Karnataka High Court
Oriental Insurance Co Ltd vs Smt Shivnanjamma on 12 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1898
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.9229/2009 (MV)
BETWEEN:
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE No.13
JAYALAKSHMI MANSION, II FLOOR
# 1001/56, Dr.RAJKUMAR ROAD
RAJAJINAGAR, 4TH BLOCK
BANGALORE -10, NOW REPTD. BY ITS
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, #44/45, LEO
SHOPPING COMPLEX, RESIDENCY
ROAD, BANGALORE - 560 025.
...APPELLANT
(BY SRI M V SHIVAKUMAR FOR
SRI A N KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT.SHIVNANJAMMA
W/O RAMAIAH
NOW AGED ABOUT 52 YEARS
2. RAMAIAH
S/O MIRAJJAPPANA PUTTAIAH
NOW AGED ABOUT 62 YEARS
BOTH R/A No.63/1, NEAR ELLEN
SCHOOL, SRIRAMANAGARA
KAMAKSHIPALYA
2
BANGALORE - 560 079.
3. D B NAGARAJAIAH
S/O BORAIAH, MAJOR
No.330/2, 6TH MAIN, 6TH BLOCK
NAGARABHAVI II STAGE
BANGALORE - 560 072.
... RESPONDENTS
(BY SRI C PUTTASWAMY, ADVOCATE FOR
C/R-1 AND R2, R3 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:05.09.2009 PASSED
IN MVC No.6151/2007 ON THE FILE OF 14TH ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
BANGALORE, AWARDING A COMPENSATION OF
Rs.3,51,170/- WITH INTEREST A 6% P.A.FROM THE DATE
OF PETITION TILL DEPOSIT AND TO SET ASIDE THE
SAME.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the Insurance Company is directed against the judgment and award dated 05.09.2009 passed in MVC No.6151/2007 by the XIV Additional Judge, Court of Small Causes and Member, MACT, Bangalore City, SCCH-10, wherein claim petition of the petitioner is allowed in part awarding compensation of Rs.3,51,170/- with interest a 6% p.a. from the date of 3 petition till its deposit and directing the Insurance Company to deposit the same.
2. In order to avoid confusion and overlappings, parties are referred to with reference to their rankings as referred in the Tribunal.
3. The brief facts of the case leading to filing of claim petition under Section 163-A of M.V. Act is, that on 20.9.2006 at about 6.45 a.m. when one Shankar, was riding the motor cycle bearing Registration No.KA.02.EN.1032 on Nagarabhavi Ring Road near Ambedkar College, Bangalore, an unknown car driven by its driver with high velocity in a rash and negligent manner came and dashed against his motor cycle. Because of which, Shankar was knocked down and sustained fatal injuries. Immediately, he was shifted to hospital but inspite of best treatment, he died after two days.
4
It is stated that petitioners are the parents of deceased Shankar. He was aged about 28 years, working as Police constable and getting salary of Rs.6,371/- per month. They claimed compensation of Rs.6.00 lac.
4. Upon service of notice, 1st respondent did not appear hence, was placed exparte and the Insurance Company appeared and contested the matter.
5. The learned Member adjudicated the matter on the aspects of accident, negligence, injury, death, dependency and entitlement of compensation and on the basis of the oral evidence of PWs 1 and 2, documentary evidence of Exs.P1 to P8 and Ex.R1 and other materials available on file, allowed the claim petition, granting compensation of Rs.3,51,170/- as mentioned above directing the Insurance Company to deposit the same. Aggrieved by the said judgment and 5 award, Insurance Company has presented this appeal, seeking to set aside the same.
6. Learned counsel Sri. M.V.Shivakumar for Sri. A.N.Krishna Swamy for Insurance Company submits that the author of negligence cannot seek the benefit because of negligence. Contention of the learned counsel is, in view of the accident the rider of the motor cycle sustained injuries and succumbed to the same and the investigating authorities have filed the final report clamping negligence on the deceased while he was alive and negligence was attributed to Shankar the deceased.
However, he was dead on the date of filing of the petition. Thus, the question of cognizance being taken against him under Section 190 did not arise and the same is not sustainable.
7. Learned counsel Sri C.Puttaswamy, relied upon the decision of this Court in the case of Manager, 6 ICICI Lombard General Insurance Company Limited Vs. Mangala and others reported in 2018 ACJ 291 and also on the decision of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. Sunil Kumar and another reported in 2018 ACJ 1, and submits that, in the instant case, overall conclusion of the case is rider of motor cycle Shankar died before finding on negligence could be determined finally. Under the circumstances, it cannot be invariably branded that he was responsible for his own death.
8. In total circumstances of the case, I am of the sincere and firm view that, entitlement of compensation under Section 163-A of M.V. Act is not defeated to the claimants.
9. The victim Shankar, was said to be a Constable at the time of death and his income was by and large more than Rs.40,000/- per annum which 7 disentitles the claim under Section 163-A of M.V. Act. The question is, whether victim whose income was more than Rs.40,000/- per annum could it be zip driven by restricting his income less than Rs.40,000/- to make a claim.
10. The Full Bench of this Court in the case of Guruanna vadi and another Vs. the General Manager, Karnataka State Road Transport Corporation and another reported in ILR 2001 Karnataka 2879 has identified the entitlement of compensation in respect of a victim whose annual income was more than Rs.40,000/- and when he brings it down to less then Rs.40,000/- per annum.
11. When it matters compensation, the learned Member has awarded the compensation as under:
Loss of dependency Rs.3,46,671/-
Funeral expenses Rs. 02,000/-
Loss of estate Rs. 02,500/-
Total Rs.3,51,170/-
8
12. In this connection, further examination of the matter is required.
The age of the deceased as on the date of his death was: 28 years as reflected in Ex.P6-P.M.Report of his dead body. Now the question is, it is an appeal preferred by the Insurance company and the claimants have not chosen to challenge the same. The question that would arise in the circumstances is that, whether there can be a change of multiplier on the basis of age of Shankar, the victim. The multiplier considered by the learned Member is '13' on the basis of the age of his mother as 50 years. Now the point is, whether it requires a lift of multiplier to 17 by virtue of age of, deceased victim. In which event, there would be an enhancement of compensation. The next question is, whether the said exercise is permitted. In this connection, I find that there are no impediment for the Court to enhance the compensation since the object of the act reflects that it is a social legislation. 9
13. The compensation to be granted is on the basis of eligibility and not on the basis of claim or denial.
14. When the compensation which the claimants are legally entitled is more than what is granted by the Tribunal despite appeal being not preferred by the claimants, the Court of the Tribunal has to look out for what is deserved by the claimants legally. In such circumstance, I find it is well within the domain of granting of compensation and is also the obligation on the part of the court to identify the just compensation.
15. Thus, the claimants are entitled for loss of dependency as under: Rs.40,000/- per annum, less 1/3rd (Rs.13,333/-) towards personal and living expenses and his remaining annual income comes to Rs.26,667/- and if it is multiplied by 17 taking the age of deceased as 28 years, the total loss of dependency would be Rs.4,53,339/- instead of Rs.3,46,671/-. They 10 are also entitled for Rs.4,500/- towards conventional heads. Thus, the claimants are entitled for modified compensation as under:
Loss of dependency Rs.4,53,339/-
Funeral expenses Rs. 02,000/-
Loss of estate Rs. 02,500/-
Total Rs.4,57,839/-
Less: amount awarded by the Rs.3,51,170/-
Tribunal Rs.1,06,169/-
Enhancement
16. Thus, at any stretch of imagination, the
compensation deserves to be enhanced by
Rs.1,06,169/-.
17. In the circumstances, the appeal filed by
the Insurance Company is devoid of merit and is liable to be rejected and accordingly, it is rejected.
Insofar as granting the enhanced compensation is concerned, not withstanding the rejection of the appeal filed by the Insurance Company, the Insurance Company is directed to pay the compensation including the additional compensation of Rs.1,06,169/- 11 with interest at 6% p.a. from the date of petition till its deposit. The impugned judgment and award passed by the learned Member is modified to the said extent.
The amount in deposit shall be transmitted to the jurisdictional Tribunal, forthwith.
Sd/-
JUDGE tsn*