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2015 DIGILAW 866 (KAR)

Divisional Manager, Oriental Insurance Company Limited, Bangalore v. Salia Begum

2015-08-05

N.K.PATIL, P.S.DINESH KUMAR

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JUDGMENT : N.K. Patil, J. 1. This appeal is by the appellant-Insurer being aggrieved by the impugned judgment and award dated 1st July, 2013 passed in M.V.C. No. 8149 of 2010 on the file of the XIX Additional Small Causes Judge, Motor Accident Claims Tribunal, Bangalore (SCCH-17) and XLI A.C.M.M., Bangalore (hereinafter referred to as 'Tribunal' for short). The Tribunal by its impugned judgment and award, awarded a sum of Rs. 15,71,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realisation on account of the death of the deceased late Smt. Thajeebun Khathun in the road traffic accident. The appellant-Insurer has filed the appeal on the ground that the compensation awarded by the Tribunal is exorbitant and disproportionate to the income of the deceased and the same is liable to be reduced substantially. The brief facts of the case of the appellant-Insurer are that claimants 1 to 3-respondents 1 to 3 are daughters and son of the deceased late Smt. Thajeebun Khathun. They have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation against the appellant-Insurer contending that the deceased was aged about 46 years, doing scrap business and earning substantial income and she used to file the income tax returns promptly every year and declared her income at Rs. 1,93,080/- p.a for the assessment year 2009-10 and whatever amount she earned out of her profession, she used to spend the same to the welfare of the family. 2. Be that as it may, further, it is the case of the respondents 1 to 3 that the deceased met with an accident on 12-9-2010 at about 7.50 p.m. when she was proceeding as a pillion rider in a Hero Honda Splendor Plus Motorcycle bearing Registration No. KA-02/ER-1786 driven by 4th respondent, which was insured with the appellant-Insurer, on Chokkasandra Road, within the jurisdiction of Peenya Traffic Police Station, Bangalore. At that time, a Maruthi Van over-took the 4th respondent's vehicle. As such, he could not see the humps and due to air pollution, moved his vehicle. Due to the impact, the vehicle skidded and the deceased fell down and sustained fatal head injuries. At that time, a Maruthi Van over-took the 4th respondent's vehicle. As such, he could not see the humps and due to air pollution, moved his vehicle. Due to the impact, the vehicle skidded and the deceased fell down and sustained fatal head injuries. Immediately she was taken to Premier Sanjeevini Hospital for first aid and thereafter taken to Fortis Hospital and then to Mallya Hospital and inspite of giving all medication they could not save the deceased and she succumbed to the injuries on 16-9-2010. 3. It is the further case of the respondents 1 to 3 that on account of untimely death of the deceased, children have lost love and affection, inspiration and guidance and there is total social and financial loss to the family. Taking all these relevant aspects into consideration, they have filed claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation against the rider/owner and the Insurer of the vehicle involved in the accident. 4. The said matter had come up for consideration before the Tribunal. The Tribunal in turn after due appreciation of the oral and documentary evidence and other material available on record, has allowed the same in part by awarding Rs. 15,71,000/- with interest at 6% p.a. from the date of petition till realisation. Being dissatisfied with the impugned judgment and award passed by the Tribunal, the appellant-Insurer felt necessitated, presented this appeal seeking appropriate relief as stated supra. 5. We have heard the learned Counsel appearing for the appellant-Insurer and the claimants 1 to 3-respondents 1 to 3 and perused the impugned judgment and award passed by the Tribunal. 6. It is the submission of the learned Counsel appearing for the appellant-Insurer Sri A.N. Krishna Swamy that, the Tribunal erred in awarding Rs. 15,60,000/- towards loss of dependency and it is disproportionate to the income of the deceased as the deceased was doing business. On account of fatal injuries sustained, she succumbed to the injuries and the business is continued by the daughters and son and 1st respondent is married and she was not depending upon the income of the deceased. The respondents 2 and 3 are also majors as on the date of accident. Hence, they are entitled to only loss of estate and not towards loss of dependency. The respondents 2 and 3 are also majors as on the date of accident. Hence, they are entitled to only loss of estate and not towards loss of dependency. Therefore, he prays that the judgment and award passed by the Tribunal towards loss of dependency may be redetermined in accordance with the relevant provisions of M.V. Act and also law laid down by the Apex Court and this Court reducing substantially and the same may be awarded towards loss of estate in the light of the judgments of Apex Court and this Court in hosts of judgments. 7. Per contra, the learned Counsel appearing for the respondents 1 to 3-claimants 1 to 3 inter alia contended and sought to substantiate stating that the impugned judgment and award passed by the Tribunal has after due consideration of entire oral and documentary evidence available on record and the Tribunal is justified in awarding compensation and interference by this Court is not called for. 8. After careful consideration of the submissions of learned Counsel appearing for the appellant-Insurer and the learned Counsel appearing for the respondents 1 to 3-claimants and after perusal of the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is: "Whether the appellant-Insurer has made out a ground for reduction of the compensation awarded by the Tribunal towards loss of dependency?" 9. The occurrence of the accident and resultant death of the deceased in the road traffic accident are undisputed. It is also not in dispute that the deceased was aged about 46 years at the time of accident, doing scrap business and an income tax assessee. The Tribunal is justified in discussing at in paragraphs 10 and 11 for taking the income of the deceased at Rs. 15,000/- per month and we accept the same. Further, it emerges from the evidence on record that the 1st respondent is married daughter and respondents 2 and 3-daughter and son are unmarried as on the date of accident and they were depending upon the income of the deceased. Out of Rs. 15,000/-, if 50% is deducted towards personal expenses of the deceased, the net contribution of the deceased comes to Rs. 7,500/- p.m. The age of the husband of the deceased was 55 years as on the date of accident and the appropriate multiplier applicable is 11'. Out of Rs. 15,000/-, if 50% is deducted towards personal expenses of the deceased, the net contribution of the deceased comes to Rs. 7,500/- p.m. The age of the husband of the deceased was 55 years as on the date of accident and the appropriate multiplier applicable is 11'. Accordingly, we redetermine the compensation payable towards loss of estate at Rs. 9,90,000/- (Rs. 7,500/- x 12 x 11). 10. Having regard to the facts and circumstances stated supra and the law laid down by the Apex Court and this Court in host of judgments, we deem fit to award Rs. 75,000/- towards loss of love and affection at the rate of Rs. 25,000/- each, Rs. 25,000/- towards transportation and funeral expenses. In all, the claimants are entitled for total compensation of Rs. 10,90,000/- as against Rs. 15,71,000/- awarded by the Tribunal. Therefore, there is reduction in compensation at Rs. 4,81,000/-. Accordingly, the instant appeal filed by the appellant-Insurer is allowed in part. The impugned judgment and award passed by the Tribunal dated 1st July, 2013 in M.V.C. No. 8149 of 2010 on the file of the XIX Additional Small Causes Judge, M.A.C.T. and XLI A.C.M.M., Bangalore, is hereby modified reducing the compensation by Rs. 4,81,000/-. The appellant-Insurer is directed to deposit the compensation amount after deducting the amount deposited by it with interest at the rate of 8% p.a. from the date of petition till the date of realisation within three weeks from the date of receipt of copy of this judgment and award before the jurisdictional Tribunal. The apportionment ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court. The amount deposited by the appellant-Insurer shall be transmitted to the jurisdictional Tribunal immediately. Office is directed to send the LCR to the jurisdictional Tribunal immediately.