IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.339/2010(MV) BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., No.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS P.B. No.25123, BANGALORE – 560 025 (REPRESENTED BY ITS DEPUTY MANAGER SMT.SUDHA GANESH) (BY SRI M ARUN PONAPPA, ADVOCATE) AND:
…APPELLANT 1. SRI RAM ASHOK @ ASHOK MAJOR, S/O LATE NAGARA RAO R/AT No.714/1, OLD JANATHA BAZAR DESHADAPETE ROAD, YELAHANKA BANGALORE – 560 064.
2. THE PARTNER M/S.SATI ENTERPRISES No.4-3-406/10, BEHIND S.D.M LAW COLLEGE M.G.ROAD, MANGALORE.
...RESPONDENTS (BY SMT.P V KALPANA, ADVOCATE FOR R1 NOTICE TO R2 IS D/W V/O DTD. 28.09.2012) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.03.2009 PASSED IN MVC No.3135/2007 ON THE FILE OF VII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BANGALORE, AWARDING A COMPENSATION OF Rs.4,80,200/- WITH INTEREST AT 7.5% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the Insurance Company is directed against the judgment and award dated:20.03.2009 passed in MVC No.3135/2007 by the VII Additional Judge, Court of Small Causes and Member, MACT-3, Bangalore, wherein the claim petition filed by the petitioner under Section 163A of M.V Act, came to be allowed in part granting compensation of Rs.4,80,200/- with interest at 7.5% p.a. from the date of petition till deposit and directed the Insurance Company to deposit the same.
2. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
3. The accident that gave rise to initiating proceedings before the Tribunal under Section 163-A of M.V. Act, is a road traffic accident dated 30.3.2007. On that day, by midnight, one Chandrashekar brother of the petitioner was driving Tata Sumo Car bearing Registration No.KA.50.1229 near Mallavvannaghata village, B.M.Road, by that time, a lorry bearing Registration No.KA.19.1B.4563 was being driven in a rash and negligent manner and dashed against the Tata sumo which was being driven by petitioner’s brother. Because of which, petitioner’s brother sustained grievous injuries and succumbed to the same on 31.3.2007 when he was under treatment at Hospital. It is stated that deceased was aged about 21 years and was a driver by profession earning salary of Rs.3,300/- per month. However, as per Ex.P2-P.M.Report, he was aged about 29 years. Petitioner seeks compensation of Rs.15.00 lakh.
4. The claim of the petitioner was resisted by the Insurance Company contending that accident is due to negligence of deceased himself and the case is bad for non joinder of owner and insurer of Tata Sumo as parties and there is no proof of FC, RC permit of the lorry and valid DL of the driver at the time of accident and as such it is not liable to pay compensation.
5. The learned Member was accommodated with the oral evidence of PW1 and documentary evidence of Exs.P1 to P9.
6. Learned Member adjudicated the claim petition under Section 163-A of the MV Act by considering the aspects of accident, negligence, death, dependency and the relationship, allowed the claim petition in part and awarded the compensation of Rs.4,80,200/- with interest as mentioned above. The same is challenged by the Insurance Company.
7. Sri. M. Arun Ponappa, learned counsel for the appellant would submit that the relationship or the accident are not in dispute. However, the question of dependency of the petitioner who is 23 years and sibling of the deceased who was 29 years is disputed as there is no probability of petitioner being the dependent on his elder brother Chandrashekhar during his life time and therefore, he is not entitled for compensation under the head ‘loss of dependency’ and what he is entitled is the compensation only under the head ‘loss of estate’. In this connection, he relied upon the decision of the Division Bench of this Court in the case of A. Manavalagan Vs. Krishnamurthy and others reported in ILR 2004 (3) Karnataka 3268, wherein, the Head Note A to E is as under:
“(A) MOTOR VEHICLES ACT, 1988-SECTION 173(1) – COMPENSATION – METHOD OF COMPUTATION OF- HELD – LAW contemplates two categories of damages on the death of a person – The firs is the pecuniary loss sustained by the dependent members of his family – The second is the loss caused to the estate of the deceased – In the first category, the action is brought by the legal representatives, as trustees for the dependents beneficially entitled – In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate.
(B) MOTOR VEHICLES ACT, 1988– SECTION 168- POWERS OF THE TRIBUNAL UNDER – HELD – Tribunal can specify the persons to whom compensation should be paid and also specify how it should be distributed in the case of first category – But in the case second category, no such adjustments or alteration of shares is permissible and the entire amount has to be awarded to the benefit of the estate.
(C) MOTOR VEHICLES ACT, 1988 – SECTION 168, 173 CLAIM BY THE DEFENDANTS– BASIS FOR AWARD OF COMPESNATION– HELD – The basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(D) MOTOR VEHICLES ACT, 1988–SECTION 168,173 CLAIM BY THE LEGAL REPRESENTATIVES-BASIS FOR AWARD OF COMPENSATION-HELD–The basis for award of compensation is the loss to the estate, that is the loss of saving by the deceased. A conventional sum for loss of expectation of life added.
(E) MOTOR VEHICLES ACT, 1988 – SECTION 168, 173 IF THE CLAIMANT LEGAL HEIR IS N OT A DEPENDANT WHAT WOULD BE THE POSITION-
HELD- Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency.”
Therefore, learned counsel for Insurance company would submit that the dependency cannot exceed 15% and due to passage of time from 2014 to this day, at the most, the said percentage can be doubled.
9. In this connection, I find that reckoning 15% or 30% dependency as submitted by the learned counsel for the Insurance Company would arise when once the court denies the compensation on the ground of loss of dependency. Here when the court is accepting the loss of dependency, limiting the percentage does not arise.
10. Insofar as ‘dependency’ is concerned, it is a circumstance under which the dependent depends on the other for necessities. Here, the victim of the accident was Chandrashekhar. He was elder brother of the petitioner. It is submitted that Chandrashekhar had no parents as they were pre deceased nor any other siblings or wife or children and both the brothers are said to be unmarried. The dependency of the claimant on his brother cannot be ruled out even considering financial status of the claimant in the present case. Further, there is no specific denial or assertion before the Tribunal by the Insurance Company and so also there are no corroborating material or circumstance to negate the claim regarding dependency by the claimant.
11. The learned Member considering the income of the deceased at Rs.3,300/- as he was said to be a driver by profession, applying multiplier 18 and after deducting 1/3rd towards his personal and living expenses, has arrived loss of dependency at Rs.4,75,000/- and Rs.5,000/- towards funeral and medical expenses. In all, the Tribunal has awarded the compensation of Rs.4,80,200/-. Insofar as quantification of compensation is concerned, it does not requires to be altered either for reducing or for increasing it.
12. Thus, I concur with the findings of the learned Member of the Tribunal both on the aspect of quantum of compensation and liability. Hence, the appeal filed by the appellant is liable to be rejected and accordingly, it is rejected.
tsn* Sd/- JUDGE