IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.3336 OF 2018 (MV-I) Between:
1. Sri Doddarachappa S/o late Veerabhadraiah Aged about 67 years 2. Smt. Gangamma, W/o Doddarachappa Aged about 52 years 3. Smt. K.M. Nagamani W/o late D Chandrashekhar, Aged about 30 years, 4. Master Manvith S/o late D Chandrashekhar, Aged about 4 years, Since Minor represented by his natural Guardian mother 1st friend appellant NO.3 ALL APPELLANTS ARE RESIDENT OF SANTHEPETE, SIRA TOWN-572137 TUMAKURU DISTRICT VILLAGE AT POST, KASABA HOBLI SIRA TALUK-572137 TUMAKURU DISTRICT.
(By Sri. V.B.Sididaramaiah, Advocate) ... Appellants And:
1. The IFFCO-TOKIO General Insurance Co., Ltd., Sri Shanthi Tower No.141,5th Floor 3rd Main, East of NGEF Layout Kasthuri Nagar, Bengaluru 560 043 REPRESENTED BY ITS BRANCH MANAGER.
2. SRI. H. B. SANTHOSHKUMAR S/O H. N. BASAVARAJU AGED ABOUT 42 YEARS R/O KODADAPPALESHWARA TEMPLE SANTHE PETE, SIRA TOWN-572137 TUMAKURU DISTRICT.
(By Sri.K.S. Lakshminarasappa, Advocate for Sri B.C. Seetharama Rao, Adv., for R1) … Respondents (Notice to R2 is dispensed with by order dt.27.2.2019) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 17.11.2017 passed in MVC No.982/2016 on the file of the Senior Civil Judge & JMFC., Additional MACT, Sira, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Orders this day, the Court delivered the following:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsel for both parties, the appeal is taken up for final disposal.
2. This appeal is preferred by the appellant against the judgment and award dated 17.11.2017 passed in MVC No.982/2016 by the Senior Civil Judge & JMFC., Additional MACT, Sira, awarding compensation in a sum of Rs.3,93,500/- with interest at 9% p.a. and the same is found to be inadequate, as the Tribunal has assessed the income of the deceased in a sum of Rs.3000/- p.m. Therefore, the intervention of this Court is required in this appeal, by considering the income of the deceased at Rs.3300/- p.m. instead of Rs.3000/-. Hence, he prays for enhancement of suitable compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 31.7.2016 at about 7.45 p.m. when the deceased Chandrashekar D said to be the son of the petitioners No.1 and 2, after completion of his work as a Sales Manager at PEPS Bed Company, Tumakuru was returning in his motor cycle bearing Registration No.KA- 44-H-9598 from Tumakuru to Sira on Tumakuru Sira road NH-48, and when he reached in front of Kashinath kote at Seebi, he lost control over the motor cycle and hit to the right side divider, as a result of which, he has sustained grievous and bleeding injuries all over his body. Immediately, he was shifted to Government hospital Tumakuru, in order to provide treatment. But, on the way to hospital, said Chandrashekar succumbed to the injuries. The deceased was aged about 35 years at the time of the accident. He was working as a Sales Manager and earning Rs.3000/- p.m. The earnings of the deceased was the only source of income to the family to eak out their livelihood and the deceased was contributing entire income for maintaining his family. Due to the untimely death of the deceased, the entire family members are put to mental agony. Therefore, the appellants/claimants have filed the claim petition before the tribunal seeking compensation from the respondents.
4. In pursuance of the notice on the respondents, respondent No.1 said to be owner of the vehicle in question has not filed any written statement. However, respondent No.2 said to be the insurer has entered appearance through its counsel and filed written statement by denying the entire averments made in the claim petition and contended that the accident took place due to the rash and negligent manner of the deceased D Chandrashekar. It has further contended that the deceased was not having any effective driving licence to ride the aforesaid motor cycle. On all these grounds, respondent No.2 seeking for dismissal of the claim petition filed by the legal representatives of the deceased.
5. Based on the pleadings of the parties, the tribunal has framed three issues and given its finding based on the evidence of PW1. Exs.P.1 to 8 were marked on behalf of the claimants to prove their case. On the other hand, there is no defence evidence on behalf of the respondents and no documents were marked. Based on the oral evidence and documentary evidence put forth by P.W.1 and also documentary evidence i.e. Exs.P.1 to P.18, the tribunal has awarded a total compensation in a sum of Rs.3,93,500/- with interest at 9% p.a. from the date of the petition till realization, which is inadequate, as the tribunal has failed to consider the income of the deceased in a sum of Rs.3300/-
p.m. as his earning and same has been contributed to the family members to eak out their livelihood. But, the tribunal has erroneously held the income of the deceased only at Rs.3000/- p.m.
6. Learned counsel for the appellants has taken me to the evidence on PW1. P.W.1 has stated in his evidence reiterating the averments made in the claim petition seeking compensation on account of the death of D Chandrashekar, due to the injuries sustained, which is reflected in the post mortem report-Ex.P.6 said to be prepared by the doctor, who conducted Post mortem over the dead body. Ex.P.5 is the inquest report. Learned counsel for the appellant has contended that the deceased was doing the work of Sales Manager, so also he is an agriculturist and earning Rs.3000/-
p.m. Therefore, the same requires to be considered in this appeal as the income of the deceased to be taken as Rs.3300/- instead of Rs.3000/- p.m. It is further contended that the tribunal has ordered interest at the rate of 9%, which requires to be considered at 12%. On all these grounds, he seeks intervention of this Court to the order impugned in this appeal and prays for awarding suitable compensation.
7. Per contra, learned counsel for respondent No.1 drawn my attention to the averments made in the claim petition before the tribunal in respect of the untimely death of the deceased and filing of claim petition by his legal representatives on account of the death of one D. Chandrasekhar, urging various among other grounds. However, the tribunal has considered the evidence of PW1, so also the documents produced at Ex.P.1 to 8. The tribunal has assessed the income of the deceased at Rs.3000/- p.m. and as per cl.1 of the Schedule-II, proper multiplier applicable is 16, as rightly applied by the tribunal. The claim petition was filed under Section 163-A of IMV Act, wherein the tribunal has awarded a total compensation in a sum of Rs.3,93,500/- with interest at 9% p.a. But, the interest, which has awarded by the Tribunal is exorbitant. Hence, seeks for dismissal of the appeal.
8. In the back drop of the contentions taken by learned counsel for both parties, it is relevant to state that there is no dispute with regard to the death of the deceased Chandrashekara D, who was riding his motor cycle bearing registration NO.KA-44-H-9598 on 31.07.2016 at about 7.45 p.m., which is also reflected in the averments made in the claim petition that he was unable to control over his motor cycle, and hit the right side divider of the road, as a result of which he fell down and sustained bleeding and grievous injuries all over his body. There is no dispute with regard to the death of the deceased Chandrashekar and his age at the time of accident. It was also not in dispute that the deceased was working as a sales manager, in PEPS Bed Company, Tumakuru. The tribunal has assessed his monthly income at Rs.3000/- instead of Rs.3300/- p.m. This is the contention taken by the learned counsel for the appellant during the course of his arguments. The same has been stated supra. Therefore, in this appeal, the same requires intervention by this Court. The petitioners/appellants filed the claim petition under Section 163-A of the IMV Act. However, the income of the deceased requires to be considered at Rs.3300/- p.m. instead of Rs.3000/- p.m. Therefore, the income of the deceased is to be considered at Rs.3,300/- p.m. and from out of that amount, keeping in view the 2nd schedule, 1/3 of his income is required to be deducted towards his personal expenses. Accordingly, it works out as (3,300X1/3) Rs.2200X16X12=4,22,400/-as against Rs.3,84,000/- awarded by the tribunal. Rest of the compensation in a sum of Rs.2,000/- towards funeral expenses, Rs.2500/- towards loss of estate and a sum of Rs.5000/- awarded towards loss of consortium are found to be just and proper and same shall be maintained intact.
9. However, learned counsel for the respondent No.1/Insurance company has vehemently contended that the tribunal has awarded exorbitant interest at the rate of 9% p.a. Therefore, keeping in view that the accident has occurred due to the negligence of the deceased i.e,. the deceased not able to control over his motor cycle, which hit on the right side divider of the road, as a result of which, he sustained grievous injuries all over the body. Therefore the interest aspect needs intervention of this Court and the same is to be reduced to 7% instead of 9% p.a. relating to enhanced compensation awarded by this Court. But, in respect of the interest granted by the Tribunal at the rate of 9% remains undisturbed on the compensation awarded by the Tribunal.
10. In the above terms, the judgment and award rendered by the Tribunal is modified and enhanced as stated supra. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed-in-part. Consequently, the appellants are entitled to enhanced compensation of Rs.38,400/- with interest at the rate of 7% p.a.
Accordingly, the appellants are entitled for a total compensation of Rs.4,31,900/- as against Rs.3,93,500/- awarded by the Tribunal.
The respondent No.1/Insurance Company is directed to deposit the enhanced compensation awarded by this Court along with interest at the rate of 7% p.a. within a period of four weeks from the date of receipt of a copy of this order before the concerned Tribunal.
The amount in deposit shall be disbursed to the appellants in terms of the award passed by the tribunal on proper identification.
SD/- JUDGE Psg*