IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.521 OF 2019 (MV) BETWEEN:
UNITED INDIA INSURANCE CO., LTD., SHIVAMOGGA REP. BY ITS DIVISIONAL MANAGER No.1137/947, 2ND FLOOR, RUB BUILDING A.A. CIRCLE, B.H. ROAD SHIVAMOGGA-577201.
(BY SRI. RAVISH BENNI, ADV.) AND:
1. SMT. GEETHA W/O LATE MEGHARAJ D AGED 45 YEARS R/O. TYAPERGALLI SHIVAJINAGAR, BOODAL ROAD DAVANAGERE-577001.
2. VINAY KUMAR S/O A.C. PRABHAKARA AGED 30 YEARS R/O. BEHIND HIGH SCHOOL GADI KOPPA, SHIVAMOGGA-577201.
(R1 AND R2 SERVED – UNREPRESENTED) - - -
… APPELLANT … RESPONDENTS This MFA is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 22-9- 2018 passed in MVC No.900/2016 on the file of the Prl. Senior Civil Judge and Additional MACT, VI Shivamogga, awarding compensation of Rs.4,21,000/- with interest @ 6% p.a. from the date of petition till realization and etc.
This appeal coming on for Orders this day, the Court delivered the following:-
JUDGMENT The matter is listed for orders, on I.A.1/2019. Considering the nature and circumstances of the case, the I.A.1/2019 is allowed. Delay of 3 days in filing the appeal is condoned and this matter is taken up for final disposal.
2. This appeal by the Insurance Company is directed against the judgment and award dated 22.09.2018 passed in MVC No.900/2016 by the learned Prl. Civil Judge and Addl. MACT-VI, Shivamogga, wherein the claim petition came to be allowed in part and a compensation of `4,21,000/- was awarded.
3. In order to avoid confusion and overlapping, the parties are referred in accordance with their status before the Tribunal.
4. The matter pertains to a road traffic accident said to have occurred on 04.11.2012 at about 7.15 p.m. wherein one Megharaj D was walking at B.H.Road, near Vinayaka Talkies, Shivamogga and at that time, respondent No.1 was driving motorcycle bearing registration No.KA 14 EA 9325 who was rash and negligent and in high velocity and dashed against said Megharaj who sustained grievous injuries and when he was taken to hospital, was declared dead.
5. It is the case of the claimants that the deceased was earning an amount of `15,000/- p.m. Petitioner claimed compensation to the tune of ` 26,50,000/-.
6. Respondents contested the claim petition.
7. The learned Member calculated the compensation considering his monthly income at `4,500/- p.m. and deducted 50% for personal and living expenses and applied multiplier of 13 and awarded `3,51,000/- towards loss of dependency. The total compensation granted was `4,21,000/-.
8. Learned counsel for the appellant would submit that the learned Member granted compensation though there was no negligence on the part of rider of the motorcycle and it was stated that Megharaj was drunken at the time of the incident and had no balance to control his walking and the traffic rules. It was further submitted that there was no dependency of the deceased as the petitioner had deserted Megharaj 20 years back. In that context, she cannot claim dependency.
9. It is necessary to note that such defense was not taken before the Tribunal. The defense regarding dependency is not considered nor there is an issue to the said effect. The submission is made on the basis of the information as submitted by the learned counsel.
10. The living support of the spouses cannot be considered as wife not depending on her husband. It was further submitted that the deceased was being looked after by his brothers.
11. All that is said and contended either negligence or lack of dependency, cannot come to the aid of the Appellant, more particularly when the criminal case is stated to have been registered against motor cycle rider. Thus, the compensation of `4,21,000/- consisting of `3,51,000/- for loss of dependency and `70,000/- for conventional heads is on higher side and is liable to be rejected. Further, it is necessary to mention that deceased Megharaj was not a salary holder having fixed source of income. But the income considered per month is `4,500/- which comes to `150/- per day. In the circumstances of the case, future prospects has to be considered and 25% of the income comes to `1,125/- besides consideration of income as already calculated at `4,500/-. Thus, loss of dependency, on consideration of future prospects would be 4,500 + 1,125 = 5,625 x 1/3 = 1,875 and 4,500 – 1,875 = 3,750 x 12 x 13 = `5,85,000/- plus `70,000/-
towards conventional heads, totally `6,55,000/-.
12. This appeal is preferred by the Insurance Company. There is no appeal by the claimant seeking enhancement of compensation.
13. The very object of Motor Vehicles Act is, it is a social legislation wherein the claimant, be a dependant, is entitled for fair and just compensation.
In a case where there is no appeal by the claimant, it is not an embargo, the fair and just compensation is not a factor i.e. granted only on demand. It is not a separate cause of action. The claim and compensation depends on the basis of original cause of action. Thus, the compensation towards loss of dependency ought to have been considered to the tune of `5,85,000/-.
14. In so far as liability is concerned, the Tribunal is justified in fastening liability on the Insurance Company and it does not call for interference. Hence, the appeal is liable to be rejected.
15. However, facts states that compensation stands enhanced. The further aspect is that the claimant is not represented by a counsel here. As such, the compensation amount deserves to be transmitted to the Tribunal with an intimation to the Taluka Legal Services Authority, Shivamogga to come to the help of the claimant for getting the disbursement of compensation. As such, Taluka Legal Services Authority, Shivamogga shall be intimated by the Tribunal.
16. Appeal is rejected.
However, compensation amount is enhanced from `4,21,000/- to `6,55,000/-. The appellant – Insurance Company is directed to deposit the compensation amount including the enhanced amount within four weeks from the date of receipt of certified copy of this order.
The amount in deposit may be transmitted to the Tribunal.
Sd/- JUDGE RV