The Manager vs Shrikrishna S/O Bhavayya
2022 Latest Caselaw 21 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 3 R D DAY OF JANUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.24013/2010 (MV)

BET WEEN

THE MANAGER,
REL IANCE GEN. INS. CO. LTD.,
1 S T FL OOR, S L V TOWERS,
OPP. HERO-H ONDA SHOW ROOM B ELLARY,
REPRES ENTED BY ITS
DEPU TY MANAGER LEGAL CLAIMS,
# 28, 5 T H FL OOR, CENTENARY B U ILDING,
BENGALURU -01.
                                              ...APPELLANT
(BY SRI. NAGARAJ C.KOLLOORI, ADVOCATE)

AND

1.    SHRIKR ISHNA S/O BHAVAYYA,
      AGE: 44 YEARS, OCC: AGRICULTU RE,
      R/O: H P C KEMALAPUR POST ,
      TQ: HOSAPET E, DIST: B ALLARI.

2.    P. SAMPOORNA W/ O SHRIKR ISHNA,
      AGE: 41 YEARS, OCC: HOU SEHOLD WORK,
      R/O: H P C KEMALAPUR POST ,
      TQ: HOSAPET E, DIST: B ALLARI.

3.    R. RAMA NAIK S/O RAJU NAIK,
      AGE: 35 YEARS, OCC: BU SINESS,
      R/O. KALLANAHALLI V ILLA GE,
      TQ: HOSAPET E, DIST: B ALLARI.
                                            ...RESPONDENTS

(BY SRI. Y .LAKSHMIKANT REDDY, ADVOCATE FOR R1 & R2;
 NOTICE TO R3 SERVED)
                                          2




      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 26.06.2010 PASS ED IN
MVC No.662/ 2009 ON THE F ILE OF THE MOTOR ACCIDENT
CLAIMS TRIB UNAL-VII AT HOSA PETE AWARDING THE
COMPENSATION OF ` 4,60,50 0/-WITH INTEREST AT THE
RATE OF 6% PER ANNU M FROM THE DATE OF PETIT ION T IL L
REAL IZ ATION.

    THIS APPEA L COMING ON FOR ORDERS, THIS DAY THE
COURT DELIVERED THE FOLLOWING:

                                  JUDGMENT

The insurer of the offending lorry bearing

registration No.KA-35/A-1343 has filed the instant

appeal challenging the judgment and award dated

26.06.2010 passed by the Motor Accident Claims

Tribunal-VII at Hosapete (for short, 'the tribunal') in

MVC No.662/2009, wherein the tribunal has awarded

total compensation of `4,60,500/- to the claimants in

the claim petition filed by them under Section 163A

Motor Vehicles Act, 1988 (for short, 'the Act'),

wherein they had claimed total compensation of

`6,50,000/-.

2. Brief facts of the case that would be

relevant for the purpose of disposal of this petition

are:

The deceased Madhu aged about 20 years who

was working as a cleaner in a lorry bearing

No.KA-35/A-9819 and getting salary of `3,300/- per

month had met with an accident on 01.11.2008 at

about 9.00 p.m. near Harishankar Mines Plot, when

he was standing in a queue for loading. The offending

lorry bearing No.KA-35/A-1343 owned and driven by

respondent No.1-R.Rama Naik had dashed against the

deceased from his backside and knocked him down

and as a result, he had sustained serious injuries and

he succumbed to the same in the hospital. The

claimants who are the parents of the deceased had

filed claim petition under Section 163A of the Act

before the tribunal claiming compensation of

`6,50,000/-. The tribunal vide judgment and award

dated 26.06.2010 had partly allowed the claim

petition awarding total compensation of `4,60,500/-

with interest at 6% per annum from date of petition

till realization. The owner and insurer were jointly

and severally held liable to pay the same. Being

aggrieved by same, insurer has filed the present

appeal.

3. Learned counsel for the appellant submits

that the deceased was a bachelor and therefore the

tribunal ought to have deducted 50% of his income

towards personal expenses as against 1/3 r d which has

been taken into consideration by the tribunal. He also

submits that the tribunal ought to have taken into

consideration the age of the youngest parents being

the mother of the deceased for the purpose of

considering the multiplier applicable. He further

submits that the claimants claimed that the deceased

was working as a cleaner in the lorry and therefore

they ought to have filed a petition under Employees

Compensation Act.

4. Per contra, learned counsel appearing for

the claimants submits that the tribunal has rightly

deducted 1/3 r d of the income towards personal

expenses of the deceased as the claim petition is one

under Section 163A of the Act. He further submits

that as per the settled principle of law the age of the

deceased is required to be taken into consideration

for the purpose of taking into consideration the

applicable multiplier. He further submits that the

deceased was not working as a cleaner in the

offending lorry whereas he was working as a cleaner

in a lorry bearing No.KA-35/A-9819 and therefore

there was no necessity for the claimants to file claim

petition under Employees Compensation Act. He has

also relied upon the judgment of Apex Court in the

case of United India Insurance Co.Ltd., V/s Sunil

Kumar and another and he submits that in a claim

petition filed under Section 163A of the Act, the

Insurance Company cannot take a defence regarding

negligence of the victim. He submits that the

deceased was waiting in queue when the offending

lorry dashed against him and he has argued in

support of the impugned judgment and award passed

by the tribunal and prays to dismiss the appeal.

5. I have carefully appreciated the arguments

and also perused the material available on record.

6. It is not in dispute that the claim petition

has been filed by the claimants before the tribunal

under Section 163A of the Act. Therefore rightly the

tribunal has deducted 1/3 r d of the income of the

deceased towards his personal expenses and

therefore there is no merit in the argument of the

learned counsel for the appellant that the tribunal

ought to have deducted 50% of income towards

personal expenses. Further having regard to the

settled position of law, the age of the deceased is

required to be considered for the purpose of taking

into consideration the applicable multiplier and in the

present case since deceased was admittedly aged

about 20 years, as per the schedule, the applicable

multiplier would be '16' whereas the tribunal has

taken into consideration the multiplier applicable as

'18'. If the proper multiplier is taken into

consideration the total compensation that the

claimants are entitled would be `4,32,000/- instead

of `4,60,500/-. In addition to the same under the

conventional heads towards funeral charges and loss

of estate, claimants are entitled for a total sum of

`4,500/-. Therefore, the total compensation for which

the claimants are entitled would be `4,36,500/-

instead of `4,60,500/-.

7. As rightly contended by the learned counsel

for the claimants, the deceased was not working as a

cleaner in the offending lorry bearing No.KA-35/A-

9819 and therefore the contention of the learned

counsel for the appellant that the claimants are

required to file a petition under Employees

Compensation Act is liable to be rejected. Since the

appellant have not taken a contention in the present

appeal with regard to the negligence of the deceased,

the judgment relied upon by the learned counsel for

the respondents would not be applicable to the facts

of the present case. Accordingly, the appeal filed by

the insurer is allowed in part.

8. The claimants are held to be entitled for a

total sum of `4,36,500/- instead of `4,60,500/-

towards compensation from the respondents no.1 and

2 and the said compensation amount shall carry

interest at 6% per annum from the date of petition

till realization.

9. The appellant-insurer shall deposit the

compensation amount within period of two months

from the date of receipt of certified copy of this

order.

Amount in deposit is directed to be transferred

to the jurisdictional Court for disbursement.

In view of disposal of appeal, I.A.No.1/2016 will

not survive for consideration.

SD/-

JUDGE

CLK