Karnataka High Court

Smt Venkatamma vs Javaraiah on 1 June, 2021

Author: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 1ST DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.9581/2017 (MV)

BETWEEN:

1.     SMT. VENKATAMMA
       W/O LATE MUTHURAMU
       AGED ABOUT 43 YEARS

2.     SUDHA
       D/O LATE MUTHURAMU
       AGED AOBUT 25 YEARS

3.     CHETHANA M
       S/O MUTHURAM
       AGED ABOUT 19 YEARS

       ALL ARE R/AT SRINIVASAPURA GATE
       KASABA HOBLI, MANDYA TALUK
       AND DISTRICT-571401.
                                          ... APPELLANTS
          (BY SRI SANATH KUMARA K.M., ADVOCATE)
AND:

1.     JAVARAIAH
       S/O BELLARU SIDDAIAH
       R/AT NO.398, HOLALU VILLAGE
       DUDDA HOBLI, MANDYA TALUK
       AND DISTRICT-571401
                                 2



2.     THE MANAGER
       NATIONAL INSURANCE CO., LTD.,
       NO.1576, 1ST FLOOR
       V.V.ROAD, MANDYA-571401
                                           ... RESPONDENTS
             (BY SRI H.R.RENUKA, ADVOCATE FOR R2;
                          R1 IS SERVED)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.08.2017
PASSED IN MVC.NO.1321/2014 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANDYA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though the matter is listed for admission today, with the

consent of the learned counsel for both the parties, it is taken up

for final disposal.

This appeal is filed challenging the judgment and award

dated 22.08.2017 in M.V.C.No.1321/2014 on the file of II

Additional Senior Civil Judge and JMFC, Mandya ('the Tribunal'

for short) questioning the quantum of compensation and also the

liability.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the claimants

have filed the claim petition before the Tribunal claiming

compensation on account of death of a person by name Mani due

to the accident that took place on 13.10.2014 at about 1.00 to

1.30 p.m. on Mandya Malavalli Sulthan Road near Patel Swamy

Malavalli Town, due to the actionable rash and negligent riding of

the Hero Honda splendor plus motor cycle bearing registration

No.KA-11/V-8332 by its rider. The claimants have contended in

the claim petition that the deceased left behind his mother, the

married sister, who is divorced and having a girl child and also

the minor brother. The deceased was aged about 20 years at

the time of the accident and he was working as a mason and

earning an income of Rs.15,000/- per month. The said claim

petition was resisted by filing the detailed statement of

objections, denying the liability fastened on the Insurance

Company to pay the compensation and also disputed the

accident, age and income of the deceased. The claimants, in

order to substantiate their claim, examined a witness as P.W.1,

who is the first claimant and also examined two witnesses as

P.Ws.2 and 3 and so also got marked the documents at Exs.P1

to P15. The respondents have not adduced any evidence,

however, got marked the document Ex.R1 with consent. The

Tribunal, after considering both oral and documentary evidence,

allowed the claim petition in part by granting the compensation

of Rs.14,56,000/- and fastened the liability on the owner by

coming to the conclusion that as per Ex.R1 the pillion rider is not

covered under the policy. Being aggrieved by the said award,

the present appeal is filed by the claimants before this Court

questioning the quantum of compensation as well as the liability.

4. Learned counsel appearing for the appellants would

vehemently contend that the Tribunal has committed an error in

fastening the liability on the owner of the offending vehicle and

that though the policy, which is marked as Ex.R1 is a

comprehensive policy, the Tribunal has committed an error in

coming to the conclusion that insurance policy does not cover

the risk of a pillion rider. The second contention urged by the

learned counsel for the appellants is that the Tribunal has taken

the income of the claimant at Rs.6,500/- per month, though the

accident had taken place in the year 2014 and the deceased was

working as a mason and earning Rs.15,000/- per month.

5. Learned counsel also would vehemently contend that

the Tribunal has committed an error in deducting 50% of the

income of the deceased towards personal expenses without

considering the fact that the petitioners are the mother, minor

brother and a widowed sister of the deceased. Hence, the

Tribunal ought to have deducted 1/3rd of the income towards his

personal expenses and not 50%. Learned counsel would further

contend that the compensation awarded on the other heads is

also meagre and hence, it requires interference of this Court.

6. Per contra, learned counsel appearing for the

respondent would submit that the Tribunal has not committed

any error in deducting 50% of the income of the deceased

towards personal expenses since he was a bachelor. Further,

there is no any income proof to the fact that he was earning an

amount of Rs.15,000/- per month. Hence, the Tribunal has

rightly taken the income of the deceased at Rs.6,500/- per

month. The Tribunal also awarded higher compensation on the

other conventional heads , which requires modification.

7. Having heard the arguments of the learned counsel

for the appellants as well as the learned counsel for the

respondent and also on perusal of the records, the points that

would arise for the consideration of this Court are:-

      (i)      Whether the Tribunal has committed an
               error   in    not   awarding   the    just   and
               reasonable compensation and whether it
               requires interference of this Court


      (ii)     What order ?



Points No.1 and 2:-

8. Having considered the arguments of the learned

counsel for the respective parties, there is no dispute with

regard to the accident is concerned, but the dispute is only with

regard to fastening the liability on the owner rather than on the

Insurance Company. Though the learned counsel for the

respondent vehemently contends that the policy does not cover

the risk of a pillion rider , it does not disputes the fact that the

policy at Ex.R1 is a Comprehensive Policy. The Apex Court in

National Insurance Company Ltd., v. Balakrishnan and

Another reported in 2012(3) G.L.H. 748 and also in Oriental

Insurance Company Limited v. Sudhakaran K.V and Others

reported in (2008) 7 SCC 428, has categorically held that the

Insurance Company is not liable only in case, it is an Act Policy

in respect of a pillion rider. If the policy is a Comprehensive

Policy, the Insurance Company is liable to pay the compensation.

Thus, the Tribunal has committed an error in fastening the

liability on the owner by coming to the conclusion that the policy

does not cover a pillion rider.

9. In so far as the quantum of compensation is

concerned, it is not in dispute that the accident had taken place

in the year 2014, but the Tribunal has wrongly assessed the

income of the deceased at Rs.6,500/- per month, which requires

to be enhanced by taking the notional income at Rs.8,500/- per

month in the absence of any documentary proof with regard to

the income of the deceased. The relevant multiplier applicable

to the case on hand is 18.

10. Now the issue is with regard to deducting 50% of the

income towards personal expenses. No doubt, the deceased is a

bachelor, but he has left behind his widowed mother and also

the minor brother along with the married sister, who has been

deserted from her husband. Thus, the Tribunal has committed

an error in deducting 50% of the income towards the personal

expenses, which requires to be 1/3rd and not 50% as contended

by the learned counsel for the respondent. As there is no

definite income of the deceased, the Court has to add 40% of

the income since he was working as a mason as contended by

the claimants. By adding 40% to the income i.e.,

(Rs.8,500x40%=Rs.3,400/-) + Rs.8,500/-, it comes to

Rs.11,900/-. If 1/3rd of the income is deducted towards the

personal expenses i.e., (Rs.11,900x1/3rd=Rs.3,967/-), the same

would come to Rs.11,900-3,933=Rs.7,933/-. By applying the

relevant multiplier as 18, the compensation of Rs.17,13,528/- is

awarded under the head of loss of dependency as against

Rs.14,04,000/- by working out as under:-

Rs.7,933x12x18=Rs.17,13,528/-.

11. The Tribunal has awarded an exorbitant

compensation on the other conventional heads and hence, the

same requires to be interfered with in view of decision of the

Apex Court in Pranay Sethi's case, wherein the Apex Court has

held that if the deceased is a bachelor, the claimant is entitled

for a sum of Rs.30,000/- under the other conventional heads.

Hence, by adding Rs.30,000/- to Rs.17,13,528/-, the

compensation is reassessed as Rs.17,43,528/-.

12. In so far as the interest is concerned, learned

counsel appearing for the respondent would vehemently contend

that the Tribunal awarded an amount of Rs.14,56,000/- as

compensation fastening the liability on the first respondent and

no liability is fastened on the Insurance Company and hence,

they have not filed any appeal. The Tribunal while awarding the

interest passed an order that if the amount is not deposited

within one month from the date of the award, the same carries

an interest at the rate of 9%. It is to be noted that the interest

is not awarded from the date of petition, instead an interest at

the rate of 9% is awarded only if the amount is not paid within

one month from the date of the award. Having taken note of the

said fact, the claimants are entitled for the interest from the date

of petition till the date of realization at the rate of 6% per

annum.

13. In view of the discussion made above, I pass the

following:-

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed by the Tribunal is modified by granting the compensation of Rs.17,43,528/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.14,56,000/-

(iii) Respondent-Insurance Company is directed to deposit the amount within 6 weeks' from today.

(iv) In all other respects, the award of the Tribunal shall remain unaltered regarding apportionment and proportionately release and keep the amount in Fixed Deposit in view of enhancement.