The Branch Manager, United vs Shivaray And Ors
2021 Latest Caselaw 2606 Kant

                              1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 5TH DAY OF JULY 2021

                         PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                            AND
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

MISCELLANEOUS FIRST APPEAL NO.200960/2018 (MV)

Between:

The Branch Manager
United India Insurance Co. Ltd.,
S S Front Road, Vijayapura-586101
Now represented by its Divisional Manager

                                               ... Appellant

(By Sri Sudarshan M., Advocate)

And:

1.     Shivaray S/o Balawant Baje
       Aged about 57 years
       Occ: Coolie

2.     Susalabai W/o Shivaray Baje
       Aged about 51 years
       Occ: H.H. Work & Coolie

       Both are R/o Dobale Galli
       Vijayapura-586101

3.     K R Ramesh S/o K R Rajakrishan Reddy
       Age: Major Occ: Owner of Ashok Leyland Bus
                                2



      No. KA-05/AD-1989
      R/o Lavakush Nagar
      Electronic City Post
      Hosur Main Road
      District : Bengaluru-560100
                                                 ... Respondents

(V/o dated15.04.2021 service of notice to R1 & R2 is held
sufficient & they are placed exparte;
R3-served)

      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act Act, praying to set aside the
Judgment and Award dated 23-09-2017 passed in MVC No.
759/2015 by the III Additional Senior Civil Judge & MACT
XII at Vijayapura.

      This   appeal   coming       on   for   orders   this   day,
S.G.Pandit, J., delivered the following:

                         JUDGMENT

The Insurer is in appeal under Section 173 (1) of

the Motor Vehicles Act, 1988 assailing the quantum of

compensation granted under judgment and award dated

23.09.2017 in MVC No.759/2015 on the file of the III

Additional Senior Civil Judge and MACT-XII, Vijayapura

(for short the 'Tribunal').

2. The accident that took place on 26.02.2015

and the death of Pandit S/o Shivaraya Baje is not in

dispute in this appeal. The Insurer is in appeal only

challenging the quantum of compensation awarded by

the Tribunal.

3. Before the Tribunal, the second claimant

examined herself as PW-1 apart from examining PW-2

and PW-3. Nineteen documents were marked as

Exs.P-1 to P-19. Respondent-Insurance Company with

consent marked Ex.R-1 Insurance policy. The Tribunal,

on appreciation of material on record, awarded total

compensation of Rs.19,26,400/- with interest at the

rate of 9% per annum from the date of petition till

realization under following heads:

1. Loss of income due to Rs.18,56,400/- dependency

2. Towards love and affection Rs.25,000/-

3. Towards loss of estate Rs.20,000/-

4. Towards Transportation and Rs.25,000/- Funeral expenses Total Rs.19,26,400/-

While awarding the above compensation, the

Tribunal assessed the income of the deceased at

Rs.10,500/- per month, deducted 1/3rd towards

personal expenses and granted 9% interest. Aggrieved

by the same, the Insurer is in the appeal praying for

reduction in quantum of compensation.

4. Heard the learned counsel Sri Sudarshan M.

for appellant. There is no representation for the

respondents-claimants who have been served through

paper publication.

5. Learned counsel for the appellant would

contend that the deceased was bachelor and the

Tribunal committed an error in deducting 1/3rd towards

his personal expenses instead of 50%. It is his

submission that in view of the decision of the Hon'ble

Apex Court in Sarla Verma & Ors. vs. Delhi

Transport Corporation & Ors. reported in (2009) 6

SCC 121 the deduction to be made when the deceased

was bachelor is 50%, but the tribunal committed an

error in making 1/3rd deduction towards personal

expenses. Further he submitted that the Tribunal

committed an error in assessing the income of the

deceased at Rs.10,500/- per month for the accident of

the year 2015. He submits that the deceased was

working in a private company and he could have been

removed at any time which is admitted by PW-2 who is

examined on behalf of the company where the deceased

was working. Further the learned counsel would

submit that the Tribunal granted 9% interest on the

compensation amount for which the claimants would

not be entitled and the claimants would be entitled for

interest at the rate of 6% per annum relying on the

decision of this Court dated 24.08.2020 in MFA

No.5896/2018 (Ms/ Joyeeta Bose & Ors. Vs.

Venkateshan V. & Ors.)

6. The deceased was aged 28 years who was

unmarried as on the date of accident. The Hon'ble Apex

Court in Sarla Verma (supra) has held that when the

deceased was bachelor, the deduction towards personal

expenses would be 50%. The claimants have failed to

establish that apart from parents there were other

dependents so as to deduct 1/3rd towards personal

expenses of the deceased. In the said circumstances,

the Tribunal committed an error in deducting 1/3rd

towards the personal expenses of the deceased. Hence,

the same is modified from 1/3rd to 50%.

7. The Tribunal assessed the income of the

deceased at Rs.10,500/- per month. The finding arrived

at by the Tribunal while determining the monthly

income of the deceased is sound and proper. The

Tribunal has relied upon the evidence of PW-2 the

representative of the company and the documents

Exs.P-8 to P-19. The claimants have placed on record

Ex.P-13 appointment order, Exs.P-14, P-15, P-16 and P-

19 salary certificates. They have also placed on record

the payment register and attendance register which

would clearly indicate that the deceased was working as

a Safety Officer in Japan Metal Building Systems Private

Limited. We do not find any error or perversity in

arriving at monthly income of the deceased at

Rs.10,500/- by the Tribunal in respect of the deceased.

Thus, the same is maintained.

8. Insofar as the submission with regard to

awarding of 9% interest per annum, the same is on the

higher side. This Court would normally award 6%

interest per annum on the compensation amount.

Taking note of Section 34 of Code of Civil Procedure, the

Co-ordinate Bench of this Court in Ms. Joyeeta & Ors.

(supra) has held that the claimants would be entitled for

6% interest per annum. By following the principles laid

down in Ms. Joyeeta case (supra) we are of the view that

the claimants would be entitled for interest at the rate of

6% per annum instead of 9%.

9. Therefore, the claimants would be entitled

for modified compensation as under:

1. Loss of income due to dependency Rs.13,92,300/-

Rs.10,500+30% = 13,650/- Rs.13,650 - 50% = 6,825/- (Rs.6,825 x 12 x 17)

2. Towards love and affection Rs.25,000/-

3. Towards loss of estate Rs.20,000/-

4. Towards transportation and Rs.25,000/-

funeral expenses Total Rs.14,62,300/-

Thus, the appeal is allowed in part modifying the

impugned judgment and award dated 23.09.2017 in

MVC No.759/2015 passed by the III Additional Senior

Civil Judge & MACT-XII, Vijayapura. The claimants

would be entitled for reduced compensation amount of

Rs.14,62,300/- with 6% interest per annum from the

date of petition till realization.

The apportionment, deposit and disbursement

shall be as ordered by the Tribunal.

The amount in deposit, if any, be transmitted to

the concerned Tribunal for disbursement.

Sd/-

JUDGE

Sd/-

JUDGE swk