Karnataka High Court

M/S Oriental Insurance Company Limited vs George Mathew on 27 November, 2023

-1-
NC: 2023:KHC:42824
MFA No. 4761 of 2015

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF NOVEMBER, 2023

BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 4761 OF 2015 (MV-D)
BETWEEN:

M/S ORIENTAL INSURANCE COMPANY
LIMITED, DIVISIONAL OFFICE, BEAUTY PLAZA
BALMATTA ROAD, MANGALORE , NOW REP.
BY ITS REGIONAL OFFICE, NO.44/45
LEO SHOPPING COMPLEX, RESIDENCY ROAD
BENGALURU - 560 025, REP. BY ITS
AUTHORIZED SIGNATORY ... APPELLANT

(BY SRI.LAKSHMINARASAPPA, ADV. FOR
SRI.A.M.VENKATESH, ADV.)

AND:

1. GEORGE MATHEW
S/O LATE C. D. MATHEW
AGED ABOUT 61 YEARS

2. SMT. THRESIMMA GEORGE
W/O GEROGE MATHEW
Digitally signed by MALA AGED ABOUT 53 YEARS
KN
Location: HIGH COURT R/AT P.O.BOX NO.3430
OF KARNATAKA KUWAIT, SAFAT-13035 KUWAIT
PRESENTLY R/AT ERODE HOUSE
NEAR KADRI TOLL GATE
KADRI, MANGALORE - 575 004

RESPONDENT NOS.1 AND 2 ARE
REP. BY THEIR GPA HOLDER
JOSE K., AGED ABOUT 41 YEARS
R/AT KARIKKAL HOUSE
P.O.PANATHADY, KASARGOD DIST.
KERALA
-2-
NC: 2023:KHC:42824
MFA No. 4761 of 2015

3. SMT. H.V.SOWBAGYA
W/O H.V.VEDAKUMAR
AGED ABOUT 61 YEARS
R/AT YASALOOR POST
MADIKERI, SAKLESHPUR TALUK
HASSAN DISTRICT - 573 201
... RESPONDENTS
(BY SRI.KUMAR, ADV. FOR R1 & R2;
R3 SERVED AND UNREPRESENTED)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.02.2015
PASSED IN MVC NO.296/2012 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE & III ADDITIONAL MACT,
MANGALORE, AWARDING COMPENSATION OF RS.10,80,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION
TILL ITS DEPOSIT.

THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.11.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

JUDGMENT

In this appeal, the Insurance Company has

challenged the judgment and award dated

26.02.2015 in M.V.C.No.296/2012 passed by the II

Addl. District Judge and III Addl. M.A.C.T.,

Mangalore (D.K.) ('the Tribunal' in short).

2. For the sake of convenience, the rank of the

parties will be referred to as per their status before

the Tribunal.

NC: 2023:KHC:42824

3. Brief facts of the case are, on 09.12.2010 at

about 09:45 pm, the son of the petitioners by name

Justin Luke George, who was a student of Chemical

Engineering, Manipal Institute of Technolocy, Manipal

met with an accident while he was a pillion rider in a

motor cycle bearing Reg.No.KA-20/V-5684 ridden by

his friend Rahul Godha near St. Joseph's Church,

Eshwara Nagara, Manipal, hit against a tanker lorry

bearing Reg.No.KA-05/C-2535 killing him at the

spot. The petitioners moved the Tribunal under

Section 166 of Motor Vehicles Act seeking

compensation of Rs.25,00,000/-. Claim was

opposed by the respondents. The Tribunal after

taking the evidence, by impugned judgment awarded

a compensation of Rs.10,80,000/- with 6% interest

p.a. Aggrieved by the same, the Insurance

Company has filed this appeal on various grounds.

NC: 2023:KHC:42824

4. Heard the arguments of

Sri. Lakshminarasappa, learned counsel on behalf of

Sri. A.M. Venkatesh, learned counsel for the

Insurance Company and Sri. Kumar, learned counsel

for the petitioners.

5. It is the contention of the learned counsel for

the Insurance Company that the Tribunal at

Mangaluru has no territorial jurisdiction to try the

claim as no part of cause of action has arisen within

its jurisdiction. The petitioners are residents of

Kuwait, their power of attorney resides at Kerala,

the owner of the lorry is residing at Hassan, the

policy of insurance was issued at Madikeri and the

accident was at Manipal. The Tribunal has not

considered the contributory negligence as the motor

cycle was hit on the hind portion of the lorry. No

eye witnesses are examined, the witnesses

examined are not eye witnesses. Only on the

ground that chargesheet was filed against the driver

NC: 2023:KHC:42824

of the tanker lorry, the claim was made. Rider,

owner and insurer of the motor cycle are necessary

parties. The deceased is a student, the notional

income taken at Rs.15,000/- is on the higher side

and sought for interference.

6. Per contra, learned counsel for the

petitioners has contended that at the time of filing of

the petition, the petitioners were residing at

Mangaluru temporarily, they executed the power of

attorney to file the claim petition as they are

ordinarily working at abroad and the Tribunal at

Mangaluru has the jurisdiction to try the claim. It is

further contended that the deceased was aged 21

years, he was 3rd year Chemical Engineering

Student, having a bright future as an Engineer in

Gulf Countries and he would have earned more than

Rs.1,00,000/- per month. The petitioners have lost

their only son and the income assessed by the

Tribunal is on the lower side, the petitioners came

NC: 2023:KHC:42824

from Kuwait to attend the funeral and last rides of

the deceased. They spent huge money towards air

fare and the compensation assessed by the Tribunal

is inadequate and sought for enhancement.

7. I have given my anxious consideration to the

arguments advanced on both sides and also perused

the materials on record.

8. There is no dispute as to the accident, cause

of the accident, injuries sustained by the deceased

and his death on account of it. The petitioners are

no doubt the parents entitled to claim the

compensation.

9. Though on behalf of the Insurance Company,

the ground of jurisdiction is vehemently argued,

having regard to the petitioners were temporarily

residing at Mangaluru, learned counsel for the

Insurance Company did not press for the said ground

and he is only interested in quantum of

compensation and has relied upon the judgment of

NC: 2023:KHC:42824

Hon'ble Apex Court in Nishan Singh & Ors. -Vs-

Oriental Insurance Company Ltd.1. The Hon'ble

Apex Court in respect of death of a 3rd year

Engineering student on 28.11.2010, assessed the

notional income at Rs.10,000/-. In this case, the

accident took place within 11 days thereafter i.e., on

09.12.2010. The deceased is also the 3rd year

Engineering student and facts of both the cases are

identical. Hence, it is applicable to the facts and

circumstances of the case.

10. The compensation under the conventional

heads has already been settled in National

Insurance Co.Ltd. -Vs- Pranay Sethi and

Others2. Loss of dependency has to be calculated

by taking the notional income of Rs.10,000/- and the

applicable multiplier is '18' and the deduction

towards personal expenses is to be made at 50%

and future prospects applicable is 40%. Hence,

2018 ACJ 1466

(2017) 16 SCC 680

NC: 2023:KHC:42824

considering all these aspects, calculation has to be

made. Then, by adopting these aspects, loss of

dependency will be Rs.10,000/- + Rs.4,000/- (40%)

= Rs.14,000/- - Rs.7,000/- (50%) = Rs.7,000/- x

12 x 18 = Rs.15,12,000/-. Under conventional

heads, in view of the judgments of Hon'ble Apex

Court in Pranay Sethi's case (supra) and Shri

Ram General Insurance Co. Ltd. -Vs- Bhagat

Singh Rawat & Ors.3 compensation towards

parental consortium, funeral expenses and loss of

estate is determined at Rs.70,000/-, if 10%

appreciation is considered for every 3 years, it

comes to Rs.70,000/- + Rs.28,000/- = Rs.98,000/-.

Total compensation comes to Rs.16,10,000/-,

whereas the Tribunal has awarded a sum of

Rs.10,80,000/-. Since the petitioners have not filed

any appeal seeking enhancement, I do not find any

reason to enhance the compensation. Hence, the

award passed by the Tribunal has to be maintained.

Civil Appeal Nos.2410-2412/2023, decided on 27.03.2023

NC: 2023:KHC:42824

The appeal is devoid of merits, in the result, the

following:

ORDER

i) Appeal is dismissed..

ii) Impugned judgment and award is confirmed.

iii) The Insurance Company is directed to deposit the compensation of Rs.10,80,000/- with 6% interest p.a. from the date of petition till the date of deposit within eight weeks from the date of receipt of certified copy of the judgment.