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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA.NO.4559 OF 2016(MV-D) C/W MFA.CROB.NO.129 OF 2016(MV-D)
IN MFA.NO.4559 OF 2016
BETWEEN:
DIVISIONAL MANAGER ORIENTAL INSURANCE CO LTD., LOCAL ADDRESS: BEAUTY PLAZA BALMATTA, MANGALURU PERMANENT ADDRESS: CITY POINT BUILDING, PRESS CLUB JUNCTION M.G.ROAD, KASARAGOD, KERALA STATE NOW REPRESENTED BY ITS REGIONAL MANAGER ORIENTAL INSURANCE CO LTD., REGIONAL OFFICE, #44/45 LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE – 560 025.
....APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)
AND:
1 . SMT ANITHA W/O LATE BHASKAR A.P. NOW AGED ABOUT 41 YEARS
2 . KUM.SHIVANI D/O LATE BHASKAR A.P. NOW AGED ABOUT 14 YEARS SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN/MOTHER, THE 1ST RESPONDENT HEREIN
3 . A.P.THIMMAIAH S/O LATE MUNDAPPA NOW AGED ABOUT 80 YEARS
4 . SMT.HEMAVATHI W/O A.P.THIMMAIAH NOW AGED ABOUT 73 YEARS REPRESENTED BY RESPONDENT NO.3 HEREIN ALL R/AT “SHIVANI”, LAND LINK LAYOUT HOIGE BAIL, ASHOK NAGAR POST MANGALURU-575 006
5 . ISMAIL S/O ABDULLA MAJOR R/AT # 6/451, KODI HOUSE PAVOOR POST, MANJESHWAR VORKADY VILLAGE, KASARAGOD KERALA – 679 520 ….RESPONDENTS
(SRI. B.R. GURUPRASAD, ADVOCATE FOR R1 TO R4, R2 IS MINOR REPRESENTED BY R1 NOTICE TO R5 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.04.2016 PASSED IN MVC NO.1457/2014 ON
THE FILE OF THE II ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER, MACT-III, D.K. MANGALURU, AWARDING A COMPENSATION OF RS.33,25,000/- WITH INTEREST @ 6%P.A FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA.CROB.NO.129 OF 2016
BETWEEN:
1 . SMT. ANITHA W/O LATE BHASKER A P AGED 41 YEARS
2 . KUM. SHIVANI D/O LATE BHASKAR A P AGED 14 YEARS
3 . MR. A P THIMMAIAH S/O LATE MUNDAPPA AGED 80 YEARS
4 . SMT. HEMAVATHI W/O A P THIMMAIAH AGED 73 YEARS
APPELLANT NO.2 IS A MINOR REPRESENTED BY HER NATURAL GUARDIAN MOTHER, THE APPELLANT NO.1 HEREIN ALL ARE R/AT “SHIVANI” LAND LINKS LAYOUT, HOIGE BAIL ASHOK NAGAR POST MANGALURU - 575 006 ....CROSS OBJECTORS
(BY SRI. GURUPRASAD .B.R, ADVOCATE)
AND:
1 . THE ORIENTAL INSURANCE CO LTD., BEAUTY PLAZA, BALMATTA ROAD MANGALORE - 575 002 PERMANENT ADDRESS: CITY POINT BUILDING PRESS CLUB JUNCTION M.G.ROAD, KASARAGOD KERALA STATE - 671 121 REPRESENTED BY ITS MANAGER
2 . MR. ISMAIL S/O ABDULLA R/AT 6/451, KODI HOUSE PAVOOR POST, MANJESHWAR VORKADY VILLAGE, KASARAGOD KERALA - 671 323. ….RESPONDENTS
(SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R1)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED: 12.04.2016 PASSED IN MVC NO.1457/2014 ON THE FILE OF THE II ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER, MACT-III, D.K., MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROB COMING ON FOR FINAL HEARING, THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT
The Insurance Company being aggrieved by the quantum determined by the Tribunal in MVC.No.1457/2014 has preferred appeal in MFA.No.4559/2016, whereas the claimants being aggrieved by inadequate compensation have preferred cross appeal in Cross Objection No.129/2016.
The brief facts leading to the case are as under: The respondent Nos.1 to 4/claimants filed claim petition for having lost one A.P.Bhaskara in a road traffic accident dated 17.09.2014. The respondent No.1 is the wife of deceased Bhaskara, respondent No.2 is the daughter and respondent Nos.3 and 4 are the parents of deceased Bhaskara. The case of the respondent Nos.1 to 4 before the Tribunal was that on 17.09.2014, the said Bhaskara was proceeding as a pillion rider on a motorbike bearing Reg.No.KA-19-X-
9523. When the said Bhaskara reached Indiana Hospital on NH-66 at about 6.30 a.m., the driver of the offending car bearing Reg.No.KL-14-H-2033 drove the car in a rash and negligent manner and dashed against the motorbike on which the husband of respondent No.1 was proceeding. Due to the impact, the husband of the respondent No.1 sustained multiple injuries and was immediately shifted to Indiana Hospital where he was declared dead. The respondent Nos.1 to 4 specifically contended that deceased was hardly aged 46 years at the time of the accident and he was serving as the Head Constable in Traffic East Police Station, Department of Karnataka Police. The respondent Nos.1 to 4 specifically contended that they were totally dependent on the income of the deceased and hence, filed claim petition claiming compensation of Rs.1,00,00,000/-.
The present appellant-Insurance Company on receipt of notice, contested the proceedings by filing written statement. The appellant-Insurance Company stoutly denied the manner in which the accident was narrated by the claimants in the claim petition. The appellant–Insurance Company specifically contended that the accident has occurred due to rash and negligent riding by the rider of the motorbike and the deceased and they were guilty of contributory negligence and hence, submitted that no liability could be fastened on the Insurance Company. The appellant-Insurance Company also contended that the driver of the offending vehicle did not posses valid and effective driving licence at the time of the accident. Hence, prayed for dismissal of the claim petition.
Based on the rival contentions, the Tribunal formulated the following issues:
“1) Whether the petitioners prove that, on 17.09.2014 at about 06.30 a.m., while the deceased A.P.Bhaskara, S/o. Thimmaiah was proceeding as a pillion rider in a Motor Cycle bearing Registration No.KA-19-X-9523 from Pumpwell Circle side towards Yekkur junction, when they reached near Indiana Hospital, Pumpwell, on NH 66, a Car bearing Registration No.KA-14-H-2033 driven by its driver in a rash and negligent manner, came from opposite side and dashed against the Motor Cycle, due to the impact of which the deceased sustained grievous injuries on account of which he died at Indiana Hospital, Mangalore? 2) Whether the petitioners are entitled for compensation? If so, what is the quantum and who is liable to pay? 3) What order or award?”
The respondent Nos.1 to 4/claimants in support of their contention lead in oral evidence and respondent No.1/wife examined herself as PW.1 and
got examined the Assistant Administrative Officer as PW.2. The respondent Nos.1 to 4 relied on documentary evidence vide Exs.P-1 to P-18. The appellant – Insurance Company did not chose to lead any oral evidence, however, produced copy of policy as per Ex.R-1.
The Tribunal having examined the oral and documentary evidence answered issue No.1 in the affirmative by holding that the husband of respondent No.1 died on account of rash and negligent driving by the driver of the offending car. While determining the compensation, the Tribunal proceeded to assess the income of the deceased at Rs.25,000/- and by deducting 1/3rd towards his personal expenses and by applying the multiplier of 13, has awarded compensation of Rs.26,00,000/- under the head ‘loss of dependency’. Under the other conventional heads, the Tribunal has awarded Rs.7,25,000/-. The Tribunal
in all has awarded total compensation of Rs.33,25,000/-. The appellant – Insurance Company questioning the quantum has filed the present appeal.
Learned counsel for the appellant – Insurance Company would vehemently argue and contend before this Court that the Tribunal while assessing the income of the deceased has not taken note of compulsory deductions towards Income Tax and Professional Tax. He would also further submit to this Court that the Tribunal erred in awarding Rs.1,00,000/- towards loss of consortium and further sum of Rs.1,00,000/- towards loss of love and affection. He would submit to this Court that the compensation awarded by the Tribunal is contrary to the ratio laid down by the Hon’ble Apex Court in Reshma Kumari and Others vs. Madan Mohan and Another reported in 2013 ACJ 1253. He would further contend before us that Rs.5,00,000/- awarded
under the head loss of estate is erroneous. He would submit to this Court that the Tribunal having awarded compensation under the head of loss of dependency, was not justified in again awarding a sum of Rs.5,00,000/- under the head of loss of estate.
Per contra, learned counsel appearing for the respondent Nos.1 to 4/claimants would vehemently argue and contend before us that the deceased was aged 46 years and was drawing a salary of Rs.30,000/- and hence, the Tribunal was not justified in restricting the income of the deceased at Rs.25,000/-. He would also submit to this Court that since deceased was aged 46 years, the Tribunal ought to have added 30% towards future prospects to determine the compensation under the head of loss of dependency. Hence, learned counsel prays to allow the cross objection and enhance the compensation.
On re-appreciation of the oral and documentary evidence and having examined the material on record, the income of the deceased as per last paid salary certificate as per Ex.P-12 is shown as Rs.24,751/-. After deducting Rs.200/- towards professional tax, the annual income would come to Rs.2,94,612/-. The relevant period i.e., 2015-16, the Income Tax slab was fixed at Rs.2,50,000/-. In excess of Rs.2,50,000/-, the amount of Rs.44,612/- is taxable at the rate of 10% which comes to Rs.4,461/- and after deducting the same, the income of the deceased is to be assessed at Rs.2,90,151/- per annum. If 30% is added towards future prospects, the same would come to Rs.3,77,196/- and after deducting 1/4th towards personal expenses and by applying the multiplier of 13, the compensation payable under the head of loss of dependency comes to Rs.36,77,663/- (2,90,151+30%x3/4x13). The
respondent No.1 being the wife of the deceased is entitled for Rs.40,000/- towards loss of spousal consortium and respondent No.2 being the daughter is entitled for Rs.40,000/- towards parental consortium and respondent Nos.3 and 4 being parents of the deceased are entitled for Rs.40,000/- each towards filial consortium. Towards other conventional heads, a sum of Rs.30,000/- is awarded. Hence, the total compensation re-determined by this Court comes to Rs.38,67,663/-.
Accordingly, the following: ORDER i) The appeal filed by the Insurance Company in MFA.No.4559/2016 is dismissed and the cross appeal filed by the claimants in Cross Objection No.129/2016 is allowed in part.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.38,67,663/- (Rupees Thirty eight lakhs sixty seven thousand six hundred sixty three only) as against Rs.33,25,000/- which
shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization. iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact. iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal. vi) Appeal filed by the Insurance Company is dismissed. Cross objections filed by the claimants is partly allowed in terms of the above. vii) Draw modified award accordingly. viii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.
Sd/- JUDGE
Sd/- JUDGE