Icici Lombard General Insurance Co. Ltd. v. Tabasum
2020-09-30
P.S.DINESH KUMAR, S.VISHWAJITH SHETTY
body2020
DigiLaw.ai
JUDGMENT S. Vishwajith Shetty, J. - This appeal is filed by the insurer of the offending vehicle challenging the judgment and award dated 04.01.2019 made in M.V.C.No.35/2018 by the Court of Prl. Senior Civil Judge and Addl. M.A.C.T., Saundatti on the ground of contributory negligence and quantum of compensation. 2. We have heard learned counsel appearing for the insurer and learned counsel appearing for the claimants. 3. Brief facts of the case are, on 05.09.2017 at about 6.30 p.m. husband of the first claimant Goresab Sanadi was proceeding on his motorcycle bearing registration No.KA-24/K-5293 and when he reached Achamatti village limits of Saundatti Taluk, a Maruti Celerio car bearing registration No.KA-26/M-8727 came from the opposite direction driven in a rash and negligent manner and dashed against his motorcycle. As a result, Goresab Sanadi sustained grievous injuries and succumbed to the injuries on the spot. Claimants are the wife and mother of the deceased. They filed claim petition under Section 166 of M.V. Act before the Tribunal claiming a total compensation of Rs.1,81,98,000/- with interest at 18% p.a. The Tribunal by means of impugned judgment and award, awarded a total compensation of Rs.45,51,920/- with interest at 9% p.a. from the date of petition till realization. 4. Learned counsel Shri R.R. Mane appearing for the insurer submitted that the deceased was also negligent while riding his motorcycle and therefore, Tribunal ought to have fastened contributory negligence on him. He also submitted that the Tribunal has erroneously considered the notional income of the deceased at Rs.22,000/- p.m. which is not supported by any evidence. He submitted that deceased was an Oath Commissioner which would go to show that he was not having good practice. On the basis of material on record, he submitted that as an Oath Commissioner, the total income of the deceased for about two months was Rs.600/- and therefore, the Tribunal was not justified in considering the income of the deceased at Rs.22,000/- p.m. He also submitted that Tribunal has erred in awarding interest at 9% p.a. and prayed to reduce the same to 6% p.a. 5. On the other hand, Shri Harish S. Maigur, learned counsel for the claimants submitted that the deceased was an Advocate who had good practice. The deceased also had additional income as an Oath Commissioner.
On the other hand, Shri Harish S. Maigur, learned counsel for the claimants submitted that the deceased was an Advocate who had good practice. The deceased also had additional income as an Oath Commissioner. The deceased had appeared for judicial service examination held for the post of Civil Judge and he was also appointed as a Conciliator in the Lok Adalath which would go to show that he had good career ahead. He submitted that compensation awarded by the Tribunal is just and proper. 6. We have carefully considered the rival contentions urged by both the parties and perused the material evidence available on record. 7. The deceased Goresab Sanadi was aged about 35 years at the time of accident. The deceased was an Advocate by profession and he had got enrolled on the rolls of the Karnataka State Bar Council in the year 2012. The deceased was appointed as an Oath Commissioner and also as a Conciliator in the Lok Adalath. Exs.P-11 and P-77 have been relied upon by the claimant in this regard. Exs.P-48 to P-65 are Vakalathnamas to show that the deceased was an active legal practitioner. In the absence of any proof of income, the notional income of an able bodied person in the year 2017 is consistently considered by this Court at Rs.10,250/- p.m. The deceased was an Advocate by profession who had completed 5 years practice as on the date of death. The material on record would go to show that he was an active practitioner and he also had appeared for the examination held for the post of Civil Judge. In addition to the same, the deceased was also an Oath Commissioner. We are therefore of the considered opinion that the income of the deceased can be safely assessed at Rs.15,000/- p.m. Following the judgment of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, (2017) AIR SC 5157 , 40% of the said income is required to be added towards his future prospects. Keeping in view the number of dependants, 1/3rd is required to be deducted towards personal expenses of the deceased. The multiplier applicable is 16. Therefore, the loss of dependency works out as follows: Rs.15,000 + 40% = 21,000/- Rs.21,000 1/3rd = 14,000/- Rs.14,000 x 12 x 16 = 26,88,000/- 8.
Keeping in view the number of dependants, 1/3rd is required to be deducted towards personal expenses of the deceased. The multiplier applicable is 16. Therefore, the loss of dependency works out as follows: Rs.15,000 + 40% = 21,000/- Rs.21,000 1/3rd = 14,000/- Rs.14,000 x 12 x 16 = 26,88,000/- 8. Claimants are entitled for Rs.40,000/- each towards loss of consortium and another sum of Rs.30,000/- towards funeral expenses. 9. Learned counsel for the insurer is right in submitting that the rate of interest awarded by the Tribunal at 9% p.a. is on the higher side. This Court has been consistently awarding interest at 6% p.a. Therefore, even in this case, we deem it fit to award interest at 6% p.a. from the date of petition till realization. 10. Therefore, the claimants are entitled for the total compensation as follows: Sl. No. Heads Amount 1 Loss of dependency Rs.26,88,000/- 2 Loss of consortium (40,000 x 2) Rs.80,000/- 3 Funeral expenses Rs.30,000/- TOTAL Rs.27,98,000/- 11. Hence, the following: ORDER (i) Appeal is allowed in part holding that claimants shall be entitled for a total compensation of Rs.27,98,000/- in place of Rs.45,51,920/- awarded by the Tribunal; (ii) The insurer shall deposit the compensation amount with interest at 6% p.a. from the date of claim petition till the date of deposit, excluding the amount already paid/deposited, within two months from the date of receipt of a copy of this judgment; (iii) The apportionment, deposit and disbursement of compensation shall be in terms of the order of the Tribunal; (iv) The excess amount, if any, deposited by the insurer shall be refunded to the insurer; (v) The registry shall transmit the amount in deposit to the Tribunal for disbursement in accordance with law. No costs.