsel submits that deceased was not earning anything at the time of accident and that Tribunal has committed an error in taking his income at Rs.9,000/- p.m and awarding compensation of Rs.9,27,000/- towards loss of dependency and Rs.38,000/- under conventional heads. Therefore, he prays for allowing the appeal by modifying the judgment and award passed by the Tribunal.
6. Respondents who are parents of deceased filed a claim petition in MVC No.305/2016 before the Tribunal seeking compensation from the owner and the insurer of the offending lorry by contending that on 02.09.2016 when their deceased son Mohammed Nihal was proceeding with his friend Mohammed Nonain as a pillion rider on a motorcycle, the lorry bearing registration No.TN-33-MA- 5899 came from opposite direction in a rash and negligent manner and dashed against the motorcycle of their son, as a result, their son sustained grievous injuries and succumbed to injuries on the spot itself.
7. The claim petition was resisted by the insurer of the lorry mainly on the ground that accident had occurred due to rash and negligent riding of motor cycle by deceased himself and not on account of rash and negligent driving of the lorry.
8. The claimants who are the parents of the deceased, in order to prove their case have examined the first claimant–father of the deceased as PW1 and eye- witness of the accident as PW2 and have produced FIR, Complaint, Mahazar, IMV Report, Post-Mortem Report and Charge-sheet which were marked as Ex.P1 to P6 and educational testimonials of the deceased as Ex.P7 to P11. The insurer in support of their contention has neither examined the driver of the lorry nor any eye-witness to the accident.
9. The Tribunal after careful consideration of oral and documentary evidence on record particularly the FIR, Complaint, Mahazar, IMV Report, Post-Mortem Report and the Charge-sheet produced at Ex. P1 to P6 respectively, has held that the accident has occurred due to rash and negligent driving of the lorry by its driver.
10. I have carefully gone through the said finding of the Tribunal on negligence and do not find any infirmity or illegality warranting interference of this Court. Hence, point No.1 is answered accordingly.
11. The deceased was aged about 20 years at the time of accident as could be seen from Ex.P5 Post-Mortem Report and relevant multiplier applicable to his age group was 18 and same was rightly taken by the Tribunal. As per the educational testimonials of the deceased produced at Ex.P7 to P11, deceased was studying B.Com and he was in 4th Semester at the time of accident. Claimants in support of their contention that deceased by working in a Garage was earning Rs.15,000/- p.m, except examining the first claimant have not substantiated their contention regarding avocation and income of deceased either by examining the owner of the said Garage or by producing the salary certificate of deceased. In the absence of proof of income, the Tribunal considering the age, educational qualifications of deceased and year of accident, was justified in assessing his income at Rs.9,000/- p.m. As deceased was bachelor, 50% of his income was rightly deducted by the Tribunal towards his personal expenses and remaining 50% was taken as his contribution towards his family. If that is so, loss of dependency would work out to Rs.9,000 x 12 x 50/100 x 18 = Rs.9,72,000/- and the same has been rightly awarded by the Tribunal. A sum of Rs.1,000/- awarded by the Tribunal towards transportation of dead body and a sum of Rs.5,000/- awarded towards funeral and obsequies are on the lower side and there is no scope for reduction under the said heads.
As compensation awarded by the Tribunal is found to be just and reasonable there is no scope for reduction of compensation.
Accordingly, Appeal stands dismissed.
In view of disposal of main appeal, I.A.No.1/2017 does not survive for consideration.
Amount deposited in the above appeal is ordered to be transmitted to the Tribunal for disbursement in favour of the claimants in terms of the award of the Tribunal.
SD/- JUDGE LL