Karnataka High Court
Oriental Insurance Co Ltd vs Girish, S/O.Late B Madha @ Madhu on 2 July, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No.9412 OF 2010 (MV)
BETWEEN:
ORIENTAL INSURANCE CO. LTD.
DIVISIONAL OFFICE NO.1
P B NO.27, TEJAS COMPLEX
MYSORE, NOW REPRESENTED BY
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. GIRISH
S/O LATE B.MADHA @ MADHU
NOW AGED ABOUT 31 YEARS
2. SURESH
S/O LATE B.MADHA @ MADHU
NOW AGED ABOUT 36 YEARS
BOTH R/O SIDDAIAHNAPURA VILLAGE
KOLLEGAL TALUK
3. SRINIVASA
S/O LATE VENKATARAMANAPPA
NOW AGED ABOUT 46 YEARS
R/AT D.NO.2788, 14TH CROSS
BASAVESHWARA ROAD, MYSORE
-2-
4. M.C.NATARAJU
S/O M.C.CHENNAMALLAPPA
AGE: MAJOR, R/O D.NO.859
VIJAYANAGAR I STAGE
MYSORE ... RESPONDENTS
(SRI.N.NATARAJU, ADVOCATE FOR RESPONDENTS 1 AND 2
NOTICE TO RESPONDENTS 3 AND 4 IS DISPENSED WITH)
*****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 29.5.2010 PASSED IN MVC NO.177/2009 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MACT,
KOLLEGAL, AWARDING A COMPENSATION OF RS.8,03,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appeal is filed by the insurance company challenging the judgment and award dated 29.5.2010 passed in MVC No.177/2009 on the file of the Fast Track Court and MACT, Kollegal.
2. The claimants are the sons of the deceased who died at the age of 55 years. Learned counsel for the appellant submitted that the claimants have not established their dependency on their father and further -3- they were majors, this itself establishes that they were not depending on their deceased father. No material is produced to substantiate their claim. In the circumstances, the Tribunal has erred in awarding compensation under the head 'loss of dependency'. It is claimed that the deceased was working as a cook in the hostel belonging to Social Welfare Department and earning Rs.9,000/- p.m. Elder son has studied upto 6 th standard and the second son is an uneducated. Claimant No.1 in his statement before the police has stated that he was working in Ooty and the other claimant is working in a book shop in Bangalore. The statement made to the police goes contrary to the evidence of PW1 and PW2. The statement made to the police at an undisputed point of time has to be considered. In the judgment referred by the claimants in the case of SANTOSH DEVI vs. NATIONAL INSURANCE COMPANY LTD. AND OTHERS in Civil Appeal No.3723/2012 Hon'ble Supreme Court has made a discussion on the facts therein which differ from the facts of the present case. Therefore, the judgment is not -4- applicable.
3. Learned counsel also relied on the judgment of this Court in the case of A.MANAVALAGAM vs. A.KRISHNAMURTHY AND OTHERS reported in 2005 ACJ 992, wherein it has been held that the claimants are not entitled for compensation under the head 'loss of dependency', since they are financially independent. There is no pecuniary loss caused due to the death. Hence, learned counsel submitted to set aside the judgment of the Tribunal by holding that the claimants are entitled for compensation under the head 'loss of estate' and not under the head 'loss of dependency'.
4. Learned counsel for the claimants by relying on the evidence of PW1 and PW2 submitted that the elder son has studied upto 6th standard and the second son is an uneducated. The deceased was working as a cook, on whom these 2 persons were fully depending. Their evidence has rightly been considered by the Tribunal. He -5- also relied on the judgment in Santosh Devi's case where compensation is awarded for major dependants. Hence, he submitted to dismiss the appeal.
5. Heard learned counsel for both the parties.
6. It is undisputed fact that claiming compensation under the head 'loss of dependency' for the major son, married daughter, brother and sister of the deceased is not automatic. As it is held by the Supreme Court in the case of GUJARATH ROAD TRANSPORT CORPORATION vs. RAMANABAI reported in 1987 ACJ 561 that the major sons, married daughter, sisters and brothers are entitled for compensation, but we should not forget the fact that awarding compensation is not automatic. Related and unrelated married and major sisters when they can claim, the fact of dependency over the deceased should be established in an unpeachable manner. In a judgment referred in Manavalagam's case namely Lord Wright in Davies v. Powell Duffryn Associated Colliries Ltd. (1942) ACJ 601, it is held that the damages are to be based on -6- the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages, all circumstances which may be legitimately pleaded in diminution of the damages must be considered. The actual percuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary advantage which from whatever source comes to him by reason of the death.
7. In the Susamma Thomas's case also, in the light of the judgment referred supra in Manavalagan's case it is clarified that the compensation under the head 'loss of dependency' is to be awarded on the basis of dependency over the deceased which expected to loss.
8. In the instant case, the deceased was aged about 55 years and left with 5 years of service. Without therebeing any accident, he would have been employed for 5 years. If it was the case that the claimants are -7- depending on the deceased it would be for further 5 years only therefore, the compensation under the head 'loss of dependency' for 5 years can only be awarded.
9. The evidence of PW1 and PW2 that they were fully depending on the deceased has not been properly explained. By taking the fact into account that the deceased was a cook in the Social Welfare Department, the salary certificate produced to that effect and the qualification of the claimants, I feel it appropriate to award compensation under the head 'loss of dependency' by deducting 50% of the income towards personal expenses. Accordingly the calculation would be (9009 x 50%) 4505 x 12 x 11 = 594660. The same is awarded as against Rs.7,92,792/- awarded by the Tribunal. Compensation awarded under 'conventional heads' is enhanced to Rs.40,000/-.
10. Accordingly, appeal is allowed in part. The claimant is entitled for compensation of Rs.6,34,660/- as against -8- Rs.8,02,792/- awarded by the Tribunal which shall carry interest at 6%.
Amount in deposit to be transmitted to the MACT.
Sd/-
JUDGE AHB