IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.404/2019 C/W M.F.A.No.9091/2018(MV) IN MFA No.404/2019 BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED TP HUB, REGIONAL OFFICE LEO SHOPPING COMPLEX NO.144/145 RESIDENCY ROAD CROSS BENGALURU-560 025 NOW REPRESENTED BY MANAGER LEGAL ..APPELLANT (BY SRI ASHOK N PATIL, ADVOCATE) AND:
1 . KUPPAMMA W/O BABU M AGED ABOUT 38 YEARS (MOTHER OF THE DECEASED) NO.35/6 MAGADI MAIN ROAD AGRAHARA DASARAHALLI BENGALURU NORTH BENGALURU-560 079 2 . BABU M S/O MARIMUTHU AGED ABOUT 40 YEARS (FATHER OF THE DECEASED) NO.35/6 MAGADI MAIN ROAD AGRAHARA DASARAHALLI BENGALURU NORTH BENGALURU-560 079 3 . AMULYA D/O BABU M AGED ABOUT 18 YEARS (SISTER OF THE DECEASED) NO.35/6 MAGADI MAIN ROAD AGRAHARA DASARAHALLI BENGALURU NORTH BENGALURU-560 079 4 . VEDHA D/O BABU M AGED ABOUT 16 YEARS (SISTER OF THE DECEASED) MINOR REP. BY THEIR FATHER/NATURAL GUARDIAN 2ND RESPONDENT HEREIN. NO.35/6 MAGADI MAIN ROAD AGRAHARA DASARAHALLI BENGALURU NORTH BENGALURU-560 079 5 . VISHAL N S/O NAGENDRA PRASAD R/AT NO.143/2, 4TH MAIN ROAD 2ND FLOOR GOVINDARAJANAGAR BENGALURU-560 040 ..RESPONDENTS (BY SRI D S SRIDHAR, ADVOCATE FOR C/R-1 TO 4, NOTICE TO R-5 DISPENSED WITH VIDE ORDER DATED 15.02.2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2018 PASSED IN MVC NO.2573/2017 ON THE FILE OF THE II ADDITIONAL JUDGE & XXVIII ACMM., COURT OF SMALL CAUSES, BENGALURU, (SCCH-13), AWARDING COMPENSATION OF RS.19,25,400/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT OF THE AMOUNT.
IN MFA No.9091/2018 BETWEEN:
1 . SMT KUPPAMMA W/O BABU M AGED 37 YEARS RESIDING AT # 35/6, MAGADI MAIN ROAD, AGRAHARA DASARAHALLI, BENGALURU NORTH TALUK, BENGALURU-560079 2 . BABU M S/O MARIMUTHU AGED 39 YEARS RESIDING AT # 35/6, MAGADI MAIN ROAD, AGRAHARA DASARAHALLI, BENGALURU NORTH TALUK, BENGALURU-560079 3 . KUM AMULYA D/O BABU M MINOR R/BY FATHER AND N/G THE SECOND APPELLANT VIZ.BABU M RESIDING AT # 35/6, MAGADI MAIN ROAD, AGRAHARA DASARAHALLI, BENGALURU NORTH TALUK, BENGALURU-560079 4 . KUM VEDA D/O BABU M MINOR R/BY FATHER AND N/G THE SECOND APPELLANT VIZ.BABU M RESIDING AT # 35/6, MAGADI MAIN ROAD, AGRAHARA DASARAHALLI, BENGALURU NORTH TALUK, BENGALURU-560079 ..APPELLANTS (BY SRI SRIDHAR D S., ADVOCATE) AND:
1 . VISHAL N S/O NAGENDRA PRASAD MAJOR R/AT # 143/2, 4TH MAIN, 2ND FLOOR, GOVINDARAJNAGAR BENGALURU-560040 2 . M/s.THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER REGIONAL OFFICE NO.144/145 LEO SHOPPING COMPLEX RESIDENCY ROAD, BENGALURU-560025 ..RESPONDENTS (BY SRI ASHOK N PATIL, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2018 PASSED IN MVC NO.2573/2017 ON THE FILE OF THE II ADDITIONAL JUDGE & XXVIII ACMM., COURT OF SMALL CAUSES, BENGALURU, (SCCH-13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeals are listed for admission, with the consent of the learned counsel appearing for the parties, appeals are taken up for final disposal.
These are the two appeals directed against the Judgment and award dated 26.09.2018 passed in MVC No.2573/2017 wherein the claim petition filed under Section 166 of Motor Vehicles Act came to be allowed in part and amount of Rs.19,25,400/- together with interest at 6% p.a. from the date of petition till the deposit of the amount came to be awarded. Being aggrieved by the said Judgment and award both the claimants and injured have come in appeal. The insurer in MFA No.404/2019 claims that amount of compensation granted is excessive and claimants in MFA No.9091/2018 seeks enhancement.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
3. The details of the road traffic accident are that on 08.12.2016 at about 8.15 P.M. one Vijay was proceeding towards M.C.Layout, Nagarbhavi Main Road, Vijayanagara on his motorcycle bearing registration No.KA-41-EG 3836 at that time rider of Enfield bearing registration No.KA-02-JH-9196 came in a rash and negligent manner from the opposite side and dashed against the motorcycle on which said Vijay was traveling because of which he sustained grievous injuries and succumbed to the same. A criminal case came to be registered in Crime No.353/2016 for the offence punishable under Sections 279, 304A, 134(A & B) & 187 of IPC.
4. Learned Member was accommodated with oral evidence of PW-1 and PW-2 and documentary evidence of Exhibits P-1 to P-22. After considering the oral and documentary evidence learned Member granted compensation as under:
body and funeral expenses Total Rs.19,25,400/-
5. Learned counsel Sri Ashok N. Patil for the insurance company in MFA No.404/2019 would submit that the compensation is excessive and calculation made by the learned Member is erroneous as the deduction under personal and living expenses is considered at 1/4th though the deceased was 19 years and unmarried. Further monthly income also is considered at higher rate.
6. Learned counsel for claimants Sri D.S.Sridhar would submit that the deceased was working as a sales executive and was working for handsome salary and earning Rs.11,700/-.
7. On perusal of the data available, age of the deceased on the date of death is 19 years and the job or occupation was sales executive. The difference is regarding quantum of compensation as stated above. Considering the Judgment and award the monthly income relied upon at Rs.11,700/- appears to be just and proper but in calculating loss of dependency learned Member has not considered future prospects. The deceased was not a permanent salaried member. However as a sales executive income he was earning is Rs.11,700/- per month and there are no complaints of bad habit or vices. In the circumstances considering he was self employed 40% should have been considered as future prospects and deduction in respect of personal and living expenses should have been invariably considered at 50%. In the result break up would be as under:
11,700+40% =4,680 11,700+4,680=16380/2=8,190 8,190x12x18 = 17,69,040 +30,000(conventional heads) Thus fair and just compensation would be Rs.17,99,040/-
Compensation granted by the learned Member is Rs.19,25,400/-. Though the Member was right in granting compensation but erred in over assessing the same. Thus out of the total compensation of Rs.19,25,400/- a sum of Rs.17,99,040/- is deducted balance is Rs.1,26,360/-.
MFA No.404/2019 filed by the insurance company is allowed in part. Judgment and award dated 26.09.2018 passed in MVC No.2573/2017 is modified by reducing the compensation from Rs.19,25,400/- to Rs.17,99,040/- thereby resulting in reduction of Rs.1,26,360/-. MFA No.9091/2018 filed by the claimants for enhancement is rejected.
Insurance company is directed to deposit the compensation amount with interest at 6% p.a. within four weeks from the date of receipt of certified copy of this order.
Amount in deposit be transmitted to the Tribunal.
Sd/- JUDGE SBN