IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.196 OF 2019 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.1635 OF 2018 (MV) M.F.A.No.196/2019 BETWEEN:
1. SMT. FLEVI D’SOUZA W/O LATE ANIL D’SOUZA AGED ABOUT 37 YEARS.
2. KUMARI ASHAL MERLIN D’SOUZA D/O LATE ANIL D’SOUZA AGED ABOUT 9 YEARS.
3. MASTER ASHWILL D’SOUZA S/O LATE ANIL D’SOUZA AGED ABOUT 6 ½ YEARS.
APPELLANT No.2 AND 3 ARE MINORS AND ARE REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER APPELLANT No.1.
4. MRS. SERFINE D’SOUZA W/O LATE BONAVENCHAR D’SOUZA @ BONA D’SOUZA @ JOHN D’SOUZA AGED ABOUT 70 YEARS.
ALL ARE R/AT. D.No.1-137 MUCHIKERE HOUSE, DEEPIKA NAGAR KULAI VILLAGE AND POST MANGALURU TALUK, D.K. DISTRICT-575007.
(BY SRI. RAVISHANKAR SHASTRY G, ADV.) … APPELLANTS AND:
1. MR. GANESH DEVADIGA S/O LATE HARIYAPPA DEVADIGA AGED ABOUT 49 YEARS R/AT. D.No.1/132-B, GATE No.125 GREEN PITCH, KULAI HOSABETTU VILLAGE SURATHKAL, MANGALURU TALUK D.K. DISTRICT-575014.
2. THE MANAGER NATIONAL INSURANCE CO. LTD., ANANDA BUILDING, 1ST FLOOR N.H. 66, KULAI POST SURATHKAL, MANGALURU TALUK D.K. DISTRICT-575014.
(BY SRI. O. MAHESH, ADV.) - - -
… RESPONDENTS This MFA is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 11-10- 2017 passed in MVC No.598/2014 on the file of the MACT & III Additional Senior Civil Judge, Mangaluru D.K. partly allowing the claim petition for compensation and seeking enhancement of compensation and etc.
M.F.A.No.1635/2018 BETWEEN:
THE MANAGER NATIONAL INSURANCE CO. LTD., ANANDA BUILDING, 1ST FLOOR N.H.66, KULAI POST SURATHKAL, MANGALURU TALUK. BY NATIONAL INSURANCE CO, LTD., REGIONAL OFFICE, No.144 SUBHARAM COMPLEX, M.G. ROAD BANGALORE-560001 BY IT’S MANAGER.
(BY SRI. O. MAHESH, ADV.) … APPELLANT AND:
1. SMT. FLEVI D’SOUZA W/O LATE ANIL D’SOUZA AGED ABOUT 37 YEARS.
2. KUMARI ASHAL MERLIN D’SOUZA D/O LATE ANIL D’SOUZA AGED ABOUT 9 YEARS, MINOR.
3. MASTER ASHWILL D’SOUZA S/O LATE ANIL D’SOUZA AGED ABOUT 9+ YEARS, MINOR.
4. MRS. SERFINE D’SOUZA W/O BONAVENCHAR D’SOUZA @ BONA D’SOUZA @ JOHN D’SOUZA AGED ABOUT 69 YEARS.
PETITIONER Nos.2 AND 3 ARE MINORS BY THEIR N/G MOTHER RESPONDENT No.1.
ALL ARE R/AT. D.No.1-137 MUCHIKERE HOUSE, DEEPIKA NAGAR KULAI VILLAGE AND POST MANGALURU TALUK-575007.
5. MR. GANESH DEVADIGA S/O HARIYAPPA DEVADIGA AGED ABOUT 48 YEARS R/AT. D.No.1/132-B, GATE No.125 GREEN PITCH, KULAI HOSABETTU VILLAGE, SURATHKAL MANGALURU TALUK-575001.
… RESPONDENTS (BY SRI. G. RAVISHANKAR SHASTRY, ADV.
R2 AND R3 ARE MINOR REPRESENTED BY R1) - - -
This MFA is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 11.10.2017 passed in MVC No.598/2014 on the file of the MACT & 3rd Additional Senior Civil Judge, Mangaluru, D.K. awarding compensation of Rs.25,89,000/- with interest at 6% P.A. from the date of petition till the date of its realization.
These appeals coming on for Orders this day, the Court delivered the following:-
JUDGMENT Since the learned counsel for the appellant and respondent in both the cases are present, the matters are taken up for final disposal.
2. These are the two appeals directed against the judgment and award passed in MVC No.598/2014 wherein a claim petition for compensation filed under Section 166 of the Motor Vehicles Act, 1973 came to be allowed in part and the claimants were granted compensation of `25,89,000/- together with interest at the rate of 6% p.a. from the date of petition till reliasation, directing the Insurance Company to deposit the same.
3. The incident that gave rise for the initiating of proceedings is that on 19.11.2013 at about 7 p.m. when one Anil D’souza was standing on the extreme side of mud portion of road near Hosabettu junction of Hosabettu Village, a motor cycle bearing registration No.KA-19 V-3116 came in a rash and negligent manner and dashed the said person. Due to this impact, he sustained grievous injuries and was taken to A.J. Hospital, Mangaluru where he was declared dead. The claimants are wife, children and mother of the deceased. They filed claim petition.
4. The claimants claim that the compensation granted is on the lower side. The Insurance Company claims that the compensation granted is on the higher side and deserves to be reduced. In this connection, it is necessary to peruse the break up of compensation awarded by the learned Member which is as under:
1. Loss of dependency ` 23,04,000-00 2. Transportation of dead ` 25,000-00
4. Sri.O.Mahesh, learned counsel for the appellant / Insurance Company would submit that the compensation amount is unreasonable and on the higher side. He would also point out that the author of negligence has been the victim. Further the allowance in respect of personal and living expenses has been applied on higher side.
5. Insofar as the appeal of claimants is concerned, learned counsel for the claimants would submit that the deduction is made on the lower side. It should have been 1/4th. But the learned Member has deducted at 1/3rd.
6. In the circumstances, the loss of dependency as considered by the learned Member is as under:
Monthly income at 12,000/-, future prospects added at 6,000/-, total at 18,000/-, 1/3rd deducted for personal and living expenses which is 18,000/- - 6,000/-, multiplier applicable is 16 on the basis of age of the victim being 34 years and compensation towards loss of dependency is 12,000/- x 12 x 16 = `23,04,000/-. The compensation on other heads is `2,85,000/- and total compensation is `25,89,000/-.
7. The Court agrees the submission of both the learned counsel regarding error that has crept in. Insofar as claimants are concerned, the learned Member definitely has considered the deduction for personal and living expenses as 1/3rd which ought to have been 1/4th. Insofar as the Insurance Company is concerned, the future prospects has been added at 50% which in the circumstances of the case considering the nature of work, organization and non-furnishing of qualification, it should have been at 40%. Insofar as the conveyance allowance is concerned, it has been on the higher side and on conventional heads, altogether `2,85,000/- is granted. In the context and circumstances, any amount towards conventional heads beyond `70,000/- is higher and unreasonable.
8. Thus, though the learned Member was right in allowing the claim petition in part, but erred in figuring out to the proper point. Income would be 12000 + 40% of 12000 = 16,800 – 4,200 (1/4) = 12,600. Thus, the just and fair compensation towards loss of dependency would be 12,600 x 12 x 16 = `24,19,200/- and conventional expenses of `70,000/-totally `24,89,200/-. Thus, the just and fair compensation is `24,89,200/-. The compensation granted by the learned Member is `25,89,000/-. Thus, the compensation granted by the learned Member is higher by `99,800/-.
9. Consequently, the appeal for enhancement filed by the claimants is hereby dismissed and the appeal filed by the Insurance Company is partly allowed. The judgment and award dated 11.10.2017 passed by the Tribunal is modified granting compensation of `24,89,200/- with interest at 6% per annum (excluding 323 days of delay in filing). The Insurance Company is directed to deposit the compensation within four weeks from the date of receipt of certified copy of this judgment.
The amount in deposit be transmitted to the Tribunal.
Sd/- JUDGE RV