IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT M.F.A No.5357 OF 2010 (MV) BETWEEN THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, BEAUTY PLAZA, BALMATTA ROAD, MANGALORE – 575 001.
DULY REPRESENTED BY:
THE REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD, BANGALORE – 560 025.
BY ITS MANAGER. ... APPELLANT (BY SRI. A RAVISHANKAR, ADVOCATE) AND 1. SMT. GULABI, AGED ABOUT 58 YEARS, W/O LATE SRI KORAGAPPA POOJARI 2. SMT. ROOPAKALA, AGED ABOUT 29 YEARS, D/O LATE SRI.KORAGAPA POOJARI, BOTH ARE RESIDING AT KALLAPU HOUSE, KOLAMBI VILLAGE, MANGALORE – 575 001.
3. SRI. B.M. CHANDRASHEKARA SHETTY, AGED ABOUT 50 YEARS, S/O SRI. DHARMAPALASHETTY, UPASANI HOUSE, KADRI TEMPLE ROAD, MANGALORE – 575 001. ... RESPONDENTS (BY SRI. S VISWAJITHSHETTY, ADVOCATE FOR R1 & R2) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.03.2010 PASSED IN MVC NO.1980/2005 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE AND MEMBER MACT-III DAKSHINA KANNADA, MANGALORE AWARDING A COMPENSATION OF RS.4,12,500/- WITH INTEREST AT 6% P.A FROM THE DATE OF PETITION TILL REALISATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal by the Insurer calls in question the judgment and award dated 23.03.2010 made by MACT III, Mangaluru, allowing M.V.C.No.1980/2005 whereby, a compensation of Rs.4,12,500/- with interest at the rate of 6 % per annum has been awarded, subject to the usual condition of bank deposit.
2. The learned counsel for the appellant-Insurer contends that the MACT grossly erred in taking the age of the deceased when the mother was aged 53 years as the relevant factor for determining the compensation. Secondly, he submits that the compensation awarded is on the higher side and therefore, the indulgence of the Appellate Court is warranted.
3. The learned counsel for the Claimants per contra submits that it is the settled legal position that the age of the deceased is relevant and not the age of the mother of the deceased. She further submits that the compensation has been determined by the MACT keeping in view the evidentiary material on record and the principles that ordinarily govern determination of the compensation in these matters and therefore, the wisdom of the MACT cannot be put to challenge, in the absence of any cogent ground being shown.
4. I have heard the learned counsel for the appellant-Insurer and the learned counsel for the claimants; I have perused the Appeal Papers.
5. In determining the compensation, the age of the mother who was the claimant is not relevant; what is relevant is the age of the deceased himself and therefore, the judgment and award cannot be faltered on the ground urged by the appellant-Insurer, as rightly pointed out by the claimant’s side. Even as to the quantum of compensation, no legal defects are shown in terms of law or facts in the impugned judgment and award, as to warrant indulgence of this court.
6. The learned counsel for the claimants submits that apparently what has been awarded as compensation is less than what a reasonable person in the armchair of the MACT would have awarded and therefore, notwithstanding, no appeal by the claimants, it is open to this court to enhance the compensation in the appeal filed by the Insurer. This proposition of law is doubtful in as much as in a catena of judgments, the Apex Court has held that the appellant cannot be worse off, in his appeal. No special circumstances are pointed out as to how this court can grant enhancement of compensation in the facts and circumstances of the case, either, even assuming that such claim is legally maintainable.
In view of the above, this appeal fails. The amount in deposit shall be transmitted to the jurisdictional MACT which in turn shall release the same as compensation to the claimants, forthwith.
No costs.
Sd/- JUDGE cbc