IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.248/2019 C/W M.F.A.No.4914/2017(MV) IN MFA No.248/2019: BETWEEN:
1 . KUM VATHANESHA A S/O LATE ASHOK BADIGE AGED ABOUT 16 YEARS, MINOR REP. BY THEIR GRANDMOTHER AND N/G SMT KALAMMA RESIDING AT NO.353, 3RD A MAIN ROAD, ROOPENA AGRAHARA BANGALORE-68 2 . KUM VIKAS A S/O LATE ASHOK BADIGE AGED ABOUT 13 YEARS, MINOR REP. BY THEIR GRANDMOTHER AND N/G SMT KALAMMA RESIDING AT NO.353, 3RD A MAIN ROAD, ROOPENA AGRAHARA BANGALORE-68 3 . SMT KALAMMA W/O LATE ASHOK BADIGE AGED ABOUT 49 YEARS, RESIDING AT NO.353, 3RD A MAIN ROAD, ROOPENA AGRAHARA BANGALORE-68 ..APPELLANTS (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND:
1. THE MANAGER H1 POWER SUPPORT CENTER (P) LTD., NO.92/1B, ELECTRONIC CITY PHASE 1, KONAPPANA AGRAHARA BENGALURU-100 2. THE REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., THIRD PARTY HUB 5TH AND 6TH FLOOR, NRUPATHUNGA ROAD HUDSON CIRCLE, BANGALORE -01 ..RESPONDENTS (BY SRI A.M.VENKATESH, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 14.03.2017 PASSED IN MVC NO.935/2015 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-17), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.4914/2017:
BETWEEN:
M/s.UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE 5TH AND 6TH FLOOR, KRISHI BHAVAN NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU - 560001 REP. BY ITS AUTHORIZED SIGNATORY.
..APPELLANT (BY SRI A M VENKATESH, ADVOCATE) AND:
1 . KUM VATHANESHA A S/O LATE ASHOK BADIGE AGED ABOUT 15 YEARS, MINOR REP. BY HIS GRAND MOTHER AND NATURAL GUARDIAN SMT. KALAMMA R/AT NO. 353, 3RD A MAIN ROAD, ROOPENA AGRAHARA, BENGALURU - 560 068.
2 . KUM. VIKAS A S/O LATE ASHOK BADIGE AGED ABOUT 12 YEARS, MINOR REP. BY HIS GRAND MOTHER AND NATURAL GUARDIAN SMT. KALAMMA R/AT NO. 353, 3RD A MAIN ROAD, ROOPENA AGRAHARA, BENGALURU - 560 068.
3 . SMT. KALAMMA W/O LATE ERAPPA ACHARI, AGED ABOUT 48 YEARS, R/AT NO. 353, 3RD A MAIN ROAD, ROOPENA AGRAHARA, BENGALURU - 560 068.
4 . H1 POWER SUPPORT CENTER (P) LTD NO.92/1B, ELECTRONIC CITY, PHASE-1 KONAPPANA AGRAHARA BENGALURU - 560 100. ..RESPONDENTS (BY SRI SHRIPAD V SHASTRI, ADVOCATE FOR R-1 TO R-3) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 14.03.2017 PASSED IN MVC NO.935/2015 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU (SCCH-17) AWARDING COMPENSATION OF RS.14,50,089/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though MFA No.248/2019 is listed for orders on I.A., in the nature and circumstances of the case I.A.1/2019 is allowed. Delay of 541 days in filing the appeal is condoned subject to denial of interest for the delay period. Appeals are taken up for final disposal.
These are the two appeals directed against the Judgment and award dated 14.03.2017 passed in MVC No.935/2015 by the XIX Additional SCJ and MACT, Bengaluru, SCCH-17, wherein claim petition came to be allowed in part and an amount of Rs.14,50,089/- came to be awarded together with interest at 9% p.a. from the date of petition till its realization.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
3. The details of the accident are that on 21.11.2014 at about 6.00 clock in the evening near Roopena Agrahara, Balaji Wine, Hosur Main Road, Bommanahalli, Bengaluru, one Kusuma was standing on the side of footpath to cross the road at that time a Tata Indica car bearing registration No.KA-51/B-9924 came there being driven by its driver in high speed, rash and negligent manner and caused accident dashing her, due to impact she fell to ground and sustained injuries. She succumbed to injuries on the next day about ten past four in the morning.
4. It was stated that she was earning 15,000/- per month by working as tailor in the Garments and aged 32 years as on the date of accident and she left behind two minor children and mother as her dependants. Claim petition came to be filed by the dependants.
5. Insofar as MFA No.4914/2017 is filed by the insurance company against granting of compensation of Rs.14,50,089/- and insofar as MFA No.248/2019 is filed by the claimants seeking enhancement.
6. Learned counsel Sri Shripad V Shastri appearing for the claimants would submit that the compensation granted is unreasonably on the lower side as the deceased was working in garments and invariably she was getting salary of Rs.15,000/- per month. He would submit that non production of salary slip was not fatal to their claim. He would further submit maintaining family consisting of three dependants suggest that any amount of earning less than Rs.15,000/- there may not be balance.
7. Learned counsel for insurance company Sri A.M.Venkatesh would submit that the Tribunal has granted compensation of Rs.14,50,089/- which is unreasonably on the higher side. He would submit that even personal and living expenses considered is very less and also future prospects is considered at 50% though the deceased was not an employee having assured and permanent salary.
8. Another contention of the insurance company is that deceased did not follow traffic rules and chose to cross the road abruptly violating rules relating to Zebra Crossing. Learned Member has saddled 90% of the liability on the insurance company and 10% on the deceased.
9. Insofar as road traffic accident, it is admitted.
Sustaining of injuries by the said Kusuma and death are not disputed. Insofar as monthly income is concerned though the claimants claim that it is Rs.15,000/- there is no cogent evidence to conclude that the monthly income of deceased was Rs.15,000/- Income of Rs.6,566/- per month considered by the Tribunal appears to be just and proper. But considering the age of the petitioner 50% future prospects is added which apparently is erroneous and it should have been 40% considering the nature of employment of the deceased. Under such circumstances the compensation under the head `loss of dependency would be 6,566+40% = 2,626, 6,566+2,626=9,192 9192-1/3 = 3064, 9192-3064 =6,128
ORDER MFA No.248/2019 filed by the claimants is rejected. MFA No.4914/2017 filed by the insurance company is partly allowed.
Judgment and award dated 14.03.2017 passed in MVC No.935/2015 by the XIX Additional SCJ and MACT, Bengaluru is modified by reducing the compensation from Rs.14,50,089/- to Rs.13,05,993/-. Reduction of Rs.1,44,096/-. Insofar as period of delay of 541 days, no interest shall be payable by the insurance company.
Insurance company is directed to deposit the compensation amount with interest @ 9% p.a. excluding interest for the delay period, within four weeks from the date of receipt of certified copy of this order.
Amount in deposit be transmitted to the Tribunal.
Learned counsel for claimants Sri Shripad V Shastri would submit insofar as application seeking condonation of delay of 541 days is concerned claimants may not be taxed by deprival of interest for the delayed period. However learned counsel Sri A M Venkatesh would submit that when the claimants filed appeal after inordinate delay insurance company cannot be taxed for the interest without any fault on the part of the company.
Learned counsel Sri Shripad V Shastri would submit that if the delay application is dismissed. Appeal stands dismissed and in case appeal stands dismissed the interest will not be denied for the delay period.
In the circumstances I do not accept the analysis of the learned counsel for claimants as appeal is filed by the insurance company on 21.06.2017 and appeal is filed by the claimants on 04.01.2019 independently and not as a cross objection.
In the over all context and circumstances the application invariably is allowed subject to deprival of interest for the delay period.
Sri A M Venkatesh, Advocate is permitted to file vakalath on behalf of insurance company in MFA No.248/2019 within three weeks from today.
Sd/- JUDGE SBN