Karnataka High Court
The Oriental Insurance Co. Limited vs Mahadevi W/O Bheemrao Police Patil & Anr on 12 January, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL CROB NO.200026/2017
C/W
MISCELLANEOUS FIRST APPEAL NO.200091/2017(MV)
IN MFA CROB No.200026/2017:
BETWEEN:
The Oriental Insurance Co. Limited,
Through its Senior Divisional Manager
Divisional Office at
N.G. Complex
1st Floor,
Opp: Mini Vidhana Soudha
Kalaburagi 585103.
...Appellant
(By Sri J. Augustin, Advocate)
AND:
1. Mahadevi
W/o Bheemrao Police Patil
Age: 52 years,
Occ: Household
2
2. Mallikarjun
S/o Bheemrao Police Patil
Age: 29 years,
Occ: Hotel Business,
Both R/o Navadagi
Tq. Chincholi
Dist. Kalaburagi
Now R/o CIB Colony
Kalaburagi 585103
3. Mahesh
S/o Bhimasha Houde
Age: Major
Occ: Owner of the Cruiser
Bearing Reg.No.MH-13/BN 3265
R/o Sinnur
Tq. Akkalkot
Dist. Solapur 413216
...Respondents
(By Sri Basavaraj R. Math, Advocate)
This Miscellaneous First Appeal is filed under
Section 173(1) of M.V.Act, set aside the Judgment and
Award dated 06.10.2016 passed in M.V.C.No.862/2015
by the II Addl. Senior Civil Judge & MACT at
Kalaburagi.
IN MFA NO.200091/2017:
BETWEEN:
1. Mahadevi
W/o Bhimrao Police Patil
Age: 52 years,
Occ: Household
3
2. Mallikarjun
S/o Bhimrao Police Patil
Age: 29 years,
Occ: Hotel Business,
Both R/o Navadagi
Tq. Chincholi
Dist. Kalaburagi
Now R/o CIB Colony
Kalaburagi 585103
...Appellants
(By Sri Basavaraj R. Math, Advocate)
AND:
1. Mahesh
S/o Bhimasha Houde
Age: Major
Occ: Owner of vehicle
R/o At Post Sinnur
Tq. Akkalkot
Dist. Solapur 413216
2. The Oriental Insurance Co. Limited,
Through its Divisional Manager
1st Floor,
N.G. Complex
Opp: Mini Vidhana Soudha
Main Road,
Kalaburagi 585102.
...Respondents
(By Sri J Augustin, Advocate for R2;
Notice to R1 d/w v/o dated 07.11.2017)
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This Miscellaneous First Appeal is filed under
Section 173(1) of M.V.Act, modify the impugned
Judgment and Award dated 06.10.2016 passed by the II
Addl. Senior Civil Judge & MACT, Kalaburagi in MVC
No.862/2015.
These appeals coming on for hearing, this day, the
Court delivered the following:
JUDGMENT
MFA No.200026/2017 is filed by the appellant Insurance Company challenging the judgment and award of the Tribunal dated 6.10.2016 passed in MVC No.862/2015 by the II Addl. Senior Civil Judge & Member, MACT., Kalaburagi.
2. The brief facts of the case are that on 11.06.2015 at about 6.15 pm the deceased along with his friend by name Mallikarjun were going on Motor cycle bearing Reg.No.KA-32/EE-8233. When the deceased came near Oxygen factory on Sedam Road at that time one Cruiser vehicle bearing No.MH-13/BN-3265 came in a high 5 speed and rash and negligent manner and also in zig- zag manner and dashed to the above said motorcycle due to which the deceased sustained grievous head injuries and multiple fracture; and died on the spot.
3. The grounds taken by the appellant-insurance company are that the Tribunal, fixing the income of Rs.10,000/- of the deceased has awarded a huge amount of the compensation and secondly the amount awarded under the head of consortium is at Rs.1,00,000/-, is higher side.
4. Second ground is with regard to quantum, the deceased was in a private job earning about Rs.15,000/- per month the same was disbelieved by the Tribunal and taken the notional income of Rs.10,000/-. It has been held by this Court in number of judgments that while taking notional income, Tribunal has to take note of several facts including place of residence, size of 6 the family, and year of accident and fall in bank rate of interest, life-style, price index etc. The above facts throw light on the notional income of the person. The Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi and Others reported in 2017 SCC online SC 1270, discussed that;
"Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb Rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the Tribunal and courts are likely to be unguided. Therefore, we think it seemly to fix the reasonable sums".7
5. Learned counsel for the claimants submit that the appeal of the insurance company is to be dismissed and to enhance the compensation awarded by the Tribunal. The Tribunal has taken income at Rs.10,000/- per month, which is in lower side. The appellants have produced Provisional National Trade Certificate as per Ex.P.8 issued by the Department of Employment and Training. The deceased was working in PWD Apprentice Govt. Polytechnic, Kalagi and also produced certificate of PG Diploma in Computer Application. Before the accident, the deceased was earning about Rs.15,000/-.
6. Heard, the learned counsel for the parties. The dispute i.e. with regard to assessing the income. The Court has to assess the income on the basis of the materials available on record. As it is discussed, the claimant has produced a copy of ITI certificates Ex.P.8 to 10.
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7. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that quantum of compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and therefore, it is required to be enhanced.
8. The claimants who are mother and brother of the deceased have claimed that the deceased was earning Rs.15,000/- per month by doing private job. In the light of the above certificate and nature of the qualification, the claimants are entitled for future income of Rs.15,000/- and the same is awarded. Considering the age of the deceased which was 24 years at the time of accident, and year of the accident 2015, and avocation of the deceased as the one having bright future, his income could be easily assessed at Rs.15,000/- per month. As per the guidelines in 2009 ACJ 1298 (Sarla Verma and others Vs. Delhi 9 Transport Corporation and another), the deceased was bachelor and the deduction towards personal and living expenses of deceased should be 50%. Therefore, as per settled law, 50% of the income of the deceased will have to be deducted towards his personal expenses. The multiplier of 18 applied by the Tribunal based on the age of the deceased who was aged 24 at the relevant point of time is sound and proper. Therefore, loss of dependency works out to Rs.16,20,000/- (Rs.7,500/- x 12 x 18) and it is awarded as against Rs.10,80,000/- awarded by the Tribunal. A sum of Rs.40,000/- is awarded towards conventional heads.
9. Thus, in all, the claimants are entitled for the following compensation:
Towards loss of dependency Rs.16,20,000/-
Towards conventional heads Rs.40,000/-
Total Rs.16,60,000/-
Less: amount awarded by Rs.12,55,000/- the Tribunal Additional compensation Rs.4,05,000/-10
10. Accordingly, appeal is allowed in part and the Judgment and award passed by the Tribunal is modified. Claimants are entitled for an additional compensation of Rs.4,05,000/- with interest at 6% per annum from the date of petition till the date of realization.
The amount in deposit, if any, is directed to be transmitted to the jurisdictional Tribunal.
Sd/-
JUDGE JSM*