IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO.8304 OF 2016 (MV) BETWEEN M/S ICICI Lombard General Insurance Company Ltd., Regional office, No. 89, 2nd floor, SVR Complex, Hosur main road, Madiwala, Bangalore-68.
Now rep by it legal manager, M/s ICICI Lombard GIC Ltd., Regional office, The estate, 9th floor Dickenson road, M.G. Road, Bangalore-42. ... Appellant (By Sri. B. C. Shivanne Gowda, Advocate.) AND 1. Pushpa Raj Basnet S/o Parsu Ram Basnet Now Aged about 52 years, 2. Goumathi Basnet W/o Pushpa Raj Basnet Aged about 43 years.
Both are residents of Dhangadi Municipality, Ward No.3, Kallali District, Seti Zone, Nepal-10900.
3. M/s Eco Papers (India) pvt ltd, No. 129/A, Road No 3, 2nd phase, Jigani Industrial area, Eletrnic city Bangalore – 560100. ... Respondents (By Sri. M. H. Prakash, Advocate for Sri I. S. Pramod Chandra, Advocate for R-1 and R-2; R-3 Served) This MFA is filed under Sec. 173(1) of MV Act against the judgment and award dated 26.8.2016 passed in MVC No. 4145/2015 on the file of Member Principal MACT, Bengaluru, awarding compensation of Rs. 19,49,433/- with interest @ 9% P.A. from the date of petition till realization.
This MFA coming on for hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the claimants-respondents no.1 & 2 and perused the records.
2. The insurance company has preferred this appeal, challenging the liability fastened on it and also the quantum of compensation awarded by the Member, Prl. MACT, Bengaluru by its impugned judgment dated 26.08.2016 made in MVC.No.4145/2015, seeking reduction in the compensation awarded by the tribunal.
3. The facts of the case are that on 18.08.2015 at about 9.40 p.m. when the deceased Prashant Basnet was proceeding in his motor cycle bearing No.KA- 03/HD-6490 along with a pillion, when they reached near Devikarani Estate Gate on Kanakapura – Bangalore Main Road, Kengeri Hobli, a Mercedes car bearing No.KA-05/MN-5187 which was driven by its driver in high speed and in a rash and negligent manner, is said to have dashed against the motor cycle and caused the accident. As a result of the impact, the rider and pillion fell down and sustained injuries. Immediately after the accident though Prashant Basnet was taken to Fortis Hospital, the Doctors declared him brought dead and thereafter his dead body was shifted to Rajajeswari Hospital where postmortem was conducted and thereafter the claimants – Respondents 1 and 2 had transported the dead body via flight to their residence at Nepal, where they conducted the funeral and obsequies.
4. After service of notice, the owner of the offending vehicle did not appear before court and hence was placed exparte. However, the Insurer - appellant herein appeared through his counsel and filed objection statement and contested the claim petition. During the enquiry before the Tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant herein.
5. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle. Taking the income of the deceased at Rs.10,000/- per month and adding 50% towards future prospects, Tribunal had arrived at a monthly income of Rs.15,000/-. Deducting 50% towards his personal expenses from Rs.15,000/-, the Tribunal had worked out the annual loss of dependency to Rs.90,000/- (7500 x 12). Since the deceased was aged 25 years, the multiplier was adopted at ‘18’. Thus, the loss of dependency was arrived at Rs.16,20,000/-. Further, since the deceased had left behind his parents, the Tribunal had awarded Rs.1,00,000/- towards “Loss of love and affection, deprivation of protection, social security, etc.”. It had further awarded Rs.10,000/- towards ‘Funeral and ritual expenses’, Rs.1,85,000/- towards educational expenses and Rs.43,433/- towards conveyance charges. Thus, the Tribunal had awarded a total compensation of Rs.19,49,433/- with interest at 9% per annum from the date of petition till the date of realization.
6. The learned counsel for the appellant – Insurance Company vehemently contended that the Tribunal erred in considering the monthly income of the deceased at Rs.10,000/- even without any documents to evidence the fact that the deceased was a student of MBA second year. It is further contended that the Tribunal erred in considering the future prospects at 50% though the claimants had not produced any documents to prove the monthly income of the deceased. He has also contended that the Tribunal has granted huge amount of compensation towards conventional heads and towards education expenses and the same requires reduction. Further, the Tribunal was not justified in granting interest at 9% in respect of the compensation though when the amount towards future prospects is not entitled to carry interest. Hence, he contends that the rate of interest ought to be scaled down to 6% instead of 9%. On all these grounds, the learned counsel for the Insurance Company prays for setting aside the impugned judgment and consequently to reduce the compensation awarded by the Tribunal.
7. Per contra, the learned counsel appearing for the claimants submitted that the tribunal, on appreciation of the material on record has rightly assessed the income of the deceased at Rs.10,000/-. Further, having regard to the fact that the deceased was studying MBA second year and the expected highly paying job aspects in the near future, had added 50% towards future job aspects and thus taking his income at Rs.15,000/- and from the said amount deducting one-half towards his personal expenses, has rightly awarded Rs.16,20,000/- towards ‘Loss of dependency’, which does not call for interference. Further, under all the other heads also, the Tribunal taking into consideration the facts and circumstances of the case has awarded just and fair compensation, which does not call for interference and hence prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that the claimants being parents of the deceased are the dependents of the deceased. The deceased was aged 25 years and was pursuing his MBA Second year in Dayananda Sagar College, Udayapura, Kanakapura Main Road. On completion of his education, his job opportunities were bright and he would have earned a handsome salary. However, the claimants had not produced any of his previous certificates to prove the fact that he was a meritorious student. Hence, the Tribunal has rightly taken his monthly income notionally at Rs.10,000/- per month. But however, as far as adding 50% to the said income towards future prospects is concerned, requires interference. When there are no material documents produced at least to evidence the fact that the deceased was a meritorious student who would have excelled in his life with high paying job, the Tribunal was in error in adding 50% towards future prospects. Hence, the addition towards future prospects is hereby reduced to 40% instead of 50% awarded by the Tribunal. However, the multiplier taken at ‘18’ in view of the fact that the deceased was aged 25 years at the time of the accident, is in order, which does not require any interference. Hence, if 40% is added to the notional income of Rs.10,000/-, it comes to Rs.14,000/-. Deducting 50% from the said Rs.14,000/- towards his personal expenses, his income is arrived at Rs.7,000/-. Hence, considering his income at Rs.7,000/- with multiplier ‘18’, the ‘Loss of dependency’ would come to Rs.15,12,000/- (7000 x 12 x 18), as against Rs.16,20,000/- awarded by the Tribunal. However, having regard to the fact that the deceased was a citizen of Nepal and due to the fact that his parents had incurred expenditure in transporting the dead body via flight the compensation awarded by the Tribunal under other conventional heads is just and reasonable and does not call for interference.
9. However, as regards grant of interest at 9% p.a. is concerned, requires interference. The interest requires to be reduced to 6% instead of 9%.
Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. In modification of the impugned judgment and award dated 26.08.2016 passed by the Member, Prl. MACT, Bangalore in MVC No.4145/2015, the compensation payable to the claimant is reduced from Rs.19,49,433/- to Rs.18,41,433/-. The interest payable on the said compensation would be at 6% instead of 9%. Thus, the total reduction in compensation is Rs.1,08,000/-. Respondent-insurer shall deposit the compensation with interest at 6% before the tribunal within four weeks from the date of receipt of a certified copy of this judgment.
In view of the peculiar circumstances of the case where the respondents who are the parents of the deceased being residents of Nepal, it is hereby ordered that the entire compensation amount shall be disbursed to the claimants / respondents, on proper identification and acknowledgement. The amount already deposited, if any, shall be adjusted. The statutory amount deposited before this court and the lower court records shall be transmitted to the tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS