IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA No.3234 OF 2016 (M V) BETWEEN M/S. TATA AIG GENERAL INSURANCE COMPANY LTD., NO.69, 2ND FLOOR, J.P. & DEVI JAMBUKESWAR ARCADE MILLER ROAD BANGALORE-560052 REPRESENTED BY MANAGER. ... APPELLANT (BY SRI. RAVI. S. SAMPRATHI, ADVOCATE) AND 1. SMT. SUSHEELAMMA W/O LATE. KADAKAIAH @ KARIYAIAH AGED ABOUT 43 YEARS, 2. KUM. DAKSHAYINI D/O. LATE. KADAKAIAH @ KARIYAIAH AGED ABOUT 17 YEARS, 3. KUM. KAVYA D/O LATE. KADAKAIAH @ KARIYAIAH AGED ABOUT 18 YEARS, 4. KUM. SAVITHA .K D/O LATE. KADAKAIAH @ KARIYAIAH AGED ABOUT 6 YEARS, RESPONDENTS NO. 2 TO 4 ARE MINORS REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN RESPONDENT NO.1 SMT. SUSHEELAMMA.
ALL RESIDING AT K. SHETTAHALLI VILLAGE, SRIRANGAPATNA TALUK-571438.
5. SRI. RAMESHA S/O JAVARIAH MAJOR IN AGE, NO.3240 KEMMANNAGUNDI STREET GANJAM SRIRANGAPATNA-571438. ... RESPONDENTS (BY SRI. RAGHU .R – ADVOCATE FOR R1 TO R4; R-2 TO R-4 ARE MINORS REP. BY R-1;
R-5 SERVED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 24.02.2016 PASSED IN MVC NO.235/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT SRIRANGAPATNA, AWARDING THE COMPENSATION OF Rs.13,39,784/- WITH INTEREST AT THE RATE OF 9% P.A FROM THE DATE OF FILING THE PETITION TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant – Insurance Company and the learned counsel for the claimants-respondents 1 to 4 and perused the records. Respondent No.5 – owner is served but remains unrepresented.
2. The insurance company has preferred this appeal, challenging the liability fastened on it and also the quantum of compensation awarded by the Addl. Senior Civil Judge, MACT, Srirangapatna in MVC No.235/2015 by its impugned judgment dated 24.02.2016, seeking reduction in the compensation awarded by the Tribunal.
3. The factual matrix is that on 21.12.2014 at about 7.00 p.m. on Mysore – Bangalore road near CDS Channel, the deceased was said to be proceeding by walk on the left side of the road. At that time, the driver of the passenger auto bearing Regn.No.KA-11-B-8024 is said to have driven the same at high speed in a rash and negligent manner and is said to have dashed the him resulting in the accident and grievous injury to the deceased Kadakaiah @ Kariyaiah who died on the way to hospital. Hence, a claim petition was filed by his legal representatives claiming compensation for the death of the deceased.
4. After service of notice, the owner of the offending vehicle as well as the insurer did appear and filed their written statement and contested the claim petition. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant herein.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the income of the deceased at Rs.6,500/- and as the family of the deceased consisted of five dependants, deducted one-fourth towards his personal and living expenses and since the deceased was aged 45 years, applied the multiplier ‘14’ and awarded total compensation of Rs.13,39,784/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal 6. The learned counsel for the appellant – Insurance Company vehemently contended that the tribunal has erred in considering the age of the deceased to be 45 years. As per Exhibit R1 Election ID card, his age was 40 years as on 1.1.1994 and further as per Exhibit R2 Aadhar card, his date of birth is 1957. If that being so, the age of the deceased at the time of the accident was 57 years. This evidence has been lost sight of by the Tribunal while considering his age as 45 years. Hence, the appropriate multiplier to be adopted will be ‘11’ instead of ‘14’.
It is his further contention that the Tribunal erred in considering 30% towards future prospects, when the age of the deceased was 57 years. Hence, he contends that it has to be reduced considerably and the compensation to be awarded requires to be re-worked in view of the change in the age of the deceased and the multiplier and thus compensation awarded by the Tribunal has to be reduced considerably.
7. Per contra, the learned counsel appearing for the claimants submitted that the accident being of the year 2014, the monthly notional income of the deceased ought to have been fixed at Rs.9,000/- as per the settled norms, in order to calculate the compensation towards ‘Loss of dependency’. On all other aspects, the learned counsel for the claimants contended that the Tribunal has awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that as contended by the learned counsel for the Insurance Company, the age of the deceased has been wrongly adopted as ‘45’. On going through Exhibits R1 and R2, I find that the appropriate age of the deceased shall be taken as ‘51-55’ *. Hence, the multiplier would be ‘11’. However, the year of the accident being 2014, his income ought to have been taken at Rs.9,000/- instead of Rs.6,500/-.
Hence, the income of the deceased shall be taken at Rs.9,000/- to compute the ‘Loss of dependency’. Then adding 15% towards his future prospects, his income would come to Rs.10,350/- (9000 + 1350) per month. Then deducting one- fourth towards his personal expenses, the income will come to Rs.7,763/- (10350 – 2587). Now, with Rs.7,763/- as the monthly income and applying multiplier ‘11’, the compensation towards ‘Loss of dependency’ would come to Rs.10,24,716/- (7763 x 12 x 11). Further, in view of the law laid down in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157) the compensation awarded * Correction carried out vide court order dated 20.06.2019 by the Tribunal towards conventional heads is hereby scaled down to Rs.70,000/- from Rs.2,75,000/-. Hence, the total compensation would come to Rs.10,94,716/-.
Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 24.02.2016 passed by the Tribunal in MVC No.235/2015, the compensation payable to the claimant is reduced from Rs.13,39,784/- to Rs.10,94,716/-. The reduction in compensation would come to Rs.2,45,068/-. Further, the rate of interest granted by the Tribunal is reduced from 9% to 7.5% per annum. Appellant – Insurance Company shall deposit the compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on roper identification. However, the impugned judgment and award, in so far as deposit is concerned, shall remain unaltered. The amount already deposited, if any, shall be adjusted. The amount in deposit before this court shall be transmitted to the tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS