Karnataka High Court

The Reliance General Insurance ... vs Mr K M Jose on 10 January, 2023

Bench: T G Gowda

                                              MFA.7582/2015
                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

              MFA NO.7582 OF 2015 (MV)

BETWEEN:

THE RELIANCE GENERAL INSURANCE COMPANY LIMITED
REPRESENTED BY ITS BRANCH MANAGER
UNNATI ARCADE,NO.5/111 & 6/112
1ST FLOOR, 1ST BLOCK
DR. RAJKUMAR ROAD
(1ST MAIN ROAD) RAJAJINAGAR
BENGALURU-560 010
NOW AT M/S RELIANCE GENERAL INS. CO. LTD.
NO.28, 5TH FLOOR, CENTENARY BUILDING
M G ROAD, BENGALURU-560 001
NOW REPRESENTED BY
MANAGER LEGAL.                            ...APPELLANT

(BY SRI ASHOK N. PATIL, ADVOCATE)

AND:

1.     MR. K. M. JOSE
       S/O MR. THOMAS MICHEL
       AGED ABOUT 56 YEARS
       COMPANY EXCLUSIVE
       PERMANENTLY RESIDING AT
       KANJIRAKKATTU HOUSE
       CHUNGATHARA P.O.
       MALAPURAM DISTRICT
       KERALA-679 334.

2.     MRS. LOVELY JOSE
       W/O MR K. M. JOSE
       AGED ABOUT 51 YEARS
       (MOTHER OF DECEASED MR TEJAS K JOSE)
       SCHOOL TEACHER BY PROFESSION
                                              MFA.7582/2015
                          2

     PERMANENTLY RESIDING AT
     KANJIRAKKATTU HOUSE
     CHUNGATHARA P.O.
     MALAPURAM DISTRICT
     KERALA-679 334.

3.   KUM. SHREYA MARY JOSE
     D/O MR K M JOSE
     AGED ABOUT 16 YEARS
     (SISTER OF DECEASED MR TEJAS K. JOSE)
     PERMANENTLY RESIDING AT
     KANJIRAKKATU HOUSE
     CHUNGATHARA P.O.
     MALAPURAM DISTRICT
     KERALA-679 334.

     SINCE MINOR REPRESENT BY HER FATHER
     AND NATURAL GUARDIAN THE 1ST RESPONDENT
     NAMED ABOVE

4.   SRI HEMANNA
     S/O SRI RAMCHANDRAPPA
     AGED:MAJOR
     (WATER TANKER VEHICLE OWNER)
     RESIDING AT NO.25/1
     YELLA REDDY COMPOUND
     NELLURAHALLI
     WHITEFIELD
     BENGALURU-560 056.

5.   SRI UMESHA
     S/O SRI SHIVALINGAIAH
     AGED ABOUT 26 YEARS
     (WATER TANKER DRIVER)
     RESIDING AT MALALI VILLAGE
     K. R. NAGAR TALUK
     MYSORE DISTRICT.                  ...RESPONDENTS

(BY SRI V. VIJAYA KUMAR, ADVOCATE FOR R1, R2 AND R3;
 NOTICE TO R4 AND R5 IS DISPENSED WITH)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.08.2015
PASSED IN MVC NO.3023/2014 ON THE FILE OF THE XVI
                                                     MFA.7582/2015
                              3

ADDITIONAL JUDGE, COURT OF SMALL CAUSES & MEMBER,
MACT    (SCCH-14),  BANGALORE     CITY,  AWARDING
COMPENSATION OF RS.15,06,000/- WITH INTEREST @ 9%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
PAYMENT.


     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.12.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal is by the Insurance Company

assailing the judgment and award dated 05.08.2015

passed in M.V.C.No.3023/2014 by the Motor

Accident Claims Tribunal, Bangalore City (SCCH-14)

('the Tribunal' in short).

2. The appellant/insurer was the first

respondent, respondent Nos.1 to 3 were the

petitioners and respondent Nos.4 and 5 were

respondent Nos.2 and 3 before the Tribunal. For the

sake of convenience, the parties will be referred to

as per their status before the Tribunal.

MFA.7582/2015

3. Briefly stated, the facts are that, Tejas

K.Jose, the deceased was the 1st year B.Com.

student in Kristhu Jayanthi College, K.Narayanapura,

Bangalore, who is the son of petitioner Nos.1 and 2

and brother of petitioner No.3. On 02.07.2014 at

8.40 p.m., while he was riding the motor cycle

bearing No.KA-01/Y-7292 at Whitefield, a Water

Tanker bearing No.KA-03/C-4932 caused the

accident, as a result of which, he sustained multiple

injuries and was admittedly to Vydehi institute of

Medical Sciences and Research Centre, Whitefield,

Bangalore, where he was succumbed to death.

4. The petitioners being parents and sister of

the deceased have moved the Tribunal, seeking

compensation. The claim was opposed by the

respondents. The Tribunal awarded compensation of

Rs.15,06,000/- with interest @ 9% per annum.

6. The Insurance Company is before this court

on the grounds that the Tribunal has erred in taking MFA.7582/2015

the income at Rs.8,000/-, adding 50% of future

prospects though the deceased was a student and in

applying the multiplier of '18' by taking the age of

the deceased instead of taking the age of younger

parent. The appellants have been self-employed,

there is no dependency and it was not considered by

the Tribunal. The Tribunal has also committed an

error in awarding Rs.1,20,000/- towards conveyance

and also in awarding 9% interest instead of 6%.

7. Heard Sri.Ashok N.Patil, learned counsel for

the insurer and Sri.V.Vijaya Kumar, learned counsel

for the petitioners.

8. It has been argued by learned counsel for

the insurer relying upon an unreported judgment of

this court in the case of Ms.Joyeeta Bose and

Others -vs- Venkateshan V. and Others in

M.F.A.No.5896/2018 c/w 4444/2018 and 4659/2018

that the award of interest @ 9% per annum is

contrary to the settled law, there is no instances of MFA.7582/2015

interest being paid at 9% for Fixed Deposits in the

Banks and it has to be reduced to 6%. It is further

contended that the petitioner was a student, his

income ought not to have been taken at Rs.8,000/-,

future prospects taken at 50% is incorrect and the

traveling expenses to the parents is awarded and it

has to be excluded.

9. Per contra, learned counsel for the

petitioners submitted that the parents were residents

of Kuwait at the time of accident, only because of

the accident, they were made to travel in a hurried

manner by spending huge money towards air fare.

The dead body was transported to Kerala in an

Ambulance by paying huge rent, the Tribunal has

rightly taken into consideration the expenses,

awarded traveling expenses. It is contended that

the accident was of the year 2014, though the

deceased was a student, in the Lok Adalat,

Rs.8,500/- is being taken as the income of a person MFA.7582/2015

with no proof of income and even if the 40% of

future prospects is added, the compensation comes

to higher than what was awarded by the Tribunal

and therefore, the sought for enhancement of

compensation, though no cross-appeal was filed by

the petitioners.

10. I gave anxious consideration to the

arguments advanced on both sides and also perused

the materials available on record.

11. There is no dispute as to the accident,

cause of accident, death of the deceased, he was

aged 20 years and a student in the year 2014. The

material on record points out that the parents of the

deceased were working at Kuwait and they are from

Kerala State, because of the accident, they were

made to travel all of a sudden by paying surge air

fare, which added salt to the pain that they are

suffering on account of death of their only son.

Hence, keeping all these aspects into consideration, MFA.7582/2015

let me make an assessment of compensation, how

much it will come and whether the Tribunal was right

in awarding the compensation.

12. If the income of the deceased is taken at

Rs.8,500/-, in view of the law laid down in National

Insurance Co.Ltd. -vs- Pranay Sethi and

Others1, the future prospects has to be added at

40%. Then it comes to Rs.11,900/- (Rs.8,500/-

x40%). Since the deceased was a bachelor student,

50% has to be excluded towards personal expenses.

Then the actual income will come at Rs.5,950/-.

Then it comes to Rs.12,85,200/- (Rs.5,950/-x12x18

multiplier) towards loss of dependency.

13. The argument of the learned counsel for

the insurer that the age of the younger parent has to

be taken cannot be considered as it has been settled

law that the age of the deceased is the relevant

(2017) 16 SCC 680 MFA.7582/2015

factor for applying the multiplier. Hence, for the age

of 20 years, the multiplier applicable is '18' as

assessed by the Tribunal.

14. Towards conventional heads, since the

deceased has left behind his parents, a sum of

Rs.40,000/- each has to be awarded and funeral

expenses at Rs.15,000/-, loss of estate at

Rs.15,000/- has to be added.

15. The issue is regarding travelling expenses.

Admittedly, the parents of the deceased were

residing at Kuwait, they had traveled all along from

Kuwait to Bangalore to receive the dead body of

their son, if their son was not died, there was no

occasion for them to travel from abroad and the

dead body has been shifted from Bangalore to Kerala

for funeral and therefore, the special costs incurred

towards the traveling has to be considered. There is

a bill available in the record whether the petitioners

have paid Rs.35,000/- towards Ambulance charges, MFA.7582/2015

in which they carried the dead body to Kerala, then

their traveling expenses and shifting of the dead

body will cost to Rs.45,000/-. The air fare is taken

at Rs.1,20,000/-, but the split figure is not properly

explained and even if we remove 50% of air fare,

then it comes to Rs.60,000/-.

16. Accordingly, the petitioners are entitled to

total compensation as under:

Sl.                                        Amount
                 Particulars
No.                                        in (Rs.)
1.    Loss of dependency                   12,85,200/-

2.    Loss of love and affection              80,000/-

3.    Funeral expenses                        15,000/-
      Loss of estate
4.                                            15,000/-

5.    Transportation expenses                 45,000/-

5.    Air fare                                60,000/-

            TOTAL                         15,00,200/-

Wherein the Tribunal has assessed the compensation

at Rs.15,06,000/-. Hence, I do not find any infirmity MFA.7582/2015

in the said award and therefore, the award passed

by the Tribunal is just and proper.

17. As regarding rate of interest is concerned,

the Division Bench of this court in Ms.Joyeeta Bose

and Ors. -vs- Venkateshan.V. and Ors. in

M.F.A.No.5896/2018 c/w M.F.A.Nos.4444/2018 and

4659/2018 (MV) DD 24.08.2020 with reference to

Section 149(1) of Motor Vehicles Act, 1988, Rule 253

of Karnataka Motor Vehicles Rules, 1989 and Section

34 of Civil Procedure Code, at Para 52 has laid down

principles regarding award of interest, it reads thus:

"52.Thus, under Section 34 of CPC being squarely applicable to the interest awarded by the tribunal and Section 34 empowering the tribunal to award pendente lite interest and discretion being vested with the Court/tribunal to award interest from the date of suit or petition is to the maximum extent of 6% p.a. or in other words, not exceeding 6% p.a., the contention raised by the learned Advocates appearing for the Insurance Company deserves to be accepted and accordingly, it is accepted. . . . . . . . . . . ."

MFA.7582/2015

18. As seen from the catena of decisions, only

in special cases where reasons are recorded, rate of

interest is awarded on higher side. Here in this case,

the Tribunal has not assigned any reason for

awarding higher rate of interest. The interest

awarded by the Tribunal at 9% per annum is not

comparable to prevailing Bank rate of interest. At

relevant point of time, no Bank has offered interest

at 9% per annum, the Tribunal has lost sight of

these aspects and awarded interest @ 9% and

default interest of 12% per annum, which needs

modification.