Karnataka High Court
M/S. National Insurance Company Ltd., vs Mrs. Savitha on 13 March, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.NO.6045 OF 2017 (MV)
C/W
M.F.A.NO.539 OF 2017 (MV)
AND
M.F.A.NO.6047 OF 2017 (MV)
C/W
M.F.A.NO.540 OF 2017 (MV)
IN MFA 6045/2017:
BETWEEN:
M/S. NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, 1ST FLOOR,
VIDYAPOORNA COMPLEX,
NEAR HEAD POST OFFICE,
UDUPI-576 101,
REPRESENTED BY REGIONAL OFFICE,
SITUATED AT SUBHARAM COMPLEX,
NO.144, M.G. ROAD,
BANGALORE-560 001,
REPRESENTED BY C.K. PARIMALA
ADMINISTRATIVE OFFICER
... APPELLANT
(BY: SMT. GEETHA RAJ, ADV.,)
2
AND:
1.MRS. SAVITHA
AGED ABOUT 36 YEARS,
W/O. LATE SURESH,
RESIDING AT HEGGRABETTU,
HUTTIKUDRU,
BASRUR VILLAGE,
KUNDAPURA-576 201.
2.MR. ASHWATH
AGED ABOUT 18 YEARS,
REPRESENTED BY GUARDIAN MOTHER,
MRS. SAVITHA,
RESIDING AT HEGGRABETTU,
HUTTIKUDRU,
BASRUR VILLAGE,
KUNDAPURA-576 201.
3.MR. E. ANGAMAL
AGED ABOUT 36 YEARS,
S/O. ETTIKAN,
RESIDENT OF NO.51, R.K. MUTT,
RD KG NAGAR,
BANGALORE-560 019.
... RESPONDENTS
(BY: SRI. NAGARAJA HEGDE, ADV., FOR R1 & 2
NOTICE TO R3 D/W V/O DTD. 06.03.2018)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED:14.09.2016 PASSED IN MVC
NO.553/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, ADDITIONAL MACT,
3
KUNDAPURA, AWARDING COMPENSATION OF
RS.12,44,770/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT OF
COMPENSATION AMOUNT IN THE TRIBUNAL.
IN MFA NO.539/2017:
BETWEEN:
1. SMT SAVITHA
W/O LATE SURESH,
AGED ABOUT 36 YEARS
R/AT HEGGRABETTU
HATTIKUDRU,
BASRUR VILLAGE,
KUNDAPURA,
UDUPI DISTRICT
2. ASHWATH
D/O LATE SURESH,
AGED ABOUT 17 YEARS
R/AT HEGGRABETTU HATTIKUDRU
BASRUR VILLAGE,
KUNDAPURA, UDUPI DISTRICT
... APPELLANTS
(BY: SRI. NAGARAJA HEGDE, ADV.,)
AND:
1. SRI E ANGAMAL
S/O ETTIKAN,
AGED ABOUT 36 YEARS
R/O NO.51,R.K.MUTT,
RD,KG NAGAR,
BENGALURU-560 019
4
2. THE NATIONAL INSURANCE CO.,LTD.,
BRANCH OFFICE:NAMAKKAL DIVISION,
REP.BY DIVISIONAL MANAGER,
UDUPI,1ST FLOOR,
VIDYAPOORNA COMPLEX,
NEAR HEAD POST OFFICE,
UDUPI DIST
... RESPONDENTS
(BY: SMT. GEETHA RAJ, ADV., FOR R2
R1 - NOTICE D/W V/O DTD. 06.03.2018)
THIS MISCELLANEOUS FIRST APEPAL IS FILED
U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED:14.09.2016 PASSED IN MVC
NO.553/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA 6047/2017:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE 1ST FLOOR,
VIDYAPOORNA COMPLEX,
NEAR HEAD POST OFFICE,
UDUPI-576101
REPRESENTED BY REGIONAL OFFICE
SITUATED AT SUBHARAM COMPLEX,
NO.144, M.G.ROAD,
BANGALORE-560 001
REPRESENTED BY C.K.PARIMALA
... APPELLANT
(BY: SMT. GEETHA RAJ, ADV.,)
5
AND:
1. MRS AMITHA
W/O LATE KARIYAPPA,
AGED ABOUT 36 YEARS,
RESIDING AT KATTEMAKKI MANE,
GULWADY VILLAGE,
KUNDAPURA-576201
2. KUMARI DEEKSHITHA
D/O LATE KARIYAPPA,
AGED ABOUT 17 YEARS,
MINOR REPRESENTED BY
GUARDIAN-MOTHER, MRS. AMITHA
RESIDING AT KATTEMAKKI MANE,
GULWADY VILLAGE,
KUNDAPURA-576201
3. KUMARI RAKSHITHA
D/O LATE KARIYAPPA,
AGED ABOUT 15 YEARS,
MINOR REPRESENTED BY
GUARDIAN-MOTHER, MRS. AMITHA
RESIDING AT KATTEMAKKI MANE,
GULWADY VILLAGE,
KUNDAPURA-576201
4. MR. E. ANGAMAL
S/O ETTIKAN
AGED ABOUT 36 YEARS,
RESIDENT OF NO.51
R.K.MUTT, R.D KG NAGAR,
BANGALORE-560019
... RESPONDENTS
(By: SRI. NAGARAJA HEGDE, ADV., FOR R1-R3
R4-NOTICE D/W V/O DTD. 06.03.2018)
6
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED:14.09.2016 PASSED IN MVC
NO.554/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, ADDITIONAL MACT,
KUNDAPURA, AWARDING COMPENSATION OF
RS.15,41,060/-WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA 540/2017:
BETWEEN:
1. SMT AMITHA
W/O LATE KARIYAPPA
AGED ABOUT 36 YEARS,
R/AT KATTEMAKKI MANE,
GULWADY VILLAGE,
KUNDAPURA TALUK
UDUPI DISTRICT 576201
2. MINOR DEEKSHITHA
D/O LATE KARIYAPPA
AGED ABOUT 17 YEARS,
MINOR
REP BY GUARDIAN MOTHER
SMT AMITHA I.E., APPELLANT NO.1
R/AT KATTEMAKKI MANE,
GULWADY VILLAGE,
KUNDAPURA TALUK
UDUPI DISTRICT 576201
3. MINOR RAKSHITHA
D/O LATE KARIYAPPA
AGED ABOUT 15 YEARS,
7
MINOR
REP BY GUARDIAN MOTHER
SMT AMITHA I.E., APPELLANT NO.1
R/AT KATTEMAKKI MANE,
GULWADY VILLAGE,
KUNDAPURA TALUK
UDUPI DISTRICT 576201
... APPELLANTS
(BY: SRI. NAGARAJA HEGDE, ADV.,)
AND:
1. SRI E ANGAMAL
S/O ETTIKAN
AGED ABOUT 36 YEARS,
R/O NO.51, R K MUTT,
RD, KG NAGAR
BENGALURU 560019
2. THE NATIONAL INSURANCE CO LTD
BRANCH OFFICE NAMAKKAL DIVISION,
REP BY DIVISIONAL MANAGER,
UDUPI 1ST FLOOR,
VIDYAPOORNA COMPLEX,
NEAR HEAD POST OFFICE,
UDUPI DIST 576101
... RESPONDENTS
(BY: SMT. GEETHA RAJ, ADV., FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED:14.09.2016 PASSED IN MVC
NO.554/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA,
PARTLY ALLOWING THE CLAIM PETITION FOR
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COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Smt. Geetharaj, learned counsel is directed to accept notice for respondent No.2 in MFA No.540/2017 and directed to file Vakalath with the Registry within two weeks.
2. MFA Nos. 6045/2017 and 6047/2017 are preferred by the appellant-insurer and MFA Nos. 539/2017 and 540/2017 are preferred by the appellant-claimants assailing the judgment and award passed in MVC Nos.553/2015 and 554/2015 dated 14.09.2016.
3. The accident in question is not in dispute. So also the involvement of the offending vehicle 9 insured with the respondent-insurance company. It is the contention of the learned counsel for the appellant-insurer in both the appeals that the compensation awarded by the Tribunal is on the higher side and though the claimants have not produced any documents to substantiate the occupation and income in the absence of documents, the Tribunal by taking notional income at the rate of Rs.7,000/- per month and by adding 50% income towards future prospects has awarded the compensation on the higher side and the same requires to be reduced in accordance with law. On these grounds she prays for allowing the appeals by reducing the compensation.
4. Per contra, the learned counsel appearing on behalf of the respondent claimants vehemently argued by contending that the appellant-claimants 10 are having the documents to show that the deceased were working as a centering worker and earning Rs.15,000/- per month and in another case that the deceased was a supervisor and so also doing tailoring work and mason work and was earning Rs.20,000/- per month. But the Tribunal by taking the notional income has awarded the compensation which is on the lower side and the same requires to be enhanced. On these grounds he prayed for allowing the appeals.
5. As could be seen from the judgment and award passed in MVC No.553/2105, it is the contention of the claimants that the deceased was doing Centering work and painting work and other coolie works and he was earning Rs.15,000/- month and he used to contribute entire earnings to the family. In the absence of documents to show the income, the Tribunal by taking the notional income 11 at Rs.7,000/- per month and after adding 50% towards future prospects after deducting 50% towards the personal expenses of the deceased and after applying the multiplier of '18' has awarded an amount of Rs.11,34,000/- towards 'Loss of Dependency'.
6. Though under the normal circumstances, the compensation awarded appears to be justifiable but while assessing the notional income, the Tribunal ought have kept in mind the year of accident and wages prevailing during that particular period and when the deceased was not having any settled income or fixed avocation or fixed income or salary then under those circumstances the Tribunal ought not have added 40% future prospectus as held by the Hon'ble Apex Court in the case of "National Insurance Company Limited Vs. Pranay Sethi and 12 Others" reported in AIR 2017 SC 5157. In that light, the judgment and award passed by the Tribunal is not sustainable in law. But however, the accident is of the year 2015 and at that time, the notional income of Rs.10,000/- will be the yardstick. If the same is taken, it will be justifiable. After deducting 50% towards personal expenses as the deceased was a bachelor, and even after applying the multiplier of '18' claimants are entitled an amount of Rs.10,80,000/- (Rs.5,000x12x18) as against Rs.11,34,000/- awarded by the Tribunal towards 'Loss of dependency'.
7. In view of the decision quoted supra claimants are also entitled to an amount of Rs.30,000/- towards conventional heads. 13
8. As per the records, it indicates that as per Ex. P10 - Medical Bills, the claimants have spent an amount of Rs. 50,770/- towards medical expenses and they are also entitled for the same.
9. Keeping in view the above said facts and circumstances of the case, the claimants in MFA No. 553/2015 are entitled for a total compensation of Rs.11,60,770/- with interest 6% per annum.
10. As could be seen from the judgment and award passed in MVC No. 554/2015 wherein the claimants have contended that the deceased was working as a supervisor in Green Land Tiles Factory at Karki, Gulwady Village, Kundapura Taluk and was drawing a salary of Rs.8,017/- per month and 12% PF - Rs.475, ESI, 15% bonus and 15 days leave and was also doing tailoring work and earning Rs.7000/- 14 per month; but in order to substantiate the said fact, they have not produced satisfactory evidence. In the absence of the documents, the Tribunal by taking the notional income at Rs.10,000/- per month after adding 30% future prospects and after deducting 1/3rd towards personal expenses and after applying the multiplier of '14' has awarded an amount of Rs. 14,56,056/- towards 'Loss of Dependency'.
11. As discussed earlier, in absence of documents, when there is no fixed avocation and income then in such circumstances adding of 30% of the income towards future prospects is not just and appropriate. But, while assessing the monthly income, the Tribunal ought to have taken Rs.11,300/- per month since the documents to that effect have been produced normally indicates that 15 the deceased was earning to that extent. Considering the same, and if the monthly income of the deceased is taken at Rs.11,300/- per month and after deducting 1/3rd personal expenses and after applying the multiplier of '14' as the deceased was aged about 45 years, the claimants are entitled to an amount of Rs.12,65,600/- (Rs.7533x12x14) as against Rs.14,56,056/- towards 'Loss of dependency'.
12. As could be seen from the impugned judgment and award passed by the Tribunal, the Tribunal has awarded an amount of Rs. 85,000/- under the conventional heads. But in view of the decision quoted supra, the appellant claimants are entitled to Rs.70,000/- under the conventional heads.
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13. In the light of discussion held by me above, the claimants in MFA 554/2015 are entitled to a compensation of Rs.13,35,000/- with interest at 6% p.a. Accordingly the judgment and award passed in MVC No.554/2015 is modified as indicated above.
14. In that view of the matter, MFA 6045/2017 and 6047/2017 are allowed in part and the judgment and award passed in MVC Nos. 553/2015 and 554/2015 stand modified as indicated above.
The respondent-insurer is directed to deposit the entire award within a period of six weeks from the date of certified copy of this order.
The insurer while depositing the amount deduct the interest for the delayed period of 209 days in MFA 6047/17.
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15. The amount in deposit if any, shall be transferred to the concerned Tribunal forthwith along with Lower Court Records.
16. In sofaras MFA Nos. 539/2017 and 540/2017 are concerned, they are dismissed as being devoid of merits.
Registry to draw the decree accordingly.
Sd/-
JUDGE Bsv