Bajaj Allianz General Insurance vs Manish Dey
2022 Latest Caselaw 8158 Kant

                             1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JUNE 2022

                          BEFORE

    THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.5300 OF 2018 (MV)

BETWEEN:

Bajaj Allianz General Insurance
Co., Ltd.,
Motor Claims Hub,
No.1/2, 4th Floor,
Near Sujatha Theatre,
59th Cross, 4th Block,
Rajajinagar,
Bangalore - 560 040.                 ... Appellant

(By Smt.Renuka.H.R., Advocate)

AND:

1. Manish Dey,
   W/o Sandip Sen,
   Aged about 34 years,
   R/o Teja Nivas,
   Flat No.308, 1St Cross,
   SLV Layout,
   Basavanapura Main Road,
   Bhatralli, Virgonagar,
   Bangalore - 560 049.

2. Irfan Ahmed,
   Adult,
   No.11, 1st Main, 1St A Cross,
   Kanakanagar,
                              2



  R T Nagar,
  Bangalore - 560 012.                  ... Respondents

(By Sri.K.T.Gurudeva Prasad, Advocate for R1;
  Notice to R2 is dispensed with)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 16/04/2018 passed
in MVC No.3068/2017 on the file of the V Additional Small
Causes Judge & XXIV ACMM, Member, MACT (SCCH-20)
Mayo Hall Unit, Bengaluru, awarding compensation of
Rs.6,11,000/- with interest @ 9% p.a., from the date of
the petition till its realization.

      This MFA, coming on for Admission, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the Insurance Company

being aggrieved by the judgment dated 16.04.2018

passed by the Motor Accident Claims Tribunal,

Bengaluru in MVC No.3068/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.05.2017 at about 11.40

a.m. the deceased - Asita Dey was crossing the road

on Old Madras road, near Batrahalli junction,

Bangalore city. At that time, a car bearing

registration No.KA-51/D-1500 which was being driven

in a rash and negligent manner, dashed against the

deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries on the same day.

3. The claimant filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

No.1 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The age, occupation and income

of the deceased are denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that the accident was due to

the negligence of the deceased herself while crossing

the road. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimants is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant, in order to

prove her case, examined herself as PW-1 and got

exhibited documents namely Ex.P1 to Ex.P14. On

behalf of respondents, neither any witness was

examined nor got exhibited any documents. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent driving of the offending vehicle by its

driver, as a result of which, the deceased sustained

injuries and succumbed to the injuries. The Tribunal

further held that the claimant is entitled to a

compensation of Rs.6,11,000/- along with interest @

9% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, the claimant is the daughter of the

deceased, she was not depending upon the income of

the deceased, she is working and she has her own

income for her livelihood. The Tribunal is not justified

in granting compensation under the head 'loss of

dependency'.

Secondly, considering the age and avocation of

the deceased the overall compensation awarded by

the Tribunal is just and reasonable.

Thirdly, in view of the law laid down by a

Division Bench of this Court in the case of

MS.JOYEETA BOSE AND OTHERS vs.

VENKATESHAN.V AND OTHERS (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. Hence, she

sought for reduction of compensation.

7. On the other hand, learned counsel appearing

for the claimant has raised the following contentions:

Firstly, the claimant was entirely depending upon

the income of the deceased. In her evidence she has

categorically stated that she was depending upon the

income of the deceased. Therefore, the Tribunal, after

considering the evidence of PW1 has rightly awarded

compensation under the head 'loss of dependency'.

Secondly, even the notional income of the

deceased assessed by the Tribunal is on the lower

side. The Tribunal has failed to consider addition of

future prospects.

Thirdly, the overall compensation awarded by

the Tribunal is on the lower side. Hence, he sought

for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that deceased Asita Dey

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The first contention raised by the Insurance

Company is that the claimant is not depending upon

the income of the deceased. Per contra, learned

counsel appearing for the claimant has contended that

the claimant in her evidence has categorically stated

that she is entirely depending upon the income of the

deceased. Even if it is held that the claimant is not

entitled to 'loss of dependency' and she is entitled to

only 'loss of estate', A Division Bench of this Court in

MFA No.7318/2016 disposed of on 23.10.2020 has

held that while assessing 'loss of estate' 50% of the

income of the deceased has to be deducted. Even

otherwise, the Tribunal has also deducted 50% of the

income of the deceased towards personal expenses for

calculation of 'loss of dependency'. Therefore, the

compensation awarded by the Tribunal under the head

'loss of dependency' can be considered as the

compensation awarded under the head 'loss of estate'.

The compensation awarded by the Tribunal

under the other heads is just and reasonable.

In view of the law laid down by a Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of

on 24.8.2020), the rate of interest awarded by the

Tribunal is reduced from 9% p.a. to 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-