Karnataka High Court
Smt Balamani K vs The Manager United India Insurance Co ... on 4 December, 2012
Bench: N.K.Patil, B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF DECEMBER, 2012
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MRS.JUSTICE B.S.INDRAKALA
M.F.A. No. 7439 of 2008 (MV)
C/W. M.F.A. No. 6526 of 2008 (MV)
IN M.F.A. No. 7439 of 2008 (MV)
Between:
1. Smt. Balamani.K,
W/o. Late Kanakaraj,
Aged about 46 years.
2. K.Rangaswamy,
S/o. Late Karunathababu,
Aged about 77 years.
3. Smt. Rajamma,
W/o. K.Rangaswamy,
Age: 71 years.
4. Raj Bharath.K,
S/o. Late Kanakaraj,
Age: 25 years.
All are R/at. No.12,
Nagappa Street,
Palace Guttahalli,
Bangalore-3.
....Appellants
(By Sri. Prakash.M.H, Advocate)
2
And:
1. The Manager,
United India Insurance Co., Ltd.,
D.O.VI, No.89/1,
11th Cross, Sampige Road,
Malleshwaram,
Bangalore-3.
2. The Manager,
M/s. Total Tools and equipments (P) Ltd.,
No.7/1, 4th Block,
Peenya, Bangalore-58.
....Respondents
(By Sri. O.Mahesh, Advocate for R1;
R2 served)
********
This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated: 09/01/2008 passed in MVC No.
894/2007 on the file of the IV Additional Judge and
Member, Motor Accident Claims Tribunal, Bangalore
(SCCH-6), partly allowing the claim petition for
compensation and seeking enhancement of compensation.
IN M.F.A. 6526 OF 2008
Between:
M/s. Total Tools & Equipments (P) Ltd.,
No.7/1, 4th Block, Peenya,
Bangalore-58.
By its Manager.
....Appellant
(By Sri. O.Mahesh, Advocate)
And:
1. K. Balamani,
W/o. Late R.Kanakaraj,
Age: 46 years.
3
2. K.Rangaswamy,
S/o. Late Karunatha Babu,
Age: 77 years.
3. Rajamma,
W/o. K.Rangawamy,
Age: 71 years.
4. K.Raj Bharath,
S/o. Late Kanakaraj,
Age: 25 years.
All R/o. No.12,
Nagappa Street, Palace Guttahalli,
Bangalore-3.
5. United India Insurance Co., Ltd.,
D.O.VI, No.89/1, 11th Cross,
Sampige Road, Malleshwaram,
Bangalore-3.
By its Manager.
....Respondents
(By Sri. Prakash.M.H, Advocate for C/R1 to R4;
Sri. B.C.Seetharama Rao, Advocate for R5)
********
This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated: 09/01/2008 passed in MVC
No. 894/2007 on the file of the IV Additional Judge,
Member, Motor Accident Claims Tribunal, Bangalore
(SCCH-6), awarding a compensation of `16,25,602/- with
interest at 6% p.a. from the date of petition till payment and
to modify the same.
These M.F.As. coming on for Hearing this day,
N.K. PATIL J., delivered the following:
4
:J U D G M E N T:
These two appeals by the claimants and by the owner of the offending vehicle are arising out of the same judgment and award dated 09/01/2008 passed in MVC No.894/2007 by the IV Additional Judge and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-6), (hereinafter referred to as ' Tribunal' for short).
2. The Tribunal by its judgment and award has awarded a sum of `16,25,602/- under different heads with interest at 6% per annum from the date of petition till payment, as against the claim of the claimants for a sum of `40,00,000/-, on account of the death of the deceased Sri. R.Kanakaraj, in the road traffic accident.
3. In brief, the facts of the case are:
The claimant No.1 is the wife, claimant Nos.2 and 3 are the parents and claimant No.4 is the son of the deceased Sri. R.Kanakaraj. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the 5 road traffic accident, contending that, on 5.1.2007 at about 1.00 p.m. deceased was riding the Hero Honda motor cycle bearing Reg.No.KA.04.EG.34 carefully on the extreme left side of the Queens Road, opposite to Shifaa hospital from North to South, at that time, suddenly the rider of TVS XL Moped bearing No.KA.04.ES.7279 came from behind in a rash and negligent manner and dashed against the motor cycle from hind side and caused accident. Due to the said impact, deceased fell down and sustained grievous injuries.
Immediately, he was shifted to Shifaa hospital, where he took treatment and then shifted to Bhagwan Mahaveer Jain Hospital for better treatment, where, he succumbed to the injuries.
4. It is the further case of the claimants that, deceased was aged about 51 years, hale and healthy prior to the accident, he was a Class II BBMP Contractor having the income of `30,000/- per month and was an Income tax assessee and looking after the welfare of the family. Due to his untimely death, they have suffered both socially and financially as the claimant No1. has lost her life partner, 6 claimant Nos. 2 and 3 have lost their son who was their future hope and security and claimant No.4 is deprived of his father's love and affection, security and guidance.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of `16,25,602/- under different heads with interest at 6% p.a., from the date of petition till its payment.
6. Being aggrieved by the judgment and award passed by the Tribunal, the claimants have presented an appeal, for enhancement of compensation contending that the compensation awarded is inadequate and it requires to be enhanced and the owner of the offending vehicle has filed an appeal contending that, the Tribunal has erred in fixing negligence on the part of the owner of the moped 7 without fixing contributory negligence on the part of the deceased who was the rider of he motor cycle.
7. We have heard the learned counsel appearing for the claimants and learned counsel appearing for the owner at considerable length of time.
8. The submission of the learned counsel for the claimants is that, the Tribunal has erred in assessing the income of the deceased at `15,985/- per month contrary to the income of the deceased as he was earning `30,000/- per month from his Contract business as he was Class II BBMP contractor. He further placing reliance on the judgment of the Apex Court in the case of Santosh Devi Vs. National Insurance Company Limited and others reported in 2012 AIR SCW 2892, submitted that another 30% is to be added towards future prospects while determining loss of dependency. Further he submits that the compensation awarded by the Tribunal towards conventional heads is inadequate and it requires to be 8 enhanced. Therefore, he submitted that, the impugned judgment and award passed by the Tribunal is liable to be modified.
9. Per contra, learned counsel for Owner of the offending vehicle submitted that, the Tribunal has erred in not fixing the contributory negligence on the part of the deceased who was the rider of the motor cycle and therefore, the impugned judgment and award is liable to be modified.
10. After hearing the learned counsel for the claimants and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, we are of the considered view that, there is no dispute regarding the occurrence of the accident and the resultant death of the deceased. It is also not in dispute that deceased was aged about 51 years, working as Class II Contractor in BBMP, he was an income tax assessee and submitted his Income tax returns for the 9 years 2005-06, 2006-2007 vide Exs.P15 and 14 and the claimants are his wife, son and parents. It is specific case of the claimants that, due to rash and negligent driving by the driver of the offending vehicle, deceased met with an accident and succumbed to the injuries and there is no fault on his part. Further, the Tribunal, after considering the Ex.P8, has assessed the age of the deceased at 51 years and we accept the same. The Tribunal, taking the average of the incomes shown in Exs.P14 and 16, has assessed the annual income of the deceased at `1,91,825/- and at `15,985/- per month which is just and proper. But we rounded of the same to `16,000/- per month. To that, another 30% is to be added towards future prospects in view of the judgment of the Apex Court in the case of Santosh Devi Vs. National Insurance Company Limited and others reported in 2012 AIR SCW 2892 as rightly submitted by the learned counsel for claimants . If 30% (`4,800/-) is added to the monthly 10 income of the deceased towards future prospects, his total monthly income comes to `20,800/- (`16,000/- + `4,800/-). Out of which, if 1/3rd (`6,933/-) is deducted towards the personal expenses of the deceased even though there are four dependants, since his son is major, his net income comes to `13,867/- per month. The appropriate Multiplier applicable to the case in hand is '11' instead of multiplier of '12' adopted by the Tribunal, in view of the law laid down by the Apex Court in Sarla Verma's case reported in 2009 ACJ 1298, since the deceased was aged about 51 years at the time of his death. Therefore, we re-determine the loss of dependency at `18,30,444/- (`13,867/- x 12 x 11) instead of `15,34,596/- awarded by the Tribunal and accordingly, it is awarded.
11. Having regard to the facts and circumstances of the case, we award a sum `45,000/- towards conventional heads such as, towards loss of consortium, towards loss of estate, towards loss of love and affection 11 and towards transportation and funeral expenses. However, a sum of `71,006/- awarded by the Tribunal towards medical expenses is just and proper and therefore, it does not call for interference. In all, the claimants are entitled to the total compensation of `19,46,450/-. There would be an enhancement of `3,20,848/- with interest at 6% p.a., from the date of petition till its realization.
12. So far as the specific ground taken by the owner of the offending vehicle, moped in MFA No.6526/2008 that the Tribunal has erred in not fixing negligence on the part of the deceased who was the rider of the motor cycle is concerned, the said ground urged by the owner cannot be accepted and is liable to be dismissed, for the reason that, the Tribunal after due appreciation of the oral and documentary evidence available on file, after elaborately discussing the same in paras-7 and 8 with reference to evidence of eye witness PWs 2 and 3 coupled with the documentary 12 evidence such as FIR, Mahazar, charge sheet, spot sketch and IMV report, has recorded the finding of fact that, the accident was caused due to negligence on the part of the rider of the TVS XL moped bearing No.KA.04.ES 7279 and in the said accident deceased Kanakaraju sustained injuries and succumbed to the same and absolutely, there is no evidence to show that there was contributory negligence on the part of the deceased. The said finding of fact recorded by the Tribunal is just and proper and after critical evaluation of the oral and documentary evidence and it does not call for interference. Therefore, the said ground taken by the owner of the moped cannot be accepted and is liable to be rejected and accordingly, it is rejected.
13. For the foregoing reasons, the appeal filed by the owner in MFA No.6526/2008 is dismissed as devoid of merits. The appeal filed by the claimants is allowed in part. The impugned judgment and award dated 09/01/2008 passed in MVC No.894/2007 by the IV Additional Judge and Member, Motor Accident Claims Tribunal, Bangalore 13 (SCCH-6), is hereby modified, awarding the compensation of `3,20,848/- with interest at 6% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.
The Insurer is directed to deposit the enhanced compensation of `3,20,848/- with interest at 6% p.a., from the date of petition till the date of realisation, within a period of three weeks from the date of receipt of a copy of this judgment.
Immediately on deposit by the Insurer, out of the enhanced compensation of `3,20,848/-, a sum of `1,50,000/- with proportionate interest shall be invested in Fixed Deposit, in the name of claimant No.1 in any Nationalized or Scheduled Bank, for a period of ten years and renewable by another five years, with liberty reserved to her to withdraw the interest accrued on it, periodically.
A sum of `1,00,000/- with proportionate interest shall be invested in Fixed Deposit in any Nationalized or Scheduled Bank, in the name of claimant No. 3, for a period 14 of five years and renewable by another five years, with liberty reserved to her to withdraw the interest accrued on it, periodically.
The remaining sum of `70,848/- with proportionate interest shall be released in favour of the claimant Nos.1 and 3 immediately.
It is the submission of the learned counsel for claimants that, claimant No.2 is dead and therefore, the amount deposited in the name of claimant No.2 shall be transferred to the name of claimant No.3, immediately.
The amount deposited by the owner of the offending vehicle in MFA No.6526/2008 shall be transmitted to the jurisdictional Claims Tribunal forthwith.
Office to draw the award, accordingly.
SD/-
JUDGE SD/-
JUDGE tsn*