IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K. SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.4189/2016 (MV) C/W MISCELLANEOUS FIRST APPEAL No.4950/2016 (MV) IN MFA No.4189/2016:
BETWEEN:
M/S. MAGMA HDI GENERAL INSURANCE COMPANY LTD., MAGNA HOUSE, NO.24, PARK STREET, KOLKATTA-700016.
REPRESENTED BY BRANCH OFFICE NO.36, HMJC, JC ROAD, NEAR MINERVA CIRLCE, BANGALORE-560 002, REPRESENTED BY ITS ASSISTANT MANAGER.
... APPELLANT (BY SRI RAVI S. SAMPRATHI, ADVOCATE) AND:
1. SRI. V. MUNIVENKATAPPA S/O LATE VENKATAPPA, AGED ABOUT 57 YEARS.
2. SMT. KANNAMMA, W/O A. MUNIVENKATAPPA, AGED ABOUT 47 YEARS, BOTH ARE RESIDING AT:
THIMMANAYANAPPALLI, SODIGANIPLII, GUDAPALLI, KUPPAM TALUK, CHITTOR DISTRICT, ANDHRA PRADESH-07.
3. SMT. VENKATAMMA C/O NARAYANA SWAMY, R/O NO.97, GOPALAPURA VILLAGE, CHIKKAJALA H.O. BAGALUR (PO) BANGALORE NORTH TALUK, BANGALORE-562149.
... RESPONDENTS (BY SRI F. S. DABALI, ADVOCATE FOR R1 & R2;
NOTICE TO R3 IS DISPENSED WITH VIDE COURT ORDER DATED 23.1.2019) THIS MISCELLANEOUS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.11.2015 PASSED IN MVC NO.342/14 ON THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT, DEVANAHALLI, AWARDING COMPENSATION OF RS.14,87,500/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA No.4950/2016:
BETWEEN:
1. V. MUNIVENKATAPPA S/O LATE VENKATAPPA, AGED ABOUT 57 YEARS, 2. SMT. KANNAMMA W/O A. MUNIVENKATAPPA, AGED ABOUT 47 YEARS, BOTH ARE R/AT THIMMANAYANAPALLI, SODIGANIPALLI, GUDUPALLI, KUPPAM TALUK, CHITTOOR DISTRICT, ANDHRA PRADESH-517425.
... APPELLANTS (BY SRI F. S. DABALI, ADVOCATE) AND:
1. SMT. VENKATAMMA, C/O NARAYANA SWAMY, AGE MAJOR, R/AT NO.97, GOPALAPURA VILLAGE, CHIKKAJALA H.O. BAGALUR (P.O) BANGALORE NORTH TALUK, BANGALORE-562149.
2. THE MANAGER, M/S MAGMA HDI GENERAL INSURANCE CO.LTD., MAGNA HOUSE, NO.24, PARK STREET, KOLKATA-700016.
POLICY NO.P0014400002/4103/264358 (VALID FROM 30/11/2013 TO 29/11/2014) BRANCH OFFICE THE MANAGER M/S MAGMA HDI GENERAL INSURANCE CO.LTD., NO.36, HMJC, J.C.ROAD, NEAR MINERVA CIRCLE. BANGALORE-560002.
... RESPONDENTS (BY SRI RAVI S. SAMPRATHI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED 23.1.2019) THIS MISCELLANEOUS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.11.2015 PASSED IN MVC NO.342/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDITIONAL MACT, DEVANAHALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals viz., MFA No.4189/2016 and MFA No.4950/2016 are preferred by the appellants against the common Judgment & Award passed by the Court of Senior Civil Judge & AMACT, Devanahalli in MVC No.342/2014 dated 4.11.2015, wherein the Tribunal has awarded compensation in a sum of Rs.14,87,500/- with interest at 6% per annum from the date of the petition till the date of realization.
2. MFA No.4189/2016 is preferred by M/s Magma HDI General Insurance Company Limited challenging the Judgment & Award rendered by the Tribunal awarding compensation in a sum of Rs.14,87,500/- under the heads relating to ‘loss of dependency’, ‘loss to estate’, ‘loss of love and affection’ and ‘transportation of dead body and funeral expenses’ on the ground that there are several infirmities in the impugned judgment and the compensation awarded is exhorbitant. Therefore, in this appeal, the appellant – Insurance Company seeks intervention of this Court for reduction of compensation awarded by the Tribunal.
3. In so far as MFA No.4950/2016 , this appeal is preferred by the appellants - claimants who are parents of the deceased seeking for enhancement of compensation on the ground that the compensation awarded by the Tribunal under various heads is inadequate. Therefore, in this appeal, the appellants – claimants seek intervention of this Court for enhancement of the compensation awarded by the Tribunal.
4. Though these appeals are listed for hearing on I.As., with the consent of learned counsel appearing for the parties, the appeals are taken for final disposal.
5. The factual matrix of the appeals are as under:
It is stated in the claim petition that the deceased Subramani @ Subbu on 3.6.2014 at about 11.40 a.m. while he was crossing Bagalur Main Road near Priyanka Vilas Building, at that time, the driver of Tempo bearing Registration No.KA-50-8068 was driving the tempo in a rash and negligent manner at high speed, endangering human life and consequent of which, hit against the deceased and on account of that, the deceased sustained grievous injuries and died on the same day. It is further stated in the claim petition that the claimants are the parents and dependents of the deceased. The deceased was aged about 22 years at the time when he met with an accident and lost his breath. The deceased was a mason by avocation and earning Rs.600/- per day. Due to the death of the deceased, the claimants have lost their earning member of the family and therefore there is no source of income for their livelihood as they were entirely depending on the income of the deceased son. On these grounds, the claimants filed the claim petition before the Tribunal seeking compensation.
6. On receipt of notice in the claim petition, the Respondent Nos.1 and 2 in the claim petition have appeared through their respective counsel and filed their written statement in detail.
7. The 1st respondent in the claim petition in her written statement has denied the petition averments and according to her, the vehicle in question was insured with the 2nd respondent – Insurance company and the 2nd respondent is liable to indemnify her and sought for dismissal of the claim petition as against her.
8. The 2nd respondent – Insurance company has filed the written statement in detail by resisting the claim petition. According to the 2nd respondent, the vehicle in question was driven by the driver who was not holding valid effective driving license. But the 2nd respondent – Insurance company admits that the vehicle in question was insured with them. According to the 2nd respondent, the alleged accident had occurred due to the negligence on the part of deceased and there was no negligence on the part of driver of the offending vehicle and sought for dismissal of the claim petition.
9. Based upon the pleadings of the parties, the Tribunal has framed four issues. Thereafter, in order to establish their case, the petitioner No.2 – Kannamma examined herself as PW.1 and one Mr. Harish was examined as PW.2 and the petitioners got marked the documents Ex.P1 to Ex.P7 on their behalf. On behalf of the respondents, they did not adduce any evidence and no documents are produced in support of their contentions. Ex.P1 is the charge sheet filed against the driver of the offending tempo; Ex.P7 is the FIR; Ex.P2 is the sketch of scene of incident; and Ex.P3 is the spot mahazar said to have been drawn by the Investigating Officer. Ex.P5 is the post-mortem report and it discloses that the death of the deceased was due to the injuries sustained in the road traffic accident. Ex.P6 is the salary certificate of the deceased, wherein it is stated that the deceased was working as a Mason and earning Rs.650/- per day.
10. On evaluation of the entire evidence of PWs.1 and 2 and the documents produced at Ex.P1 to Ex.P7, the Tribunal has awarded total compensation in a sum of Rs.14,87,500/- with interest at 6% per annum which is indicated in the operative portion of the impugned judgment. The same has been challenged in these appeals by urging various grounds.
11. Whereas the learned counsel for the Insurance Company viz., Ravi S. Samprathi has taken me through the evidence of PWs.1 and 2 and so also the observations made by the Tribunal relating to compensation awarded in respect of ‘loss of dependency’. The evidence of PWs.1 and 2 and police records would speak that the deceased was mason and at the time of the accident, he was aged about 23 years. In the evidence of PWs.1 and 2, it is elicited that the deceased was the resident of Thimmanayanapalli, Chittor district of Andhra Pradesh. Keeping in view of the evidence of PWs.1 and 2 and considering the age of the deceased, the income of the deceased per day was taken at Rs.350/- and consequently for 25 days, the income was taken at Rs.8,750/-. The Tribunal while determining the compensation under the head of ‘loss of dependency’ added 50% of the income towards future prospects and out of which deducted 50% towards personal and living expenses and awarded Rs.14,17,500/- towards ‘loss of dependency’. According to the learned counsel, the same is exhorbitant and the Tribunal ought not to have added 50% of the income towards loss of future prospects while determining compensation under the head of ‘loss of dependency’ and ought to have added only 40% of the income towards future prospects and awarded only Rs.13,23,000/- towards ’loss of dependency’ instead of Rs.14,17,500/-. In so far as the compensation awarded by the Tribunal under the heads of ‘loss of estate’, ‘loss of love and affection’ and ‘Transportation of dead body and funeral expenses’ in a sum of Rs.70,000/-, the same is exhorbitant and requires to be reduced to Rs.30,000/-. On these grounds, the learned counsel for the Insurance company seeking intervention of this Court for reduction of the compensation to a sum of Rs.13,53,000/- as against Rs.14,87,500/- awarded by the Tribunal.
12. Whereas learned counsel for the claimants viz., F.S. Dabali contended that the Tribunal has awarded compensation in a sum of Rs.14,87,500/- relating to ‘loss of dependency’, ‘loss of estate’, ‘loss of love and affection’ and ‘Transportation of dead body and funeral expenses’ and the same is inadequate. He contended that in the accident that occurred on 3.6.2014, the deceased who was aged about 22 years sustained grievous injuries and lost his breath.
On account of his death, the claimants have lost their earning member of the family and therefore there is no income for their livelihood as they were entirely depending on the deceased son. The same has not been properly considered by the Tribunal even though PWs.1 and 2 have been examined and so also produced the documents Ex.P1 to P7. He contended that Ex.P6 is the salary certificate of the deceased, wherein it is stated that the deceased was a mason and earning Rs.650/- per day. The Tribunal calculated the income of the deceased only for 25 days in a month taking the earnings at Rs.350/- per day, which is not correct. The deceased was discharging duties as a labourer for a period of 30 days in month. Therefore the Tribunal ought to have calculated the income for 30 days in a month i.e., Rs.350/- x 30 = Rs.10,500/- per month. The Tribunal has awarded compensation under the head of ‘loss of dependency’ in a sum of Rs.14,17,5000/- taking the income of the deceased at Rs.8,750/- instead of Rs.10,500/-. Further, the compensation awarded by the Tribunal under the other heads is also inadequate. On these grounds, the learned counsel for the claimants is seeking intervention of this Court for enhancement of the compensation awarded by the Tribunal.
13. In the context of these contentions taken by the learned counsel for the Insurance Company as well as the learned counsel for the claimants in these appeals and considering the age of the deceased and the evidence placed on record, it requires to be stated that the income of the deceased per month is Rs.13,125/- after addition of future prospects and out of which, 50% has to be deducted towards the personal and living expenses of the deceased and therefore the remaining 50% i.e., Rs.6,562=50 per month is the contribution to the family which may be loss of dependency to the claimants. Accordingly, the compensation under the head of ‘loss of dependency’ has been worked out by the Tribunal in a sum of Rs.14,17,500/- (Rs.6,562=50 x 12 x 18). The same has been rightly arrived at by the Tribunal keeping in view of the evidence of PWs.1 and 2 and so also the fact that the deceased has met with an accident and lost his breath at the age of 23 years and he was a mason by avocation etc., 14. Whereas the Tribunal has placed reliance on the rulings in 2013 ACJ 1403 - Rajesh and others vs.Rajbir Singh ; (2012)6 SCC 421 - Santosh Devi vs. National Insurance Company Limited ; (2012)11 SCC 738 – Amrith Banu Shali and others vs. National Insurance Company Limited ; and AIR 2009 SC 3104 – Sarala Verma case. On perusal of the impugned Judgment rendered by the Tribunal, it clearly depicts that the compensation awarded by the Tribunal to the claimants who have lost their son aged about 23 years, is just and proper. Keeping in view of the evidence of PWs.1 and 2 and so also the documents produced by the claimants as per Ex.P1 to Ex.P7 and the rulings cited supra, the Tribunal has rightly awarded compensation in a sum of Rs.14,87,500/- with interest at 6% per annum to the claimants. Therefore there is no merit in the grounds urged in MFA No.4189/2016 filed by the Insurance Company for reduction of the compensation as well as in the grounds urged in MFA No.4950/2016 filed by the claimants for enhancement of compensation and no substantial contentions are raised in these appeals, which call for interference 15. For the aforesaid reasons, these appeals require to be rejected as devoid of merits Accordingly, I proceed to pass the following order:
i) Appeal preferred by the appellant – Insurance Company in MFA No.4189/2016 and so also the appeal preferred by the appellants – claimants in MFA No.4950/2016 are hereby rejected.
ii) The Judgment & Award passed by the Tribunal in MVC No.342/2014 dated 4th November is hereby confirmed.
iii) Amount in deposit, if any before this Court in MFA No.4189/2016 shall be transmitted to the concerned Tribunal forthwith.
SD/- JUDGE Gss/-