Partly allowed

The Divisional Manager v. Shivaling Kallappa Jakati

Karnataka HC28 Aug 2020MFA/21944/2013

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal in part. While rejecting the argument that major earning sons are not dependents, the Court rejected the 50% personal expense deduction order. Interest on 4.47 Lakhs was reduced from 8% to 6% p.a., remaining with the monetary amount awarded.

What did the court decide?

Appeal allowed in part; interest on award of Rs.4,47,000- reduced from 8% to 6% p.a.; other findings of the Tribunal affirmed.

The Divisional Manager Vs Shivaling… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^th DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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MFA No.21944/2013 (MV)

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BETWEEN:

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THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, CLUB ROAD, BELGAUM REP.BY ASSISTANT MANAGER, THE ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-20.

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.. APPELLANT

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(BY SRI.S.V.YAJI, ADV.)

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AND:

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SHIVALING KALLAPPA JAKATI AGE: 32 YEARS, OCC: AGRICULTURIST, R/O.HANABARATTI, TQ: BAILHONGAL, DT: BELGAUM

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MAHALING KALLAPPA JAKATI AGE: 30 YEARS, OCC: AGRICULTURIST, R/O.HANABARATTI, TQ: BAILHONGAL, DT: BELGAUM

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HASANAHMED S/O ABDULREHMAN SAUDAGAR AGE: MAJOR, OCC: BUSINESS, R/O.ROHANMANDI, JALAL MOHALLA, SHORAPUR, DIST: GULBARGA

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.. RESPONDENTS

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(BY SRI.VITTHAL S.TELI, ADV. FOR R1 & R2, SRI.GURUKUMAR. V.A., ADV. FOR R3)

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THIS APPEAL IS FILED UNDER U/SEC.173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:15-03-2013 PASSED IN MVC.NO.1238/2012 ON THE FILE OF THE PRESIDING

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OFFICER, FAST TRACK COURT-III AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE COMPENSATION OF RS.4,47,000/- WITH INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF PETITION TILL ITS REALISATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties.

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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 15.03.2013 passed by the Fast Track Court-III and Additional MACT, Belgaum in M.V.C.No.1238/2012.

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Parties will be referred to as per their ranking

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before the Claims Tribunal.

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Facts giving rise to the filing of the appeal briefly stated are that, on 17.01.2008 at about 5.00 p.m.,

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the deceased was proceeding on his scooter bearing Reg.No.KA-24/E-4598 and when he came near Nesargi Circle on Belgaum-Bagalkot road, a truck bearing Reg.No.KA-33/4160 being driven in a rash and negligent manner dashed into the scooter of the deceased. Due to which, the deceased sustained fatal injuries and succumbed to the same on the spot.

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The claimants filed claim petition under Section 166 of the Act before the Tribunal claiming that the deceased was hale and healthy and was getting pension of Rs.6,000/- p.m. and was maintaining himself and the family members, namely the claimants and due to the death of the deceased, the family is now put to jeopardy and accordingly claimed compensation to the tune of Rs.8,00,000/- along with interest at 18% p.a.

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On service of notice, the respondent-Insurance

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Company appeared and filed statement of objections contending that the claim petition was not maintainable as

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the claimants were not dependents of the deceased. The age and income of the deceased were also denied. It was contended that the family was not put any hardship due to death of the deceased, as they were all earning members of the family and were separately living.

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On the basis of the pleadings of the parties, the

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Claims Tribunal framed the issues and thereafter recorded the evidence.

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The claimants, in order to prove their case, claimant No.2 examined as P.W.1 and got marked 10 documents namely Exs.P1 to P10. On the other hand, respondent-Insurance Company did not examine any witness but marked insurance policy as Ex.R1.

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The Claims Tribunal, by the impugned judgment, inter alia , held that the accident took place on account of rash and negligent driving of the truck by its driver, as a result of which, the deceased sustained injuries and succumbed to the same. The Tribunal further held

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that the claimants are entitled to a compensation of Rs.4,47,000/- along with interest at the rate of 8% p.a. The Insurance Company has preferred the subject appeal on the ground that the quantum of compensation awarded by the Tribunal is on the higher side.

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I have heard Sri.S.V.Yaji, learned counsel for the appellant-Insurance Company through video conference and Sri.Vitthal S.Teli, learned counsel for respondent Nos.1 and 2 and Sri.Gurukumar V.A., learned counsel for respondent No.3.

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Learned counsel for the appellant-Insurance Company would contend that there is no dependency of the claimants with the deceased as the deceased was a pensioner and the claimants were major sons though working as coolies. In the light of fact that, there being no dependency, 50% ought to have been deducted towards personal expenses and not 1/3^rd as is done by the Tribunal. He further contended that the interest awarded at 8% is on

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the higher side and it ought to have been at 6%. He placed reliance upon the judgment of this Court in the case of Reliance General Insurance Co. Ltd., Vs. M.Jayalakshmamma and Others reported in 2018 ACJ 1730 .

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On the other hand, learned counsel for the claimants would contend that claimants have categorically deposed in their cross-examination that they are dependents of the deceased and were all staying together. It is further contended that deduction made by the Tribunal

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at 1/3^rd is just and proper. He would place reliance on the following judgments.

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i) National Insurance Company Limited V. Birender and others reported in AIR 2020 Supreme Court 434 .

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ii) Pushkar Mehra Vs Brij Mohan Kushwaha and Others reported in (2015) 12

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Supreme Court Cases 688 .

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I have given my anxious consideration to the

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submissions made by the learned counsel for the parties and perused the material on record. The only issue that arises for my consideration is with regard to the quantum of compensation awarded by the Tribunal on the death of the deceased, particularly under the head of loss of dependency.

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Admittedly, the claimants have contended before the Tribunal that they were agricultural coolies by avocation and were dependent upon the income of the deceased. Though deceased was a pensioner getting pension of Rs.6,000/- p.m, the Apex Court in the case of Birender and Others (supra) in para 15 has held as follows:

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“15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have right to apply for compensation

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and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs.1,00,000/and Rs.1,50,000/per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.”

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15. In terms of the afore-extracted judgment of the

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Apex Court, if the plea of dependency as put forth is with some evidence, though being a meager income, the compensation on loss of dependency cannot be denied. The law laid down by the Apex Court covers the facts of the present case on hand on all fours. The Insurance Company before the Tribunal has not produced any document nor elicited anything in the cross-examination of the claimants with regard to dependency or otherwise with the deceased.

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The claimants had discharged their burden by stating that they were dependant on the deceased and were all living together in the same house as one family is not controverted by the Insurance Company. Hence, it is too late in the day for the Insurance Company to contend that the claimants being major sons are not dependent upon the deceased. Hence, the ground urged by the Insurance Company with regard to the Tribunal awarding compensation on the ground of loss of dependency, being erroneous, is rejected.

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The second contention urged by the Insurance Company is with regard to deduction of 1/3^rd by the Tribunal. In the light of the analysis with regard to the claimants being dependents on the deceased, the finding of the Tribunal in deducting 1/3^rd towards personal expenses is just and proper, more so, in the light of the law laid

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down by the Apex Court in the case of Pushkar

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Mehra(supra) wherein the Apex Court in para 8 has held as follows:

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“8. The learned counsel for Respondent 3, the insurer contended that the amount of compensation to be determined in the case should be just and reasonable and not meager but at the same time it should not be a bonanza. It was further contended that the Tribunal rightly applied the provisions of the Minimum Wages Act fo unskilled labour and took the multiplier of 11. It would be clear from the financial background of the claimants that they were not actually dependant on the deceased as the deceased’s wife was earning Rs.11,000 per month and the son based in the USA was earning $1,20,000 p.a. and the other son based in Mumbai was earning Rs.18,000 per month besides other perks. All this reveals that the claimants were very well placed in life. It was further contended that the appellant has erroneously placed reliance on the judgments in the case of Asha Gupta, A.Manavalagan and Keith Rowe referred to supra as the facts are altogether different as in those cases salary was proved by the documentary evidence.”

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Insofar as reliance placed by the Insurance

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Company in the case of M.Jayalakshmamma (supra) with regard to deduction of 50% towards personal expenses is concerned, the same is not applicable to the

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facts of the case, more so, in the light of the judgment of the Apex Court in the case of Birender and Others (supra) and Pushkar Mehra(supra).

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Hence, the contention of the Insurance Company that Tribunal ought to have deducted 50% towards personal expenses is also rejected.

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The Tribunal has awarded interest at 8%. In my considered view and plethora of judgments of the Apex Court and this Court, awarding interest at 8% is on the higher side and the same is reduced to 6%. Except reducing interest from 8% to 6%, none of the findings of the Tribunal are disturbed. The judgment of the Tribunal is modified only to the aforementioned extent.

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Accordingly, the appeal is allowed in part.

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The amount in deposit, if any, shall be transferred to

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the Tribunal forthwith.

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Sd/JUDGE

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MBS/-

The Divisional Manager v. Shivaling Kallappa Jakati

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Shivaling Kallappa Jakati

Case brief

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