IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.8449/2009 C/W M.FA.No.8143/2009 (MV) IN M.F.A.No.8449/2009 BETWEEN:
THE MANAGER THE UNITED INDIA INSURANCE CO. LTD., “KRISHNA” COMPLEX, G.B.PANTAH MARG OPP:SHANKAR VITTAL GARAGE, UDUPI BY IT’S MANAGER.
…APPELLANT (BY SRI O MAHESH, ADVOCATE) AND:
1. P SUSHEELA AGED ABOUT 58 YEARS W/O LATE B BASAVA MASTER 2. SOWBHAGYAVATHI D/O LATE B BASAVA MASTER AGED ABOUT 37 YEARS BOTH ARE RESIDING AT SEED FARM ROAD VARAMBALLI VILLAGE POST, BRAHMAVAR UDUPI TALUK & DISTRICT.
3. AUSTIN SEQUERIA, MAJOR S/O SIMON JULIAN SEQUIRA R/O S.B.ROAD, HOSALA VILLAGE BARKOOR POST UDUPI TALUK & DISTRICT.
...RESPONDENTS (BY SRI PAVANA CHANDRA SHETTY H, ADVOCATE FOR CAVEATOR R-1 AND R-2, SERVICE OF NOTICE TO R-3 IS HELD SUFFICIENT V/O DTD.26.7.12) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.10.2009 PASSED IN MVC No.310/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) AND ADDITIONAL MACT, UDUPI, AWARDING A COMPENSATION OF Rs.1,48,500/- WITH INTEREST @ 8% P.A.FROM THE DATE OF PETITION TILL REALISATION AND TO SET ASIDE THE SAME.
IN M.F.A.No.8143/2009 BETWEEN:
1. P.SUSHEELA AGED ABOUT 58 YEARS W/O LATE B. BASAVA MASTER.
2. SOWBHAGYAVATHI AGED ABOUT 37 YEARS W/O LATE B. BASAVA MASTER.
BOTH ARE RESIDING AT SEED FARM ROAD, VARAMBALLI VILLAGE, POST BRAHMAVAR UDUPI TALUK AND DISTRICT.
…APPELLANTS (BY SRI PAVANA CHANDRA SHETTY H, ADVOCATE) AND:
1. AUSTIN SEQUERIA, MAJOR S/O SIMON JULIAN SEQUIRA R/O S.B. ROAD, HOSALA VILLAGE BARKOOR POST, UDUPI TALUK AND DISTRICT.
2. THE UNITED INDIA INSURANCE CO.LTD., REP:BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE AT UDUPI ‘KRISHNA’ COMPLEX, G.B.PANTH MARG OPP:SHANKAR VITTAL GARAGE, UDUPI.
…RESPONDENTS (BY SRI O MAHESH, ADVOCATE FOR R-2, NOTICE TO R-1 IS DISPENSED WITH V/O DTD.5.1.11) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.10.2009 PASSED IN MVC No.310/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’s COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are posted for orders, with the consent of learned counsel for both the parties, they are taken up for final disposal.
These are the two appeals directed against the judgment and award dated 7/10/2009 passed by the Principal Civil Judge (Sr.Dn) and Additional MACT, Udupi, in MVC No.310/2007, wherein, the claim petition filed by the claimants therein under Section 163-A of M.V. Act came to be allowed in part and an amount of Rs.1,48,500/- was awarded together with interest at the rate of 8% p.a. from the date of petition till its realization.
2. M.F.A.No.8449/2009 is filed by the Insurance Company seeking to set aside the Judgment and award passed by the learned Member and M.F.A.No.8143/2009 is filed by the claimants seeking enhancement of compensation.
3. In order to avoid confusion and overlappings, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The proceedings were initiated because of the accident stated to have been occurred on 22.4.2006 at 3.00 p.m. when the victim Deen Dayal was proceeding from Mabukala in a Motor Cycle bearing Registration No.KLA.20.E.8193 near Raghavendra Canteen, Uppinakote, the goods lorry approaching from the opposite side being driven in a rash and negligent manner dashed against the Motor cycle on which the said Deen Dayal was proceeding. He sustained serious injuries because of the accident and succumbed to them at the spot. It is stated that, Deen Dayal was aged about 32 years and earning an amount of Rs.3,000/- per month. The mother and sister of Deen Dayal claimed compensation of Rs.5,00,000/-.
5. In response to the summons issued by the Tribunal, second respondent appeared through his counsel and filed written statement denying all the allegations made and first respondent remained absent and placed exparte.
6. Before the Tribunal, in support of their case, claimants have examined first claimant as PW1 and got marked 3 documents as per Exs.P1 to P3. On the other hand, second respondent examined one witness as RW1 and got marked 2 documents as per Exs.R1 and R2.
7. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petition and granted the compensation of Rs.1,48,500/- together with interest at 8% p.a., from the date of petition till realization as under:
Loss of dependency Rs. 1,44,000/- For funeral expenses Rs. 2,000/- Loss to the estate Rs. 2,500/- Total Rs.1,48,500/-
8. The learned Member awarded Rs.1,44,000/- towards loss of dependency considering the monthly income of victim at Rs.3,000/-, deducting 50% towards his personal and living expenses and applying multiplier ‘8’ and also awarded Rs.4,500/- towards conventional heads viz., towards funeral expenses and loss to the estate. The same is challenged in these appeals both by the Insurance Company as well as by the claimants.
9. The learned counsel for the Insurance Company in M.F.A.No.8449/2009 Mr. O. Mahesh would contend that the claim petition is not maintainable under Section 163A of M.V. Act, because of the income limit of Rs.40,000/- per annum in the II Schedule to the said Section. Further, he would contend that the Insurance Company has no liability to compensate the amount for the reason that victim Deen Dayal was a rider by himself.
10. Insofar as first contention regarding income limit is concerned, II Schedule to Section 163A is loud and clear about the income limit of Rs.40,000/- per annum and anything in excess of the same would dis- entitles the claimants from claiming compensation in case of fatal accident. Thus, according to the learned counsel for Insurance Company anything in excess of Rs.3,333/- per month for the victim will dis-entitles the claimants to claim compensation under Section 163A of M.V. Act.
11. In this connection, learned counsel for the Insurance Company drew my attention to the copy of the claim petition that was given to the Insurance Company, wherein, it is mentioned in Column No.5 as “monthly income of Rs.5,000/- of the victim Deen Dayal” and submits that on this ground the Tribunal ought to have dismissed the claim petition as not maintainable.
12. On a question being asked to the learned counsel Sri.Pavan Chandra Shetty appearing for the claimants, he would submit that income claimed as per the evidence is, ‘Rs.3,000/- per month’ and the Tribunal also considered the monthly income of the deceased Deen Dayal at ‘Rs.3,000/- per month’. He further submitted that the compensation granted is being much insufficient.
13. No-doubt, the income limit is confined to Rs.40,000/- and not a pie beyond it. However, when the claimants apt and Tribunal reckons that monthly income is less than that and in the instant case the claimants prefers to restrict the income not beyond Rs.3,000/- per month, there is no bar to entertain the petition filed for compensation under Section 163A of MV Act.
14. In this regard, the learned counsel for Insurance Company showed the copy of the claim petition that was given to him, wherein, it is stated that, the monthly income of the victim is Rs.5,000/- and as per the copy shown by Mr.Pavan Chandra Shetty, appearing for the claimants, the income claimed is Rs.3,000/- per month and learned counsel for both the parties equally asserted that their stands are correct. Therefore, it is necessary to go through the lower Court records secured in these cases.
15. After perusing the lower court records, it is necessary to place on record that on 31.5.2008, the Tribunal passed orders on I.A.No.1 which is an amendment application filed under Order 6 Rule 17 CPC, wherein the monthly income of Rs.5,000/- is sought to be amended to ‘Rs.3,000/-‘ by the claimants and the said application came to be allowed. Thus, for all the practical and legal purposes, the income of ‘Rs.3,000/- ‘per month would be a reckoning factor. Here, I would like to place on record that the said fact should have been brought to the notice of the Court instead of making the Court to search the records. Thus, it is clarified that the income claimed by the claimants stood exclusively at ‘Rs.3,000/-‘ per month by virtue of amendment application which is not noticed either by the learned counsel for the Insurance Company or by the claimants.
16. Insofar as the multiplier is concerned, the learned Member has taken it as ‘8’ considering the age of the 1st petitioner as 56 years. But it is a case of fatal accident and the age of the victim Deen Dayal as on the date of his death is 32 years and invariably, this court finds that the suitable and appropriate multiplier should have been ‘17’.
17. Secondly, insofar as liability of the Insurance Company is concerned, it is the contention of the learned counsel for the Insurance Company that liability clause exonerates the Insurance Company from being liable to compensate as the rider is not entitled for compensation on the ground that victim Deen dayal was at fault, he is not the owner of the vehicle and he has authored the accident and hence, claim petition is not maintainable.
18. In this connection, it is necessary to mention that Bramhavar Police, Udupi District, have registered a criminal case in Crime No.54/2006 for the offences punishable under Sections 279, 304A of IPC and 134(A)(B) of MV Act against the unknown lorry driver. Hence, the contention of the Insurance Company that the liability clause exonerates the Insurance Company from being liable to pay compensation to the claimants on account of death of Deen Dayal cannot be accepted.
19. In this connection, it is also necessary to have a cursory glance of Section 163A of M.V.Act, which reads as under:
[163-A. Special provisions as to payment of compensation on structured formula basis. – (1) Notwitstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub- section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub- section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
20. An attempt was also made to fortify the contention by bifurcating ‘the owner’ and ‘the rider’ of the motor cycle wherein, it was submitted by the learned counsel for the Insurance Company that Deen Dayal was the rider and not the owner and therefore, the Insurance Company is exonerated from its liability. In this connection, the learned counsel for the Insurance Company has relied on the decision of the Division Bench of this Court in the case of the Branch Manager, the New India Assurance Company Limited Vs. Mahadev Pandurang Patil and another (MFA No.10993/2007 and connected matters disposed of on 4/12/2010).
In the circumstances, it is necessary to go through the principle laid down by the Apex Court in the case of National Insurance Company Limited Vs. Ashalatha Bhowmik reported in 2018(9) SCC 801, wherein it is held that, when the owner- cum - driver himself is responsible for the accident caused when there are no other vehicle, the claim petition is not maintainable.
In the ratio of the said decision, I find that the submission of the Insurance Company that it is not liable to compensate for the reason that the Deen dayal was the rider of the motor cycle is not acceptable.
21. In the overall circumstances of the case, M.F.A.No.8449/2009 by the Insurance Company is for setting aside the award passed by the learned Member and M.F.A.No.8143/2009 by the claimants is for enhancement of compensation. In the context of the matters, the just and fair compensation should have been considered as under:
Monthly income :Rs.3,000/- Deduction towards personal Living expenses :1/3rd Applicable Multiplier 17 Thus, the claimants are entitled for Rs.4,08,000/- towards loss of dependency (Rs.3,000/- = Rs.1,000/- (1/3rd) = Rs.2,000/- x 12 x 17 = Rs.4,08,000/-. The claimants are also entitled for Rs.4,500/- towards conventional heads (Rs.2,500/- towards funeral expenses and Rs.2,000/- towards loss of estate). In the circumstances, the claimants being the mother and sister of the deceased Deen Dayal are entitled for a compensation of Rs.4,12,500/-. Thus, though the learned Member was right in allowing the petition in part, but erred seriously in arriving at a just and fair compensation. Hence, insofar as the quantum of compensation is concerned, the judgment and award passed by the learned Member is liable to be set aside.
22. Insofar as the submission of the learned counsel for the Insurance Company that the rate of interest awarded by the Tribunal at 8% p.a. is on the higher side and is liable to reduced is concerned, interest awarded by the Tribunal 8% p.a. from the date of petition till its realization appears to be excessive and therefore, it is reduced to 6% p.a. on the entire compensation.
Hence, the following ORDER (i) M.F.A.No.8449/2009 filed by the Insurance Company is partly allowed.
(ii) M.F.A.No.8143/2009 filed by the claimants is allowed in part and Rs.4,12,500/- with interest at 6% per annum from the date of petition till its realization is fixed as compensation payable by the Insurance Company to the claimants that includes the enhanced compensation of Rs.2,64,000/- and to that extent the impugned Judgment and award passed by the Tribunal is modified.
(iii) The Insurance Company is hereby directed to deposit the balance amount with interest at 6% p.a. on the entire compensation within 30 days from the date of receipt of the certified copy of this judgment.
At this stage, learned counsel for the claimants submitted that no amount of compensation is deposited so far except the statutory amount of Rs.25,000/- before this Court. Hence, the Insurance Company is directed to deposit the entire compensation amount with interest at 6% p.a. from the date of petition till its realization excluding the statutory deposit made before this court.
The statutory amount deposited by the Insurance Company in M.F.A.No.8449/2009 shall be transmitted to the concerned Tribunal forthwith.
Sd/- JUDGE tsn*