IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY M.F.A.NO.10547/2013(MV-D) BETWEEN 1. MRS MARILYN PHILIP ALSO KNOWN AS MARILYN PERSIS THARMARAJ W/O LATE ALVIN PHILIP HOMANDOSS AGED ABOUT 33 YEARS PRESENTLY RESIDING AT C/O MRS.T.EVELYN DELIGHT 62/1, BHARATHI STREET ATHEPET CHELLIAMMAN NAGAR AMBATTUR, CHENNAI -600 058 2. MASTER DANIEL CHRISTOPHER S/O LATE MR. ALVIN PHILIP MOHANDOSS AGED ABOUT 7 YEARS PRESENTLY RESIDING AT C/O MRS. T. EVELYN DELIGHT 62/1, BHARATHI STREET ATHEPET, CHELLIAMMAN NAGAR AMBATTUR, CHENNAI 600 058 MINOR REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER MRS. MARLIYN PHILIP ...APPELLANTS (BY SRI CHRISTOPHER.E, ADVOCATE) AND 1. MR MANJUNATH K S/O NARAYANA K.M.
AGED ABOUT 33 YEARS RESIDING AT NO.29, 19TH CROSS KAGGADASA PURA C.V. RAMAN NAGAR (P) BANGALORE 560 093 (DRIVER OF SWIFT CAR NO.KA-03-MK-9380) 2. MR. K.M. NARAYANA (SINCE DEAD REP. BY HIS LRS) 2(a) MRS. K.N. RAJESHWARI D/O LATE K.M. NARAYAN W/O CHANDRAPPA AGED ABOUT 46 YEARS R/A NO.27, BBMP WARD NO.43 S.G. PALYA, C.V. RAMAN NAGAR BANGALORE -560 093 2(b) MRS. K.N. VISHALAKSHI D/O LATE K.M. NARAYAN AGED ABOUT 43 YEARS R/A NO.432, 1ST FLOOR, II CROSS I STAGE, INDIRANAGAR BANGALORE- 560038 2(c) MRS. K.N. PUSHKARNI D/O LATE K.M. NARAYAN W/O VIJAYAKUMAR M AGED ABOUT 41 YEARS R/A NO.257, RAMA NILAYA SHARDHA COLONY BASAVESHWARANAGAR BANGALORE 560 079 2(d) MRS. K.N. NETHRAVATHY D/O LATE K.M. NARAYAN W/O RAMESH V AGED ABOUT 35 YEARS R/A MIG-18, 4TH PHASE YELAHANKA NEW TOWN (63 EXPERIMENTAL HOUSES) BANGALORE 560 065 (OWNER OF OFFENDING VEHICLE) 3. MR. ASIF KHAN M S/O MAHABOOB KHAN AGE MAJOR R/A 1-141 KHAJIPET V. KOTA (P & M) CHITTOR DISTRICT ANDHRA PRADESH 4. MR. MOHAMMED ZIAULLAH S/O MOHAMMED OBEDULLAH NO.4109, THYAGARAJA NAGAR COLONY, MULABAGAL KOLAR DISTRICT KARNATAKA (OWNER OF PRIVATE BUS KA-07-8370) 5. ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD.
OFFICE AT “SRI BALAJI SOVEREIGN” IIND FLOOR, 132, BRIGADE ROAD BANGALORE 560 025 REPRESENTED BY ITS REGIONAL MANAGER ALSO AT ROYAL SUNDRAM ALLIANCE INSURANCE COMPANY LIMITED SUNDRAM TOWERS, 45 & 46 WHITES ROAD, CHENNAI 600 014 (INSURER OF MARUTI SWIFT CAR KA-03-MK-9380) 6. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED NO.9/1, HAVING ITS BRANCH OFFICE AT NO.135/5, 15TH CROSS J.P. NAGAR IIIRD PHASE BANGALORE -560078 REPRESENTED BY ITS BRANCH MANAGER ALSO AT CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD.
2ND FLOOR, “DARE HOUSE” NO.2, NSC BOSE ROAD CHENNAI -600 001 …RESPONDENTS (BY SRI K.SURYANARAYANA RAO, ADVOCATE FOR R5, R2(A), R2(B), R2(C), R3 & R4 ARE SERVED VIDE ORDER DATED 30.11.2017, NOTICE TO R1, R2(D) & R6 ARE DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 06.04.2013 PASSED IN MVC NO.6529/2013 ON THE FILE OF THE VII ADDL. SMALL CAUSES JUDGE, MEMBER, MACT-3, BANGALORE PARTLY ALOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The claimants in MVC No.6529/2010 on the file of the VII Additional Small Causes Judge, Member, Motor Accident Claims Tribunal-3 (for short ‘Tribunal), Bangalore, have come up in this appeal seeking enhancement of compensation.
2. The claim petition in MVC No.6529/2010 was filed by the appellants herein seeking compensation for the death of husband of the 1st claimant and father of the minor son - 2nd claimant namely Alvin Philip Mohandoss. The records would indicate that on 21.07.2010 while the deceased Alvin Philip Mohandoss was riding his motorcycle bearing Reg.No.KA-03-MK-9380, at about 10.15 a.m., while he was passing by a parked Swift car bearing Reg.No.KA-03-MK-9380, the driver of the said Car opened the door of his car blocking the way of the rider of the motorcycle resulting the bike on which he was traveling in hitting the door of the car and consequently the rider of the bike fell on the right side of the road. It is seen, at the same time, a private bus which was coming behind him bearing Reg.No.KA-07-9970 went over the rider of the motorcycle resulting in his instant death.
3. In this background, a claim petition was filed by the wife and minor son of deceased seeking compensation for his death in the road traffic accident involving the aforesaid two vehicles. In the proceedings before the Tribunal, it was contended that the deceased- rider of the motorcycle was a Software Engineer by profession and was working at IBM India Private Limited at the relevant point of time on an annual package of Rs.9,72,000/- and due to his death, family of the deceased lost not only his love and affection but also the bread winner of the family. Hence, the claim petition was filed seeking compensation in a sum of Rs.1,35,25,000/-. In the said proceedings, the 1st claimant adduced evidence as PW1 to substantiate her claim in support of the avocation and income of the deceased; In order to support and substantiate the claim regarding income, an Officer of the IBM Company where the deceased was working was examined as PW2.
4. Per contra, in the said proceedings, since two vehicles were involved in causing the accident, owners and insurers of both the vehicles were examined. In support of their contention, in all three witnesses were examined as RW1 to RW3.
5. The Tribunal, on appreciation of pleadings and evidence, proceeded to allow the claim petition awarding compensation to the claimants in a sum of Rs.88,54,360/- payable with interest at 8% p.a. from the date of petition till realisation. While doing so, the Tribunal saddled the entire liability to pay compensation on the owner and insurer of the Swift Car, which was involved in the accident. It is seen that the judgment and award passed by the Tribunal on 06.04.2013 was the subject matter of challenge by the claimants in so far as it pertains to quantum of compensation in MFA No.10547/2013. However, with regard to fastening of the liability on the insurer of the Swift car, the insurer filed an appeal in MFA No.6330/2013. The appeal filed by the Insurance and as well as the claimants’ appeal (MFA No.10547/2013) were taken up together by the co-ordinate bench of this Court and both the appeals were dismissed by judgment dated 07.04.2015.
6. Being aggrieved, a Special Leave Petition was filed by the Insurance Company in C.A. No.7069/2015 and the Special Leave Petition to the appeal filed by the claimants was numbered as S.L.P. No.6/16 which came to be disposed of by order dated 19.01.2016 reserving liberty to the petitioners to approach this Court by filing a review petition seeking review of the common judgment dated 07.04.2015 where the appeal filed by the claimants seeking enhancement was dismissed along with the appeal was filed by the insurer challenging the liability saddled on it. Similarly, the Apex Court, which had allowed the Special Leave Petition filed by the insurer of the Swift Car was numbered it as C.A.No.7069/15 and proceeded to dismiss the appeal filed by the Insurer by its order dated 31.01.2015 holding that the finding of the Tribunal and as well as the co-ordinate bench of this Court in saddling the liability to pay compensation on the insurer of the Swift Car was accepted and reached finality and in this background, a review petition was filed by the claimants herein in R.P.No.184/2016 before the co-ordinate bench of this Court, which came to be allowed by order dated 23.06.2017 by restoring the appeal for fresh consideration.
7. It is in this background, the present appeal which is filed by the claimants seeking enhancement is taken up for consideration on merits in the presence of the learned counsel Sri Christopher E., learned counsel for the claimants and Sri K.Surya Narayana Rao, learned counsel for the contesting respondent-Insurer of the Swift Car. Heard the learned counsel for the appellants and as well as the contesting respondents. Perused the grounds urged with reference to findings of the Tribunal in MVC No.6529/2010.
8. On going through the records, it is seen that the accident is not in dispute. Liability to pay compensation saddled on the owner and the insurer of the Swift Car, which caused accident is also not in dispute. The dispute is only with reference to quantum of compensation and the manner in which the same was determined by the Tribunal.
9. As could be seen from the original records, the monthly salary of the deceased for the month of July 2010 prior to the accident is Rs.65,150.71 ps. vide Ex.P23, though the claimants contended that the deceased had an annual pay package of Rs.9,72,000/- vide Ex.P22. When Ex.P23 and other relevant documents are looked into, it would indicate that his take home salary in the month of July 2010 was Rs.65,150.71 ps., which ought to have been taken by the Tribunal. If that is taken into consideration, the claimants are also entitled to seek future prospects available to the deceased, which should be taken at 40% of the salary drawn at the relevant point of time.
10. Accordingly, the compensation payable to the claimants is reassessed as under:
(i) When the last drawn salary of the deceased being at Rs.65,150.71 per month, another 40% is added towards future prospects to that which will take the notional income for calculation of compensation is at Rs.91,210.99 per month. Incidentally, the family of the deceased includes himself, his wife and his minor son. Therefore, 1/3rd of his income is required to be kept aside for his personal expenses and remaining 2/3rd is the loss of dependency available to the claimants which would come to Rs.60,807.33 per month and Rs.7,29,687.96 per annum. The relevant multiplier which is taken by the Tribunal is ‘16’ and the same is continued. With that, total compensation the claimants are entitled to receive under ‘loss of dependency’ is Rs.1,16,75,007.36 for which another sum of Rs.70,000/- is required to be considered under conventional heads. Thus, the total compensation that the claimants will be entitled to is Rs.1,17,45,007.36 rounded off to Rs.1,17,45,000/- as against the total compensation awarded by the Tribunal at Rs.88,54,360/-. Accordingly, the appeal filed by the claimants is allowed.
(ii) So far as the apportionment of the compensation awarded by the Tribunal is concerned, the same should be apportioned at a ratio of 40% to the wife and 60% to the minor son of the deceased. Since the 2nd claimant being minor, the entire amount of compensation awarded to him with interest should be deposited in his name in any Nationalised Bank to yield monthly income for his education and the principle amount which is ordered to be invested in his name shall be invested till he attains the age of 21 years and thereafter which shall be available to him. So far as the compensation which is awarded to the 1st claimant-wife being 60% of total compensation towards her share; out of that 80% inclusive of interest shall be deposited in any Nationalised Bank to ensure that there is continuous flow of monthly income for maintenance of herself and her minor son. The said deposit shall be in any Nationalised Bank initially for a period of five years and be renewed for the next two terms. In between, if the 1st claimant-wife intends to invest in any immovable property or in any government scheme yielding higher returns, liberty is reserved to her to approach this Court seeking modification of this portion of the order.
(iii) In this proceedings, a portion of the compensation awarded is said to deposited by the Insurer of the Swift Car and the same is ordered to be released in favour of the appellants-claimants and additional amount if any, shall be deposited within eight weeks from the date of receipt of copy of this order.
With the aforesaid observation and direction, the appeal filed by the claimants is allowed in part.
Sd/- JUDGE Sd/- JUDGE TL