IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.3953 OF 2016(MV) C/W. M.F.A.No.5092 OF 2016 MFA No.3953/2016:
BETWEEN:
Legal Manager, ICICI Lombard GIC Ltd.
# 89, II Floor, SVR Complex, 2nd Floor, Hosur Road, Bangalore – 68, Now rep. by its Legal Manager, ICICI Lombard GIC Ltd.
# 121, The Estate Building, 9th Floor, Dickson Road, Bangalore – 42. … Appellant (By Sri B.Pradeep, Advocate) AND:
1. Smt.Divya, W/o.Late Dharanesh, Now aged about 23 years.
2. Baby Harshitha, D/o.Late Dharanesh, Now aged about 4 years.
3. Range Gowda, S/o.Late Dharnesh, Now aged about 71 years.
4. Smt.Jayamma, W/o.Rangegowda, Now aged about 56 years.
Respondent No.2 since minor Rep. by natural guardian Mother respondent No.1.
All are R/at No.42, B.K.Hosur, Kenkere Arasikere, Hassan-573119 5. S.G. Basavaiah No.13,5th Block, 1st Main, K.P. West Extn, Bangalore-560020 ... Respondents (By Sri.P.Shivakumar, Advocate for C/R 1 to 4: Notice to R5 dispensed with vide Court order Dated 24.11.2017) This MFA is filed under 173(1) of MV Act, against the judgment and award dated 16.02.2016 passed in MVC No.628/2015 on the file of the 9th Addl. Small Causes Judge & 34th ACMM, Court of Small Causes, Member, MACT-7, Bengaluru awarding compensation of Rs.20,95,000/- with interest at 8% p.a. from the date of petition till the date of payment.
MFA No.5092/2016: BETWEEN:
1. Smt.Divya, W/o.Late Dharanesh, Aged about 23 years.
2. Baby Harshitha, D/o.Late Dharanesh, Aged about 4 years.
Since appellant No.2 is minor She is reptd. By her mother And natural guardian 1st appellant.
3. Sri Range Gowda, S/o.Nanje Gowda, Aged about 71 years.
4. Smt.Jayamma, W/o.Rangegowda, Aged about 56 years.
All are R/at No.42, B.K.Hosur, Kenkere, Arasikere Taluk, Hassan – 573 119. … Appellants (By Sri P.Shivakumar, Advocate) AND:
1. ICICI Lombard General Insurance Co. Ltd.
No. 89, 2nd Floor, SVR Complex, Madiwala, Hosur Road, Bengaluru – 68, Rep. by its Manager.
2. Sri S.G.Basavaiah, No.13, 5th Block, 1st Main, K.P.West Extension, Bengaluru – 560 020. ... Respondents (By Sri.B.Pradeep, Advocate for R 1: Notice to R2 dispensed with vide Court order Dated 08.03.2018) This MFA is filed under 173(1) of MV Act, against the judgment and award dated 16.02.2016 passed in MVC No.628/2015 on the file of the 9th Addl. Small Causes Judge & 34th ACMM, Court of Small Causes, Member, MACT-7, Bengaluru partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for hearing, this day, this Court, delivered the following:
J U D G M E N T M.F.A.No.3953/2016 is filed by the Insurance Company challenging the judgment and award passed by the IX Addl. Small Causes and Addl. MACT, Bangalore (SCCH-7) dated 16.02.2016 in MVC No.628/2015. Claimants have also preferred M.F.A.No.5092/2016 against the same judgment and award seeking enhancement of compensation. Since the challenge is to the same judgment, both the appeals are clubbed, heard together and are being disposed of by this common order.
2. The brief facts of the case are that on 11.01.2015 at about 6.45 p.m. the deceased was riding his bike bearing No.KA- 123/EC-8048. He was moving on NH 48 road, near Mallanapalya cross, Solur Hobli, Magadi Taluk, Ramanagar District. At the same time, a lorry bearing No.CAW-1474 driven by its driver came from Mallanapalya side at a high speed in a rash and negligent manner and hit the bike of the deceased. As a result, the deceased fell down and succumbed to the injuries on the spot. The body was taken to the Government Hospital, Nelamangala for postmortem examination. After postmortem the body was handed over to the claimants. Immediately after recovering from the shock, claimants have filed a claim petition before the MACT, Bangalore in MVC No.628/2015.
3. To establish their case, first claimant was examined as PW1 and got marked 25 documents. On the other hand, on behalf of the Insurance Company neither any witnesses were examined nor documents marked. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.20,95,000/- with interest at 8% p.a. Being aggrieved by the quantum of compensation, Insurance Company has preferred MFA No.3953/2016 and being not satisfied with the quantum of compensation claimants have filed MFA No.5092/2016.
4. Sri B.Pradeep, learned counsel for the Insurance Company submits that while granting the compensation the Tribunal has granted a sum of Rs.1,30,000/- on conventional heads instead of Rs.70,000/- as held by the Hon’ble Supreme Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157.
5. Secondly, he contends that even though claimants have claimed that the deceased was earning Rs.20,000/- per month, they have not produced any materials to prove the same. They have produced only RTC and bank statement. The Tribunal, without considering the same has taken the income of the deceased as Rs.10,000/- per month, which is on the higher side.
6. Thirdly, he contends that the Tribunal while calculating future prospects has added 50% of the income instead of 40% as per the law laid down by the Hon’ble Supreme Court in PRANAY SETHI (supra). Hence, he seeks for allowing MFA No.3353/2016.
7. Per contra, Sri P.Shivakumar, learned counsel appearing for the claimants submits that while deducting the personal expenses the Tribunal instead of ¼ has deducted 1/3 towards personal expenses of the deceased. Since the dependents are four in number ¼ has to be deducted.
8. Secondly, he contends that at the time of the accident the deceased was aged about 32 years, doing flower business and earning Rs.20,000/- per month. The Tribunal is not justified in taking only Rs.10,000/- as the monthly income of the deceased. Hence, he seeks for dismissal of MFA No.3953/2016.
9. Heard learned counsel for the parties and perused the records.
10. It is not in dispute that due to the accident involving lorry bearing No. CAW-1474 the deceased succumbed to the injuries. The claimants have claimed that deceased was earning Rs.20,000/- per month by doing flower business. But they have not produced any documents to prove the same. They have proceeded Ex.P12, the bank statement, Ex.P18 patta and rasheedi books, Ex.P19 flower purchase bills, Ex.P25 RTC extract related to the property. The Tribunal after considering all these materials has rightly taken the income of the deceased at Rs.10,000/- per month. The same is just and proper and does not need interference.
11. The Tribunal while calculating future prospects has taken 50% of the income. In view of PRANAY SETHI (supra), for the age-group of below 40 years, 40% has to be added as future prospects. Accordingly, loss of dependency is recalculated as under:
12. The Tribunal has awarded Rs.1,00,000/- under the head ‘loss of consortium’, Rs,20,000/- under the head ‘loss of estate’, Rs.25,000/- under the head ‘funeral expenses and Rs.5,000/- under the head ‘expenses of transportation of dead body’. Totally Rs.1,50,00/- has been granted by the Tribunal under the conventional heads. As per PRANAY SETHI (supra), the claimants are entitled for total compensation of Rs.70,000/- under the conventional heads. Therefore, the same is reduced from 1,50,000/- to Rs.70,000/-.
13. For the reasons stated above, the award, dated 16.02.2016, stands modified as under:
14. The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 8% per annum from the date of filing of the claim petition, till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment. The amount so deposited by the Insurance Company shall be disbursed to the claimants as per the apportionment made by the Tribunal, after due verification of their identity.
The amount in deposit before this Court shall be transmitted to the Tribunal, forthwith.
With the above modifications MFA No.3953/2016 filed by the Insurance company is disposed of. MFA No.5092/2016 filed by the claimants is allowed in part.
Sd/- JUDGE Cm/-