IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE ASHOK G.NIJAGANNAVAR MFA NO.7185 OF 2017 (MV-D) Between:
Legal Manager, Reliance General Insurance Co. Ltd., Regional Office, 5th Floor, Centenary Building, No.28, M.G. Road, Bengaluru – 560 001.
(By Sri. Pradeep B., Advocate) And:
1. Veeresh Shivashimpi, S/o Virupakshappa, Now aged about 51 years, 2. Smt. Lalitha Veeresh Shivashimpi, W/o Veeresh Shivashimpi, Now aged about 46 years, 3. Sanjay Veeresh Shivashimpi, S/o Virupakshappa, Now aged about 22 years, …Appellant All are R/at Gudagere Village, Kundagola Taluk, Dharwad – 581 107.
4. C. Leelavathi, W/o Srinivas, Age: Major, No.248, Ramagondanahalli, Whitefield Post, Bengaluru – 560 066. ... Respondents (By Sri. Gurudev Prasad K.T., Advocate for C/R1 to 3) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 02.08.2017 passed in MVC No.6543/2016 on the file of the V Additional Small Causes Judge and XXIV ACMM, incharge of XV Additional Small Causes Judge and XXIII ACMM Mayo Hall Unit, Bengaluru (SCCH-19), awarding compensation of Rs.36,42,000/- with interest at 9% p.a. from the date of petition till its realization.
This MFA coming on for Admisison, this day, NAGARATHNA J., delivered the following:
JUDGMENT Though this appeal is listed for admission, with consent of learned counsel on both sides, it is heard finally.
2. For the sake of convenience the parties herein shall be referred to as per their ranks referred to before the trial Court.
3. This appeal is filed by the Insurance Company assailing the judgment and award passed by the V Additional Small Causes Judge and XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bengaluru (hereinafter referred to as ‘the trial Court’ for the sake of brevity) dated 02.08.2017 in MVC No.6543/2016 on the quantum of compensation awarded by the trial Court.
4. Briefly stated the facts are that a claim petition was filed under Section 166 of Motors Vehicle Act, 1989 by the parents and younger brother of Manjunath Veeresh Shivashimoi, who died in a road traffic accident that occurred on 24.09.2016. According to the claimants on that day at about 8.30 a.m., Manjunath Veeresh Shivashimoi was riding a motorcycle bearing registration No.KA-25-EJ-4350 on Nallurahalli-Siddapura Main Road near Spectra Palmwoods Apartments, when at that time, a tanker lorry bearing registration No.KA-04-AB-9909 came in a rash and negligent manner by endangering human life and without following traffic rules and regulations, came at a high speed and dashed against the motor cycle. As a result, the Manjunath Veeresh Shivashimoi fell down and sustained grievous injuries. Immediately, he was taken to the Vydehi Hospital, where the doctors declared that he died on account of accidental injuries. Post-mortem was conducted and his body was taken to Dharwad, in a hired vehicle, where funeral and obsequies were performed. Contending that they had lost a member of their family, who was aged about 23 years and who was working as a Associate Member Technical at Rossel Techsys ITPB area, Whitefield, Bengaluru and was earning Rs.20,000/- per month and was the only earning member of the family, the claim petition was filed seeking compensation on various heads. The said claim petition was contested by the respondents before the trial Court.
5. Respondent No.1-owner of the tanker lorry denied the averments made in the claim petition and sought for its dismissal. Respondent No.2-Insurer admitted that it had issued a policy in favour of respondent No.1, insuring the tanker lorry for a period of 19.02.2016 to 18.02.2017. It was contended that any award to be made by the trial Court would have to be satisfied by the insurer only subject to the terms and conditions of the policy. Denying the other averments made in the claim petition, the insurer sought dismissal of the same.
6. On the basis of rival pleadings, the trial Court framed the following issues:
“1) Whether the petitioners prove that they are the legal heirs of deceased Manjunath Veeresh Shivashimpi?
2) The petitioner proves that on 24.09.2016 at about 8.30 am., the deceased was riding a motor cycle bearing Reg. No.KA-25-EJ-4350 on Nallurhalli-Siddapura Main Road from Siddapura towards Nallurahalli on the extreme left side when he reached near Spectra Plamwoods Apartment, the driver of the Tanker Lorry bearing Registration No.KA-04-AB-9909 drove the same in a rash and negligent manner endangering human life without following any traffic rules and regulations at high speed and dashed against the deceased as a result the deceased fell down and due to impact deceased succumbed to the injuries on the spot?
3) Whether the petitioners are entitled for compensation? If so, how much and from whom?
4) What award/order?”
7. In support of their case, the claimants examined Sri. Sanjay Veeresh Shivashimpi as PW.1 and Sri. Chetan Krishnamurthy as PW.2 and 29 documents were produced and got marked in evidence as Ex.P.1 to P.29. No evidence was led in by the respondents before the trial Court. On the basis of the evidence on record, issue Nos.1 and 2 were answered in the Affirmative. issue No.3 was answered Partly Affirmative and claim petition was allowed in part awarding compensation of Rs.39,42,000/- with interest at the rate of 9% p.a. from the date of petition till realization. Contending that the award of compensation is exorbitant and on the higher side, the Insurance Company has preferred this appeal.
8. We have heard learned counsel for the appellant and learned counsel for respondents- claimants and perused the materials on record.
9. The main contention of appellant’s counsel is with regard to the computation of amount of compensation awarded under the head of loss of dependency. The other contention of appellant herein is with regard to exorbitant amount being awarded on the conventional heads. He submitted that the trial Court has awarded a huge compensation of Rs.39,42,000/- which calls for reduction in this appeal. It is also urged that the award of interest @ 9% per annum is also on the higher side.
10. Per contra, learned counsel for the respondents-claimants fairly submits that there is only a calculation error in the award of compensation under the head of loss of dependency and that the other aspects of the matter of the case would not call for any interference. He submitted that the award of the interest also may not be interfered by this Court.
11. Having heard learned counsel for the respective parties, the following points arise for consideration: -
1) Whether the appellant-insurer is entitled to seek a reduction in the award of compensation?
2) What order?
12. The fact that Manjunath Veeresh Shivashimoi died in a road traffic accident that occurred on 24.09.2016 at about 8:30 a.m., when he was riding a motorcycle bearing registration No.KA-25-EJ-4350 at Nallurahalli-Siddapura Main Road near Spectra Palmwoods Apartments when at that time a tanker lorry bearing registration No.KA-04-AB-9909 came in a rash and negligent manner and dashed against the motor cycle, has been established. That the accident occurred on account of rash and negligent driving of the said lorry by its driver. The only controversy is with regard to award of compensation granted by the trial Court.
Break-up of the compensation awarded by the trial Court is as under: -
Sl.
No.
Compensation Under Different Heads Amount 1. Loss of dependency Rs.36,72,000/-
2. Loss of love and affection to aged parents 3. Loss of love and affection to brother Rs.1,00,000/-
Rs. 25,000/-
4. Loss of estate Rs.1,00,000/-
5. Towards funeral and obsequies ceremonies Rs.35,000/-
6. Litigation cost Rs.10,000/-
Total Rs.39,42,000/-
13. On the head of loss of dependency, the trial Court has noted that deceased was working as a Associate Member Technical at Rossel Techsys ITPB area Whitefield, Bengaluru. Though his monthly salary is stated to be Rs.20,000/- per month, the trial court has reckoned it at Rs.17,000/- per month, on the basis of the salary certificate which was produced by the claimants. Further, 50% of the said salary was added towards future prospects in accordance with latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157. As the deceased was a bachelor, 50% of the said amount has been deducted for his personal expenses. The appropriate multiplier ‘18’ has been applied, as the deceased was aged about 23 years. Consequently, compensation under the head loss of dependency would be Rs.27,54,000/- (17,000 + 8,500 = 25,500 - 50% towards Personal Expenses = 12,750 x 12 x 18). There is a mathematical error committed by the trial Court in computing the compensation under the head of loss of dependency as of Rs.36,72,000/-. Therefore, the said amount is reduced to Rs.27,54,000/-.
14. As far as the compensation under the conventional heads are concerned, as per the latest decision of the Hon’ble Supreme court in the case of Magma General Insurance Company Limited Vs. Nanu Ram and others reported in 2018 ACJ 2782, since the parents have lost their son, towards parental consortium a sum of Rs.40,000/- each has to be awarded as well as towards ‘filial consortium’. Further, a sum of Rs.15,000/- is awarded towards ‘funeral and obsequies expenses’. A sum of Rs.15,000/- is awarded towards ‘loss of estate’. Further, a sum of Rs.10,000/- has been awarded towards ‘cost of litigation’ by the trial Court, which we confirm.
15. Thus, the total compensation that is now awarded is Rs.29,14,000/- instead of Rs.39,42,0000/-
1. Loss of dependency 27,54,000/-
2. Towards loss of consortium (Rs.40000x 3) 1,20,000/-
3. Loss of estate 15,000 4. Towards funeral and obsequies ceremonies 15,000/-
5. Litigation cost 10,000/-
6. Total 29,14,000/-
16. The trial Court in its discretion has awarded 9% interest which we confirm. In the circumstances, the appeal filed by the insurance company is allowed- in-part.
17. In the aforesaid terms, the statutory deposit before this court is ordered to be transmitted to the concerned trial Court.
18. As the trial Court has not apportioned the compensation awarded by it, we deem it proper to apportion the said compensation in the proportion of 45%, 45% and 10% to the respondents-claimants respectively.
19. The amount awarded to respondent No.3- claimant shall be released in his favour after due verification.
20. 75% of the compensation awarded in favour of respondent Nos.1 and 2-claimants shall be deposited in any Post Office Deposit or in a Nationalized Bank for an initial period of ten years. They shall however, be entitled to draw periodical interest on the said amount. The balance amount shall be released after due identification.
21. The trial Court to refund the excess amount, if any, deposited by the appellant/Insurance Company to it.
No costs.
Sd/- JUDGE Sd/- JUDGE MBM