IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 6369 OF 2015 (M V) CONNECTED WITH MFA NO. 5282 OF 2015 (M V) MFA NO.6369/2015 BETWEEN 1. Smt Shanthamma W/o late Basavaiah, aged about 32 years, 2. Madhu S/o late Basavaiah, aged about 15 years, 3. Niveditha D/o late Basavaiah, aged about 13 years, 4. Madaiah S/o late Hucchaiah, aged about 62 years, 5. Smt Siddamma W/o Madaiah, aged about 52 years, 2nd and 3rd minor appellants are represented by natural guardian / mother, 1st appellant herein All are residing at Mole Village, Virupakshipura Hobli, Channapatna Taluk, Ramanagara District. ... Appellants (By Sri. N. Gopalkrishna, Advocate) And 1. Smt Saritha W/o Ramesh major in age, residing at no.1318, Petecheri, Kalanagar, Channapatna Town & Taluk, Ramanagara District.
2. Sriram General Insurance Company Ltd No.S-15, Monarch Church, 3rd floor, Infantry road, Bangalore 560001 Rep: by its Manager. ... Respondents (By Sri. B Pradeep for R-2;
Notice to R-1 dispensed with) MFA filed u/s 173(1) of MV Act against the judgment and award dated:10.02.2015 passed in MVC No.74/2013 on the file of the Senior Civil Judge and JMFC, Additional MACT, Channapattana, Ramanagar District, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA NO.5282/2015 BETWEEN Legal Manager Sriram General Ins. Co. Ltd., No.15, Monarch Church, 3rd Floor, Infantry Road Bangalore.
Now rep by The Legal Manager Srhiram General Ins. Co. Ltd., 3rd Floor, S and S corner building Opp. Bowring and lady Curzon Hospital, Bangalore-01. ... Appellant (By Sri. B. Pradeep, Advocate) And 1. Smt Shanthamma W/o Late Basavaiah, Now aged about 31 years, 2. Madhu S/o late Basavaiah, Now aged about 14 years, 3. Niveditha D/o late Basavaiah, Now aged about 12 years, 4. Madaiah S/o late Hucchaiah, Now aged about 61 years, 5. Siddamma W/o Madaiah, Now aged about 51 years, Respondent No.2 and 3 are Since minor, rep by natural guardian mother R-1 All are R/at Mole Village, Virupakshipura Hobli, Channapatna Taluk, Ramanagara District-562117.
6. Saritha W/o Ramesh Major No.1318, Petecheri Kalanagar Channapatna Taluk Ramanagara Dist-562117. ... Respondents (By Sri. S. Raju – Advocate for R-1 to R-5) MFA filed u/s 173(1) of MV Act against the judgment and award dated:10.02.2015 passed in MVC No.74/2013 on the file of the Senior Civil Judge and JMFC, Additional MACT, Channapattana, Ramanagar District, awarding compensation of Rs.12,50,000/- with interest @ 6% p.a. from the date of petition till the date deposit.
These Appeals coming on for admission this day, the court delivered the following:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsels on both sides, the same are taken up for final disposal.
2. These appeals are preferred against the judgment and award dated 10.02.2015 passed by the Tribunal in MVC No.74/2013.
3. MFA No.6369/2015 is preferred by the appellants/claimants seeking enhancement of the compensation and MFA No.5282/2015 is preferred by the appellant/insurance company on the question of quantum of compensation awarded by the Tribunal.
4. The factual matrix of these appeals is as under:
It is stated in the claim petition that on 16.01.2013 at about 7.30 pm. when the deceased Basavaiah and Manju had come to Kengal for Cow festival for sale of the Cows and when they were about to cross the Hanumanthapur cross near Kengal Bus stop to go to a hotel, a Canter bearing No.KA-20-7572 came in high speed from Bengaluru side and dashed against the said Basavaiah who succumbed to the injuries at the spot. Due to the untimely death of the deceased and having lost the love and affection and financial support and as the accident took place solely on account of rash and negligent driving by the driver of the Canter and the respondent no.1 being the owner and respondent no.2 being the insurer who are liable to pay the compensation, the petitioners filed the claim petition seeking compensation.
5. On issuance of notice, first respondent did not filed written statement whereas, second respondent filed the written statement denying the petition averments and sought for dismissal of the petition.
6. Based upon the pleadings, the Tribunal framed the issues for consideration of the petition. In order to establish their case, the petitioners examined PW.1 and PW.2 and got marked Exs.P1 to P.9. Respondent no.2 examined RW.1 and RW.2 and got marked Exs.R.1 to R.5. After hearing the arguments of learned counsel for the petitioners as well as the respondents and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment awarding compensation of Rs.12,50,000/- with interest @ 6% p.a from the date of petition till the date of deposit. It is this judgment which is challenged under these appeals by urging various grounds.
7. Learned counsel for the claimants contends that the compensation awarded by the Tribunal is on lower side and needs to be enhanced. He contends that the Tribunal ought to have assessed income of the deceased taking into consideration his future prospects. Further, the income of the deceased assessed by the Tribunal is on lower side and the same needs intervention of this Court. Further, the compensation awarded towards conventional heads is also on lower side and the same needs to be enhanced. On these grounds, learned counsel for the claimants prays to allow the appeal and seeks enhancement of the compensation.
8. Learned counsel for the insurance company contends that the first respondent being the owner of the vehicle has violated the terms of policy conditions and the driver of the offending vehicle was not having valid and effective license as on the date of accident and that the accident took place on account of negligence of the deceased and the insured vehicle was not at all involved in the alleged accident, the complaint has been lodged after lapse of one day from the alleged accident and that the petitioners colluding with the police, owner and driver of the vehicle by creating a false story have filed the claim petition in order to claim compensation. Further, the compensation awarded by the Tribunal under different heads is on higher side and the same is contrary to law, probabilities of the case, evidence and documents available on record. On all these grounds, he sought for setting aside the judgment passed by the Tribunal.
9. In this context, it is relevant to peruse the oral evidence of PW.1 and PW.2 and documentary evidence marked on behalf of the petitioners such as Ex.P1- FIR, Ex.P2–Complaint, Ex.P3-Charge sheet, Ex.P4-Spot Mahazar, Ex.P5- Seizure Mahazar, Ex.P6 – Inquest, Ex.P7- IMV report. On perusal of the oral and documentary evidence it is clear that the deceased died on account of the injuries sustained in the accident which was caused by rash and negligent driving of the driver of offending Canter bearing Reg.No.KA-20-7572. The Tribunal has held that there is no evidence on the part of the respondent No.2 to the effect that there was any sort of negligence on the part of the deceased. Further, no evidence has been adduced to prove the contention that respondent no.1 and petitioners have colluded with each other in fixing the vehicle in question.
10. Claimants are the wife, children and parents of the deceased. The Tribunal has assessed the notional income of the deceased at Rs.7,500/- per month and age of the deceased as 35 years, and by applying multiplier of 18, has awarded a sum of Rs.12,15,000/- towards loss of dependency. Learned counsel for the claimants contends that as per the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi and others reported in AIR 2017 SC 5157, future prospects has to be considered. Learned counsel for the insurance company contends that the Tribunal has committed error in adopting the multiplier of 18 instead of 16, in fact the age of the deceased has been considered by the Tribunal at 35 years. It is relevant to state here that the accident is of the year 2013 and the Tribunal has rightly taken the monthly income of the deceased at Rs.7,500/-. But the age of the deceased was 35 years at the time of accident, accordingly the appropriate multiplier would be 16. Further, 40% has to be added towards future prospects in view of ratio of reliance in Pranay Sethi’s case. Keeping in view all these aspects, the compensation under the head loss of dependency would be as under:
Rs.7,500 x 40% = 3000 Rs.7,500 + 3000 = 10,500 x ¼ = 2,625 Rs.10,500-2,625 = 7,875 Rs.7,875 x 12 x 16 = Rs.15,12,000/-
11. Under the conventional heads, the Tribunal has awarded Rs.20,000/- towards transportation, funeral and obsequies, Rs.5,000/- towards loss of consortium and Rs.10,000/- towards loss of estate, in all Rs.35,000/-. But keeping in view the law laid down by the Hon’ble Supreme Court in Pranay Sethi’s case, the compensation under conventional heads should not be less than Rs.70,000/-. Accordingly, additional sum of Rs.35,000/- is awarded under this head.
12. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Thus, in all, the claimants are entitled to a total compensation of Rs.15,47,000/- as against Rs.12,50,000/- awarded by the tribunal. Accordingly, I proceed to pass the following:
ORDER MFA No.6369/2015 filed by the claimants is allowed in part. The claimants are entitled for enhanced compensation of Rs.3,32,000/- with interest @ 6% p.a. from the date of petition till realisation.
MFA No.5282/2015 filed by the insurance company is also allowed in part, in so far as it relates to reducing the multiplier from 18 to 16.
The impugned judgment and award dated 10.02.2015 passed by the Tribunal in MVC No.74/2013 is modified accordingly.
The insurance company shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB