IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.2128/2014 [MV] BETWEEN:
M/S. ICICI LOMBARD COMPANY LTD., REGIONAL OFFICE NO.89, 2ND FLOOR SVR COMPLEX, MADIWALA HOSUR MAIN ROAD BANGALORE-68.
(BY SRI.B C SHIVANNE GOWDA, ADV.) AND:
1. SRI MOHAMMED SARDAR @ SARDAR PASHA S/O LATE MOHAMMAD DASTAGIR NOW AGED ABOUT 52 YEARS 2. SMT. SHAHEENA BEGUM W/O SRI MOHAMMED SARDAR @ SARDAR PASHA NOW AGED ABOUT 47 YEARS 3. KUM.SHABANA BEGUAM D/O SRI MOHAMMED SARDAR @ SARDAR PASHA AGED ABOUT 22 YEARS ...APPELLANT 4. KUM.BASARATH BEGUAM D/O SRI MOHAMMED SARDAR @ SARDAR PASHA AGED ABOUT 21 YEARS ALL ARE R/AT NO.655 2ND MAIN ROAD 6TH CROSS, ISLAMPURA BANGALORE-36.
5. SAVITHA HATCHERIES (P) LTD., REP. BY ITS PROP. V DHANANJAYA REDDY ROOM NO.21, RANGA SAI COMPLEX A C CENTER, TRUNK ROAD NELLORE ANDHRA PRADESH-516001.
(BY SRI.B N SURESH, ADV. FOR R1 TO R4 R5 - SERVED) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2013 PASSED IN MVC NO.2163/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE & MEMBER MACT, BANGALORE, AWARDING COMPENSATION OF RS.7,76,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This Insurer’s appeal is directed against the judgment and award dated 03.12.2013 passed in MVC No.2163/2012 on the file of MACT, Court of Small Causes, Bangalore.
2. The claimants are parents and sisters of deceased.
It is stated that on 04.08.2012 when the deceased was proceeding as a pillion rider on Motor Cycle bearing Registration No.KA 05/EP 93 on Bangalore – Kolar Road, a tempo bearing Reg.No.AP-26/Y-1046 came in High Speed, rash, negligent manner and dashed to the Motor Cycle due to which the rider of the Motor Cycle succumbed to the injuries on the spot and pillion rider sustained grievous injuries and succumbed to the injuries subsequently. It is stated that the deceased was working as an electrician, earning Rs.300/- per day which would come to Rs.9,000/- per month. The deceased was aged 23 years as on the date of accident.
3. On issuance of summons, respondents 1 and 2 appeared before the Tribunal and filed their objection denying the petition averments. Respondent No.1 stated that the accident occurred solely due to the negligence of the rider of the Motor Cycle and denied the negligence on the part of the driver of the tempo. It also stated that the tempo is insured with the 2nd respondent – Insurer and the policy was in force as on the date of accident. Respondent No.2 – Insurer admitted issuance of the policy in respect of the offending vehicle. The Insurer further contended that the driver of the tempo did not possess effective and valid driving licence as on the date of accident. Claimant’s father examined himself as PW.1 and also examined PW.2. The documents were marked as Exs.P1 to P12. Respondents examined RW.1 and marked the documents Exs.R1 to R4. The Tribunal based on the material on record awarded total compensation of Rs.7,76,000/- with interest at 6% p.a. from the date of petition till the date of realization on the following
Total Rs.7,76,000/-
While awarding the above compensation the Tribunal taking into consideration the age of the deceased adopted multiplier of ‘18’ and saddled the liability on 2nd respondent – Insurer. The insurer aggrieved by the same is before this Court in this appeal.
4. Heard the learned counsel for the appellant – Insurer and learned counsel for the respondents - claimants. Perused the entire material on record.
5. The learned counsel for the appellant – Insurer would submit that the Tribunal committed an error in fastening the liability on the insurer of the tempo bearing No.AP-26-Y-1046, when the accident occurred solely due to the negligence of the rider of the motor cycle. He submits that the driver of the tempo was proceeding from Bangalore to Kolar. It is his submission that the Bangalore – Kolar road is National Highway and it is a double road. Learned counsel for the appellant makes available certified copy of the sketch, during the course of hearing of the appeal and submits that as on the date of accident, road work was under progress and as such traffic from the other lane was diverted. The Rider of the Motor Cycle suddenly entered the lane of the Tempo, which was proceeding from Bangalore to Kolar and solely due to the negligence of the rider of the Motor Cycle, the accident occurred. Therefore, he submits that the appellant – Insurer of the Tempo Travellor is not liable to pay any compensation and to indemnify the 1st respondent – Owner. Further the learned counsel for the appellant would submit that the Tribunal committed an error in taking the age of the deceased, while applying the multiplier. It is his submission that the Tribunal ought to have taken the age of the younger parent for adopting the multiplier. Hence he prays for allowing the appeal.
6. Per contra, learned counsel for the claimant would submit that the accident had occurred solely due to the negligence of the Eicher Tempo. Even though it is a double road, the road from Bangalore to Kolar was under repair and traffic had been diverted to the other lane. When the traffic had been diverted to the other lane, the driver of the Tempo ought to have been more cautious and the accident had taken place solely due to the negligence of the driver of the Tempo. He further submits that it is settled law as on this date, while adopting the multiplier, the age of the deceased will have to be taken and not the age of the younger parent, Therefore, the multiplier taken at ‘18’ by taking the age of the deceased at 23, by the Tribunal is just and proper. Thus he prays for dismissal of the appeal.
7. On hearing the learned counsels for the parties and on perusal of the material on record, and a perusal of Ex.P.5 - the certified copy of the sketch, the following points arise for consideration :-
a. Whether the Tribunal is justified in saddling the liability on the appellant – Insurer ?
b. Whether the Tribunal is justified in taking the age of the deceased for the purpose of adopting the multiplier ?
Answer to the above points is in the affirmative for the following reasons :
The occurrence of the accident on 04.08.2012 involving Motorcycle bearing Reg.No.KA-05-EP-93 and Eicher Tempo bearing Reg.No.AP-26-Y-1046 and the accidental death of one Mohammed Noor are not in dispute in this appeal. The insurer is before this Court aggrieved by saddling of liability on it. The learned counsel for the appellant – insurer would submit that the accident occurred solely due to the negligence on the part of the driver of the Tempo, which is insured with the appellant – insurer. Ex.P.5 the certified copy of the sketch made available by the learned counsel for the appellant indicates that the accident had taken place on the National Highway leading from Bengaluru to Kolar. The Bengaluru-Kolar Highway is a double road, and the road leading from Kolar to Bengaluru was closed for repair and as such the traffic was diverted to the other lane, which was leading towards Bengaluru from Kolar. Ex.P.5 the Sketch would indicate that the accident had taken place on Bengaluru – Kolar National Highway which is a double road. The lane leading to Kolar was closed for road repair and the traffic was diverted to the lane which was leading to Bengaluru. When the road was under repair and the traffic had been diverted to the other lane, the driver of the Tempo ought to have been more cautious. When the rider of the Motor Cycle entered the other lane, the accident had taken place. From the sketch it could be said that the accident had taken place solely due to the negligence of the driver of Tempo. Hence the above point No.1 is answered in the affirmative. The next contention urged by the learned counsel for the appellant is that the Tribunal committed an error in taking the age of the deceased for applying the multiplier. As on this date the settled legal position is that for applying the appropriate multiplier the age of the deceased will have to be taken and not the age of the younger parent. The Hon’ble Apex Court in the decision of JOGINDER SINGH AND ANOTHER Vs. ICICI LOMBARD GENERAL INSURANCE COMPANY reported in AIR 2019 SC 3814 has held as follows:
“The issue with respect to whether the Multiplier to be applied in the case of a bachelor, should be computed on the basis of the age of the deceased, or the age of the parents, is no longer res integra. This issue has been recently settled by a three Judge bench of this Court in Royal Sundaram Alliance Insurance Co. Ltd. V/S Mandala Yadagari Goud and others, wherein it has been held that the Multiplier has to be applied on the basis on the age of the deceased.”
Thus the Tribunal has rightly taken the age of the deceased to apply the multiplier of 18 taking the age of the deceased at 23 years. Lastly the learned counsel for the appellant would submit that the Tribunal has added 50% of the assessed income, whereas the claimant would be entitled only for adding 40% of the assessed income. Taking note of the fact that the accident is of the year 2012 and the income of the deceased assessed by the Tribunal at Rs.4,500/- per month is on the lower side, it is not a case for interference, with regard to award of future prospects. When the per month income assessed is on the lower side, adding of 50% of the assessed income towards future prospects would balance the just compensation.
8. Accordingly, the appeal is dismissed. The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NG*CT:bms