SHIVANNA v. THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.4

Digitally Signed by REKHA R Location : High Court of Karnataka - 2 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR RESIDENCY ROAD CROSS, BANGALORE - 560 025.

#2. LOKESH S.N., S/O NINGANNA, R/AT NO.93/1, 5TH CROSS, 9TH MAIN ROAD, J.C. NAGAR, BANGALORE - 86. (BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR R1, R2 SERVED AND UNREPRESENTED) …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:02.01.2015 PASSED IN MVC NO.3848/2013 ON THE FILE OF THE XXIII ADDITIONAL SMALL CAUSE JUDGE, & XXI ACMM, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT This appeal is by the claimants seeking enhancement of compensation so also calling in question the absolute exoneration of the Insurance Company, arising out of the - 3 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR Judgment Award

02.01.2015 M.V.C.No.3848/2013 passed by the Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru (for short 'the Tribunal').

#2. The parties are referred to as per their rankings before the Tribunal.

#3. In an accident that occurred on 31.05.2013, son of claimant Nos.1 and 2 and brother of claimant No.3 by name Sri. Ranganatha.S, suffered fatal injuries and succumbed. The Tribunal upon considering the entire material placed on record, taking the income at the rate of Rs.6,000/- per month, adding 10% towards future prospectus and deducting 50% towards personal expenses awarded total compensation of Rs.6,19,114/- (Rupees Six Lakh Nineteen Thousand One Hundred and Fourteen only) along with interest at 6% per annum.

#4. The Tribunal upon consideration of evidence led by the Insurer comes to a conclusion that the driver was - 4 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR not possessing valid and effective driving license at the time of accident, exonerated the Insurance Company from paying the compensation and made respondent No.2 - owner of the vehicle to pay the entire compensation. It is this award passed by the Tribunal is called in question by the claimants on two grounds.

#5. Firstly, the deceased was a third party and even in the absence of driving license, in view of settled position of law, when there is a valid insurance policy existing as on the date of the accident, the Insurer be made liable to pay the compensation primarily with liberty to recover the same from the owner of the vehicle. Secondly, the year of accident was 2013 and as per the Chart prepared by the Karnataka State Legal Services Authority for settlement of claims before the Lok-Adalat, a sum of Rs.8,000/- per month is fixed for the year 2013 and the same must have been considered by the Tribunal while calculating the loss of dependency. Further, in view of settled position of law, 40% must have been added towards future prospectus - 5 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR instead of 10% as taken by the Tribunal. It is further submitted that the Tribunal has not awarded appropriate compensation under the Conventional Heads, so also 10% escalation on the same. Accordingly, learned counsel for appellant sought to allow the appeal and to enhance the compensation and the Insurer to pay the compensation primarily with liberty to recover from the owner of the offending vehicle.

#6. Refuting the submissions of learned counsel appearing for the appellants, Sri.C.R.Ravishankar., learned counsel appearing for the Insurance Company with all vehemence submits that the Tribunal in the absence of any proof of income, considered the monthly income at Rs.6,000/- per month, however, he is not in dispute with the settled position of law that 40% is to be added towards future prospectus and 10% towards escalation on the compensation awarded under the conventional heads. But he submits that in view of law laid down by the Hon'ble Apex Court so far as Filial Compensation is - 6 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR concerned, only the father and mother are entitled and not the brothers and sisters.

#7. Having heard the submissions, the following questions would arise for consideration: 1) Whether the Tribunal is right in absolutely exonerating the Insurer from paying compensation? 2) Whether the Claimants have made out any case for enhancement?

#8. My answer to the above points for consideration are as under: Point No.1 : Partly in the affirmative. Point No.2 : Partly in the affirmative, for the following: REASONS

#9. POINT NO.1: Admittedly, the deceased was a third party. As per the police records, deceased Ranganath was proceeding towards his home on Brundavan factory - 7 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR road, at that time, the rider of the motorcycle came in a rash and negligent manner and caused the accident, resulting in the death of the deceased. In these circumstances, in view of settled position of law in PAPPU DEO YADAV VS. NARESH KUMAR AND OTHERS1, the Insurer is primarily made liable to pay the compensation with liberty to recover the same. Accordingly, point No.1 is answered partly in the affirmative.

#10. POINT No.2: So far as enhancement of compensation is concerned, admittedly the accident had occurred in the year 2013. As per the Chart stated supra, the income is fixed at the rate of Rs.8,000/- per month. The Tribunal has taken Rs.6,000/- per month, accordingly the same requires enhancement. So far as future prospectus is concerned, the Tribunal has considered at 10%, which is erroneous and against the settled position of law. The learned counsel for the Insurer fairly submits that 40% ought to have been considered in view of settled 1 AIR Online 2018 SC 1582 - 8 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR position of law laid down by the Hon'ble Apex Court in NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI2. In view of higher income as well as future prospectus and the Filial Consortium, compensation requires reassessment and re-determination. Accordingly, this Court proceeds to reassess the compensation which reads as under: Sl. No. Heads Compensation awarded by the Tribunal In Rs.

#1. Loss of dependency 5,04,000-00

#3. 4. 5.

#7. 8. love and Loss of affection Future Prospectus Funeral expenses Re-imbursement of Medical expenses Transportation dead body Loss of estate 20% escalation (for two terms of three completed years on conventional heads) TOTAL By this Court In Rs. 12,09,600-00 (8,000+40%x12x18x50%) 80,000-00 [Rs.40,000 x 2] - 15,000-00 9,714-00 5,000-00 15,000-00 22,000-00 25,000-00 50,400-00 15,000-00 9,714-00 5,000-00 10,000-00 - 6,19,114-00 13,56,314-00

#11. Accordingly, the claimants are entitled for re- assessed compensation of Rs.13,56,314/- which shall carry interest at the rate of 6% from the rate of petition 2 2017 (16) SCC 680 - 9 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR till realization. Accordingly, this Court proceeds to pass the following: ORDER (i) The appeal is allowed in part. (ii) The Judgment and Award dated 02.01.2015 in M.V.C.No.3848/2013 passed by the Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru is modified and the compensation is reassessed. (iii) The claimants are entitled for re-assessed compensation of Rs.13,56,314/- along with interest at the rate of 6% per annum from the date of petition till realization. (iv) Respondent No.1 - Insurer is primarily made liable to pay the entire re-assessed compensation with interest stated supra with a liberty to recover the same from the owner of the vehicle. - 10 - NC: 2026:KHC:9269 MFA No. 2677 of 2015 HC-KAR (v) Respondent No.1 - Insurer shall deposit the entire re-assessed compensation along with interest stated supra within six weeks from the date of receipt of certified copy of this order. (vi) Upon deposit, the apportionment and disbursement is as per the order passed by the Tribunal. (vii) The trial Court record shall be transmitted forthwith to the concerned Tribunal without causing any delay. Sd/- (T.M.NADAF) JUDGE TKN List No.: 1 Sl No.: 13 ct-vn