IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 1021 OF 2016 (MV) BETWEEN 1. SRI RAJU S/O LATE GANGAIAH @ GANGANNA AGED ABOUT 32 YEARS 2. SRI. KUMARA S/O LATE GANGAIAH @ GANGANNA AGED ABOUT 30 YEARS 3. SRI. JAYARAMA .K. J S/O LATE GANGAIAH @ GANGANNA AGED ABOUT 27 YEARS ALL ARE RESIDING AT KEMPASAGARA POST KASABA HOBLI, MAGADI TALUK RAMANAGARAM DISTRICT-571502.
... APPELLANTS (BY SRI. N. GOPALKRISHNA - ADVOCATE) AND 1. MRS. JAYASHREE NAGASUNDER W/O B. NAGASUNDAR .K MAJOR IN AGE 2. SRI. NAGASUNDER S/O LATE IYENGAR C.B MAJOR IN AGE BOTH RESPONDENTS 1 & 2 ARE RESIDING AT NO.197 KUMBAM HOUSE 7TH CROSS, 1ST N BLOCK RAJAJINAGAR, BANGALORE-10.
3. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., 2ND FLOOR, SVR COMPLEX MADIVALA, HOSUR MAIN ROAD BANGALORE-560068 REP: BY ITS MANAGER.
... RESPONDENTS (BY SRI. B. PRADEEP – ADV., FOR R-3; NOTICE TO R-1 & R-2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.08.2015 PASSED IN MVC NO. 4661/2014 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, with the consent of learned counsel on both sides, the same is taken up for final disposal.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 04.08.2015 rendered by the Tribunal in MVC No.4661/2014 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 27.05.2014 at about 8.20 p.m. when the deceased was going as pedestrian on Bangalore-Mysore Road, near Maddur KSRTC Bus stand, Maddur Town, a Maruthi Swift car bearing No.KA-02-MF-9607 came in a rash and negligent manner and dashed to deceased Shivaraju. Due to the said impact, he sustained fatal injuries and died in the hospital. Due to the death of deceased, petitioners have lost bread earner in their family and are put to irreparable loss and hardship. The accident occurred due to rash and negligent driving of the car by its driver. The respondents, being the owner and insurer of the offending car, are liable and responsible to pay the compensation to the petitioners. On all these grounds, the petitioners filed the claim petition seeking compensation.
4. On issuance of notice, respondents appeared before the Tribunal through their counsel and respondent No.1 filed written statement admitting that the offending car was insured with them and the insurance policy was in force on the date of accident, but denied the other averments made in the petition.
5. Based upon the pleadings, the Tribunal framed the issues. In order to prove their case, petitioner No.3 was examined as PW.1 and Exs.P1 to P9 were got marked. The respondents did not let in any evidence on their behalf. The Tribunal, after hearing arguments of learned counsel for the petitioners and learned counsel for the insurer and on evaluation of oral and documentary evidence on record, passed the impugned judgment, awarding compensation of Rs.1,82,000/- with interest @ 6% p.a. from the date of petition till realisation. It is this judgment which is challenged by the petitioners seeking enhancement of compensation, by urging various grounds.
6. Learned counsel for the appellants contends that the Tribunal erred in assessing the compensation by taking 1/4th of the assessed income of the deceased on the ground that the claimants are not financially depending on the deceased. Further, the Tribunal failed to appreciate that since the claim petition was filed under Section 163-A of M.V.Act, compensation has to be determined on the basis of age of the deceased and his income as indicated in the second schedule to Section 163-A of MV Act to the legal heirs of the deceased. Further, he contends that unlike when the claim petition is filed under Section 166, dependency of the claimants is one of the main factors to determine the compensation. Since, the claimants are legal heirs and the brothers of deceased, they are entitled for compensation as indicated in Schedule to Section 163-A of MV Act. In that case, claimants are entitled to total compensation of Rs.4,84,500/- in place of Rs.1,82,000/- awarded by the Tribunal.
7. In support of his contention, learned counsel for the appellants has placed reliance on a judgment rendered by a Division Bench of this Court in MFA No.11003/2006 dated 26.11.2008. In para 8 it is held as under:
“In this view of the matter, the fact that the appellants 2 and 3 are the brothers is not disputed and they are Hindus is also not disputed and they are Class II legal heirs of Second Schedule under Section 8 of the Hindu Succession Act of 1956. Therefore, they are entitled to get compensation under Section 163- A of the Act. Learned counsel for the Insurance company has rightly pointed out that the first appellant is not a necessary party thus, claimants 2 and 3 who are appellants herein have not pressed that she is a stepmother of the deceased. Therefore, her claim need not be examined in this appeal, excluding her, appellants 2 and 3 are being legal heirs for the purpose of Section 163-A of the MVC Act as they fall within the Class II legal heirs under Section 8 read with second schedule to the Hindu Succession Act of 1956. Therefore, we have to take notional monthly income of the deceased as stipulated in II schedule under Section 163-A of the MV Act and the same is taken as Rs.4,000/- and 1/3rd amount is deducted, then the annual income would be Rs.23,666/-. The age of the deceased is 31 years as on the date of death. Applying the case of Ghulam Khader vs. United India Insurance Co. Ltd., reported in ILR 2000 KAR 4416, the multiplier would be 17, then the loss of dependency would be Rs.4,53,330/- towards loss of estate Rs.2,500/- is awarded and towards funeral expenses Rs.2,500/- is awarded. In all, the claimant is entitled for total compensation of Rs.4,58,330/-”
8. On all these grounds, learned counsel for the appellants seeks intervention of this Court and prays to allow the appeal.
9. Per contra, learned counsel for the respondent – insurer, contends that the accident occurred not due to the negligence of the driver of offending car but it was due to the negligence of the deceased, as he was trying to cross the road. Further, the owner of the car has violated the policy conditions and hence, insurance company is not liable to indemnify the owner of the offending car and to pay the compensation to the claimants. Further, learned counsel for the insurer contends that merely because the petitioners are the brothers of the deceased, they are not depending on the income of the deceased and no compensation can be awarded to them towards the loss of dependency. In this regard reliance is placed upon the decision of Hon’ble Apex Court in Reshma Kumari and others vs. Madan Mohan and another, reported in 2013 ACJ 1253. Further, he also placed reliance on the judgment of the Division Bench judgment of this Court in the case of A.Manavalagan Vs. A.Krishnamurthy and others reported in ILR 2004 KAR 3268. On all these grounds urged by the learned counsel for respondent insurer prays for dismissal of the appeal.
10. In the backdrop of the contentions taken by learned counsel for the parties, it is relevant to state that there is no dispute that petitioners are the elder brothers of deceased Shivaraju, who was aged 23 years at the time of his death. Further, there is no dispute that deceased was working as Mason and earning Rs.3,330/- p.m. The petitioners in support of their claim have produced Ex.P1- FIR, Ex.P2-charge sheet, Ex.P3- spot mahazar, Ex.P4-IMV report, Ex.P5- inquest mahazar, Ex.P6-post mortem report and other documents. On evaluation of oral and documentary evidence on record, the Tribunal held that the accident was due to the involvement of the offending car by its driver and due to the accidental injuries, deceased Shivaraju died.
11. Further, the Tribunal after considering the decisions referred to supra, while awarding compensation towards loss of estate, on the basis of the contribution which the deceased would have been made to the claimants, took ¼ of the income of the deceased and by taking income of the deceased as Rs.3,330/-
p.m. awarded Rs.1,80,000/- under the head loss of estate. But the Tribunal has erred in assessing the compensation by taking only 1/4th of the assessed income of the deceased on the ground that claimants are not financial depending on the deceased. The claim petition is filed under Section 163-A of the MV Act. Therefore, the compensation has to be determined on the basis of age of the deceased and his income as indicated in the Second Schedule to Section 163-A of the Act. The claimants are legal heirs and the brothers of the deceased. Further, keeping in view the decision of the Division Bench of this Court in MFA No.11003/2006, that fact that petitioners are the brothers is not disputed and they are Hindus is also not disputed and they are Class II legal heirs of Second Schedule under Section 8 of the Hindu Succession Act of 1956. Therefore, they are entitled to get compensation under Section 163-A of the Act and the compensation has to be awarded under the head loss of dependency. Therefore, it is required to be calculated by taking 1/3 of personal expenses of deceased Shivaraju instead of 1/4th. Accordingly, the compensation under the head loss of dependency is worked out Rs.40,000 x 2/3 = Rs.26,666/- per annum. Taking the age at 23 years, the multiplier applicable would be 18 and the amount under loss of dependency would be Rs.26,666 x 18 = 4,79,988 rounded of to Rs.4,80,000/-. Further, in addition to that Rs.4,500/- is awarded towards conventional heads and in all appellants are entitled to Rs.4,84,500/- as against Rs.1,82,000/- awarded by the Tribunal. Accordingly, I proceed to pass the following:
ORDER Appeal is allowed in part. Consequently, the appellants/claimants are entitled for compensation of Rs.4,84,500/- with interest @ 6% p.a. from the date of petition till realisation. The impugned judgment and award rendered by the Tribunal in MVC No.4661/2014 dated 04.08.2015 is modified accordingly.
The respondent insurer shall deposit the remaining amount before the concerned Tribunal within a period of 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 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