Karnataka High Court
The Manager vs Smt Vanajakshi on 18 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA NO. 4103 OF 2017(MV-D)
BETWEEN:
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
S.CHINNUSAMY, NATIONAL ASSOCIATES,
RASI COMPLEX, 39-C, PARAMATHY ROAD,
NAMAKKAL-637001,
NOW REP BY ITS LEGAL MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 5TH FLOOR,
CENTENARY BUILDING,
NO.28, M.G.ROAD,
BANGALORE-560001
...APPELLANT
(BY SRI.PRADEEP B, ADVOCATE)
AND:
1. SMT VANAJAKSHI
W/O LATE LAXMANA GOWDA,
NOW AGED ABOUT 33 YEARS,
R/AT D NO.4-344 A,
PILIKULA, NISARGADHAMA ROAD,
MUDUSHEDDE, MANGALURU
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2. MRS RAJESHWARI,
D/O SELLAPANDIANNO,
R/AT NO.7 RC COMPLEX-206-261,
S.G.MUTT ROAD, CHAMARAJPETE,
BENGALURU-560018
...RESPONDENTS
(BY SRI.GURUPRASAD B R, ADVOCATE FOR R1;
NOTICE TO R2 IS D/W, V/O DTD:06.06.2019)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:25.02.2017 PASSED IN MVC NO.929/2014 ON THE
FILE OF THE II ADDITIONAL DISTRICT & SESSIONS
JUDGE, MEMBER, MACT-III, MANGALURU, D.K.,
AWARDING COMPENSATION OF RS.18,11,000/- WITH
INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
REALIZATION.
THIS MFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The top noted appeal is filed by the Insurance Company against the judgment and award dated 25.02.2017 passed in MVC.No.929/2014 by the Motor Accident Claims Tribunal, Mangaluru, questioning the quantum of compensation determined by the Tribunal.
2. The facts leading to the top noted case are as under:
The case of the respondent No.1/claimant is that her husband was proceeding on motorbike bearing Reg.No.KA-19-X-4790 on 06.03.2014 and when he reached HP Petrol Pump Surikomeru, Mani Village of Bantwal Taluk, at that juncture, the driver of the offending lorry bearing Reg.No.KA-01-B-4826 came in a rash and negligent manner and dashed against the bike on which the husband of claimant was proceeding. On account of the said accident, the 4 husband of claimant sustained grievous injuries and was immediately shifted to A.J.Hospital, Mangaluru.
The claimant averred in the claim petition that inspite of best treatment, the husband of the claimant succumbed to the injuries on 08.03.2014 at about 10.00 a.m. The respondent No.1/claimant specifically averred in the claim petition that her husband was working as Waiter in Wildspirit Bar & Restaurant at Thiruvailu and was getting a salary of Rs.12,000/-
p.m. Hence, filed claim petition claiming compensation of Rs.30,00,000/-.
3. The appellant/Insurance Company, on receipt of notice, contested the proceedings and specifically denied the negligence on the part of the driver of the offending lorry. The appellant - Insurance Company specifically averred in the written statement that infact the rider of the motorbike was rash and negligent and the accident has occurred 5 solely on account of negligence on the part of the rider of the bike i.e., the husband of respondent No.1. On these set of objections, prayed for dismissal of the claim petition.
4. The Tribunal, based on the rival contentions, formulated the following issues:
"1) Whether the petitioner proves that, on 06.03.2014 at about 08.00 p.m., while the deceased Laxmana Gowda, S/o.
Late Shivappa as a rider, along with petitioner were proceeding towards Nelyadi in the Motor Cycle bearing Registration No.KA-19-X-4790, when they reached near HP Petrol Pump Surikomeru, Mani Village of Bantwal Taluk, a Lorry bearing Registration No.KA-01-B-4826 being driven by its driver in a rash and negligent manner came and dashed against the motor cycle due to which the deceased sustained grievous injuries on account of which he died at A.J. Hospital, Mangalore?6
2) Whether the 2nd respondent proves that the accident has taken place on account of rash and negligent driving of the motorcycle by its rider?
3) Whether the petitioner is entitled to compensation? If so, what is the quantum and who is liable to pay?
4) What order or award?"
5. The respondent No.1/claimant in support of her contention examined herself as PW.1. The respondent No.1/claimant has also examined the Manager where the deceased was working as a Waiter as PW.2 and also relied on documentary evidence vide Exs.P-1 to P-19. The appellant - Insurance Company did not choose to lead any rebuttal oral evidence.
6. The Tribunal on appreciation of oral and documentary evidence, answered issue No.1 in the affirmative by holding that the husband of respondent No.1 died on account of rash and negligent driving by 7 the driver of the offending lorry and accordingly, answered issue No.1 in the affirmative. While determining the compensation, the Tribunal has proceeded to assess the income of the deceased at Rs.12,000/-. The Tribunal by relying on the salary certificate vide Ex.P-11 issued by the Managing Proprietor of Wildspirit Bar & Restaurant has proceeded to take the income of the deceased at Rs.12,000/-. By taking the income at Rs.12,000/-, the Tribunal has awarded a compensation of Rs.15,36,000/- towards 'loss of dependency'. The Tribunal in all has awarded a total compensation of Rs.18,11,000/-.
7. Learned counsel for the appellant - Insurance Company would vehemently argue and contend before this Court that there is absolutely no clinching evidence on record to demonstrate that the deceased was getting salary of Rs.12,000/-. The 8 documents relied on by the claimant in regard to proof of income are not at all admissible. Hence, he would request this Court that in absence of proof of income, the Tribunal ought to have assessed the income of the deceased notionally at Rs.8,500/- as against Rs.12,000/- assessed by the Tribunal.
8. Per contra, learned counsel for respondent No.1/claimant would submit that the compensation determined by the Tribunal under the head 'loss of dependency' is fair and just and the same is in accordance with law.
9. On re-appreciation of oral and documentary evidence, this Court is of the view that the documents relied on by the respondent No.1/claimant cannot be taken as income proof. In absence of proof of income, this Court by relying on the chart issued by the Legal Services Authority would assess the income of the 9 deceased at Rs.8,500/- and by adding 40% towards future prospects, the income of the deceased is assessed notionally at Rs.11,900/- and by deducting 1/3rd, the compensation determined under the head 'loss of dependency' comes to Rs.15,23,136/- rounded off to Rs.15,23,200/- (7,933x12x16). Under the other conventional heads, the respondent No.1/claimant is entitled for a sum of Rs.70,000/-. The compensation determined by the Tribunal towards medical expenses remains undisturbed. Hence, the total compensation re-determined by the Tribunal comes to Rs.16,43,200/- as against Rs.18,11,000/- awarded by the Tribunal.
10. For the reasons stated supra, the appeal filed by the Insurance Company is allowed in part by holding that the respondent No.1/claimant is entitled for a total compensation of Rs.16,43,200/- with 10 interest at the rate of 6% p.a. from the date of petition till realization.
The amount in deposit shall be transmitted to the Tribunal.
Sd/-
JUDGE CA