SRI THIPPERUDRAPPA M.T v. UNITED INDIA INSURANCE CO. LTD

…RESPONDENTS (BY SRI. JWALA KUMAR.,ADVOCATE FOR R-1., NOTICE SERVED TO R-2) - 2 - NC: 2024:KHC:4622 MFA No. 307 of 2020 THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 01.02.2019, PASSED IN MVC NO.1941/2018, ON THE FILE OF THE XV-ADDITIONAL SMALL CAUSES JUDGE AND XXIII-ACMM., MEMBER, MACT, (SCCH- 19), MAYO HALL UNIT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is preferred by the appellants - claimants challenging the judgment & award dated 1st February 2019 passed in MVC No.1941/2018 by the Court of XV Additional Small Causes Judge and Member, MACT, Bengaluru (for short 'the Tribunal). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal.

2. Parties to the appeal shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are as under: On 4.3.2018 at about 9.05 a.m. the deceased Mahesh M.T. was riding a motorcycle bearing Registration No.KA- 51/HA-7661 alongwith the pillion rider on Punganur road, Mulbagal taluk, Kolar district and when he reached near - 3 - NC: 2024:KHC:4622 MFA No. 307 of 2020 Hebbani lake bridge, at that time, lorry bearing Registration NoAP-21/W-2132 driven by its driver in a rash and negligent manner came in a high speed and dashed against the motorcycle of the deceased. Due to the impact of the accident, deceased fell down and sustained grievous injuries and died on the spot. The claimants are none other than the parents of the deceased. It is stated by the claimants that they spent more than Rs.1,00,000/- towards last rites and obsequies.

3.1 It is stated that prior to the occurrence of the accident, deceased was working as an Assistant Professor at Oerlikon Balzers Private Limited earning Rs.20,000/- per month. Due to the sudden and untimely death of the deceased, the claimants have lost their bread-earner. Hence, they preferred a claim petition seeking compensation.

3.2 On service of notice, Respondent No.1 appeared through its counsel and filed the written statement denying the averments made in the claim petition including age, avocation, income and validity of the Driving Licence possessed by the deceased. Respondent No.1 also denied the relationship of the - 4 - NC: 2024:KHC:4622 MFA No. 307 of 2020 claimants with the deceased and sought for dismissal of the claim petition.

3.2 On the basis of the pleadings, the Tribunal framed the relevant issues for consideration.

3.3 In order to substantiate the issues and establish the case, the claimants examined PWs.1 and 2 and got marked 19 documents as per Ex.P1 to Ex.P19. Whereas respondent examined one witness as RW.1 and produced one document as Ex.R1.

3.4 On the basis of the material evidence, both oral and documentary, the Tribunal awarded total compensation of Rs.23,94,800/-, fixing the liability of 80% against driver of the offending vehicle and 20% contributory negligence against the deceased and directed respondent/insurer to pay Rs.19,15,900/- (80% of Rs.23,94,800/-) with interest at 9% per annum.

3.5 Being aggrieved by the meager compensation amount awarded by the Tribunal, the claimants are before this Court seeking enhancement of compensation. - 5 - NC: 2024:KHC:4622 MFA No. 307 of 2020 4 It is the vehement contention of learned counsel for the appellants/claimants that the Tribunal has not taken proper income for assessment of compensation and the compensation awarded under all the heads is not in accordance with the material on record. Therefore, he seeks to allow the appeal and enhance the compensation.

5. Per contra, learned counsel representing the insurance company contends that there is no error, illegality or perversity in the impugned judgment and award passed by the Tribunal. He further contends that the Tribunal awarded just and reasonable compensation under all heads, in accordance with the material evidence, both oral and documentary and the same does not call for interference. However, learned counsel contends that interest awarded by the Tribunal is on the higher side and the same requires to be reduced to 6% per annum.

6. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record including the trial Court records.

7. In order to substantiate and establish the aspect of negligence and injuries suffered, the claimants have produced - 6 - NC: 2024:KHC:4622 MFA No. 307 of 2020 Ex.P1 to Ex.P19, the police records as well as financial records including salary slip of the deceased. The police records - Ex.P1 to Ex.P8 clearly depict registration of FIR and laying of the charge sheet against driver of the offending vehicle, which have not been questioned. Therefore, negligence is rightly attributed against driver of the offending vehicle. Ex.P9 to Ex.P19 are the SSLC marks card, bank pass book, appointment letter, pay slips etc.,

8. Now coming to the age, avocation, income and multiplier, the deceased was aged 30 years as on the date of occurrence of the accident and he has not reached the age of 31 years. Hence, Tribunal has taken the multiplier of '17', which is correct and does not call for interference. The Tribunal taken the income of the deceased to be Rs.16,000/- per month on the basis of net salary mentioned in Ex.P10/pay slip. I am in agreement with the learned counsel for the appellants that the Tribunal ought to have taken gross salary after deducing the Professional Tax, if any. In the present case, Ex.P10/pay slip depicts the gross salary as Rs.18,691/- and Professional Tax as Rs.200/- and therefore, Rs.18,491/- requires to be taken as monthly income of the deceased as - 7 - NC: 2024:KHC:4622 MFA No. 307 of 2020 against Rs.16,000/-. The Tribunal rightly added 40% towards future prospects and deducted 50% towards personal expenses.

9. In view of the above, income of the deceased for computation would be Rs.12,893/- {(Rs.18,419 plus 40% ) - minus 50%}. Hence, loss of dependency would be Rs.12,893 x 12 x 17 = Rs.26,30,172/- as against Rs.22,84,800/- awarded by the tribunal.

10. The Tribunal awarded filial consortium to an extent of Rs.40,000/- to each of the parents i.e., Rs.40,000 x 2 = Rs.80,000/-, which does not call for interference. However, as per the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited -vs- Pranay Sethi and others reported in (2017)16 SCC 680, claimants are entitled for Rs.80,000/- (Rs.40,000/- x 2) along with 20% escalation towards two block periods, which would be Rs.96,000/- (Rs.80,000/- + 20%).

11. The tribunal rightly awarded Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, which does not call for interference. However, - 8 - NC: 2024:KHC:4622 MFA No. 307 of 2020 10% escalation is required to be granted, which would come to Rs.3,000/ (Rs.30,000 x 10%). In all, Rs.33,000/- (Rs.30,000 + 10%) is awarded towards loss of estate and funeral expenses.

12. In view of the above, the claimants would be entitled to total compensation of Rs.27,59,172/- as against Rs.23,94,800/- awarded by the Tribunal.

13. It is seen that the Tribunal attributed 20% contributory negligence against rider of the motorcycle i.e, the deceased. On consideration of the oral and documentary evidence on record and the arguments advanced by learned counsel for both the parties,. I do not find any reason to interfere with the same. Hence, the same is retained.

14. In view of the above, the respondent/insurance company is liable to pay 80% of the compensation amount i.e, 80% of Rs.27,59,172/-, which would Rs.22,07,338/-, as mentioned in the table below: - 9 - NC: 2024:KHC:4622 MFA No. 307 of 2020 Sl. No. Head of compensation 1 Loss of dependency 2 Towards Filial Consortium 3 4 Towards funeral and obsequies Towards loss of estate Total Less: Contributory negligence of 20% attributed against the deceased (20% of Rs.27,59,172/- ) Compensation to which the claimants are entitled for i.e., 80% of Rs.27,59,172/- Amount of compensation awarded Rs.26,30,172-00 Rs. 96,000-00 Rs. 16,500-00 Rs. 16,500-00 Rs.27,59,172-00 Rs. 5,51,834-00 Rs.22,07,338-00

15. Accordingly, I pass the following: O R D E R i) ii) The appeal is allowed in part; The impugned Judgment & Award dated 1st February 2019 passed by the Tribunal in MVC No.1941/2018, is modified. iii) The appellants/claimants would be entitled to compensation of Rs.22,07,338/- (Rupees twenty- two lakhs seven thousand three hundred and thirty-eight only) as against Rs.19,15,900/- awarded by the Tribunal. - 10 - NC: 2024:KHC:4622 MFA No. 307 of 2020 iv) The interest awarded by the tribunal at the rate of 9% per annum on the compensation amount of Rs.19,15,900/- is left undisturbed; v) The enhanced compensation amount shall be paid with interest at 6% per annum by the respondent no.1/insurer within a period of four weeks from the date of receipt of copy of this judgment; vi) All other terms and conditions stipulated by the Tribunal shall stand intact. vii) The compensation amount shall be released in favour of the appellants-claimants as per the tribunal proper identification. viii) Registry is directed to transmit the original records to the jurisdictional Tribunal forthwith. GSS Sd/- JUDGE