IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 7508 OF 2016 (MV) CONNECTED WITH MFA CROB NO.94 OF 2017 (MV) MFA NO. 7508 OF 2016 BETWEEN THE MANAGER (LEGAL) TATA AIG GENERAL INSURANCE CO. LTD., NO. 69, 3RD FLOOR, J.P. AND DEVI JAMBUKESHWARI ARCADE MILLERS ROAD, BANGALORE-92. ... APPELLANT (BY SRI. B. PRADEEP - ADVOCATE) AND 1. CHINNATHAYAMMA W/O PUTTASIDDAIAH NOW AGED ABOUT 46 YEARS 2. PUTTASIDDAIAH S/O LATE ANKAIAH NOW AGED ABOUT 50 YEARS BOTH ARE R/AT NEAR RAMAMANDIR MYSURU – BANNUR ROAD MELLAHALLI VILLAGE HAROHALLI POST MYSURU TALUK – 570028.
3. CHANDRAPPA S/O CHANNEGOWDA NOW AGED ABUOT 42 YEARS R/AT NO.2, I CROSS VISHWANEEDHAM POST MAGADI MAIN ROAD BYADARAHALI KEMPEGOWDANAGAR BENGALORE – 560 032. ... RESPONDENTS (BY SMT. SUMA KEDILAYA .V – ADVOCATE FOR SRI V PADMANABHA KEDILAYA.-ADVOCATE FOR R-1 AND R-2;
NOTICE TO R-3 DISPENSED WITH VIDE COURT ORDER DATED 19.04.2018) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDMENT AND AWARD DATED 21.07.2016 PASSED IN MVC NO. 10/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, AND CJM, MYSURU, AWARDING COMPENSATION OF RS.15,43,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
MFA CROB. NO. 94 OF 2017 BETWEEN 1. SMT. CHINNATHAYAMMA W/O PUTTASIDDAIAH, AGED ABOUT 47 YEARS, 2. PUTTASIDDAIAH S/O LATE ANKAIAH, AGED ABOUT 51 YEARS, BOTH ARE RESIDING NEAR RAMAMANDIR MYSURU-BANNUR ROAD, MELLAHALLI VILLAGE, HAROHALLI POST MYSURU TALUK - 570 028. … CROSS OBJECTORS (BY SRI PADMANABHA KEDILAYA .V - ADVOCATE) AND 1. CHANDRAPPA S/O CHANNEGOWDA AGED ABOUT 43 YEARS R/O NO.2, I CROSS, VISHWANEEDHAM POST, MAGADI MAIN ROAD, BYADARAHALLI, KEMPEGOWDANAGAR, BANGALORE - 560 032.
2. TATA AIG GENERAL INSURANCE CO. LTD., II FLOOR, J.P AND EVI JAMPUKESHWARA ARCADE, NO.69, MILLAR ROAD, BENGALURU-560092. ... RESPONDENTS (BY SRI. B. PRADEEP – ADVOCATE FOR R2 NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 11.02.2019) THIS MFA.CROB IN MFA NO. 7508/2016 FILED UNDER ORDER XLI RULE 22 AND SECTION 173(1) OF THE MOTOR VEHICLE ACT, 1978, AGAINST THE JUDGMENT AND AWARD DATED 21.07.2016 PASSED IN MVC NO.10/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU, PARTLY ALLOWING THE CALIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA.CROB, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matters are listed for orders, with the consent of the learned counsel for both the parties, both the appeals which arise out of the same judgment and award are taken up for final disposal and are hereby disposed of by this common judgment.
2. The appeal in MFA No.7508/2016 has been preferred by the Insurance Company, namely TATA AIG General Insurance Company Ltd., challenging the liability fastened on it and also the quantum of compensation awarded by the Prl. Senior Civil Judge & CJM, Mysuru by its impugned judgment dated 21.07.2016 in MVC No.10/2014, seeking reduction in the compensation awarded by the Tribunal. Whereas MFA.Crob.94/2017 has been preferred by the claimants seeking enhancement of the compensation awarded by the Tribunal.
3. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company and perused the records. Notice to the owner of the offending vehicle has been dispensed with by this court in both the appeals.
4. The facts of the case are that on 08.12.2013 at about 12.45 p.m. when the deceased Vinod was proceeding on his motor cycle towards Matthithaleshwara Temple of Bannur village, near Bidarahallihundi gate of Nerale village, the driver of the Tata Indica car bearing No.KA-41-9860 is said to have come at a high speed in a rash and negligent manner and is said to have dashed the motor cycle, due to which the rider Vinod had fallen down and sustained injuries. Immediately, he was taken to Cauvery Hospital, Mysuru for treatment, but however, he succumbed to the injuries on the way of the hospital. The deceased was the only son to his parents. Due to his unforeseen death, his parents lost the love and affection of their son and also the earning member of the family. In view of the same, they filed a claim petition seeking compensation.
5. After service of notice, the owner of the offending vehicle as well as the insurer appeared and filed their respective objections. It was contended on behalf of the owner of the offending vehicle that the driver of the offending vehicle was driving slowly following all the rules and regulations, whereas the deceased Vinod himself rode his bike negligently and had dashed to the Tata Indica car and hence, the owner was not at all liable to pay any compensation to the claimants.
It was contended on behalf of the Insurance Company that the allegations made in the petition were false and the liability if any, was subject to the terms, conditions, exceptions and limitations of the policy.
Further, the driver of the offending vehicle had no valid and effective driving licence to drive the specific class of vehicle and also had no route permit or fitness certificate to ply on the road as on the date of the accident. Moreover, there was every possibility for the deceased to have contributed to the alleged accident and hence sought for dismissal of the petition.
Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner no.2 got examined himself as PW.1 and another eye-witness Somanna as PW-2 got marked 13 documents as per Exhibits P1 to P13. However Respondents did not examine any witness in support of their case.
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 vehicle. The deceased was said to be aged 25 years at the time of the accident and had completed his B.Ed. course and was conducting tuitions at home and was said to be earning Rs.15,000/- per month. However, the Tribunal had taken the income of the deceased at Rs.9,000/- per month and adding 50% towards future prospects, arrived at the income of Rs.13,500/- per month. Then again, since the deceased was a bachelor and his family consisted of two members, deducted 50% towards his personal and living expenses and arrived at the income of 6,750/- per month. Since the deceased was aged 25 years, applied the multiplier ‘18’ and awarded compensation of Rs.14,58,000/- towards ‘Loss of financial dependency’, Rs.50,000/- towards ‘Loss of love and affection’, Rs.10,000/- towards ‘Loss of estate’ and Rs.25,000/- towards ‘Funeral expenses and conveyance. Thus, it totally awarded compensation of a sum of Rs.15,43,000/- with interest at 9% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in these appeals.
6. The learned counsel for the appellant – Insurance Company vehemently contended that the tribunal has erred in assessing the income of the deceased at Rs.9,000/- when there was no material produced to prove that he was earning the said sum by conducting tuitions. The mere fact that he had completed his B.Ed. cannot be the basis for the Tribunal to have taken his income at Rs.9,000/-, without any evidence on that behalf. He contends that the income has been taken exhorbitantly by the Tribunal to arrive at the compensation towards ‘Loss of financial dependency’ and the same requires interference by this court. It is the further contention of the learned counsel that the Tribunal after adopting the income at Rs.9,000/- per month has proceeded to add 50% towards future prospects. When actually the deceased was an unemployed and he was said to be conducting tuitions, the Tribunal has erred in adding 50% towards his future prospects without even a definite income and hence, he contends that the same requires interference. He further contended that the compensation awarded by the Tribunal towards conventional heads also is on the higher side. Even according to ruling of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), the compensation granted under conventional heads require interference. Hence, the learned counsel contends that the appeal in MFA No.7508/2016 be allowed and the impugned judgment and award be set aside by reducing the compensation awarded proportionately and the appeal in MFA Crob.No.94/2017 be dismissed.
7. Per contra, the learned counsel appearing for the claimants submitted that the Tribunal, on appreciation of the evidence on record has rightly assessed the income of the deceased at Rs.9,000/- and has awarded just and fair compensation, which does not call for interference by this Court and prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that the claimants being parents of the deceased are the dependents of the deceased Vinod. The deceased was aged 25 years and had completed his B.Ed. course. He was said to be conducting tuitions at home and was earning some income. Though it is contended that he might have secured a Government employment and would have earned a handsome salary, these are all presumptions and assumptions in this competitive world where employment is not definite. I find that when there is no proof for his income, the same having been taken at Rs.9,000/- for an accident of the year 2013 is slightly on the higher side. Hence, I hereby adopt the monthly income of the deceased at Rs.8,000/- to arrive at the ‘Loss of financial dependency’.
Further, the Tribunal has committed an error in adding 50% towards future prospects when the deceased did not even have an employment. Hence, I find that if 40% is added to his salary towards future prospects, it would meet the ends of justice.
9. Hence, taking the income of the deceased at Rs.8,000/- and adding 40% towards future prospects, the monthly income of the deceased comes to Rs.11,200/- (8000 + 3200). Then deducting one-half towards his personal expenses, his monthly income comes to Rs.5,600/-. Applying multiplier ‘18’ to the said income of Rs.5,600/-, the compensation towards ‘Loss of financial dependency’ is worked out at Rs.12,09,600/- (5600 x 12 x 18). However, the compensation awarded by the tribunal under other conventional heads is just and reasonable and does not call for interference. Thus, the total compensation would come to Rs.12,94,600/- as against Rs.15,43,000/- awarded by the Tribunal.
Accordingly, I pass the following:
O R D E R The appeal in MFA No.7508/2016 is allowed in part. In modification of the impugned judgment and award dated 21.07.2016 passed by the Tribunal in MVC No.10/2014, the compensation payable to the claimants – Respondents 1 and 2 is reduced from Rs.15,43,000/- to Rs.12,94,600/-. However, the interest awarded by the Tribunal at 9% shall remain unaltered. The Appellant - Insurer shall deposit the compensation with interest 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, in terms of the award, 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. The amount already deposited, if any, shall be adjusted. The amount in deposit, if any before this court shall be transmitted to the tribunal forthwith.
As a consequence I.A.1/19 for release of deposit amount is dismissed as it does not survive for consideration.
MFA.Crob.No.94/2017 filed by the claimants for enhancement of compensation stands dismissed.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS