IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 5543 OF 2015(M V) BETWEEN 1. KUM. NIKHITHA .V D/O VIJAYAKUMAR V AGED ABOUT 21 YEARS, 2. SRI VIJAYAKUMAR V S/O LATE V. SURYA BABU AGED ABOUT 55 YEARS, 3. SRI VENKATESHWARA RAO S/O LATE V. SURYA BABU, AGED ABOUT 51 YEARS, ALL ARE RESIDING AT NO.499, 11TH ‘B’ CROSS, 1ST PHASE, J P NAGAR, BANGALORE 560076. ... APPELLANTS (BY SRI. GOPALKRISHNA .N - ADV.,) AND 1. KUM. J. ARCHANA D/O M JAYAKUMAR MAJOR IN AGE, RESIDING AT NO.166/17, DORESANIPALYA, AMRUTHAPPA LAYOUT, BANNERGHATTA ROAD, BANGALORE 560076.
2. THE NEW INDIA ASSURANCE COMPANY LTD III PARTY HUB , MAHALAKSHMI CHAMBERS, M G ROAD, BANGALORE 560001 REP: BY ITS MANAGER. ... RESPONDENTS (BY SRI. D. S. SRIDHAR, ADV. FOR R-2; NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 31.01.2017) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.02.2015 PASSED IN MVC NO.5432/2013 ON THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM, MEMBER-MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, with the consent of the learned counsel on both sides, the matter is heard and disposed of finally.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 18.02.2015 passed by the Tribunal in MVC No.5432/2013 seeking enhancement of the compensation.
3. The factual matrix of the case is as under:
It is stated in the claim petition that on 31.05.2013 at about 9.45 a.m. deceased Surya Babu was walking on the footpath in 25th Main Road, 1st Phase, J.P.Nagar, at that time one Activa Honda bearing No.KA-05-HU-1992 came from eastern side to western side in very high speed, in rash and negligent manner and knocked down the deceased. As a result, he became unconscious and immediately he was shifted to Rajashekar Hospital, after first-aid, he was shifted to Abhaya Hospital. During the course of treatment, on 08.06.2013 he succumbed to the injuries. The deceased was aged about 83 years and he was an Ex-serviceman in the Indian Army and getting monthly pension of Rs.14,738/-. The police had registered Cr.No.38/2013 and charge sheeted the rider of two wheeler. On all these grounds, the claim petition was filed by the petitioners seeking compensation.
4. On issuance of notice, both respondents appeared through their respective counsel. The second respondent-insurer filed objection, denying the incident and involvement of the vehicle and sought for dismissal of petition.
5. Based upon the pleadings putforth by the parties, the Tribunal framed the issues. In order to substantiate their case, petitioners got examined 1st petitioner as PW.1 and got marked documents as per Exs.P1 to P15. Respondents did not adduce any evidence on their behalf. After hearing arguments advanced by learned counsel for the petitioners and learned counsel for respondents, and on evaluation of oral and documentary evidence on record, the Tribunal dismissed petition against the first petitioner. Awarded compensation to petitioners 2 and 3 in a sum of Rs.1,88,500/- and fastened the liability on 2nd respondent to indemnify the award amount. It is this judgment and award which is challenged under this appeal by urging various grounds.
6. Learned counsel for the appellants contends that the Tribunal erred in not awarding compensation towards loss of estate and dependency holding that appellants are major sons and not dependents of deceased. Further, the Tribunal failed to appreciate that deceased was an ex- service man and was getting monthly pension of Rs.14,738/- as per Ex.P10 – pension certificate. Due to the death of deceased, the income from pension to the family of appellants is stopped, whereas the deceased was sharing common roof, food and other daily necessities with the family members. Further, it is contended that the Tribunal erred in not awarding interest on the compensation amount and no reason has been assigned for not awarding the interest. The Tribunal failed to appreciate that statutory provision under Section 171 of Motor Vehicle Act would provide for awarding interest in addition to the compensation amount from the date of making claim petition. On all these grounds, learned counsel for the appellants prays to allow the appeal by enhancing the compensation awarded by the Tribunal.
7. Per contra, learned counsel for the respondent – insurer denies the incident and involvement of the vehicle and further, denies the issues in respect of age of deceased, pension and contributing the same to the family. It is further contended that the rider of two wheeler did not had any valid driving licence and incident happened only due to deceased who tried to cross the road without observing traffic rule, as such, he is solely responsible for accident and denied the relationship of petitioners with that of deceased and therefore, the question of dependency does not arise. Further, he contends that the tribunal, on appreciation of the evidence/material on record has rightly awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. In this context, it is relevant to state that there is no dispute about the death of deceased – Surya Babu on 31.05.2013 at about 9.45 a.m when he was walking on footpath of 25th main road, 1st phase, J.P.Nagar, Bangalore, a Activa Honda bearing No.KA-05-HU-1992 came and knocked him down as a result of that he succumbed to the injuries on 08.06.2013. The jurisdictional police have registered case in Cr.No.38/2013 against the rider of two wheeler. In the evidence of PW.1 the same facts has been reiterated. PW.1 – is the grand daughter of deceased. The Tribunal held that petitioners 2 and 3 being the sons of deceased are the only legal heirs and first petitioner cannot be legal heir for the purpose of dependency and has accordingly, dismissed the petition against the first petitioner.
9. The deceased being an ex-serviceman in Indian Army was getting monthly pension of Rs.14,738/- and was contributing the same to the family. The Tribunal while answering to issue no.2 that whether the petitioners prove that they are the legal representatives of the deceased, held that the first petitioner is not the legal heir and dismissed the petition against her. Further, the Tribunal observed that petitioners 2 and 3 are not the dependants and considered them as the legal heirs only for the purpose of incidental expenses. Accordingly, awarded an amount of Rs.30,000/- (Rs.15,000/- each) towards love and affection. Further awarded an amount of Rs.1,43,500/- towards medical expenses of deceased and Rs.15,000/- towards funeral expenses. In total awarded compensation of Rs.1,88,500/- for death of deceased. But having gone through the materials available on record, it is seen that after the death of deceased, income that was coming from the pension of the deceased was stopped and deceased was sharing common roof, food and other daily necessities with the family. Considering this aspect, it is just and reasonable to award compensation of Rs.1,05,000/- under the head loss of love and affection and funeral expenses which would meet the ends of justice.
10. The Tribunal while assessing the compensation has not awarded any interest on the compensation amount. But keeping in view the statutory provision under Section 171 of the M.V.Act, which would provide for awarding interest in addition to the compensation amount from the date of making claim, it is just and proper to award interest @ 6% p.a. from the date of petition till realisation on the compensation amount awarded by the Tribunal and also on the compensation enhanced in this appeal. Accordingly, I proceed to pass the following:
ORDER Appeal is allowed in part. The impugned judgment and award dated 18.02.2015 passed by the Tribunal in MVC No.5432/2013 is hereby modified. The appellants/claimants are entitled to enhanced compensation of Rs.1,05,000/- with interest @ 6% p.a. from the date of petition till realisation. Further, keeping in view the scope and object of Section 171 of M.V.Act, the compensation awarded by the Tribunal in a sum of Rs.1,88,500/- shall carry interest @ 6% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB