Karnataka High Court
Branch Manager National Insurance Co ... vs Ishwar S/O Siddappa Ors on 2 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 2ND DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.30434/2011(MV)
CONNECTED WITH
MFA No.32341/2010(MV)
IN MFA No.30434/2011
BETWEEN:
BRANCH MANAGER
NATIONAL INSURANCE CO. LTD. BIDAR
NOW REPRESENTED BY
DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
GULBARGA ... APPELLANT
(BY SRI R.V.NADAGOUDA, ADVOCATE)
AND:
1. ISHWAR
S/O SIDDAPPA ORS
AGE: 52 YEARS
OCC: CARPENTER
WORKING IAF STATION, BIDAR
R/O H.No.9-13-140, SAI NAGAR
MAILOOR, TQ. BIDAR
2. SHOBHAWATHI
W/O ISHWAR
AGE: 47 YEARS
2
OCC: HOUSEHOLD
R/O H.No.9-13-140
SAI NAGAR, MAILOOR
TQ. BIDAR
3. VINOD S/O ISHWAR
AGE: 29 YEARS
OCC: SERVICE IN
IAF STATION BIDAR
R/O H.No.9-3-140, SAI NAGAR
MAILOOR, TQ. BIDAR
4. HANMANTH
S/O SHANKAR MATUTI
AGE: MAJOR
OCC: AGRICULTURE
R/O HIPPALGOAN
TQ.BIDAR
(OWNER OF TRACTOR NO. KA-38/T-1305)
... RESPONDENTS
(BY SRI SANTOSH BIRADAR, ADVOCATE FOR R1-R3,
R4 SERVED)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 15.10.2010 PASSED IN MVC NO.596/2009 ON THE FILE
OF THE II ADDITIONAL M.A.C.T. AND ADDITIONAL DISTRICT
COURT AT BIDAR, PARTLY ALLOWING THE CLAIM PETITION
AND AWARDING COMPENSATION OF RS. 3,94,000/- WITH
INTEREST AT 6% P.A.
IN MFA No.32341/2010
BETWEEN:
1. ISHWAR S/O SIDDAPPA
AGED ABOUT 51 YEARS
OCC: CARPENTER WORKING IN
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I.A.F. STATION, BIDAR
2. SHOBHAWATI
W/O ISHWAR
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD
3. VINOD S/O ISHWAR
AGED ABOUT 20 YEARS
OCC: SERVICE IN IAF STATION
BIDAR
ALL R/O H.No.9-13-140, SAI NAGAR
MAILUR, TQ. BIDAR
... APPELLANTS
(BY SRI SANTOSH BIRADAR, ADVOCATE)
AND:
1. HANUMANTH
S/O SHANKAR MATUTI
AGED: MAJOR
OCC: AGRICULTURE
R/O HIPPALGAON
TQ. BIDAR
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.
BRANCH OFFICE, GIRI COMPLEX
NEAR BASAVESHWAR CHOWK
GANDHI GUNJ ROAD, BIDAR
... RESPONDENTS
(BY SRI R.V.NADAGOUDA, ADVOCATE FOR R2,
R1 - SERVED)
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MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 15.10.2010 PASSED IN MVC NO.596/2009 ON THE FILE
OF THE II ADDITIONAL M.A.C.T AND ADDITIONAL DISTRICT
COURT BIDAR, PARTLY ALLOWING THE CLAIM PETITION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
MFA No.30434/2011 is by the National Insurance Company Limited questioning the quantum of compensation awarded by the Tribunal to the respondent Nos.1 to 3. While respondent Nos.1 to 3 are also in appeal in MFA No.32341/2010 seeking enhancement of compensation.
2. The appeal by the insurance company is belated filed. There is a delay of 29 days in filing the appeal.
3. Heard.
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4. The delay of 29 days in filing the appeal is condoned. Accordingly, Misc.Cvl.No.151067/2011 is allowed.
5. Both the appeals are admitted and taken up for final disposal by consent.
6. Respondent Nos.1 to 3 lodged claim seeking compensation regarding death of Sainath in the motor cycle accident that occurred on 27.08.2009. In support of the relief, they have averred that Sainath-deceased along with 3rd respondent and one Sanjeev Kumar had visited Ganesh Visarjan at Bidar and they were returning to their house. Both were riding separate motor cycles bearing Nos.KA-32-V-5575 and KA-38-9474 respectively. Later on at 4.15 p.m. when they were near Kohinoor Furniture Shop, on Bidar-Mailoor road, the tractor bearing registration No.KA-38-T-1305 driven rashly crossed the road and dashed against the motor cycle on which Sainath was riding. Due to reckless act of the driver of the tractor, accident occurred. Sainath suffered injuries and 6 succumbed to the same. The Tribunal has accepted the evidence tendered by the claimant as of establishing the facts averred in the petition. Insurance company and the insured have not questioned such a finding which has reached finality. However, the Insurance Company has sought reduction of compensation awarded while the legal heirs seek its enhancement. Therefore, the only question is whether the award is just and proper.
7. From the evidence it is seen, the claimants have assertively contended Sainath was working as Generator Operator in Indian Air Force Station, Bidar. They claimed he had salary of Rs.10,000/- per month but produced no documentary evidence nor examined the employer. Consequently, the Tribunal has taken notional income at Rs.5,000/- and based on that, computation of loss of dependency has been done. However, Sri R.V.Nadagouda, learned counsel for the Insurance company would contend there is no proof of that he was employed in any establishment much less he has been earning from other 7 source. Therefore, the Tribunal seriously erred in taking his income at Rs.5,000/-. Therefore, he seeks reduction. The second ground urged is even the 3rd respondent claimant was not entitled for compensation as he is admittedly employed and he was not dependent on the deceased.
8. In negation of these grounds, learned counsel for the claimants submits even though documentary evidence is not produced about his income but the complaint lodged soon after occurrence contains material information that victim was generator operator. The accident is of the year 2009 and in that year the income of a person as Generator Operator would not have been less than Rs.10,000/-. The second ground is the Tribunal has not applied the correct multiplier and under the conventional head only Rs.4,000/- is awarded.
9. Keeping in mind, what is urged on both sides, I have examined the records. I am satisfied thus there is no documentary evidence but the claimants have successfully established the deceased was employed and had a regular 8 earning. However, they failed to establish he had a income of Rs.10,000/- consequent to which, the Tribunal has taken at Rs.5,000/-. Since his avocation as Generator Operator has been well proved from the relevant circumstances like the complaint and the investigating papers, I am satisfied there is proof that the deceased was working as Generator Operator. A person employed as such would not have income less than Rs.6,000/- as in the year 2009. Therefore, the Tribunal should have taken his income atleast at Rs.6,000/- in stead of Rs.5,000/-. Consequently, income of the deceased is taken at Rs.6,000/- per month discounting the contention of the insurance company that it should be less than Rs.5,000/-. As laid down by the Apex Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009) 6 SCC 121, 50% of it to be added to it to cater to the future prospects of better earning. This gives us income at Rs.9,000/- per month. Admittedly, the deceased was bachelor. Therefore, I do not find reason to accept the 9 claimant's contention that only 1/3rd should be deducted. The deduction has to be 50% as the claimants are parents and his brother who is employed and has earning. Therefore, 50% of Rs.9,000/- would be Rs.4,500/- per month and that will be the multiplicand. Annually, it will be Rs.54,000/- and between the claimants, age of the second claimant-mother at 45 years has to be taken. The multiplier applicable would be 14. Consequently, loss of dependency comes to Rs.7,56,000/- as against Rs.3,90,000/- awarded by the Tribunal. Besides, the parents will be entitled to Rs.25,000/- towards loss of care and affection of the deceased, Rs.25,000/- towards loss of estate and Rs.10,000/- towards funeral expenses and other ceremonies. In all, claimants are entitled to Rs.8,16,000/- which shall carry interest at 6% per annum. The compensation is enhanced from Rs.3,94,000/- to Rs.8,06,000/-.
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10. The enhanced amount is apportioned between the parties. Claimant Nos.1 and 2 to share 70%. 30% is assigned to the 3rd respondent.
11. The appeal of the insurance company fails while the appeal of the claimants succeeds in part.
12. The statutory amount in deposit is ordered to be transmitted to the Tribunal.
Sd/-
JUDGE NB*