IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 7920 OF 2015 (MV) BETWEEN M/s. The Oriental Insurance Co., Ltd., Regional Office No. 44/45, 4th Floor Leo Shopping Complex Residency Road Cross Bengaluru – 560 025 Represented by its Regional Manager.
... Appellant (By Sri. Suresh .K, Advocate) AND 1. Sri Rajappa S/o Sri Subbarayappa Aged about 49 years Presently R/at No.48 Immadahalli Road Channasandra Bengaluru East Taluk Bengaluru – 560 067.
2. Sri P. Shanmugam S/o Sri Ponnappan Major R/at No. 17-49 Ponnayamman Koil Street Chittor Town-517001 Andra Pradesh.
... Respondents (By Sri.Gopalkrishna .N., Advocate for R-1; R-2 - served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 28.07.2015 passed in MVC No. 3455/2014 on the file of the 13th Additional Small Cause Judge and Member, MACT, Bengaluru, awarding a compensation of Rs. 3,65,000/- together with interest @ 9% p.a. from the date of petition till the realization of the compensation.
This MFA coming on for admission, this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant – Insurance Company and the learned counsel for the claimant – respondent No.1 and perused the records. Respondent No.2 – owner is served but remains unrepresented.
2. The insurance company has preferred this appeal, challenging the liability fastened on it and also the quantum of compensation awarded by the XIII Addl. Judge & Member MACT, Court of Small Causes, Bengaluru, in MVC No.3455/2014 by its impugned judgment dated 28.07.2015, seeking reduction in the compensation awarded by the Tribunal.
3. The factual matrix is that on 05.06.2014 at about 1.40 a.m. when the 1st respondent / claimant was proceeding towards a private bus bearing Regn. No.KL- 48 2170 near Thippasandra Village, Malur Taluk, Kolar District to board the same, at that time the driver of the said bus without taking any signals had abruptly moved the bus in a reverse direction at high speed and is said to have dashed against him, as a result of which the 1st respondent sustained severe injuries all over the body. Having suffered injuries due to the accident, the first respondent / claimant filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the vehicle remained absent and was placed exparte. Whereas the insurer appeared and filed their written statement and contested the claim petition. During the enquiry before the tribunal, the claimant had established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant herein.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the notional income of the claimant at Rs.7,500/- per month in view of there being no proof for the same, and applying multiplier ‘15’ since he was aged 45 years, and considering his whole body disability at 10%, the Tribunal had awarded Rs.1,35,000/- (7500 x 12 x 10/100 x 15) towards ‘Loss of future earning capacity and awarded total compensation of Rs.3,65,000/- with interest at 9% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal 6. The learned counsel for the appellant – Insurance Company vehemently contended that the tribunal has erred in considering the age of the claimant to be 45 years. Even as per the claim petition, he was aged 48 years and hence, the Tribunal has erred in applying multiplier ‘15’ considering that he was aged 45 years. Claimant being aged 48 years at the time of the accident, the appropriate multiplier applicable would be ‘14’ and not ‘15’. Hence, learned counsel contends that the appropriate multiplier to be adopted will be ‘14’ instead of ‘15’.
It is his further contention that the Tribunal erred in granting compensation of Rs.60,000/- towards ‘Permanent disability’. When the Tribunal had assessed his whole body disability at 10% and had awarded substantial compensation towards ‘Loss of future earning capacity’, it ought not to have further granted a sum of Rs.60,000/- towards ‘Permanent disability’. Hence, the learned counsel vehemently contends that the Tribunal was not justified in awarding compensation under the said head.
Hence, he contends that the compensation ought to be reduced considerably and the compensation to be awarded requires to be re-worked in view of the change in the age of the claimant and the multiplier and thus compensation awarded by the Tribunal has to be reduced considerably.
7. Per contra, the learned counsel appearing for the first respondent - claimant submitted that the accident being of the year 2014, the monthly notional income of the claimant ought to have been fixed at Rs.8,500/- as per the settled norms, in order to calculate the compensation towards ‘Loss of future earning capacity’. Further, the compensation towards ‘Loss of income during laid up period’ also requires to be enhanced suitably considering the income of the claimant at Rs.8,500/-. On all other aspects, the learned counsel for the claimant contended that the Tribunal has awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that as contended by the learned counsel for the Insurance Company, the age of the claimant has been wrongly adopted as ‘45’. On going through the material on record, I find that the appropriate age of the claimant shall be taken as ‘48’. Hence, the multiplier would be ‘14’. However, the year of the accident being 2014, his income ought to have been taken at minimum Rs.8,500/- instead of Rs.7,500/-. This is a glaring error committed by the Tribunal which requires to be rectified, though it is an appeal filed by the Insurance Company.
Hence, the income of the claimant shall be taken at Rs.8,500/- to compute the compensation towards ‘Loss of future earning capacity’. Now, with Rs.8,500/- as the monthly income and whole body disability at 10% and applying multiplier ‘14’, the compensation towards ‘Loss of future earning capacity’ would come to Rs.1,42,800/- (8500 x 12 x 14 x 10/100) as against Rs.1,35,000/-. Further, the compensation towards ‘Loss of income during laid up period’ is hereby enhanced by another Rs.3,000/- However, the compensation of Rs.60,000/- granted by the Tribunal towards ‘Permanent disability’ is hereby deleted. Hence, the total compensation would come to Rs.3,15,800/-.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Loss of amenities & comfort 30,000 Nil 30,000 Compensati on granted For permanent Disability 60,000 by Tribunal towards the said head is deleted Nil Rs.49,200 Total 3,65,000 Reduced by 3,15,800 Thus, in all, the claimant / 1st respondent is entitled to a total compensation of Rs.3,15,800/- as against Rs.3,65,000/- awarded by the tribunal. The reduced compensation would be Rs.49,200/-. Hence, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 28.07.2015 passed by the Tribunal in MVC No.3455/2014, the compensation payable to the claimant is reduced from Rs.3,65,000/- to Rs.3,15,800/-. The reduction in compensation would come to Rs.49,200/-. However, the impugned judgment and award, in so far as rate of interest at 9% per annum and deposit is concerned, shall remain unaltered. The amount in deposit before this court shall be transmitted to the tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/- JUDGE KS