IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 PRESENT THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI AND THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY M.F.A. NO.3374/2016(MV) BETWEEN 1. SMT.RATHNAMMA W/O LATE VENKATESHAPPA AGED ABOUT 58 YEARS R/AT NO.103, DEEPTI NIVASA 2ND ‘A’ MAIN, GOKULA LAYOUT MUTHYALANAGAR BENGALURU-560 054.
2. SHRI ANIL. V W/O LATE VENKATESHAPPA AGED ABOUT 32 YEARS R/AT NO.103, DEEPTI NIVASA 2ND ‘A’ MAIN, GOKULA LAYOUT MUTHYALANAGAR BENGALURU-560 054.
3. SMT.DIVYA V W/O SURESH AGED ABOUT 29 YEARS R/AT NO.61, 2ND FLOOR 5TH CROSS, MES ROAD K.R.NAGAR, MUTHYALNAGAR GOKULA EXTENSION BENGALURU-560 054 (BY SRI.JAYAVELU , ADVOCATE) ... APPELLANTS AND 1. SHRI NAGARAJU S/O RAMAIAH NO.5, 8TH MAIN, 17TH CROSS BENDAPPA GARDEN, MUTHYALANAGAR MATHIKERE BENGALURU-560 054 2. M/S.ICICI LOMBARD MOTOR INSURANCE COMPANY OFFICE AT PRESTIGE CORNICHE 62/1, 2ND FLOOR RICHMOND ROAD BENGALURU-560 026.
...RESPONDENTS (BY SRI A.M.VENKATESH, ADVOCATE FOR R2, RESPONDENT NO.1 – NOTICE DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2016 PASSED IN MVC NO.1318/2008 ON THE FILE OF THE 7TH ADDITIONAL JUDGE & 32ND ACMM, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, ASHOK B. HINCHIGERI J. DELIVERED THE FOLLOWING:
JUDGMENT The appellants have called into question the judgment, dated 23.02.2016 (Annexure-A) passed by the Motor Accident Claims Tribunal, Bengaluru, in M.V.C No.1318/2008 for the death of Venkateshappa in the road traffic accident on 26.07.2007. The Tribunal has granted compensation of Rs.5,46,000/-, the break-up of which is as follows:
1 Towards loss of dependency Rs. 3,96,000/-
2 Towards loss of consortium Rs. 1,00,000/-
3 Towards funeral expenses Rs. 30,000/-
4 Towards loss of love and affection Rs. 20,000/-
TOTAL Rs. 5,46,000/-
2. The learned counsel for the appellant Sri.
Jayavelu submits that the Tribunal has erred in taking the income of the deceased as Rs.4,500/- per month even in the wake of the oral and documentary evidence at Exs.P8 and 11. He submits that the Law Officer of the deceased employer, namely HMT Machine Tools Limited is examined as PW2. He has stated that the deceased was drawing a salary of Rs.15,390/- per month. Without any reason or rhyme, the Tribunal has taken the deceased’s salary as Rs.4,500/- per month. He complains the inadequacy of the amounts awarded under the other heads also.
3. Sri A.M.Venkatesh, the learned counsel appearing for the respondent No.2 submits that the amounts awarded under different heads by the Tribunal is fair and proper and that therefore this appeal be dismissed.
4. We have browsed through the lower court records. The first appellant (PW1) has deposed that her deceased husband was drawing the gross salary of Rs.16,814/- per month based on the salary slip at Ex.P8. She has stated that the deceased was appointed on 19.03.1979 and had eight more years to go in service.
5. The Law Officer of the deceased employer has deposed that the deceased was working as a foreman. She has stated that the certificate at Ex.P11 was issued by the Deputy General Manager of the HMT Machine Tools Limited. The said certificate gives the break up of the salary and shows his total salary as Rs.15,390/- per month. The Tribunal has disbelieved Ex.P11 and the testimony of the Law Officer thereon on the ground that the authors of the said documents are not examined. The authors of the pay-slips and certificate need not be examined invariably in every case. If the authorization-holder of a company enters the witness box and deposes on the confirmation of the salary slips/certificate, it should suffice. No reasons whatsoever are given by the Tribunal as to why it took the income of the deceased as Rs.4,500/- per month summarily. We have no hesitation in taking the income of the deceased at Rs.15,000/- per month. Per year it comes to Rs.1,80,000/- (15,000 x 12). Taking the multiplier as ‘11’ and deducting 1/3rd of his income towards personal expenses, we arrive at the following figure towards the loss of dependency. Rs.1,80,000 – Rs.60,000 = Rs.1,20,000 x 11 =13,20,000/-.
6. We also notice with concern that no amount is added to future prospects. Following the decision of the Apex Court in the case of Rajesh and others –vs- Rajbir Singh and others reported in (2013) 9 SCC 54, it would be just and equitable to provide additional 15% in the case where the victim is in the age-group of 50-60 years. 15% of Rs.1,32,000/- comes to Rs.1,98,000/-.
7. We deem it necessary and just to award Rs.15,000/- towards loss of estate. The amount awarded by the Tribunal under the other heads are retained as they are found to be fair. Now the modified award stands as follows:
8. The Tribunal has awarded the interest at the rate of 6% per annum. We maintain the same and clarify that the amounts enhanced herein shall also carry interest at the rate of 6% per annum from the date of the institution of the claim petition till the date of payment.
9. At this juncture, Sri Jayavelu, learned counsel for the appellants submits that an order may be made to the effect that both respondents No.1 and 2 are jointly and severally liable to pay the compensation relying on the decision of the Hon’ble Supreme Court in the case of S.Iyyapan –vs- M/s.United India Insurance Co. Ltd. and another. He request that a direction be issued to the second respondent-Insurance Company to pay the compensation amount and recover it from the first respondent.
10. The Division Bench of this Court, in the case of The Oriental Insurance Co., Ltd., -vs- Sri K.C.Subramanyam and another reported in ILR 2012 Kar 5241, has expressed its considered view that if the conditions of the insurance policy are not complied with, the question of directing the insurance company to pay the compensation amount and recover the same from the owner would not arise. It has also expressed its considered view that the direction to pay and recover from the insured, issued by the Hon’ble Supreme Court is by virtue of the power conferred on the Apex Court under Article 142 of the Constitution of India, which power neither the High Court nor the Tribunal can exercise.
11. Following the aforementioned Division Bench judgment, we cannot accede to the prayer of the appellants to direct the second respondent- Insurance Company to pay the compensation-amount and recover the same from the first respondent- owner.
12. This appeal is accordingly allowed in part.
No order as to costs.
Sd/- JUDGE Sd/- JUDGE TL