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2019 DIGILAW 1328 (KAR)

Branch Manager United India Insurance Co. Ltd. v. Tulasidas

2019-06-18

B.A.PATIL, BELLUNKE A.S.

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JUDGMENT : B.A. Patil, J. Learned counsel Shri. Nagangouda R. Kuppellur, is directed to take notice to the 2nd respondent-insurer in MFA Crob.100179/2015 and Registry to print his name for the 2nd respondent. 2. MFA No.102468/2015 has been filed by the appellant-insurer and MFA Crob.100179/2015 has been filed by the appellant/claimant challenging the judgment and award passed by the I Addl. MACT, Karwar, in MVC No.78/2013 dated 07.05.2015. 3. We have heard the learned counsel appearing for the parties. Though this case is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal. 4. The brief facts of the case as contended in the petition are that: On 06.06.2013 at about 5.15 pm, the deceased was proceeding on his motor cycle bearing Registration No.KA30/Q-3981 and at that time, the driver of the tanker bearing registration No.KA-25/8890 came rashly and negligently and dashed to the motorcycle and as a result of the same, he fell down and sustained grievous injuries. Immediately he was shifted to the Government Hospital, Karwar and he was operated and unfortunately he succumbed to the injuries. It is the contention of the claimant that he was working in Sea Bird naval base at Arga and drawing a salary of Rs.27,744/- and he was the sole earning member and they have also spent some incidental charges. On these grounds they claimed to award the compensation. The respondent No.1 appeared and filed his objection. It is contended that the deceased suddenly stopped his bike and as a result of the same the tanker hit the deceased. The accident has taken place due to the fault of the deceased himself. It is contended that the respondent No.1 was having valid and effective driving licence. The said vehicle has been insured with respondent No.2 and it was valid on the date of accident and hence respondent No.2 is liable to pay the compensation. Respondent No.2 has also filed objections by denying the contentions of the petition. It is further contended that his liability is subject to terms and conditions of the policy and he prays to dismiss the petition. In order to prove their case, the claimants got examined claimant No.1 as PW1 and got marked Exs. P1 to P6. The respondents have not examined any witnesses, but however, they got marked the Insurance Policy as Ex.R1. In order to prove their case, the claimants got examined claimant No.1 as PW1 and got marked Exs. P1 to P6. The respondents have not examined any witnesses, but however, they got marked the Insurance Policy as Ex.R1. After considering the arguments, the Court below has awarded the compensation. Challenging the same, the insurer and the appellants are before this Court. 5. It is the contention of the learned counsel for the appellant/insurer that the Tribunal has erred in passing the award and awarding the higher compensation. It is his further contention that the deceased was a bachelor and he was not married and hence the deduction towards personal expenses to the extent of 1/3rd while awarding compensation under the head 'loss of dependency' is not correct. It ought to have deducted 50% towards personal expenses. It is his further contention that the compensation awarded under the conventional head is also not correct. On these grounds, he prayed to allow the appeal and to set aside the judgment and award passed by the Tribunal. 6. Per contra, learned counsel for the respondent/claimant vehemently argued and submitted that, though the Tribunal has committed an error by deducting 1/3rd towards the personal expenses, but no adequate compensation has been awarded under the conventional heads and the salary certificate produced at Ex.P6 clearly goes to show that the deceased was having permanent income and he is also entitled for the future prospects. It is his contention that the Tribunal has erred in taking the age of the youngest parents of the deceased instead of taking the age of the deceased himself. Hence, he prays to adequately enhance the compensation. 7. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 8. The accident in question is not in dispute, so also the offending vehicle insured with the respondent-insurer. It is the contention of the claimants that the Tribunal has erred in taking the multiplier by taking the age of the parents and has awarded the compensation on the lower side. It is the contention of the insurer that the deceased was a bachelor and deduction of 1/3rd towards the personal expenses is not correct. 9. We have carefully and cautiously gone through the judgment of the trial Court. It is the contention of the insurer that the deceased was a bachelor and deduction of 1/3rd towards the personal expenses is not correct. 9. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after holding that the deceased was earning Rs.27,744/- per month, without any valid reasons, has taken the income of the deceased at the rate of Rs.23,580/- p.m. The trial Court has also further observed that 1/3rd of his income has to be deducted towards personal expenses and as he was a permanent employee, it has added 50% of the remaining amount towards future prospects, as the deceased was in the age group of 25-30. There is an error in the observation of the trial Court. But while calculating the compensation towards loss of dependency, the Trial Court has deducted 50% towards personal expenses and after applying the multiplier of 13 considering the youngest age of the mother of the deceased, awarded a sum of Rs.27,58,860/- towards 'loss of dependency'. 10. Admittedly the gross monthly income of the deceased is Rs.27,744/- as per the salary certificate at Ex.P6 and nothing is elicited to disbelieve the said certificate. As the deceased was a bachelor, 50% has to be deducted towards personal expenses and as he is having permanent employment, 50% of the remaining amount has to added towards future prospects. As could be seen from the records, the age of the youngest parents has been taken and multiplier of 13 has been applied. But it is well settled proposition of law by the Hon'ble Apex Court that the age of the deceased has to be taken. If the age of the deceased is taken at 25 years, the appropriate multiplier would be 18. 11. In the light of the discussion held by us above, if the income of the deceased is taken at the rate of Rs.27,744/- p.m., after deducting 50% towards personal expenses of the deceased and by adding 50% of the remaining amount towards future prospects and applying the appropriate multiplier of 18, the claimants are entitled to a total compensation of Rs.44,94,528/- (Rs.20,808x18x12) under the head 'loss of dependency'. 12. Further, the Tribunal has not adequately awarded the compensation under the conventional heads. 12. Further, the Tribunal has not adequately awarded the compensation under the conventional heads. In that light, the claimants are entitled to an amount of Rs.1,60,000/- towards 'love and affection' and Rs.30,000/- towards 'funeral expenses and transportation of the dead body' and an amount of Rs.50,000/- is awarded towards 'loss of estate'. Further an amount of Rs.5,000/- has been awarded towards 'treatment and other incidental charges'. Hence the total compensation would be Rs.47,39,528/-. 13. In the light of the discussion held by us above, the claimants are entitled to an enhanced compensation of Rs.19,50,668/- with 6% interest in addition to the compensation awarded by the Trial Court. 14. In the light of the discussion held by us, MFA No.102468/2015 is dismissed and MFA Crob.No.100179/2015 is allowed in part. The judgment and award passed by the I Addl. MACT, Karwar in MVC No.78/2013 dated 07.05.2015 is modified as indicated above. The appellant/insurer is directed to deposit the enhanced compensation along with interest within four weeks from the date of receipt of certified copy of this order. The apportionment and disbursement of the compensation will be as per the award of the trial Court. Registry is directed to draw the decree accordingly. The amount in deposit, if any, be transmitted to the jurisdictional Tribunal forthwith.