IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF APRIL 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON' BLE MR. JUSTICE P.B.BAJANTHRI M.F.A.NO.2557 OF 2013 (MV) A/W M.F.A. CROB NO.67 OF 2014 IN MFA NO.2557/2013 BETWEEN:
THE MANAGER, ICICI LOMBARD GIC LTD, NEAR SARASWATHI TALKIES, SARASWATHIPURA,MYSORE, LEGAL MANAGER, ICICI LOMBARD GIC LTD., #89, II FLOOR, AVR COMPLEX, MADIVALA,BENGALURU-68.
... APPELLANT (BY SRI. B PRADEEP, ADVOCATE) AND:
1.PADMA, W/O LATE SAMPATH NOW AGED ABOUT 38 YEARS 2.PARAMESHA, S/O LATE SAMPATH, NOW AGED ABOUT 22 YEARS 3.PALLAVI D/O LATE SAMPATH NOW AGED ABOUT 20 YEARS.
4.S.PREETHI D/O LATE SAMPATH, NOW AGED ABOUT 17 YEARS, MINOR REP BY ITS HER, MOTHER 1ST RESPONDENT, ALL ARE R/A HANUMANTHANAGARA, PANDAVAPURA TOWN.
5.DHANAJAYA S/O JAVAREGOWDA, AGED ABOUT 36 YEARS, R/AT HIREMARALI VILLAGE, KASABA HOBLI, PANDAVAPURA TALUK, ... RESPONDENTS (BY SRI. K.L.SREENIVAS, ADVOCATE FOR R1-R3 R4 IS MINOR REPTD. BY R1 R5 SERVED & UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:5.1.2013 PASSED IN MVC NO.19/2011 ON THE FILE OF THE CIVIL JUDGE(SR.DN) AND JMFC, MACT, PANDAVAPURA, AWARDING A COMPENSATION OF RS.5,80,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL PAYMENT OF THE ENTIRE AMOUNT ETC.
IN M.F.A. CROB NO.67 OF 2014 BETWEEN:
1.PADMA, W/O LATE SAMPATH, AGED ABOUT 39 YEARS, 2.PARAMESHA S/O LATE SAMPATH, AGED ABOUT 23 YEARS, 3.PALLAVI, D/O LATE SAMPATH, AGED ABOUT 21 YEARS, 4.S. PREETHI D/O LATE SAMPATH, AGED ABOUT 18 YEARS, ALL ARE R/AT HANUMANTHANAGARA, PANDAVAPURA TOWN MANDYA DISTRICT-571401 ...CROSS OBJECTORS. (BY SRI. K L SREENIVASA, ADVOCATE) AND:
1.THE MANAGER ICICI LOMBARD GIC LTD, NEAR SARASWATHI TALKIES, SARASWATHIPURA, MYSORE, LEGAL MANAGER, ICICI LOMBARD GIC LTD, NO. 89,II FLOOR, AVR COMPLEX, MADIVALA, BENGALURU- 560002 2.DHANANJAYA S/O JAVAREGOWDA, AGED ABOUT 37 YEARS, R/AT HIRIMARALI VILLAGE, KASABA HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571401. ... RESPONDENTS (BY SRI. B PRADEEP, ADVOCATE FOR R1) THIS MFA CROB IN MFA NO.2557/2013 IS FILED U/O 41, RULE 22(1) OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:5.1.2013 PASSED IN MVC NO. 19/2011 ON THE FILE OF THE CIVIL JUDGE(SR.DN), JMFC, MACT, PANDAVAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROB COMING ON FOR ADMISSION THIS DAY, ACTING CHIEF JUSTICE, DELIVERED THE FOLLOWING;
JUDGMENT Appeal by the insurer challenging the judgment and award dated 05/01/2013 in MVC No. 19/2011 passed by the MACT, Pandavapura. on the ground of liability and quantum. The Tribunal has awarded compensation of Rs.5,80,000/- at 6% interest per annum from the date of petition till payment.
2. Heard learned counsel for the parties.
3. Learned counsel for the appellant contended that the compensation awarded by the Tribunal is on higher side and that the entire liability could not have been fastened on the insurer. He contended that the Tribunal has committed an error in fixing entire negligence on the part of the rider of the offending vehicle, since the deceased was negligent in driving his vehicle and was proceeding on a motor cycle along with two pillion riders, which amounts to violation of Section 128 of M.V. Act. He further submitted that as per IMV report and sketch, no visible damages were found on the vehicles which were involved in the alleged accident. He submitted that the Tribunal has committed an error in taking the income of the deceased at Rs.4,000/- p.m., in the absence of cogent and convincing evidence and also deducting ¼ towards personal expenses instead of 1/3 as respondent Ns.2 and 3 are majors.
4. The learned counsel for the claimant not only supports the judgment and award passed by the Tribunal, but contends that the compensation determined by the Tribunal is not a just and reasonable compensation and therefore it is a case where compensation has to be enhanced.
5. The insurer has failed to produce materials in support of the above contentions. Therefore, the said contentions cannot be considered in the appeal. Accident is of the year 2009. As regards the quantum, taking into consideration the income assessed by the Tribunal, which is on lower side, compensation has to be redetermined.
6. Considering year of accident i.e. 2009 occupation of the deceased which is stated to be agriculture and business, place of residence of the claimants being Pandavapura Town and number of dependents, who are four, it is just and proper to assess income of the deceased at Rs.7,000/- p.m. and after adding 40% towards future prospects, it comes to Rs.9,800/- (rounded off to Rs.10,000/-). By deducting ¼th towards personal expenses of the deceased, it comes to Rs.7,500/-. The multiplier applicable is 15. Therefore loss of dependency comes to Rs.13,50,000/- (Rs.7,500x12x15). Further the claimants are entitled to Rs.70,000/- towards conventional heads as against Rs.40,000/- awarded by the Tribunal. Thus total compensation comes to Rs.14,20,000/- which shall carry interest at 6% per annum as against Rs.5,80,000/- awarded by the Tribunal.
Accordingly appeal filed by the Insurer is dismissed. MFA. Crob. No.67/2014 is partly allowed. The Insurer is directed to deposit the balance compensation amount as expeditiously as possible. Deposit and disbursement of the amount shall proportionately remain the same. The judgment and award of the Tribunal shall stand modified accordingly.
Sd/-
ACTING CHIEF JUSTICE akd Sd/- JUDGE