Karnataka High Court
The Divisional Manager Oriental vs Sushillawwa W/O. Babu Patrot on 2 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.22688/2013 (MV)
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE
CLUB ROAD, BELAGAVI
NOW R/BY ITS ASSISTANT MANAGER
REGIONAL OFFICE, HUBBALLI
...APPELLANT.
(BY SHRI RAJASHEKHAR S ARANI, ADVOCATE.)
AND:
1. SUSHILLAWWA W/O. BABU PATROT
AGE: 49 YEARS, OCC:NIL
R/O. SADUNAGUDI ONI,
MAHALINGAPUR, TQ:MUDHOL
DIST: BAGALKOTE.
2. THE HEAD MASTER,
MAHALINGPUR PUBLIC SCHOOL
R.S.NO. 67 JAMBAGI EXTENSION
AT: PO. CHIMMAD, TQ: JAMKHANDI
DIST: BAGALKOTE.
...RESPONDENTS.
(NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 07.05.2013 PASSED IN
MVC NO.615/2011, ON THE FILE OF MEMBER, MACT-IX, MUDHOL,
ETC.,.
2
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by insurer challenging judgment and
award dated 7.5.2013, passed by MACT-IX, Mudhol, in MVC
No.615/2011, insofar as quantum of compensation is
concerned.
2. Shri Rajashekhar S. Arani, learned counsel for
appellant insurer submits that in an accident that occurred on
27.11.2009 when a school bus bearing registration no.KA-
48/1823 dashed against Basavaraj, brother of claimant, died as
a result of injuries sustained in the accident.
Claiming compensation for the same, his sister filed claim
petition against owner and insurer of the bus. Claim petition was
opposed on all counts.
3. After recording evidence, tribunal determined age of
deceased as 30 years, his occupation as mason and considering
his monthly income at Rs.3,750/- and applying multiplier of '15',
awarded compensation of Rs.3,37,500/- towards loss of
dependency and Rs.10,000/- towards funeral expenses and
Rs.5,000/- towards loss of love and affection. Tribunal awarded
interest at 9% p.a. on the compensation. Assailing the same,
insurer is in appeal.
4. Learned counsel submitted that admittedly claimant
in this case is married sister of deceased Basavaraj. There was
no specific evidence led by claimant to establish that claimant
was dependant on the income of deceased Basavaraj. In the
absence of the same, tribunal erred in holding claimant as
dependent and computing compensation accordingly. It was
submitted that tribunal ought to have awarded compensation by
applying the ratio in A.Manavalagan vs. A.Krishnamurthy
and others, reported in ILR 2004 KAR 3268 and could not
have awarded more than 25% of compensation towards loss of
estate.
5. Learned counsel further submitted that rate of
interest awarded by tribunal at 9% was also excessive and
contrary to decision of this Court in Shriram General
Insurance Company Ltd., Rajasthan v. Smt. Laxmi and
others, reported in 2018(4) AKR 808. The contesting
claimant/respondent is served unrepresented.
6. From above submission, it is not in dispute that the
accident dated 27.11.2009 was caused due to rash and
negligent driving of school bus by its driver leading to death of
Basavaraj. It is also not in dispute that deceased Basavaraj was
40 years of age and working as a mason. There is no dispute
that claimant is sister of deceased Basavaraj. From their name
mentioned in cause title, it is seen that she is married.
Challenge to award is only on the ground of dependency.
Therefore point that arises for consideration is:
i) Whether award passed by tribunal is justified
as claimant was not dependent on income of
deceased?"
ii) Whether rate of interest awarded by tribunal
at 9% p.a. is justified?
Point no.1:
7. Admittedly claimant is married and cannot be
dependent even though she is sister of deceased Basavaraj.
There is no specific evidence led by claimant to establish her
dependency. However, Hon'ble Supreme Court in National
Insurance Company Limited vs. Birender and others,
reported in (2020) 11 SCC 356 has held that even
non-dependant legal heirs are entitled to claim compensation. A
Division Bench of this Court in Manavalagan's case (supra)
has settled the legal position in this regard that non-dependent
legal representatives cannot seek compensation as dependants,
but would be entitled to claim higher proportion of
compensation towards loss of estate. The principles for
computing the amount towards loss of estate in such
circumstances has also been indicated therein to be at 25% of
compensation.
8. In the instant case accident occurred on
27.11.2009. Age of deceased as on the said date is 40 years.
Tribunal has considered monthly income at Rs.3,750/-, but
notional income for the year 2009 is Rs.5,000/- as per the
norms adopted by Karnataka State Legal Services Authorities
for settlement of cases before Lok Adalath. As per decision of
Hon'ble Supreme Court in National Insurance Company
Limited vs. Pranay Sethi and others, reported in (2017)
16 Supreme Court Cases 680, there has to be addition of
40% to income towards future prospects and multiplier
applicable would be '15'. Therefore compensation for death of
Basavaraj would be Rs.5,000/- + 40% x 12 x 15 =
Rs.12,60,000/- and 25% of the same as loss of estate would be
Rs.3,15,000/-. The same is awarded to claimant.
9. In addition, claimant would be entitled to
Rs.15,000/- towards funeral expenses. Thus, total
compensation would be Rs.3,30,000/-. Tribunal would not be
justified in awarding compensation of Rs.3,52,500/-. The same
is reduced to Rs.3,30,000/-. Point no.1 is answered accordingly.
Point No.2:
10. In view of decision of a co-ordinate Bench of this
Court in Shriram General Insurance Company Ltd.
(supra), rate of interest to be awarded by tribunal would
have to be 6% p.a. Therefore, tribunal would not be justified in
awarding interest at 9%. The same is reduced to 6% p.a. Point
No.2 is answered accordingly.
11. In the result, I pass the following:
ORDER
i) Appeal of insurer is allowed in part.
ii) Judgment and award dated 7.5.2013, passed
by MACT-IX, Mudhol, in MVC No.615/2011, is
modified.
iii) Compensation awarded by tribunal at
Rs.3,52,500/- is reduced to Rs.3,30,000/-
with interest at 6% p.a. from the date of
petition till deposit.
iv) Amount in deposit is ordered to be
transmitted to tribunal for payment.
Appellant insurer is directed to deposit
balance compensation before tribunal within
six weeks.
Sd/-
JUDGE
Mrk/-
