IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM M.F.A. NO.7868 OF 2015 (MV) C/W M.F.A. No.5988 of 2015 (MV) IN MFA NO.7868/2015 BETWEEN:
1. SMT. G.SHASHIKALA W/O LATE VIJAYAN S AGED ABOUT 34 YEARS 2. BABY PRIYADARSHINI D/O LATE VIJAYAN S AGED ABOUT 5 YEARS 3. BABY TEJASHWINI D/O LATE VIJAYAN S AGED ABOUT 2 YEARS SINCE APPELLANTS NOS.2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER AS A NATURAL GUARDIAN 1ST APPELLANT.
ALL ARE RESIDING AT NO.52/2, 3RD MAIN ROAD RAMAMANDIRA ROAD KAVERINAGAR, BANASHANKARI 3RD STAGE, BANGALORE-560 085.
4. SRI SIDDAN @ CHITHAN S/O LATE KARADIGOWDAR AGED ABOUT 65 YEARS 5. SMT. CHIKKI W/O SIDDAN AGED 55 YEARS BOTH ARE RESIDING AT NO.15 K. AGRAHARAM, KOOTHAPADI POST PENNAGARAM TALUK DHARMAPURI DISTRICT-636810.
(BY SRI K.T.GURUDEV PRASAD, ADVOCATE) AND:
1. SRI GUNASHEKAR R NO.107, 2ND ROAD RAJESHWARINAGAR, LEGGARE BANGALORE-560 058 ....APPELLANTS 2. THE ORIENTAL INSURANCE COMPANY LIMITED LEO SHOPPING COMPLEX NO,44/45, RESIDENCY ROAD NEW MAHOHALL, BANGALORE-560 002.
….RESPONDENTS (BY SRI C.R. RAVISHANKAR, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.03.2015 PASSED IN MVC.NO.195/2014 ON THE FILE OF THE 15TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.5988/2015 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, NO.44/45 LEO SHOPPING COMPLEX RESIDENCY ROAD, BANGALORE-560 025 BY ITS REGIONAL MANAGER (BY SRI RAVISHANKAR C.R., ADVOCATE) AND:
1. SMT. G.SHASHIKALA AGED ABOUT 34 YEARS W/O LATE VIJAYAN S 2. BABY PRIYADARSHINI AGED ABOUT 5 YEARS D/O LATE VIJAYAN S 3. BABY TEJASWINI AGED ABOUT 2 YEARS D/O LATE VIJAYAN S THE RESPONDENTS NO.2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. G.SHASHIKALA.
THE RESPONDENTS NO.1 TO 3 ARE RESIDING AT NO.52/2, 3RD MAIN ROAD RAMA MANDIRA ROAD KAVERINAGAR, BANASHANKARI 3RD STAGE, BANGALORE-560 085.
4. SRI SIDDAN @ CHITHAN AGED ABOUT 65 YEARS S/O LATE KARADIGOWDAR ....APPELLANT 5. SMT. CHIKKI AGED ABOUT 55 YEARS W/O SRI SIDDAN THE RESPONDENTS NO.4 & 5 ARE RESIDING AT NO.15 K. AGRAHARAM, KOOTHAPADI POST PENNAGARAM TALUK DHARMAPURI DISTRICT 6. SRI GUNASHEKAR R NO.107, 2ND MAIN ROAD RAJESHWARI NAGAR, LAGGERE BANGALORE-560 058.
….RESPONDENTS (BY SRI K.T.GURUDEVA PRASAD, ADVOCATE FOR R1, R4 & R5; SRI N.NAGARAJA, ADVOCATE FOR R6) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.03.2015 PASSED IN MVC.NO.195/2014 ON THE FILE OF 15TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BENGALURU, AWARDING A COMPENSATION OF RS.19,20,180/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
J U D G M E N T The claimants as well as the Oriental Insurance Company Limited have filed these appeals questioning the judgment and award dated 26.03.2015 passed by the Tribunal in MVC No.195/2014. The claimants have preferred the appeal in MFA No.7868/2015 seeking enhancement of compensation whereas the Insurance Company have preferred the appeal in MFA No.5988/2015 questioning the liability as well as quantum of compensation.
2. Brief facts leading to the top noted appeals are as under: The case of the claimants is that on 17.11.2013, at about 7.30 p.m., when the deceased S.Vijayan was riding his motor bike bearing registration No.TN-7-C-6378 on NH-7 Hosur- Bangalore road near Guest Line Circle, the driver of the offending vehicle bearing registration No.KA-02-MD-6382 came from Attibele in a rash and negligent manner and dashed against the vehicle of the deceased. The claimants further averred in the claim petition that on account of the impact, the deceased fell down on the road and he was shifted to Sparsh Hospital wherein he was treated as an inpatient for a period of 9 days and later on he was referred to Narayana Hrudalaya Kiran Mujumdhar Hospital. Due to the gravity of injuries, the deceased succumbed and died in the hospital. Hence, the claimants who are widow, two minor children and parents have filed a claim petition claiming compensation of Rs.60,00,000/-.
3. On receipt of notice by the Tribunal, the Insurance Company, who was arrayed as second respondent before the Tribunal, appeared and contested the proceedings by filing statement of objections. The Insurance Company denied the relationship of the claimants with the deceased. They did not admit the policy and a specific contention was taken that the policy covered under the vehicle is under verification. It was further contended that even if policy is issued, then their liability, if any, is subject to the terms and conditions of the policy of vehicle documents.
4. The Tribunal, based on rival contentions, formulated the following issues:
1. Whether the petitioners proves that they are the legal heir of deceased Vijayan.S?
2. Whether the petitioner proves that the accident arose on 17/11/2013 at about 7.30 PM on NH7 Hosur Bangalore road, Near Guest Line Circle, Anekal Taluk due to the rash and actionable negligence on the part of the driver of Maruthi Swift bearing No.KA-02-MD-6382 and caused the death of Vijayan.S?
3. Whether the petitioner is entitled for compensation? If so, how much and from whom?
4. What award/order?
The claimants, in support of their contentions, got examined the widow of the deceased as PW.1 and adduced documentary evidence vide Exs.P1 to P21. The Insurance Company has not led any oral evidence in support of their contentions.
5. The Tribunal, having appreciated the oral and documentary evidence adduced by the claimants, proceeded to determine the compensation towards loss of dependency. The case of the claimants before the Tribunal was that the deceased was working as Assistant Sales Manager at SKS Fasteners Limited and was drawing a salary of Rs.11,000/- per month and remuneration of Rs.7,500/-. The claimants have produced Ex.P11 to demonstrate that the deceased was serving as Assistant Sales Manager. However, the Tribunal was of the view that since the author of the document produced at Ex.P11 is not examined, the contention of the claimants in regard to avocation and income cannot be considered in terms of Ex.P11. In the absence of clinching evidence, the Tribunal proceeded to take the income at Rs.7,000/- per month and has proceeded to award a sum of Rs.10,08,000/- towards loss of dependency. Further, it has awarded a sum of Rs.100,000/- towards loss of love and affection, Rs.10,000/- towards loss of consortium, Rs.50,000/- towards transportation of dead body, funeral and obsequies expenses and Rs.7,52,180/- towards medical expenses. In all, the Tribunal has awarded a sum of Rs.19,20,180/-.
6. The claimants and contesting respondent-insurer have challenged the said judgment and award by filing separate appeals as stated above. Heard the learned counsel for the appellants. Perused lower court record. Learned counsel for the appellants/claimants vehemently contended that the Tribunal was not justified in taking the income of the deceased at Rs.7,000/- per month while determining future loss of dependency. He further contended that the claimants have placed clinching evidence on record to demonstrate that the deceased was earning Rs.20,000/- per month. Hence, he would request this Court to enhance the compensation under the head of loss of dependency. He also contended that the Tribunal had erred in not considering future prospects of the deceased, who was hardly aged 39 years as on the date of the accident. Per contra, the contention of the appellant insurer in its appeal is that the quantum of compensation awarded on all counts is on higher side and the same is required to be reduced.
7. There is force in the submission made by the learned counsel for the appellants in the appeal filed by the claimants. The Tribunal having disbelieved the evidence Ex.P11 was not justified in restricting the income of the deceased at Rs.7,000/- per month. However, there is evidence on record to indicate that he was employed. In the absence of documentary evidence indicating the actual salary, the Tribunal ought to have taken the notional income adopted by the Legal Services Authority. Admittedly, the accident has occurred on 17.11.2013. Hence, in the absence of proof of income, we are of the view that the income of the deceased requires to be notionally fixed at Rs.8,000/- per month. Further, 40% has to be added towards future prospects which would take his notional income to Rs.11,200/- per month. Since there are five dependents, 1/5th of the income has to be deducted towards personal expenses of the deceased, and hence, the compensation payable to the claimants under the head of loss of dependency would come to Rs.8,960/- x 12 x 15 = Rs.16,12,800/-. Insofar as the medical expenses determined by the Tribunal to the tune of Rs.7,52,180/- is concerned, it stands undisturbed. A further amount of Rs.70,000/- is awarded under the other heads.
8. Since the deceased was hospitalized for nearly 12 days prior to his death, the claimants had to travel around 30 to 40 kms from their house to hospital every day. In that view of the matter, an amount of Rs.15,000/- is awarded towards food, nourishment, conveyance and incidental charges. Accordingly, the re-assessed total compensation payable to the claimants would come to Rs.24,49,980/- as against the compensation awarded by the Tribunal at Rs.19,20,180/-. In view of the above, the appellants are entitled to receive an additional compensation of Rs.5,29,800/-.
9(a) Accordingly, the appeal in MFA No.7868/2015 is allowed in part. The claimants are entitled for an additional compensation of Rs.5,29,800/- along with interest @ 6% p.a. from the date of petition till the date of realization.
(b) In view of re-determination of compensation by this Court, the appeal in MFA No.5988/2015 filed by the Oriental Insurance Company Limited does not survive for consideration and the same stands dismissed. Since the appeal in MFA No.5988/2015 being dismissed, I.A.No.1/2019 filed therein does not survive for consideration; it stands disposed of.
Sd/- JUDGE hkh.
Sd/- JUDGE