IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.1486/2014 C/W M.F.A.No.1485/2014(MV) IN M.F.A.No.1486/2014:
BETWEEN:
M/s.THE ORIENTAL INSURANCE COMPANY LIMITED KRISHNA PRASAD BUILDING 3RD FLOOR, M.G. ROAD LALBAGH, MANGALURU, REPRESENTED BY ITS MANAGER.
NOW REPRESENTED BY M/s.THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, LEO COMPLEX, OFF M.G. ROAD, BENGALURU-560 001, REPRESENTED BY ITS REGIONAL MANAGER ...APPELLANT (BY SRI SURESH K., ADVOCATE) AND:
1. SMT. PUSHPALATHA AGED 38 YEARS, W/O LATE SRI MANOJ KUMAR, R/A D.NO.6-117, NEAR KAPITHANIA SCHOOL, OPP. RED BUILDING, BEHIND NETHRAVATHI NAGAR, GARODI, KANKANADY POST, MANGALURU-2 2. SRI AHAMAD BHAVA AGED ABOUT 31 YEARS, S/O SRI ABBUBAKKAR, R/A ADKARAPADAPU, KONAJE POST AND VILLAGE, MANGALURU.
3. SRI SHAMEEM S/O SRI SULAIMAN AGED ABOUT 35 YEARS R/AT B.S. COMPOUND, ADYAR HOUSE, MANGALURU.
4. SMT.PUSHPA AGED ABOUT 65 YEARS, W/O LATE SRI P.SHRIDHARA POOJARY R/AT 2-120/9(3) KATEPURI ROAD JEPPINAMOGARU OPP:YENAPOYA SCHOOL MANAGLURU TALUK.
5. MISS. SANDHYA AGED ABOUT 29 YEARS, D/O LATE SRI P.SHRIDHARA POOJARY R/AT 2-120/9(3) KATEPURI ROAD JEPPINAMOGARU OPP:YENAPOYA SCHOOL MANAGLURU TALUK.
...RESPONDENTS (BY SRI S VISHWAJITH SHETTY, ADVOCATE FOR R1 NOTICE TO R2, R3, R4 & R5 SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.10.2013 PASSED IN MVC NO.1444/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALURU, D.K., AWARDING COMPENSATION OF `5,00,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.No.1485/2014:
BETWEEN:
M/s.THE ORIENTAL INSURANCE COMPANY LIMITED OFF: KRISHNA PRASAD BUILDING 3RD FLOOR, M.G.ROAD LALBAGH, MANGALURU, REPRESENTED BY ITS MANAGER-
NOW REPRESENTED BY M/s. THE ORIENTAL INSURANCE COMPANY LIMITED, REGI0NAL OFFICE, LEO COMPLEX,OFF M.G. ROAD, BENGALURU-560 001.
REPRESENTED BY ITS REGIONAL MANAGER. ...APPELLANT (BY SRI SURESH K, ADVOCATE) AND:
1. SMT. PUSHPA W/O LATE SRI SHRIDHAR POOJARY, AGED ABOUT 56 YEARS 2. SRI SUDHIR S/O LATE SHRIDHAR POOJARY, AGED ABOUT 42 YEARS 3. KUMARI. SANDHYA D/O LATE SHRIDHAR POOJARY, AGED ABOUT 29 YEARS ALL ARE R/AT 2-120/9(3) KATEPURI ROAD JEPPINAMOGARU OPP:YENAPOYA SCHOOL MANAGLURU TALUK.
4. SRI SHAMEEM S/O SRI SULAIMAN, AGED ABOUT 35 YEARS R/AT B.S. COMPOUND ADYAR PADAVU HOUSE ADYAR VILLAGE AND POST MANGALURU TALUK ...RESPONDENTS (NOTICE TO R1 TO R4 SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.10.2013 PASSED IN MVC NO.1402/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALURU, D.K., AWARDING COMPENSATION OF `4,90,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT With the consent of both the learned counsel, appeals are taken up for final disposal.
2. Both the appeals are directed against the Judgment and award dated 15.10.2013 passed in MVC Nos.1402/2011 and 1444/2011 by the III Additional Senior Civil Judge and MACT, Mangaluru, D.K., wherein claim petitions came to be partly allowed.
3. In order to avoid confusion and overlappings, the parties are hereinafter referred to with their rankings before the Tribunal.
4. The incident reported is on 10.07.2011 Manoj Kumar was waiting for his brother on the mud road on NH-17 at a place called Jeppinamogaru at about 10 P.M. by that time Maruti Omni Car bearing Reg. No.KA-19-N-3421 driven in a rash and negligent manner and dashed to Manoj Kumar because of which he was thrown out to the road sustained multiple injuries and fell unconscious. Immediately he was shifted to Government Hospital, Mangaluru, thus Manoj Kumar succumbed to the injuries and in this connection petitioners claimed several amount of expenditure and `50,000/- spent on transportation of dead body and was earning `15,000/- per month, the matter was adjudicated by the learned Member considering the claim, contentions, documents marked on behalf of the petitioners and respondents, partly allowed the petitions granting compensation of `4,90,000/- in MVC No.1402/2011, out of which petitioner No.3 is awarded `2,37,500/- and insofar as MVC No.1444/2011 is concerned `5,00,000/- is granted with interest @ 6% p.a. from the date of petition till realization.
5. The Tribunal has awarded compensation in both the cases because of the death of Manoj Kumar. Respondent- insurance company has denied the entitlement and negligence or compensating the claimants who claim to be the dependents of the said Manoj Kumar. However, no corroborative documents are filed in support of the contentions to justify the negligence of Manoj Kumar for having become the victim of the accident and the criminal case for the offence punishable under Sections 279 and 304(A) read with Section 134(A)(B) of IPC came to be registered against the driver of Omni Car. In the circumstances, learned counsel for appellant in both the cases Sri.K.Suresh submits that the respondent in both the cases were not affectionate and care taking towards deceased Manoj Kumar apart from the fact the petitioner in MVC No.1444/2011 was living separately. After considering the facts and circumstances, the Tribunal came to a finding to order for grant of compensation in both the cases.
6. It is worthy to note that the petitioners in MVC No.1402/2011 are none other than mother- aged 53 years, brother –aged 39 years and Sister-26 years respectively and insofar as MVC No.1444/2011 is concerned petitioner is the wife of Manoj Kumar. The fact of wife of Manoj Kumar not being in good terms staying away from each other is the submission by the learned counsel. Under the circumstances, the Tribunal found it eligible to claim compensation by petitioners. And allotment of compensation by the Tribunal does not appear to be just. Insofar as compensation under the head `loss of dependency’ is calculated assessing salary of Manoj Kumar at `6,250/- and reducing 1/3rd towards personal expenses. The notional income claimed by the petitioners was `10,000/-. Tribunal came to the conclusion that notional income of Manoj Kumar during his life time at `6,250/- and has proceeded to allot compensation by deducting 1/3rd for his personal and living expenses considering his marital status. The Tribunal has not considered the head `future prospects’. Manoj Kumar being aged 40 years and multiplier `15’, the compensation calculated by equation is as under:
`250x25=6,250x12x15=11,25,000x1/3 = `3,75,000/-
`11,25,000-3,75,000=`7,50,000/-
6. Insofar as grant of compensation on other counts does not appear to be unreasonable to consider it either higher or low. Thus, the proper calculation of compensation would be:
`6,250+(50%)3,125=9,375x1/3=6250 `6,250x12x15=`11,25,000/-
7. Thus, the compensation granted under the head `loss of dependency’ is `11,25,000/-
Less: granted by Tribunal ` 7,50,000/-
`3,75,000/-
======== 8. Thus, Judgment and award passed by the Tribunal in both the cases are liable to be set aside. The quantum of compensation by virtue of increase in notional income by adding component on future prospects will be as under:
`3,75,000 +`10,15,000=`13,90,000/-
9. In the context and circumstances, the court considers the submission on love and affection being assessed at `1,50,000/- and consortium `1,00,000/- in lieu of hostilities between the parties during life time of Manoj Kumar. In this connection this court finds that love and affection to be restricted to `1,00,000/- and consortium to `50,000/-. Thus, total compensation of `12,90,000/- (`13,90,000-`1,00,000) even then the enhanced compensation awarded by this Court will be `2,75,000/-.
Thus, the prayer of the appellant is not tenable and both the appeals are liable to be rejected.
Hence, the following:
ORDER 1. MFA No.1486/2014 and MFA No.1485/2014 are hereby dismissed.
2. However, the Judgment and award dated 15.10.2013 passed in MVC Nos.1402/2011 and 1444/2011 is set aside, as the modification of the award amount has become necessary in view of awarding just compensation, though they have not preferred appeals, award amount is enhanced by `2,75,000/- with interest @ 6% p.a. from the date of petition till realization.
3. Out of total compensation of `12,90,000/-, Mother, sister and brother are entitled for `6,40,000/- and wife of late Manoj Kumar are entitled for `6,50,000/-.
4. Appellant-insurance company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of certified copy of this order.
5. No order as to costs.
6. Amount in deposit in both the appeals shall be transmitted to the jurisdictional Tribunal forthwith.
Sd/- JUDGE SBN