IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER 2019 PRESENT THE HON'BLE MR. JUSTICE S N SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MISCELLANEOUS FIRST APPEAL NO.6433/2015 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.7149/2015 (MV-D) IN MFA.NO.6433/2015:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, JLB ROAD MYSORE, THROUGH MOTOR THIRD PARTY CLAIMS HUB, M.G. ROAD BANGALORE – 560 001 ... APPELLANT (BY SRI K.SURYANARAYANA RAO, ADVOCATE) AND:
1. H.P.SRINIVAS S/O. H.PUTTASWAMY GOWDA AGED ABOUT 58 YEARS 2. SMT.M.V.VIJAYALAKSHMI W/O. H.P.SRINIVAS AGED ABOUT 31 YEARS 3. S.SOWMYA D/O. H.P.SRINIVAS AGED ABOUT 31 YEARS 4. S.VIKRAM S/O. H.P.SRINIVAS AGED ABOUT 24 YEARS R1 TO R4 ARE R/AT D.NO.662, 1ST MAIN 3RD CROSS, SWARNASANDRA MANDYA – 571 401 5. RINKU KAWAR D/O. BEEKSING MAJOR IN AGE PROP: ASHAPURI FANCY STORE SUMATHINATH JAIN TEMPLE MANDYA – 571 401 ... RESPONDENTS (BY SHRI H.C.SHIVARAMU, ADVOCATE FOR C/R1, R2 TO R4;
V/O DATED 23.09.2015, NOTICE TO R5 IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.02.2015 PASSED IN MVC.NO.522/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, MANDYA AWARDING A COMPENSATION OF RS.18,25,500/- WITH INTEREST AT 9% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA.NO.7149/2015: BETWEEN:
1. H.P.SRINIVAS S/O. H.PUTTASWAMY GOWDA AGED ABOUT 58 YEARS 2. SMT.M.V.VIJAYALAKSHMI W/O. H.P.SRINIVAS AGED ABOUT 46 YEARS 3. S.SOWMYA D/O. H.P.SRINIVAS AGED ABOUT 31 YEARS 4. S.VIKRAM S/O. H.P.SRINIVAS AGED ABOUT 24 YEARS ALL ARE RESIDING AT NO.662, 1ST MAIN, 9TH CROSS SWARNASANDRA MANDYA – 571 404 ... APPELLANTS (BY SHRI H.C.SHIVARAMU, ADVOCATE) AND:
1. RINKU KAWAR B. D/O. BEEKSING PROP: ASHAPURI FANCY STORE SUMATHINATH JAIN TEMPLE STREET MANDYA – 571 404 (OWNER OF HONDA ACTIVA BEARING REG.NO.KA-11-S-6283) 2. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., (BO-6) NO.2951, 2ND FLOOR, JLB ROAD CHAMUNDIPURAM MYSORE – 571 107 ... RESPONDENTS (BY SHRI K.SURYANARAYANA RAO, ADVOCATE FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.02.2015 PASSED IN MVC.NO.522/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The claimants and second respondent-insurer in MVC No.522/2011 on the file of II Additional Senior Civil Judge and Additional MACT, Mandya have come up in these two appeals.
2. The appeal in MFA.No.6433/2015 is by the contesting second respondent-insurer in the said claim petition. This appeal is filed challenging the quantum of compensation awarded by the Tribunal. Thereafter, the appeal in MFA.No.7149/2015 is filed by the claimants before the Tribunal seeking enhancement of compensation awarded by the Tribunal. Since LCR is already received, these two appeals are taken up for consideration for final disposal at the stage of admission itself.
3. Admittedly, the claim petition in MVC.No.522/2011 is filed by the parents, sister and brother of the victim in a road traffic accident dated 24.10.2011. The records would disclose that on the said date, the victim S.Ramya who was traveling as a pillion on Honda Activa Scooter bearing registration No.KA-11- S-6283 fell down from the said scooter due to rash and negligent driving of the said rider-first respondent before the Tribunal. The said accident is not in dispute so also the death of S.Ramya for the injuries suffered in the aforesaid accident. Thereafter, the claim petition was filed by her parents and her elder sister as well as her younger brother seeking compensation for her death in a road traffic accident involving scooter bearing registration No.KA-11-S-6283 insured with the appellant in appeal No.6433/2015.
4. In the proceedings before the Tribunal, it was contended that the deceased was M.Com student, she had an appointment in waiting, which according to the claimants would have fetched good income and in addition, they would also state even as on the date of accident, she was already earning a sum of Rs.30,000/- per month by conducting tuition classes to the Pre- university students. Though such tall claims were made in the claim petition, there is no evidence to support the same. In the absence of that, the Tribunal has proceeded to take her income notionally at Rs.8,000/- and to that another 50% was added towards her future prospects and after deducting 1/3rd of her income for her personal up keep, taking remaining 2/3rd as loss of dependency to her parents, elder sister and younger brother, compensation was calculated in a sum of Rs.18,25,500/-.
5. The said judgment and award dated 18.02.2015 is the subject matter of challenge in these two appeals as stated supra. Heard the learned counsel for the appellants in both the appeals who are respectively respondents in the appeals filed by the other person.
6. After going through the grounds urged with reference to finding of the Tribunal in the judgment impugned, it is clearly seen that the accident is not in dispute so also the death of S.Ramya due to injuries suffered in the road traffic accident involving Hero Honda Scooter bearing registration No.KA-11-S-6283 which is insured with the appellant in MFA.No.6433/2015.
7. When it comes to the income of the deceased though there is tall claim that appointment awaiting her was fetching income of Rs.15,000/- and also the contention that she was taking classes for the Pre- university students and earning a sum of Rs.30,000/- as on the date of accident are all not supported by either documentary or oral evidence. In this background, the normal procedure that would be followed by the Tribunal in taking notional income as per the chart prepared by the legal services authority, where for the death of a person in the year 2011, in the absence of proof of avocation and income, the income that is required to be taken notionally is at Rs.6,500/-. In the instant case, the deceased was aged about 23 years who was not having steady avocation. Hence, another 40% is required to be added to notional income towards future prospects. While doing so, 50% of the notional income arrived at should be deducted towards personal up keep of the deceased. Thereafter, what is available is loss of dependency to the family, which is Rs.4,550/- p.a. in the instant case. If the same is taken annually, it will be Rs.54,600/-. If the said annual loss of dependency is multiplied by ‘18’ the relevant multiplier, the compensation the claimants would be entitled to is Rs.9,82,800/-. Since the deceased was a spinster at that time, the compensation payable under the conventional head is at Rs.30,000/-. Thereby the total compensation the claimants would be entitled to is Rs.10,12,800/- with interest at 6% p.a.
8. In the light of the aforesaid calculation, it is seen that the appeal filed by the insurer in contending that the compensation awarded by the Tribunal is in excess of entitlement to the claimants appears to be corrected and accordingly, the said appeal is allowed by modifying the compensation which is awarded by the Tribunal by reducing it from Rs.18,25,500/- to Rs.10,12,800/-. While doing so, the appeal in MFA.No.7149/2015 which is filed by the claimants seeking enhancement of compensation is hereby rejected on the ground that the same does not survive for consideration.
9. In view of dismissal of the appeal filed by the claimants, the delay application in IA.No.1/2016 does not survive for consideration and the same is dismissed.
10. In the light of the appeal filed by the appellant- insurer being allowed as above, the learned counsel for the appellant-insurer would state that a sum of Rs.11,46,515/- is already available in deposit, out of that, the modified compensation amount with 6% p.a. interest is ordered to be released in favour of the claimants in the same ratio in which it is awarded by the Tribunal. While doing so, if any excess amount is available, the same shall be returned to appellant- Insurance Company. On the contrary, if further amount is required to be deposited by the insurer, the same shall be deposited by the insurer within a period of eight weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE Sd/- JUDGE LB