IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.5689/2018 (MV D) C/W MFA CROB. NO.10/2019 (MV D) IN MFA No.5689/2018:
Between:
The Oriental Insurance Company Limited D.O.8, D.V.G. Road V.C. Plaza Bengaluru – 560 004.
Also at the Oriental Insurance Company Limited, TP Hub, Regional Office Leo Shopping Complex No.44/46, Residency Road Cross Bengaluru – 560 025.
Now represented by Manager Legal ... Appellant (By Sri Ashok N. Patil, Advocate) And:
1. Shobha W/o Late Basavaraju @ Raja Aged about 34 years 2. Master Sudharshan B.B. S/o Late Basavaraju @ Raja Aged about 13 years 3. Kum. Varalakshmi B.B. D/o Late Basavaraju @ Raja Aged about 11 years The respondent Nos.2 and 3 are Minors represented by their Mother Shobha i.e., respondent No.1 4. Puttamma W/o Late Lakkegowda Aged about 67 years All are residing at Bediganahalli Village Halli Mysuru Hobli Holenarasipura Taluk Hassan District.
5. N. Gopal S/o. Chikkanarasimhaiah R/at No.53, 2nd Cross 3rd Main Road, K.B. Nagar Government electric Factory Mysuru Road Bengaluru – 560 026. ... Respondents (By Sri Gopalkrishna N. Advocate for R1 to R4 Notice to respondent No.5 is D/W vide order Dated 15.02.2019) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 21.04.2018 passed in MVC No.4295/2016 on the file of the VIII Additional Small causes Judge and XXXIII ACMM, Member, MACT, Bengaluru (SCCH-5) awarding compensation of Rs.13,48,000/- with interest at the rate of 9% p.a. from the date of petition till its realization and etc., IN MFA Crob No.10/2019:
Between:
1. Smt. Shobha W/o Late Basavaraju @ Raja Now aged about 34 years 2. Master Sudharshan B.B. S/o Late Basavaraju @ Raja Now aged about 13 years 3. Kum. Varalakshmi B.B. D/o Late Basavaraju @ Raja Now aged about 11 years 4. Puttamma W/o Late Lakkegowda Now aged about 67 years 2nd and 3rd minor Cross objectors are represented by natural guardian/ mother 1st Cross-Objector herein All are residing at Bediganahalli Village Halli Mysore Hobli Holenarasipura Taluk Hassan District. ... Cross objectors (By Sri Gopalkrishna N, Advocate) And:
1. The Oriental Insurance Company Limited D.O.-8, D.V.G. Road V.C. Plaza Bengaluru – 560 004. Represented by its Manager.
2. Sri N. Gopal S/o. Chikkanarasimhaiah Major in age R/at No.53, 2nd Cross 3rd Main Road, K.B. Nagar Government Electric Factory Mysore Road Bangalore – 560 026. ... Respondents ( By Sri Ashok N. Patil, Advocate for R1 Notice to R2 is D/w in MFA No.5689/2018) This MFA Crob in MFA No.5689/2018 is filed under Order 41 Rule 22 of CPC r/w Section 173(1) of MV Act, 1988 against the Judgment and award dated 21.04.2018 passed in MVC No.4295/2016 on the file of the VIII Additional Small causes Judge and XXXIII ACMM, Member MACT, Bengaluru (SCCH-5) partly allowing the claim petition for compensation and seeking enhancement of compensation and etc., This Appeal and MFA Crob. are coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though these matters are listed for admission, the same are taken up for final disposal with the consent of both the learned counsel.
2. M.F.A. No.5689/2018 is filed by the Insurance Company and MFA Crob 10/2019 is filed by the claimants. Both the appeal and cross-objection are directed against the judgment and award dated 21.04.2018 passed by the Court of VIII Additional Small causes Judge and XXXIII ACMM, Member, MACT, Bengaluru in MVC No.4295/2016.
3. I have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the claimants.
4. The brief facts of the case are that:
On 30.04.2016 around 1.10 a.m. when the deceased Basavaraju @ Raja was walking near Menaka Daba, Agrahara Gate, Yadiyur Hobli, Kunigal Taluk, one Innova Car bearing Registration No.KA-51-N-6380 driven by its driver in a rash and negligent manner came from Kunigal side and came to the extreme left side on the footpath and dashed against the deceased Basavaraju @ Raja from back side. Due to the said impact, he sustained fatal injuries and died at the spot.
5. The claimants are wife, two children and mother of the deceased. It is the case of the claimants that deceased Basavaraju was aged about 42 years and he was a driver by profession and was earning Rs.20,000/- per month. A total compensation of Rs.50 lakh was sought before the Tribunal.
6. On behalf of the claimants, two witnesses were examined as P.W.1 and 2 and Exhibits P.1 to P.12 were marked. The claim petition was resisted by the Insurance company by filing written statement. However, no evidence was let in.
7. The Tribunal after considering the evidence and material on record, awarded a total
8. The learned counsel appearing for the insurance company would vehemently contend that the Tribunal has awarded far excess compensation by taking the notional income of the deceased at Rs.7,000/- per month and adding another 25% towards future prospects, even though the avocation and income of the deceased are not established. It is submitted that the Tribunal has awarded higher compensation under the conventional heads and also higher interest, which is also uncalled for. Accordingly, he seeks to allow the appeal.
9. It is the contention of the learned counsel appearing for the claimants that the deceased was working as a driver of heavy transport vehicle and he was earning Rs.20,000/- per month and due to his untimely death, claimants who are the wife, children and mother of the deceased have put to great hardship and lost love and affection. He would further submit that income taken by the Tribunal at Rs.7,000/- per month is on the lower side and the total compensation awarded is not just and reasonable. Accordingly, he seeks to enhance the same by modifying the judgment and award passed by the Tribunal.
10. The fact that the deceased died due to road traffic accident involving Innova car bearing registration No.KA-51-N-6380 is not in dispute. It is also not in dispute that the said car was insured. The contention of the learned counsel for the claimants is that the deceased was earning a sum of Rs.20,000/- per month by working as a driver of the lorry bearing registration No.KA-52-A-2228. Exhibit P.12 is the notarized copy of the driving license of the deceased. However, there is no evidence to show that the deceased was earning a sum of Rs.20,000/- per month. In that view of the matter, considering the year of accident and also considering Exhibit P.12 – copy of the driving license of the deceased, notional income of the deceased is taken at Rs.9,500/- per month.
11. The deceased was aged about 42 years, therefore the multiplier applicable is 14. Addition of 25% to the income of the deceased has to be made towards future prospects and after deducting 1/4th towards personal expenses, total compensation for which the claimants are entitled towards loss of dependency would be Rs.14,96,208/- (Rs. 9,500 + Rs.2,375 – Rs.2969 = Rs.8,906 x 12 x14 ).
12. The Tribunal has awarded a sum of Rs.40,000/- towards ‘Loss of consortium’, Rs.15,000/- towards ‘ Loss of estate’ Rs.15,000/- towards ‘Funeral expenses’ and the same is just and reasonable.
13. The Tribunal has awarded a sum of Rs.1,75,000/- towards ‘Loss of love and affection’ to claimant Nos.1 to 4 i.e., a sum of Rs.25,000/- has been awarded to wife of the deceased and Rs.50,000/- each has been awarded to two children and mother of the deceased.
14. The learned counsel appearing for the insurance company would contend that a sum of Rs.40,000/- has been awarded to the wife towards ‘Loss of consortium’. Therefore, again granting Rs.25,000/- does not arise. He would also contend that Rs.50,000/- each awarded to the other claimants is also on a higher side. Considering the totality of the facts and circumstances of the case, compensation of Rs.1,75,000/- awarded towards ‘Loss of love and affection’ is on a higher side. Accordingly, a sum of Rs.25,000/- each is awarded towards ‘Loss of love and affection’ to claimant Nos.2 to 4. Accordingly, claimants are entitled for a total compensation of Rs.15,71,208/- as against Rs.13,48,000/- awarded by the Tribunal.
15. In the facts and circumstances of the case, interest at the rate of 9% per annum awarded by the Tribunal is on a higher side. Keeping in view the decision of this Court in the case of Sriram General Insurance Company Limited v. Laxmi reported in LAWS (KAR) 2018 3 106, the interest is scaled down to 6% per annum.
16. Hence, for the foregoing reasons, I pass the following order:
i) The appeal and cross objection are allowed in part.
ii) The judgment and award dated 21.04.2018 passed by VIII Addl. Small Causes Judge and XXXIII ACMM, Member, MACT, Bengaluru is hereby modified.
iii) The claimants are entitled for a total compensation of Rs.15,71,208/- as against Rs.13,48,000/- awarded by the Tribunal with interest @ 6% p.a. from the date of petition till the date of realization.
iv) Apportionment and disbursement of compensation shall be in terms of the award passed by the Tribunal.
v) The amount in deposit shall be transmitted to the Tribunal.
nms SD/- JUDGE