IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.329 OF 2018 [MV] CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO.2295 OF 2018 [MV] IN MFA NO.329/2018:
BETWEEN THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., NO.28, EAST WING, 5TH FLOOR, CENTENARY BUILDING, M.G. ROAD, BANGALORE-560 001. ... APPELLANT [BY SRI.PRADEEP B., ADVOCATE] AND 1. SMT. RAJESHWARI, W/O. LATE AKSHATH M., NOW AGED ABOUT 34 YEARS, 2. KUSUMITHA A., S/O. LATE AKSHATH M., NOW AGED ABOUT 8 YEARS, 3. MYLARAPPA L., S/O. LINGAPPA, NOW AGED ABOUT 63 YEARS, 4. SMT. BALAMANI B.P., W/O. MYLARAPPA, NOW AGED ABOUT 61 YEARS, ALL ARE R/AT NO.60, 1ST CROSS, GOVINAYAKANAHALLI, 1ST STAGE, KUMARASWAMY LAYOUT, BENGALURU-560 078.
RESPONDENT NO.2 IS SINCE MINOR REP. BY HER NATURAL GUARDIAN - 1ST RESPONDENT, MOTHER.
5. RAVIKUMAR A., S/O. APPAJI GOWDA, MAJOR, R/AT NO.82, GANDHINAGARA, UTTARAHALLI MAIN ROAD, THALAGATTAPURA, BANGALORE-560 062. ... RESPONDENTS [BY SRI.PRAKASH M.H., ADVOCATE FOR R1 TO R4; R5 - NOTICE DISPENSED WITH] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2017, PASSED IN MVC NO.4797/2015 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE & XXXIII ACMM AND MEMBER, MACT, BENAGALURU [SCCH-5], AWARDING COMPENSATION OF RS.16,57,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
* * * IN MFA NO.2295/2018: BETWEEN 1. SMT. RAJESHWARI, W/O. LATE AKSHATH M., AGED ABOUT 34 YEARS, 2. KUM. KUSUMITHA A., D/O. LATE AKSHATH M., AGED ABOUT 7 YEARS, 3. SRI. MYLARAPPA L., S/O. LINGAPPA, AGED ABOUT 62 YEARS, 4. SMT. BALAMANI B.P., W/O. LATE MYLARAPPA, AGED ABOUT 60 YEARS, ALL ARE R/O: NO.60, 1ST CROSS, GOVINAYAKANAHALLI, 1ST STAGE, KUMARASWAMY LAYOUT, BANGALORE-560 078. ... APPELLANTS RESPONDENT NO.2 IS SINCE MINOR REP. BY HER NATURAL GUARDIAN - 1ST RESPONDENT, MOTHER.
[BY SRI.PRAKASH M.H., ADVOCATE] AND 1. RELIANCE GEN INS. CO. LTD., OFFICE AT NO.28, 5TH FLOOR, CENTENARY BUILDING, M.G. ROAD, BANGALORE-560 001, REP. BY ITS MANAGER.
2. SRI. RAVIKUMAR A., S/O. APPAJI GOWDA, MAJOR, R/AT NO.82, GANDHINAGARA, UTTARAHALLI MAIN ROAD, THALAGATTAPURA, BANGALORE-560 062. ... RESPONDENTS [BY SRI. B.PRADEEP, ADVOCATE FOR R1. R2 - NOTICE DISPENSED WITH] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2017 PASSED IN MVC NO.4797/2015 ON THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM AND MEMBER, MACT, BENGALURU, [SCCH-5] IN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * THESE MFAs COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.329/2018 is filed by the Insurance Company, challenging the quantum of compensation and MFA No.2295/2018 is filed by the claimants seeking enhancement of compensation. Both the appeals are directed against the Judgment and Award dated 04.11.2017 passed in MVC No.4797/2015 on the file of the Court of VIII Additional Small Causes Judge & XXXIII ACMM and Member, MACT, Bengaluru [SCCH-5].
2. The claimants are the widow, minor daughter and parents of the deceased by name Akshath M. It is the case of the claimants that on 04.11.2015 at about 4.15 a.m., the deceased Akshath M., was proceeding in a TATA Ace bearing reg. No.KA-05/AE-5785 from Kanakapura towards bengaluru side. When the said vehicle was near Devarakaggalahalli cross, NH-209, Harohalli Hobli, Kanakapura Taluk, Ramanagara District, the driver of one Mahindra LGV bearing reg. No.KA-05/AC-6433 by driving the said vehicle in a rash and negligent manner came to the extreme right side of the road and hit against the vehicle in which the deceased was traveling. On account of which, the deceased sustained multiple injuries all over the body and he was shifted to Victoria Hospital. However, not responding to the treatment, he succumbed to the injuries on the same day at 5.30 p.m.
It is the further case of the claimants that the deceased was working as a Field Executive at Flip Kort [Instakort] Pvt. Ltd., Bengaluru and he was earning a sum of Rs.15,000/-
p.m. and due to his untimely death, the claimants have been undergoing great hardship and untold misery since the deceased was the only earning member of the family and the claimants were solely depending on the earnings of the deceased.
Before the Tribunal, the wife of the deceased was examined as P.W.1. Exs.P1 to 19 were marked in evidence on behalf of the claimants. On behalf of the respondents no witnesses were examined and no documents came to be marked.
The Tribunal after considering the oral and documentary evidence awarded a total compensation of Rs.16,57,000/-
with interest at the rate of 9% p.a. from the date of petition till realization under the following heads:
Particulars Amount in Rs.
3. Assailing the quantum of compensation awarded by the Tribunal, the learned counsel appearing for the Insurance Company contended that the Tribunal has awarded an excessive compensation by taking the income of the deceased at Rs.7,000/- p.m. He would place reliance on Ex.P10, the notarized copy of the ration card issued in favour of the wife of the deceased and contends that it is a BPL card and therefore, it cannot be said that the family of the deceased was having an income of Rs.7,000/- p.m., which comes to Rs.84,000/- per annum. He would also contend that even according to P.W.1, the father of the deceased was working in a company and therefore, he was not a dependent. Hence, the Tribunal was not proper in deducting 1/4th of the income towards personal expenses of the deceased, on the other hand the deduction should have been 1/3rd. The learned counsel appearing for the appellant also contended that the interest awarded at 9% p.a. in the facts and circumstances of the case is on the higher side and accordingly, he seeks to allow the appeal filed by the Insurance Company.
On the other hand, the learned counsel appearing for the claimants by placing reliance on Exs.P15 to 17 contends that the deceased was appointed as an Executive-Delivery [VAN], based at WS Retail Services Pvt. Ltd.-WS-Bangalore and he was earning a salary of Rs.12,810/-. He has also placed reliance on the copy of the Statement of the Account of the Bank, marked at Ex.P19 to show that more than Rs.12,000/- was credited to the account of the deceased on two occasions. He further contended that though it is admitted by P.W.1 that the father of the deceased was working in a Company, however, prior to the accident in this case, he retired and he was therefore depending on the income of the deceased and hence, he cannot be considered as a non-dependent. He submits that the total compensation awarded by the Tribunal is on a lower side and accordingly seeks to enhance the compensation by modifying the Judgment and Award passed by the Tribunal.
4. The accident involving the offending vehicle bearing reg. No.KA-05/AP-6433 owing to the rash and negligent driving by its driver and the said vehicle being insured at the relevant time is not disputed.
5. According to the claimant, the deceased was having an income of more than Rs.12,000/- p.m. Ex.P15 is the letter of appointment showing that the deceased was appointed as an executive on contractual basis and his salary as per Ex.P17 was Rs.10,150/-. The claimants have not examined the employer or the person who issued Exs.P15 to 17. From the statement of the bank account and from the documents on record it cannot be conclusively held that the deceased was having a permanent job with salary over Rs.12,000/- p.m. However, considering the facts and circumstances of the case, the income taken by the Tribunal at Rs.7,000/- p.m. is also on a lower side. Considering that the claimants are the widow, minor daughter and parents of the deceased, I deem it appropriate to take the income of the deceased at Rs.10,000/- p.m. The deceased was aged about 34 years at the time of the accident and therefore, appropriate multiplier applicable is ‘16’ to the said age group. Further, 40% of the income is required to be added towards future prospects.
6. It is the contention of the learned counsel of the Insurance Company that the father of the deceased was not a dependant since he was working in a company. In this regard, the evidence of P.W.1 discloses that her father was working in a company. However, she has stated that he is not going to the company and she has denied the suggestion that her parents-in-law were managing themselves with the pension received by her father-in-law. There is nothing on record to show that the father of the deceased was working in the company at the time of the accident and subsequent to the death of his son or that he was getting pension. In that view of the matter, the contention of the learned counsel for the Insurance Company cannot be accepted. The Tribunal was therefore justified in deducting 1/4th of the income towards the personal expenses of the deceased.
7. The income of the deceased having been assessed at Rs.10,000/- p.m. and by adding 40% to the said income towards future prospects and deducting 1/4th towards personal expenses and applying ‘16’ as the multiplier, the total sum entitled by the claimants towards loss of dependency would be Rs.20,16,000/- [Rs.10,000 + 40% - 3,500 x 12 x 16]. A sum of Rs.70,000/- is awarded under the conventional heads.
8. The compensation of Rs.50,000/- each awarded by the Tribunal towards loss of love and affection in respect of petitioner Nos.2 to 4 is not disturbed. Hence, the claimants are entitled for a total compensation of Rs.22,36,000/- as against Rs.16,57,000/- awarded by the Tribunal.
9. The accident has occurred in the year 2015.
Considering the facts and circumstances of the case, the interest awarded by the Tribunal is on a higher side.
Accordingly, the interest awarded by the Tribunal is scaled down to 6% p.a. Accordingly, I pass the following:
ORDER Both the appeals are allowed in part. The Judgment and Award dated 04.11.2017 passed in MVC No.4797/2015 on the file of the VIII Additional Small Causes Judge and XXXIII ACMM and Member, MACT, Bengaluru is hereby modified.
The claimants are entitled for a total compensation of Rs.22,36,000/- with interest at the rate of 6% p.a. from the date of petition till realization. The amount in deposit before this Court shall be transmitted to the Tribunal.
The apportionment and disbursement of the compensation shall be in terms of the order passed by the Tribunal.
Sd/- JUDGE.
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