IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4318 OF 2016 (MV) CONNECTED WITH MFA NO. 3305 OF 2016 (MV) IN MFA NO. 4318/2016 : BETWEEN LEGAL MANAGER ICICI LOMBARD GIC LTD., #89, SVR COMPLEX MADIVALA, HOSUR ROAD BANGALORE-68.
NOW AT ICICI LOMBARD GIC LTD., #121, THE ESTATE BUILDING 9TH FLOOR, DICKSON ROAD BANGALORE-42.
... APPELLANT (BY SRI.B. PRADEEP - ADVOCATE) AND 1. ANSAR PASHA S/O LATE SYED PAYREJAN NOW AGED ABOUT 47 YEARS 2. SAFEENA TAJ W/O ANSAR PASHA NOW AGED ABOUT 44 YEARS 3. AZGAR PASHA S/O ANSAR PASHA NOW AGED ABOUT 28 YEARS 4. MANSOOR PASHA S/O ANSAR PASHA NOW AGED ABOUT 21 YEARS ALL ARE R/AT SOLUR SOLUR HOBLI MAGADI TALUK RAMANAGARA DISTRICT.
5. ZIAULLA SHARIFF . M S/O MAHABOOB SHERIFF. D AGE: MAJOR, R/AT NO.2870 KUMBARA BEEDI NELAMANGALA TOWN BANGALORE DISTRICT – 562123.
6. NALINA .M W/O BACHEGOWDA AGE: MAJOR NO.1423/4, VIJAYALAKSHMI COLONY KADUGODI BANGALORE-67.
7. IFFCO TOKIO GIC LTD., CUSTOMER SERVICE CENTER SRI. SHANTHI TOWERS, 5TH FLOOR EAST OF NGEF LAYOUT KASTURBANAGAR BANGALORE-560 043.
... RESPONDENTS (BY SRI. N.R. RANGE GOWDA – ADV., FOR R-1 TO R-4 SRI RAGHU. R – ADV., FOR R-5;
SRI V. NARAYANA – ADV., FOR R-6; R-7 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.01.2016 PASSED IN MVC NO. 3353/2014 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSES JUDGE, MACT AND XLI ACMM, BANGALORE, AWARDING COMPENSATION OF RS. 11,94,671/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA NO. 3305/2016 : BETWEEN 1. ANSAR PASHA S/O LATE SYED PAYREJAN NOW AGED ABOUT 47 YEARS 2. SAFEENA TAJ W/O ANSAR PASHA NOW AGED ABOUT 44 YEARS 3. AZGAR PASHA S/O ANSAR PASHA NOW AGED ABOUT 28 YEARS 4. MANSOOR PASHA S/O ANSAR PASHA NOW AGED ABOUT 21 YEARS ALL ARE R/AT SOLUR HOBLI MAGADI TALUK RAMANAGARA DISTRICT.
... APPELLANTS (BY SRI. N. R. RANGE GOWDA - ADVOCATE) AND 1. ZIAULLA SHARIFF . M S/O MAHABOOB SHERIFF. D AGE: MAJOR, R/AT NO.2870 KUMBARA BEEDI NELAMANGALA TOWN BANGALORE DISTRICT – 562123.
2. THE MANAGER ICICI LOMBARD GENERAL INS, CO LTD., NO.89, SVR COMPLEX, MADIVALA HOSUR MAIN ROAD BANGALORE-560 068.
3. NALINA .M W/O BACHEGOWDA AGE: MAJOR R/AT NO.1423/4 VIJAYALAKSHMI COLONY KADUGODI BANGALORE-560 067.
4. THE MANAGER IFFCO- TOKIO GEN, INS CO, LTD., SRISHANTH TOWERS CUSTOMER SERVICE CENTRE 5TH FLOOR, NGEF LAYOUT KASTURI NAGAR BANGALORE.
... RESPONDENTS (BY SRI. B. PRADEEP – ADVOCATE FOR R-2 & R-4; NOTICE TO R-1 & R-3 IS DISPENSED WITH VIDE COURT ORDER DATED 10.02.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.01.2016 PASSED IN MVC NO. 3353/2014 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE, MACT AND XLI ACMM, BANGALORE, PARTLY ALLOWING THE CALIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The matters though listed for admission, with the consent of the learned counsel for the parties, are taken up for final disposal. Since both the appeals arise out of the same judgment and award rendered by the Tribunal, they are heard together and are finally disposed of by this order.
2. The appeal in MFA.No.3305/2016 is filed by the claimants – appellants who are the legal heirs of the deceased seeking enhancement of compensation and the appeal in MFA.No.4318/2016 is filed by the appellant – ICICI Lombard GIC Ltd. challenging the quantum of compensation awarded by the Tribunal as well as the liability. By its judgment dated 27.01.2016 in MVC No.3353/2014, the Tribunal had granted compensation in a sum of Rs.11,94,671/- to the claimants. Being not satisfied with the said compensation, the claimants have filed MFA No.3305/2016 seeking enhancement of compensation.
3. Heard the learned counsel for the claimants – appellants in MFA No.3305/2016 as well as the learned counsel for the appellant in MFA 4318/2016 – ICICI Lombard GIC Ltd. and perused the impugned judgment as well as the material on record.
4. The factual matrix is that on 13.05.2014, one Fayaz Pasha – the deceased was traveling in a Eicher lorry bearing Regn.No.KA-40-839 as a Cleaner on NH- 48, Bangalore-Kunigal Highway. When the lorry neared Lakkenahalli Hand Post, due to the rash and negligent driving of the driver, he had dashed the said lorry against another lorry bearing Reg.No.KA-53-3929. As a result, the said Fayaz Pasha the cleaner of the lorry sustained grievous injuries and succumbed to the injuries in the hospital after seven days. The deceased was aged 24 years at the time of the accident and was earning Rs.10,000/- per month. Hence, due to the untimely death, his dependants namely claimants, filed a claim petition before the Tribunal seeking compensation.
5. After service of notice, the owner of the offending vehicle as well as the insurer have filed their written 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 and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending lorry. Taking the income of the deceased at Rs.6,000/- and adding 50% towards future prospects, the Tribunal arrived at a monthly income of Rs.9,000/- per month. The deceased being a bachelor, deducting 50% towards his personal expenses, the income was arrived at Rs.4,500/- and since the deceased was aged 24 years, applied the multiplier ‘18’ and awarded a sum of Rs.9,72,000/- towards ‘Loss of dependency’, Rs.40,000/- towards funeral expenses, Rs.40,000/- towards ‘Loss of love and affection’ and Rs.1,42,671/- towards ‘Medical expenses’. In all, the Tribunal awarded a compensation of Rs.11,94,671/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in these appeals.
7. The learned counsel for the appellants - claimants strenuously contended that the Tribunal grossly erred in taking the income of the deceased at Rs.6,000/- per month when as per the settled norms, for an accident of the year 2014 the income ought to have been taken at Rs.9,000/- to Rs.10,000/- per month. Due to the loss of the earning member in the family, his dependents have been put to great hardship and hence the learned counsel contends that the income ought to be appropriately enhanced by this Court in order to arrive at the just compensation. Further as regards conventional heads also, the Tribunal has erred in granted meagre compensation. Hence, the learned counsel contends that the compensation awarded by the Tribunal may be suitable enhanced by this Court having regard to the untimely death of the deceased.
8. Per contra, the learned counsel appearing for the appellant in MFA No.4318/2016 – Insurance Company submitted that the Tribunal, on proper appreciation of the material on record has rightly assessed the income of the deceased. But however, the deceased was a cleaner in a lorry and his income was not definite and his job was also not secure. When such being the case, the Tribunal committed a grave error in adding 50% towards his future prospects considering his age. He vehemently contends that his age being 24 years was not the only criteria to add 50% towards future prospects. The important factor is that the deceased should have been in a permanent job in a private company or Government service and should have earned a fixed income. If such was the case, the Tribunal was justified in adding 50% towards future prospects. When the deceased did not have any proof of income or did not have a permanent job, the Tribunal has committed an error in adding 50% towards his future prospects and hence, the learned counsel contends that the said part requires interference by this court. Hence, he contends that the appeal by the Insurance Company be allowed and the compensation awarded by the Tribunal be suitably reduced.
9. On careful evaluation of the material on record, it is seen that the claimants being the parents and siblings of the deceased are the dependents of the deceased who was aged 24 years and prior to his death, he was working as a Cleaner in a lorry and was said to be earning a sum of Rs.10,000/- p.m. Under such circumstances, the tribunal having taken his notional income at Rs.6,000/- is very much improper. Since the accident is of the year 2014, as per the settled norms his income ought to have been taken at Rs.8,500/-. Hence, his income is hereby taken at Rs.8,500/- to compute the compensation that is required to be awarded towards ‘loss of dependency’.
10. But however, I am of the view that as contended by the learned counsel for the Insurance Company, the Tribunal committed an error in adding 50% towards his future prospects, in spite of the fact that the deceased did not have a permanent job or income. Hence, I find that it would be just and proper to add 40% to the said income towards his future prospects, instead of 50%. Thus, adding 40% towards his future prospects, the monthly income comes to Rs.11,900/- (8500 x 40/100). Then, he being a bachelor aged 24 years, the Tribunal was right in deducting 50% towards his personal expenses. Hence, deducting 50% towards his personal expenses, the monthly notional income would come to Rs.5,950/-. Hence, with the income at Rs.5,950/- and applying multiplier ‘18’, the compensation towards ‘Loss of dependency’ would come to Rs.12,85,200/- (5950 x 12 x 18) as against Rs.9,72,000/- awarded by the Tribunal. Further, in view of the ruling of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), the compensation awarded by the tribunal under ‘Funeral expenses’ and ‘Loss of love and affection’ is reduced to Rs.30,000/- as against Rs.80,000/- awarded under both the heads. *The compensation of Rs.1,42,671/- awarded by the Tribunal towards medical expenses remains unaltered. Thus, in all, the claimants are entitled to total compensation of Rs.14,57,871/- as against Rs.11,94,671/- awarded by the tribunal. The enhanced compensation would be Rs.2,63,200/-.
Accordingly, I pass the following:
O R D E R Accordingly, both the appeals are allowed in part. In modification of the impugned judgment and award * Corrected vide court order dated 28.05.2019 dated 27.01.2016 passed by the Tribunal in MVC No.3353/2014, the compensation payable to the claimants is enhanced from Rs.11,94,671/- to Rs.14,57,871/-. The enhanced compensation would come to Rs.2,63,200/-. The Insurer – ICICI Lombard General Insurance Co. Ltd. shall deposit the enhanced compensation with interest at 6% per annum before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
SD/- JUDGE KS