Karnataka High Court
Regional Manager Oriental Insurance Co ... vs J Ananda Murthy on 9 September, 2010
Equivalent citations: 2011 AAC 137 (KAR), 2010 (4) AIR KANT HCR 1011, (2011) 4 ACC 833, (2011) 3 ACJ 1820, (2012) 1 TAC 606
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
1 IN THE HIGH COURT OF KARNATAKA, BANGALORE "V DATED THIS THE 9TH DAY OF SEPTEMBER A. ._ PRESENT _ASDSADSx THE HONELE MRJUSTICE D V SHYLEND-RA 4% AND D A " Sf] ' A A _ A " 1' THE HONBLE MRJUSTICE MISCELLANEOUS F1RS_;1ApRE'AL 'NOV.1*?JV:788./290,35 Erv'-.\Z7 BETWEEN : REGIONAL MANAGER _S ORIENTAL 1NSURANcE_ cO._LTD. O REGIONAL OFFICE, No.44/~45,' LEO 'SHOPP1NGj;cOMRLEx"" " RES1DENO*;"ROAD;'-- ' BANGALORE;'560"O2.5"=.'i;- ' ...APPELLANT (BY S MAHESI-I\NAl@._& E 'ERADEEP, ADVOCATES) AND: ' A 1.!]_: .J.AN,ANDA }\'/IURTHY S/_O,G~...JANAKI RAM _ v'r»1Ow"AGED ABOUT 46 YEARS A PADiv:AVATH1 - W/OANANDA MURTHY ~. New AGED ABOUT 40 YEARS ' MEGHANA A D/O J ANANDA MURTHY NOW AGED ABOUT 3 E / 2 YEARS SINCE MINOR REP BY NATURAL GUARDIAN FATHER, THE IST RESPONDENT
HEREIN R/A C / O BHEEMSINGH, B G ROAD BANGALORE -- 83.
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3. The respondents who are parents and unmarried sister of one H.A.Harsha, filed the"--claim petition under Section 163--A of the Motor seeking compensation for the death of in the motor vehicle accid1ent__thatp ':4(')(3f_:14J.1T?z"£:plCl1'._()Afi.1 21.1.2003 as a result of lorry bearing regiastraltlion ; 09--KB--252O dashing againsut-.the_Vpmotoricyclelyfgon which deceased was proc.e.edin-pg. claim petition. claimants contended... was earning more than lpfer claim petition was Company. However, the 'f'ribuna1-- the annual income of the deceased4lat_:Rs.?i2iO(lC}-- and by adopting multiplier of p18.':'irj&---s«.3-elationlltomlthe age of the deceased, and by of the annual income towards the personal.eXpenses of deceased, quantified the total loss T ..of_dependency at Rs.5,04,000/-- and by adding another it of Rs.26,000/-- under conventional heads awarded " ~"total compensation of Rs.5,30,000/--. Being aggrieved by the said judgment and award, the Insurance M Company is in appeal before this court. 4
4. Sri.A.N.Krishria Swamy, learned counsel for appellant urged following points; That the petition filed under Section the Act, itself was not maintainable as the the deceased as claimed in the Rs/$0,000/-; The Tribunal in 163--A of the Act, could not talieri of V T the deceased at Rsvxl-2,000/'A 'the annual income allowed under Rs.40,000/--; The Tribunal iapriot the multiplier of 18 as"appiicableTto tiie"age"_of"the deceased provided in Sched'ule--.IianVci'.~.it._o1i.§ht:l.to have quantified the loss of dependency _:on..the"bas.is of multiplier applicable to the c'}f= youngerlwofll the parents; As per Schedule--II, A Vcoinp.e'nsati'on_i.~that can be awarded under conventional heacis__'vto.Vthe facts of this case was only Rs.4,500/-- and itherefore, the Tribunal is not justified in awarding it ";_TRs--.A2l6,O00/-- under conventional heads.
5. Sri.R.Chandrashekhar, learned counsel for respondent--claimants, contended that while fiii e 5 petition under Section 163--A of the Act, it is open to the claimants to notionaly scale down the income pf the deceased to the maximum amount under Scl'ied'13le--ell, though the deceased had higher income, the benefit of said section. It is his lthajt on 2 ' behalf of respondents, he has V' the annual income of therefore, the respor1'dents,~rhave':no*objectior1s"lto modify the award to that extent.' the learned counsel, the 'I'ribunal is ..i,n:Tdeducting 1/ 3rd of incom'eW"o'f personal expenses as provided «underrseco-nd».,Schedule. It is his further submission thelvmultiplier mentioned in second 'l V. SchCedi'1le"l' has application only to non--fatal accident fatal accident cases, and in a petition Lin.derv___v'Sec?tion i63--A of the Act, in respect of fatal ,accident, the loss of dependency has to be quantified on t >_the*basis of figures mentioned in the horizontal column " relation to the applicable annual income of deceased as indicated in second Schedule. He fairly submitted b.
that the award of compensation under conventional heads has to be as mentioned in second Schedule-_;:'*.__
6. The claim petition was filed owner and insurer of the offending' lvor_ry:.' petition was contested only by the VhappellanthphIn'suifai1ce--..L Company while the thedlvdehicle flfremainedd exparte. The appellain.t Company did not seriously dispute the the accident occurred. contention urged by before this Court is with of petition filed under Section as 'even according to the claimants, income of the deceased was » as such it exceeded the maximum amount H II schedule of the Act.
a A perusal of the claim petition indicates that it ..u'Column No.6 of the petition, the claimants have
---Vimentioned the monthly income of the deceased as Rs.3,500/-- being the salary and Rs.1,500/-- towards over time, thus, in all Rs.5,000/-- per month. It is well /iv settled law that claim petition under Section l63--A being a social security provision, its benefit availed only by those whose annual _ Rs.40,000/- and all other clairnants _ciairn'1_n:_g-higher" it income can approach the Tribunal 1;i1i.deric::ot' the Act. This position of has elearly{"'1ai,c1 <i1ovvn--.i ' by the Apex Court in. grid Others Vs United Insurance reported in AIR 2004 sc Agttltthpex Court has observed . it it tttt of the 0Plnion "S has correctly been decided. do not agree with the findings in Kodala (supra) that if a person iinvolges llprovisions of Section 163-A the *.l1'lCOIl'l€ of Rs.40,000/- per annum Vlgevtreated as a cap. In our opinion, the ''-proceeding under Section 163--A being a it "social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/-- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act." pp
8. As, in the case on hand, the claimants have sought to contend that deceased was veatfning Rs.5,000/-- per month, they could not _ the claim petition under Section; l"63--A of «. it w further amplified by the findings jof. income of the deceased which also goes ;_.beyonc1..lVl:p"'maxim1in1« .._Aan_iount of Rs.-40, 000/ -- per schedule.
9. We force in the contention'».V.Votl Swamy about the under Section i63--A of th€"A(fi)_'fi[. held by the Apex Court in Girishhhdi Sonfs case noticed supra, all other ' ;c}a_.i1n.s'«a1'e"required to determined in terms of Chapter the petition though filed under Section 1Ei3:AAcannot be rejected. It is the duty of the Tribunal " 'consider such claim petition under Section 166 of the Act.
10. For this View of ours, we gain support from the fact that as per sub section (4) of Section 166 of the %/ Act, it is mandatory for the Claims Tribunal to treat any report of accidents forwarded to it under sub-sectior1g.(6) of Section 158 as an application for under this Act. As per sub section [6] of». an officer in-charge of the police station'tea_s"A.s'oon:fat_s receives information rega19dii1g any accideriVt'~inyolvingVit» death or bodily injuryto any...perso.n, "shall_l"=orward a copy of such report from the date of recording of pirrfiormatiori of such report as the Tribunal having jurisdiction: A' thereafter to the concerned insure-r.t further provides that when a copy .of--. "report is made available to the 'o'wne5r',: the said""own"V er is also under an obligation to within thirw days from the date of receipt' such report to the Claims Tribunal and .r insurer.
11. Thus, from the scheme of the Act, it is noticed that it is not necessary in all cases that claimants themselves should file an application under &/ 10 Section 166 of the Act seeking compensation. As the provisions of Motor Vehicle Act, regarding adjudication of compensation payable to the victims are.-social' of legislation, the provisions_....ar_e interpreted liberally.
12. In the present case:._ti1ough*thec claiiri petition V was filed under showing monthly income of /~, petition was not by'l.lthe"l'l'ribunal. On the as a petition under' Act. In fact, perusal of judgment' by the Tribunal indicates at it has considered the claim petition as the one i ;'unde.r_'Secition 166 of the Act. The very fact that the framed issue regarding actionable and in the Judgment under appeal it has answered the said issue in the affirmative in favour of the Claimants, though as per sub section (2) of Section l63[A} of the Act, the claimant is not required to plead or establish that the death or permanent disablernent in «a ll respect of which the claim has been made was due to any wrongful act or neglect or default of the ovvrihert of the vehicle or vehicles concerned or of any other.' is an indication that the claim petition_~w'as'::j -». the one under Section 166 of the«_Ac_pt;e of the law laid down by°:_t'h.e Courtffin, Girishbhai Sor1i's case, jujsitified in treating the petition as 'th~e"on7e'ivund.ergSe_ction 166 of the Act and has 'proceeded to thecompensation.
13. V Court, the learned counsel ._forVVrespon.de.nt---claimants have filed a memo to the effect that .. 'claimants notionaly restricts the of theflldeceased as Rs.40,000/~ per annum to . petition under Section 163~A of the Act. if * opinion, having regard to the fact that claitnlantsdhaving asserted in the claim petition that the income of the deceased was Rs.5,000/-~ per month and having re~iterated the same in the evidence led before the Tribunal and in view of the fact that Tribunal accepting the evidence of claimants has recorded a &/ l2 finding that the monthly income of the deceased was Rs.3,500/-- per month, it is not open for:.:"",the respondents in this appeal to notionaly annual income of the deceased as to = .. maintain petition under Section ;"'lEij3--'P-._.' Therefore, there is no sub_s'tance"~in they Vmemo.,:> Nevertheless, in viewgof thye..:uaboV=epA though the claim petition the Act was not maintainable, considered the petition i6_e'-*'_ of is justified in doingso' laid down in the Apex Courtin case. In View of the above, there no need to consider the arguments 'l V. gregarding_applic'ability or non--applicability of second The Tribunal after determining the monthly " ilriconie of the deceased at Rs.3,500/~ for the purpose of quantifying the loss of dependency has chosen the multiplier of 18 as applicable to the age of the deceased. The claimants are parents and minor younger sister, I3 &/ 13 who is hardly aged about 11/2 years. Now, it is well settled judicial principle that in case of Bachelor, for the purpose of finding out _ multiplier, the age of the younger of_.'the'::'palr'ents = relevant. In the claim petition, 'age. of petitioner is shown as 'l3.8~.._years.g ._'i'hereforee,--' the,' appropriate multiplier.' appli.caiblelwithlreference to the age of mother of Tribunal has deducted ltéf the"_tl1e:de'ceased towards the 2/ 3rd of the as contribution to the family',.. and' the Tribunal has quantified theV.1osslof Vdepyendency. It is once again well settled 'T V. A pr.inciple"'that in case of death of Bachelor, the Vlldelductioriévtltoifikards personal expenses is to be 50% and only rvemlaining 50% should be taken as contribution of _ the deeeased to the family for the purpose of quantifying T loss of dependency.
15. The Tribunal has assessed the monthly income of deceased at Rs.3,500/--. The claimants as ,%i/' 14 noticed supra, have contended that deceased was working in Sai Export Garments as Checker a monthly salary of Rs.3,500/-- per month 4' _ also getting over time payment of Rs. 1,500'/Q ~ .. The first claimant, being father e '1':,'v€'-i iterated this fact in his evidence bvway of During cross 1. ' behalf V of A it appellant insurer, except sugge.sti1ig -'the'ii*l.TdVeceased was not working " was not earning Rs.3,5oo l and Rs.1,500/-- per month as, 'pavrnentV,VVV'nothing has been elicited in his cross examination to disbelieve his evidence. ,.pThe'vvi'tness has denied those suggestions. their contention that the deceased was Garments, the Claimants have produced _ Z -- temporary identity card issued by ESI "'~,_V'Corporation. The appellant insurer has not seriously disputed the genuiness of Ex.P9, except suggesting to . PW1 that for the purpose of the case, Ex.P9 has been created. From the above, it is clear that deceased was iv I5 working in a Garments Factory. No doubt, no one from the said establishment is examined to prove salary, which he was drawing. NeverthelessA;' regard to the fact that the decea_sed_was' the family, was forced to earn and for this he was required,_VptoV_earn' siifficientirioney for» ' providing basic needsto 'E-vlavihg regard to the unimpeachable we are of the opinion that could be safely taken at" Thus, the annual incoirredllof .'_ Out of this, if 50% personal expenses of the deceased:"t.he'balanced amount of Rs.24,000/~ forms . «. the loss of dependency. Adopting plllfxn/iltipli.er4VVVe.f:_i.~l5 applicable to the age of mother of decea__SedV;.:'~" total loss of dependency Works out to AA Rs.a,teo,ooo/» (24,000 X 15).
17. The claimants 1 and 2 have lost their young son aged about 20 years. All their hopes of being maintained and protected by their son during the ,9 16 evening of their life is shattered. They have lost the love and affection of their young son, their future is bleak. They have a young daughter to _ bring her up in life. Keeping these pecui'i»af~_..fac:ts-_anc1'» circumstances of the case, we--,de'e1n' award reasonable compensation under the._coriventional-.Vi' heads.
18. Having facts and , entitled for a sum of love and affection, estate, Rs.10,000/--
towards and transportation of dead In View-ofvvtheiabove, the claimants are entitled to . h:htota1.,hAconi.;f:§ensation of Rs.'4,20,000/--. Therefore, the the Insurance Company deserves to be allowed this extent.
19. Accordingly, appeal is allowed--in--part. The compensation awarded by the Tribunal at Rs.5,30,000--/-- is reduced to Rs.4,20,000/--. The award of interest at 6% per annum from the date of petition till M 17 the date of payment as ordered by the Tribunal is confirmed. The appellant Insurance Company is directed to deposit the entire compensation'-Dywith interest, within six weeks from today. The compensation amount...of_{_'shall be shared amongst the claimants as 35.:
1) For First clahnant 1,00V",,-,9-;;
2) For Sec0n4d':yc1aj:n'1a.cnVt and
3) For Third...:._c1airnant'v,hlEEs',i,_}50,000/~ with """ 'A -- ir:£'ére'st. "The. ent.iVre.lapportioned to the share of third' clairna_n'tVwho'*is"aV minor, with interest, is directed 'tQ,i._'1i'3ei..y..;(e1E'..'E« in'Va""'fi§V<ed deposit in any nationalized or till she attains majority with liberty to the guardian namely the father to withdraw periodical interest quarterly and to be utilised for the it benefit of the minor daughter.
Out of the compensation amount awarded to the share of second claimant, a sum of Rs.l.00,000/-- with ifi/