IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19TH DAY OF SEPTEMBER, 2014 :PRESENT:
THE HON’BLE MR.JUSTICE N.K.PATIL AND THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA M.F.A. No. 10679 OF 2012 (MV) C/W. M.F.A.No. 11053 OF 2012 (MV) M.F.A. No. 10679 OF 2012 (MV) Between:
United India Insurance Co. Ltd., No.25, II Floor, Shankar Narayana Building, M.G. Road, Bangalore-1. Rep. by its Manager, United India Insurance Co. Ltd., Regional Office, 5th Floor, Krishi Bhavan, Hudson Circle, Bangalore-2.
(By Sri. Mohan Kumar.T, Advocate) And :
1. Smt. Shubha Vasanth Kumar, W/o. Late B.C. Vasanth Kumar, Age: 36 years.
2. Sri. Shabarish.B.V, S/o. Late B.C. Vasanth Kumar, Age: 18 years.
…Appellant 3. Sri. Sharath.B.V, S/o. Late B.C. Vasanth Kumar, Age: 16 years.
Since Minor, Rep. by his natural Guardian-mother Smt. Shubha Vasanth Kumar.
All are R/at. No.1484, Old Kodihalli Road, Bhadravathi Taluk, Shimoga District-577 301.
4. Sri. Yerraiah, S/o. Late Jakaraiah, Major, R/o. Surithopu, No.50, Paper Town Post, Bhadravathi Taluk, Shimoga District-577 301.
5. Sri. Bhaskar, S/o. Late Jakaraiah, Major, R/at. No.475, 4th Cross, Surithopu, Bhadravathi Taluk, Shimoga District-577 301.
…Respondents (By Sri. Shripad.V. Shastri, Advocate for R1 to R3;
Notice to R4 & R5 dispensed with v/o. dated 24/01/2013) This MFA is filed U/S 173(1) of MV Act against the judgment and award dated:14/08/2012 passed in MVC No.84/2012 on the file of the XXII Additional Small Causes Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore, awarding a compensation of `18,00,000/- with interest at 6% p.a. from the date of petition till deposit and to modify the same.
M.F.A. No. 11053 OF 2012 (MV) Between:
1. Smt. Shubha Vasanth Kumar, W/o. Late B.C. Vasanth Kumar, Aged about 36 years.
2. Shabarish.B.V, S/o. Late B.C. Vasanth Kumar, Aged about 18 years.
3. Sharath.B.V, S/o. Late B.C. Vasanth Kumar, Aged about 16 years.
Since the 3rd claimant is a Minor And natural guardian Smt. Shubha Vasanth Kumar.
All are R/at. No.1484, Old Kodihalli Road, Bhadravathi Taluk, Shimoga District.
…Appellants (By Sri. Shripad.V. Shastri, Advocate) And :
1. Sri. Yeraiah, S/o. Late Jakraiah, Siri Topu, No.50, Paper Town Post, Bhadravathi Taluk, Shimoga District.
2. Sri. Bhaskar, S/o. Late Jakraiah, D. No.475, 4th Cross, Suri Topu, Bhadravathi Taluk, Shimoga District.
3. The Manager, United India Insurance Co. Ltd., No.25, 2nd Floor, Shankarnarayana Building, M.G. Road, Bangalore-1.
…Respondents (By Sri. Mohan Kumar.T, Advocate for R3;
Notice to R1 & R2 dispensed with v/o. dated 01/02/2013) This MFA is filed U/S 173(1) of MV Act against the judgment and award dated 14/08/2012 passed in MVC No.84/2012 on the file of the XXII Additional Small Causes Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These M.F.As. coming on for Admission this day, N.K. PATIL J, delivered the following:
:J U D G M E N T:
These appeals by the Insurer and by the claimants are directed against the impugned judgment and award dated 14/08/2012 passed in MVC No.84/2012, by the XXII Additional Small Causes Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore, (for short ‘ Tribunal’).
2. The Tribunal by its judgment and award has awarded a sum of `18,00,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit, as against the claim of the claimants for a sum of `20/- lakhs, on account of the death of the deceased Sri. B.C. Vasanth Kumar, in the road traffic accident. Being aggrieved by the same, the Insurer has filed an appeal for reduction of compensation, on the ground that, the compensation awarded by the Tribunal towards loss of dependency is on the higher side and disproportionate to the income of the deceased and is liable to be reduced and that the Tribunal has erred in not fixing any contributory negligence on the part of the deceased, the rider of motor cycle and the claimants have filed an appeal for enhancement of compensation, on the ground that, the compensation awarded by the Tribunal is inadequate and it requires to be enhanced reasonably.
3. In brief, the facts of the case are:
The claimants are the wife and children of the deceased. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the RC owner and Policy holder and the Insurer of the offending vehicle, on account of the death of the deceased in the road traffic accident, contending that, on 8.12.2011 at about 5.40 p.m. deceased was proceeding on Motor Cycle bearing Reg.No.KA.14.EB.1861 along with his brother from Bhadravathi towards Shimoga, and when he came near Machenahalli village, B.H.Road, Opposite to KMF Milk Dairy, at that time, the rider of the Motor cycle bearing Reg.No.KA.14.J.3926 came with high speed in a rash and negligent manner, took sudden U turn without any signal and dashed against the motor cycle of the deceased. Due to which, deceased sustained fatal injuries. Immediately, he was shifted to Kasturba Hospital, Manipal for treatment, but he succumbed to the injuries on 9.12.2011.
4. It is the further case of the claimants that, deceased was aged about 45 years, working as an Auto driver and also running Poultry Farm and earning `20,000/- per month and looking after the welfare of the family. On account of his untimely death, claimants have suffered financial loss as they have lost the earning member in the family, apart from mental shock and agony.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of `18/- lakhs under different heads with interest at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by the same, both the Insurer and the claimants have presented these appeals, seeking appropriate reliefs as stated supra.
6. We have heard learned counsel appearing for the Insurer and learned counsel appearing for the claimants at considerable length of time.
7. The submission of the learned counsel appearing for Insurer Sri. Mohan Kumar, T, at the out set is that, the income of the deceased assessed by the Tribunal at `15,000/- per month without any credible documents is on the higher side and is liable to be reduced, on the ground that, deceased was running an auto and obtained licence to run Mutton stall at Shimoga. He further submits that the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of the motor cycle and therefore, it is liable to be modified, on the ground that, the contents of Ex.P7, sketch show that there is a negligence on the part of the deceased, the rider of the motor cycle also. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by fixing reasonable contributory negligence on the part of the deceased, rider of the motor cycle and by reducing the compensation awarded by the Tribunal.
8. Per contra, learned counsel appearing for the Insurer, inter-alia, contended and submitted that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and conventional heads and what is awarded is inadequate. To substantiate the said submission he submitted that, the Tribunal ought to have assessed the income of the deceased at `20,000/- per month and added another 30% towards future prospects following the law laid down by the Apex Court in Santhosh Devi’s case. He further submits that the compensation awarded towards conventional heads is also on the lower side and is liable to be enhanced. Therefore, he submitted that the compensation awarded by the Tribunal is liable to be modified.
9. After hearing the learned counsel for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant death of the deceased are not in dispute. The dependants are the wife and children of the deceased. It is the case of the claimants that, deceased was running an auto and owning poultry farm and earning `20,000/- per month and contributing the same to the welfare of the family. To prove the same, she has produced DL, pan card, licence, deposit receipt and statement of balance sheet as per Exs.P15 to P17, P19, P20 to P22. The Tribunal, after careful consideration of the materials available on file, specifically, Exs.P15 to P22, has justified in assessing the income of the deceased at `15,000/- per month and there is no need to disturb the same. Nor we find any substance in the submissions made by learned counsel appearing for both the parties either to reduce or enhance the income of the deceased. The Tribunal, assessing the income of the deceased at `15,000/- per month, deducting 1/3rd towards personal expenses of the deceased and adopting multiplier of ‘14’ since deceased was 45 years, has awarded a sum of `16,80,000/- towards loss of dependency and also awarded a sum of `25,000/- towards loss of consortium, `30,000/- towards loss of love and affection and `65,000/- towards medical, transportation, funeral and obsequies expenses and in all `18,00,000/- with interest at 6% p., from the date of petition till its deposit. The said compensation awarded by the Tribunal is just and reasonable and therefore, interference by this Court is not called for.
10. Regarding the submission of the learned counsel appearing for the Insurer and the claimants in respect of the quantum of compensation awarded by the Tribunal as referred above is concerned, after perusal of the impugned judgment and award passed by the Tribunal, it emerges that, the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has justified in awarding reasonable compensation towards loss of dependency and towards conventional heads after assigning valid reasons in paras 17 and 18 of the judgment. Therefore, we do not find any substance in the submissions made by learned counsel for both the parties either to reduce or enhance the income of the deceased and also the quantum of compensation awarded by the Tribunal and accordingly, it is rejected.
11. Regarding the submission of the learned counsel appearing for the insurer that, the Tribunal has erred in not fixing any contributory negligence on the part of the deceased, rider of the motor cycle is concerned, the said submission cannot be accepted and is liable to be rejected, for the reason that, the Tribunal, after due consideration of Exs.P1, P2,P4, P6 and P3, has recorded the finding of fact that, the charge sheet has been filed by the police authorities against the driver of the offending vehicle and inspite of taking the defence, the insurer has not placed any rebuttal evidence to disprove the rash and negligence on the part of the rider of the offending vehicle. The same is just and reasonable. Nor we find any error or illegality in the same which warrants interference by this Court.
12. Having regard to the facts and circumstances of the case as stated above, both the appeals filed by the Insurer and by the claimants are dismissed as devoid of merits.
The amount deposited by the Insurer in M.F.A.No.10679/2012 shall be transmitted to the jurisdictional Tribunal immediately.
Office to draw the award, accordingly.
SD/- JUDGE SD/- JUDGE tsn*