IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B V NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.1185 OF 2015 (MV-D) BETWEEN :
THE ORIENTAL INSURANCE CO., LTD., REGIONAL OFFICE, LEO SHOPPING COMPLEX, #44/45, RESIDENCY ROAD, BENGALURU-560 025.
REP. BY ITS DEPUTY MANAGER SMT. B.S.PADMAJA. ... APPELLANT (BY SRI.K.S.LAKSHMINARASAPPA FOR; SRI. SEETHA RAMA RAO B.C., ADVOCATES) AND:
1. SMT. BIBI JAN @ BEBIJAN, ALIAS SAYEEDA KHATUS, AGED ABOUT 30 YEARS, W/O LATE SADATH ULLA KHAN ALIAS SADATH ULLA JAN, 2. MASTER. SAHAD KHAN, AGED ABOUT 10 YEARS, 3. MASTER AVEZ KHAN, AGED ABOUT 7 YEARS, 4. MASTER UMMAR KHAN, AGED ABOUT 4 YEARS, RESPONDENTS NO.2, 3 AND 4 ARE CHILDREN LATE SADATH ULLA KHAN ALIAS SADATH ULLA JAN AND MINORS, REPRESENTED BY THEIR MOTHER THE FIRST RESPONDENT HEREIN.
ALL ARE RESIDENTS OF HANUMANTHA NAGARA, VOKKALERI POST, KOLAR TALUK & DISTRICT – 563 101.
5. M/S. M.V.R.GAS, NO.801, 9TH MAIN, 3RD BLOCK, KORAMANGALA, BENGALURU-34.
... RESPONDENTS (BY SRI. GOPALA KRISHNA.N, ADVOCATE FOR R1 TO R4; R2 TO 4 MINORS REP. BY R1; R5 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.10.2014 PASSED IN MVC NO.3026/2013 ON THE FILE OF THE XIX ADDITIONAL SCJ & MACT, BANGALORE, AWARDING A COMPENSATION OF RS.22,07,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS M.F.A COMING ON FOR ORDERS THIS DAY, ASHOK G. NIJAGANNAVAR DELIVERED THE FOLLOWING:
JUDGMENT This is the insurer’s appeal, challenging the correctness of the judgment and award dated 30.10.2014 passed in MVC No.3026/2013 by the XIX Addl. SCJ and Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as “Tribunal”, for the sake of brevity).
2. The appellants being the legal representatives of the deceased, had filed claim petition seeking compensation on account of the death of Sri Sadath Ulla Khan @ Sadath Ulla Jan in a motor vehicle accident that occurred on 02.02.2013. According to the claimants, on the fateful day, Sadath Ulla Khan was proceeding on his motorcycle bearing Reg.No.KL-03-A-8115 on Kolar-Malur road, at about 09.15 p.m. When he was near Chowdadenahalli-Mangasandra Gate, a Tempo bearing Reg.No.KA-01-AB-3085 came from the opposite direction in a high speed and rash and negligent manner and dashed to the motorcycle. Due to the said impact, the rider of the motorcycle sustained grievous injuries and died on the spot. Due to the untimely death of the deceased, the widow and the children of the deceased have contended that they have become orphans and have lost financial support. That the accident was due to the rash and negligent driving of the driver of the Tempo. Therefore, they have sought for compensation by filing the claim petition.
3. On service of notice, respondent No.1-owner of the vehicle has not opted to appear before the Tribunal hence, he was placed ex parte.
4. Respondent No.2 - insurer of the vehicle appeared and filed statement of objections denying the averments made in the claim petition. Further insurer contended that the driver of the Tempo was not having a valid and effective driving license at the time of accident. The respondent No.2 is not liable to pay the compensation as there was breach of terms and conditions of the policy.
5. On the basis of the rival pleadings the Tribunal formulated the following issues:
“1. Whether the petitioners proves that on 02.02.2013 at about 9.15 p.m. when the deceased Sadath Ulla Khan was riding Motor Cycle bearing Reg.No.KL-03-A-8115 at chowdadenahalli – Mangasandra Gate, on Kolar-Malur road, a Tempo bearing Reg.No.KA-01-AB-3085 came from the opposite direction with high speed in a rash and negligent manner, dashed against the deceased Motor Cycle. As a result of which he died on the spot as alleged?
2. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or decree?”
6. In order to prove the claim, the claimant No.1 was examined as P.W.1 and documents were marked as Exs.P-1 to P-15. Respondent No.2 has not led any evidence.
7. On appreciating the oral and documentary evidence placed on record, the Tribunal came to the conclusion that the accident was due to rash and negligent driving of driver of the Tempo and awarded compensation as detailed below:
1) Towards loss of dependency Rs.20,52,000/-
2) Towards loss of consortium Rs. 1,00,000/-
3) Towards loss of love and affection Rs. 30,000/-
4) Towards funeral expenses Rs. 25,000/-
Total Rs.22,07,000/-
8. Being aggrieved by the judgment and award passed by the Tribunal, the Insurance Company has preferred this appeal contending that the Tribunal has committed an error in considering the monthly income of the deceased at Rs.9,500/-. The evidence of P.W.2 do not inspire confidence to believe the version put forth regarding the income of the deceased. Ex.P-9-salary certificate appears to have been created for the purpose of getting higher compensation. The Tribunal has erred in adding 50% of income towards loss of future prospects which is not permissible in law. The compensation awarded is highly excessive and disproportionate to the loss suffered by the claimants.
9. We have heard the learned counsel for the appellant-insurer (Oriental Insurance Company Limited) and learned counsel for the respondents-claimants and perused the judgment and award passed by the Tribunal.
10. Reiterating the grounds urged in the appeal, learned counsel for the appellant – Insurance Company submitted that the quantum of compensation awarded by the Tribunal is not justified, as such, the same requires to be scaled down.
11. Per contra, the learned counsel for the respondents-claimants submitted that the compensation awarded by the Tribunal is quite reasonable and there are no valid grounds to interfere with the impugned judgment and award.
12. In view of the contentions urged by the learned counsel for both sides, the points that arise for consideration are as follows:
“1. Whether the compensation awarded by the Tribunal is proper and justified?
2. What order?”
13. In the present case, the appellant-Insurance Company has admitted its liability, the grievance is only in respect of the quantum of compensation awarded by the Tribunal.
14. It is the case of the respondents-claimants that the deceased was working as a Marketing Executive. In order to prove the said contention, the salary certificate of the deceased is marked as Ex.P-9. Ex.P-14 is the VAT registration certificate. The Tribunal, considering the salary certificate and other concerned records, has come to the conclusion that the deceased was drawing salary of Rs.9,500/- per month. Then, relying on the judgments of the Hon’ble Supreme Court in the case of Rajesh and others v. Rajbir Singh and others reported in 2013 ACJ 1403 SC and in Sarala Verma vs. Delhi Transport Corporation reported in 2009 ACJ 1298 (SC), has added 50% to the established income. Considering the number of dependents, 1/4th is deducted out of the said amount towards personal expenses. After making necessary calculations, the Tribunal has awarded a compensation of Rs.20,52,000/-.
15. During the course of arguments, the learned counsel representing the appellant-Insurance Company submitted that the Tribunal has committed an error in calculating the compensation towards loss of dependency. It is contended that, in view of the principle laid down in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, 40% of the income has to be added to the established income of the deceased, instead of 50%. It is an admitted fact that the deceased was working in a private firm and it was not in a permanent job. Thus, as rightly contended by the learned counsel for the appellant – Insurance Company, 40% of the salary is required to be added to the salary of the deceased. There is no dispute about the age of the deceased and the multiplier to be applied. Thus, as per necessary calculations, the compensation under the head of loss of dependency would be Rs.19,15,200/- (Rs.9975 X 12 X 16).
16. In view of the ratio laid down in the decision in the case of Magma General Insurance Company Limited vs. Nanu Ram, reported in 2018 ACJ 2782, compensation has to be awarded to the family members towards loss of consortium. In the present case, the legal representatives of the deceased are wife and three children. Therefore, we are inclined to award a sum of Rs.40,000/- towards loss of spousal consortium and Rs.30,000/- each towards loss of parental consortium to the three children of the deceased. In addition to that, a sum of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses are awarded.
17. Thus, the reassessed compensation is as under:
1. Towards loss of dependency Rs.19,15,200.00
Total Rs.20,75,200.00 18. In the result, the reassessed compensation is Rs.20,75,200/- instead of Rs.22,07,000/- as assessed by the Tribunal. The same shall carry interest at the rate of 6% p.a. from the date of claim petition till realization.
19. In the result, appeal filed by the Insurance Company is allowed-in-part. The judgment and award dated 30.10.2014 passed in MVC No.3026/2013 by the XIX Addl. SCJ and Motor Accident Claims Tribunal, Bengaluru, is modified.
The appellant-Insurance Company is directed to pay the compensation of Rs.20,75,200/- instead of Rs.22,07,000/- awarded by the Tribunal, with interest at the rate of 6% from the date of petition till realization.
The apportionment of compensation made by the Tribunal is accepted. However, 50% of the compensation apportioned to respondent No.1 herein shall be deposited in any Post Office or Nationalised Bank initially for a period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her on proper identification.
If 50% of the compensation is deposited before the Tribunal as per the Order dated 07.04.2015 and the same has been withdrawn, the differential amount payable along with interest shall be deposited by the appellant-Insurance Company within a period of four weeks from the date of receipt of certified copy of this judgment.
The amount in deposit to be transmitted to the Tribunal.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE BSR