Dinesh Kumar Vs the Director

BOTH ARE R/AT NO.201, PRAGATI PLAZA, OPP. TO BIOCON HEBBAGODI, BENGALURU NATIVE PLACE NO.1, GOVINDASWAMY NAGAR ANNEX JUMBLI NEW COLONY KODUNGAIYUR, CHENNAI TAMIL NADU

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SINCE THE 2^ND APPELLANT IS MINOR REPTD BY HIS FATHER 1^ST APPELLANT AS NATURAL GUARDIAN

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…APPELLANTS

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(BY SRI. SREENIVASAIAH A., ADVOCATE)

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HC-KAR

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AND:

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THE DIRECTOR M/S MONTFORT COLLEGE OLD MADRAS ROAD, INDIRANAGAR BENGALURU - 38

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THE MANAGER ICICI LOMBARD GEN. INS. CO. LTD., NO. 121, THE ESTATE BUILDING 9TH FLOOR, DICKENSON ROAD, BANGALORE - 560 001

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…RESPONDENTS

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(BY SRI.B PRADEEP, ADV. FOR R2; VIDE ORDER DATED 24.06.2022 NOTICE TO R1 IS D/W)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.11.2019 PASSED IN MVC NO. 6554/2018 ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU CITY (SCCH-14), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Heard the learned counsel for the appellants and the learned counsel for the respondents.

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This appeal is filed by the claimants seeking enhancement of compensation being aggrieved by the judgment and award dated 22.11.2019 passed in M.V.C. No.6554/2018 on the file of the XVI Additional Judge and MACT, Court of Small Causes, Bengaluru, whereby, the Tribunal awarded a sum of Rs.22,12,000/- as compensation with interest at the rate of 7% per annum from the date of petition till the date of deposit.

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For the sake of convenience, the parties herein shall be referred to in terms of their status before the Tribunal.

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Brief facts of the case are that on 27.10.2018 at

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about 5:10 p.m., when Akshaya (herein after referred to as deceased) was proceeding by the side of the road along with

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HC-KAR

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her husband and minor son and when she reached in front of Biocon, Bengaluru-Hosur NH-7 Road, Anekal, Bengaluru, at that time, one car bearing Reg.No.KA-03-MQ-0915 being driven by its driver in a rash and negligent manner dashed the deceased from behind. Due to the accident, she succumbed to the injuries in the hospital. Hence, the claimants filed claim petition under Section 166 of the M.V.Act seeking compensation under various heads.

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Heard Sri Sreenivasaiah A, learned counsel for the appellants-claimants and Sri B.Pradeep, learned counsel for the respondent-Insurance Company, and perused the judgment and award of the Tribunal.

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Learned counsel for the appellants-claimants has vehemently contended that the Tribunal has awarded meager compensation considering the income of the deceased at Rs.15,000/- p.m. In fact, the Tribunal has committed an error in considering the salary of the deceased at Rs.15,000/- p.m. instead of Rs.23,027/- p.m. The Tribunal has rejected the oral evidence of the employer of the

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HC-KAR

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deceased and pay slips as per Ex.P33 and bank statement as per Ex.P34 of the deceased. These documents clearly indicates that the deceased was working as lecturer at S.F.S. College and was drawing a gross salary of Rs.23,027/- p.m. The Tribunal ought to have appreciated the evidence on record as per Exs.P16 to P28, which clearly demonstrates that the deceased was Post Graduate in M.A. - English and obtained several certificates from different Universities and also she received a Gold Medal from Loyola College, Chennai. Apart from that, she was taking tuition at home and her income was more than Rs.10,000/- p.m. Thus, the deceased was earning more than Rs.30,000/- p.m. Further, the compensation awarded by the Tribunal under the conventional head is also on lower side. Thirdly, the Tribunal has grossly erred in fastening 15% of the liability saddled towards contributory negligence on the part of the deceased, in fact, the entire liability saddled on the driver of the offending vehicle. Hence, he prays to allow the appeal.

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Per contra , the learned counsel for the respondentInsurance Company vehemently contended that the Tribunal

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HC-KAR

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considering the oral and documentary evidence on record has granted fair and reasonable compensation and no interference is called for. Thus, he prays for dismissal of the appeal.

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Having heard the learned counsel appearing for both the appellants and learned counsel for the respondents and perusal of the appeal papers, the points that arises for our consideration in this appeal are as under:

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I. Whether the Tribunal is justified in saddling the liability to an extent of 15% on the part of the deceased and 85% on the Insurance Company?

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II. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement or reduction?”

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In so far as contributory negligence is concerned, from perusal of the overall evidence, it appears that due to major negligence on the part of the driver of the offending car and minor negligence on the part of the deceased the

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HC-KAR

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accident had occurred. Therefore, the Tribunal had fixed the contributory negligence on the part of the deceased at 15% and negligence on the part of the driver of the offending car at 85%, same is fair and reasonable and no interference is called for in that regard.

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In the instant appeal, the Insurance Company has not disputed the accident, the cause of death and liability to pay the compensation to the claimants. Insofar as the quantum of compensation is considered, the Tribunal assessed the notional income of the deceased at Rs.10,500/p.m., which is on the meagre side.

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We have perused the oral evidence of PW.1 and PW.2-the employer of the deceased. As per Exs.P33 pay slips and P34 bank statement, the deceased was working as Lecturer at S.F.S. College and her gross salary was Rs.23,027/- p.m.. The accident had occurred on 27.10.2018. The deceased drew salary for a sum of Rs.21,027/- in the month of December, 2017, Rs.19,625/- in the month of January, 2018, and Rs.21,027/- in the month of February,

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HC-KAR

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Thereafter, the deceased has not received any salary. It shows that as on the date of accident, the deceased tender her resignation. After the month of February 2018, she was not having the job. Hence, this Court reassessed the notional income of the deceased at Rs.18,000/- p.m., which is fair and reasonable one. The accident was of the year 2018. The deceased was aged about 26 years at the time of the accident. The respondent-Insurance Company has not disputed this aspect. Hence, the multiplier applicable for the age group of 26 is ‘17’. As there are 2 claimants, 1/3^rd has to be deducted towards the personal expenses.

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As per the dictum of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680 , 40% of the income must be added towards future prospects, which comes to Rs.7,200/- (18,000 + 40%) and the total income comes to Rs.25,200/- per month (18,000 + 7,200). Since there are two claimants, 1/3^rd has to be deducted towards personal and living expenses i.e., Rs.8,400/- (Rs.25,200/- x 1/3^rd ) = (25,200/- - 8,400/- =

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HC-KAR

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Rs.16,800/-). Thus, the loss of dependency works out to Rs.34,27,200/- (16,800 X 12 X 17). Thus, the ‘loss of dependency’ is Rs.34,27,200/-.

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The Tribunal has committed an error in not awarding the compensation under the conventional head. As per case of Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and Others reported in (2018) 18 SCC 130 , and Pranay Sethi's case, the claimants are entitled to compensation of Rs.80,000/- (Rs.40,000/- each) towards ‘loss of consortium’ as against Rs.40,000/awarded by the Tribunal.

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Further, Rs.15,000/- towards 'funeral

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expenses' and Rs.15,000/- towards 'loss of estate' awarded by the Tribunal are maintained.

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As there was 15% contributory negligence on the part of the deceased, the Insurance Company is liable to pay 85% compensation to the claimants with interest at the rate of 6% p.a. from the date of petition till its realization.

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HC-KAR

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With regard to award of interest, the learned counsel for the Insurance Company vehemently argued to reduce the rate of interest awarded by the Tribunal at 7% per annum contending that the same is on the higher side. In the decision rendered by this Court in Miscellaneous First Appeal No.5896 of 2018 (MV) and connected matters in the case of Ms. Joyeeta Bose and Others v. Venkateshan V. and Others , wherein a similar question arose with regard to awarding of interest, keeping in view Section 34 of the Code of Civil Procedure, 1908, it has been held that rate of interest shall not exceed 6% per annum from the date of petition till the date of deposit. Therefore, in the present case also, the rate of interest is reduced to 6% per annum from 7% per annum awarded by the Tribunal.

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Thus, the claimants are entitled for the following

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compensation:

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HEADS	Rs.
Loss of dependency	34,27,200.00
Loss of consortium	80,000.00
Loss of estate	15,000.00
Funeral expenses	15,000.00

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HC-KAR

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TOTAL	35,37,200.00
Less: Compensation awarded by the Tribunal	22,12,000.00
TOTAL	13,25,200.00
Less: Negligence contributed by the deceased at 15%	1,98,780.00
ENHANCED COMPENSATION	11,26,420.00

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In the result, we pass the following

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O R D E R

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i. The appeal is allowed-in-part .

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ii. The judgment and award passed by the Tribunal are modified to the extent stated hereinabove. The claimants are entitled to enhanced compensation of Rs.11,26,420/- with interest at the rate of 6% per annum from the date of filing the claim petition till the date of realisation.

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iii. Respondent No.2-Insurance Company is directed to deposit the enhanced compensation together with interest within six weeks' from the date of receipt of a copy of this judgment.

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