The Oriental Insurance Co. Ltd. and Others vs Murthachar and Others

N.K. Patil, J—These appeals respectively by the Insurer and by the claimants are directed against the same impugned judgment and award dated 20/02/2015, passed in MVC No. 1567/2012, by the XXI A.C.M.M., & XXIII A.S.C.J. & Court of Small Causes & Motor Accident Claims Tribunal, Bengaluru (SCCH-25), (hereinafter referred to as '' Tribunal'' for short).

The Tribunal by its judgment and award, has awarded a sum of Rs. 32,09,605/- with interest at 8% p.a., from the date of petition till its deposit as against the claim made by the claimants for a sum of Rs. 50,00,000/-, on account of the death of the deceased Sri. Niranjana Murthy M., in the road traffic accident.

It is the case of the Insurer that the quantum of compensation awarded by the Tribunal is on the higher side and disproportionate to the income of the deceased and is liable to be reduced and that the Tribunal has erred in not fixing any negligence on the part of the deceased, rider of the Motor Cycle bearing Reg. No. KA.50.L.1519. Whereas, it is the case of the claimants that the compensation and the rate of interest awarded by the Tribunal is inadequate and it requires to be enhanced reasonably.

In brief, the facts of the case are:

"The claimants are the parents of the deceased. They have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the owner and Insurer of the offending vehicle, contending that, on 30.12.2011 at about 9.00 a.m., deceased was riding the Motor cycle bearing Reg. No. KA.50.L.1519 at Peenya 2nd stage and when he came near Abhiman Petrol Bunk, Bangalore, at that time, the driver of the Goods vehicle bearing Reg. No. KA.52.3208 came in a rash and negligent manner and dashed to the motor cycle of the deceased. Due to which, deceased sustained injuries and immediately he was taken to Sanjeevini hospital, but he succumbed to injuries in the hospital at 9.30 a.m."

It is the further case of the claimants that, deceased was aged about 31 years, working as Executive (Design-MTD) in Machine Tools Division in Premier Ltd., at Bangalore Regional Office, Peenya Industrial area and earning Rs. 31,298/- per month and looking after the welfare of the family. Due to his untimely death, claimants have suffered mental shock and agony and lost happiness in life and lost their earning member.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other material available on file and by assigning valid reasons has allowed the claim petition in part, awarding the compensation of Rs. 32,09,605/- with interest at 8% p.a., from the date of petition till its deposit.

Being aggrieved by the said judgment and award, the Insurer has filed M.F.A. No. 4311/2015 and the claimants have filed M.F.A. No. 4407/2015 seeking appropriate reliefs as stated supra.

We have gone through the grounds urged by the Insurer in the memorandum of appeal and heard learned counsel appearing for claimants at considerable length of time.

It is the case of the Insurer as made out in the memorandum of appeal that, the Tribunal has erred in not considering the fact that, the registration number of the Tempo involved in the accident was over written and column 8 of the FIR states that the registration number of the vehicle responsible for the cause of the accident was Tempo bearing No. KA.53.L.3208 and the claimants have not examined the complainant and the Police Officer who is said to have registered the complaint and a false case was registered against the insured tempo bearing No. KA.52.3208 in order to secure the compensation from the insurer. It is the further case of the Insurer that, the Tribunal contrary to the principles of law laid down by this Court in the case of Bajaj Allianz Insurance Company Ltd., v. B.C. Kumar has erred in holding that insured tempo bearing Reg. No. KA.52.3208 was involved in the accident and in fastening liability on the Insurer instead of dismissing the claim petition and the same is not sustainable and is liable to be set aside. It is the further case of the Insurer that, the Tribunal has erred in awarding Rs. 1,00,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate and in not deducting income tax and professional tax and in not adopting proper Multiplier while computing the compensation. Therefore, he prayed that the impugned judgment and award passed by the Tribunal is liable to be modified, by fixing reasonable negligence on the part of the deceased, rider of the motor cycle and reducing the compensation awarded by the Tribunal.

It is the submission of the learned counsel appearing for claimants that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and what is awarded is inadequate and requires to be enhanced reasonably. To substantiate the said submission, he submitted that, deceased was working as Executive (Design-MTD) in Machine Tools Division in Premier Ltd., at Bangalore Regional Office, Peenya Industrial area and earning Rs. 31,298/- per month as per Ex. P27-salary certificate and therefore, in the light of the judgment of the Apex Court in Sarla Verma''s case, another 50% should be added towards future prospects. Further, learned counsel appearing for claimants submitted that, the Tribunal has erred in applying ''13'' multiplier taking the age of younger parent, mother of the deceased instead of ''17'' taking the age of the deceased in the light of the judgment of the Apex Court. Therefore, he submitted that reasonable compensation may be awarded towards loss of dependency.

Further, he has submitted that the ground No. 9 urged by the Insurer in the memorandum of appeal is contrary to the evidence on record, on the ground that, it is crystal clear from the record that, in the complaint vehicle number is shown as KA.52.3208 and the Police Authorities after due investigation in the matter have filed charge sheet against the vehicle bearing Reg. No. KA.52.3208. To substantiate the said submission, he submitted that the contents of Ex. P5- Spot Sketch and Ex. P6-MV report and Ex. P9-Charge sheet prove beyond reasonable doubt that accident has occurred due to rash and negligent driving by the driver of the tempo bearing Reg. No. KA.52.3208 and there is no negligence on the part of the deceased, rider of the motor cycle and therefore, the Tribunal has justified in holding that owner and insurer are jointly and severally liable to pay the compensation to the claimants and in issuing a direction to the insurer to indemnify the award amount as the vehicle in question was insured as on the date of the accident and therefore, interference by this Court is uncalled for. Further, he submitted that, compensation towards conventional heads and the rate of interest awarded by the Tribunal is on the lower side and the same is liable to be enhanced reasonably in the light of the judgment of the Apex Court and this Court. Therefore, he submitted that the impugned judgment and award is liable to be modified.

After going through the grounds urged by the learned counsel appearing for the Insurer in the memorandum of appeal, after careful consideration of the submission of learned counsel for claimants and after perusal of the oral and documentary evidence available on file, including the impugned judgment and award passed by the Tribunal, the points that arises for our consideration are:

"(i) Whether the entire liability fastened by the Tribunal on the driver of the tempo bearing Reg. No. KA.52.3208 and the direction issued to the insurer to indemnify the award amount is sustainable in law?

(ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

Re. Point No. 1:

The occurrence of the accident and the resultant death of the deceased are not in dispute. Two vehicles were involved in the accident viz., Motor cycle bearing Reg. No. KA.50.L.1519 and tempo bearing Reg. No. KA.52.3208.

It is significant to note that, PW2 has deposed that, deceased was the rider of a motor cycle bearing Reg. No. KA.50.L.1519 and driving the same on the left side of the road, at that time, the driver of the offending vehicle bearing Reg. No. KA.52.3208 came and dashed against the motor cycle of the deceased thereby deceased fell down and sustained grievous injuries on his abdomen, right thigh and other parts of the body and public gathered there and took him to hospital where succumbed to the injuries. He has specifically deposed that, due to rash and negligent driving by the driver of the offending vehicle tempo bearing No. KA.52.3208 the accident had occurred. PW3 has deposed that deceased was working as a Executive (Design-MTD) in Machine Tools in their company and drawing salary of Rs. 31,298/- per month and produced 3 documents as per Exs.P22 to P28. PW4 has stated that, as per investigation and statement of witnesses, the vehicle bearing No. KA.52.3208 has caused the accident and in FIR the number of the vehicle is wrongly mentioned as KA.53.L.3208 and it was corrected with permission of the court and filed another document as per Ex. P29. RW1 has stated that the vehicle bearing No. KA.52.3208 was not involved in the accident and prayed to dismiss the petition with cost.

The Tribunal, after due evaluation of the oral evidence of PWs 1 to 3 and 4 and with reference to contents of Ex. P1-copy of FIR, Ex. P2 -complaint, Ex. P4-spot mahazar, Ex. P5-spot sketch, Ex. P6-IMV report and Ex. P9-chargesheet and after assigning cogent and valid reasons has recorded the finding of fact that, driver of the offending vehicle bearing Reg. No. KA.52.3208 has caused the accident and the Investigation Officer has filed a chargesheet against the driver of the offending vehicle and accordingly, fastened the entire liability on the owner of the Tempo and directed the Insurer to indemnify the award amount. The said reasoning given by the Tribunal and the direction issued to the Insurer is just and proper, nor we find any good grounds as such made out by the Insurer to accept the specific ground urged in the memorandum of appeal that the number of the offending vehicle is over written as ''52'' instead of ''53'' and the same is liable to be rejected and accordingly, it is rejected. Therefore, interference by this Court in the finding of fact recorded by the Tribunal for fixing entire liability on the part of the owner and insurer of the tempo and issuing direction to the insurer to indemnify the award amount is uncalled for.

Re. Point No. 2:

Regarding quantum of compensation is concerned, it is the case of the claimants that deceased was aged about 31 years, hale and healthy prior to the accident, only son to the parents and on account of his death, they have suffered mental shock and agony apart from social and financial distress in the family as they have lost their earning member. It is the further case of the claimants that deceased was working as an Executive (Design-MTD) in Machine Tools at Premier Limited at Bangalore and drawing the salary of Rs. 31,298/- per month as per Ex. P27 and we accept the same. To that, 30% is to be added towards future prospects in view of the judgment of the Apex Court in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) ACJ 1428 : AIR 2012 SC 2185 : (2012) 4 SCALE 559 : (2012) 6 SCC 421 : (2012) AIRSCW 2892 : (2012) 3 Supreme 197 as rightly submitted by the learned counsel appearing for claimants. If 30% ( Rs. 9,389/-)is added to the monthly income of the deceased towards future prospects, his total monthly income comes to Rs. 40,687/- ( Rs. 31,298/- + Rs. 9,389/-) and per annum it comes to Rs. 4,88,244/-. Out of which, if Rs. 35,223/- is deducted towards income tax and professional tax, the remaining annual income comes to Rs. 4,53,021/-. Out of which, if 50% ( Rs. 2,26,510/-) is deducted towards the personal and living expenses of the deceased since he was a bachelor, his net annual income comes to Rs. 2,26,510/- Accepting the multiplier of ''13'' adopted by the Tribunal, taking the age of the younger parent, mother of the deceased as 48 years as just and proper, we re-determine the loss of dependency at Rs. 29,44,630/- ( Rs. 2,26,510/- x 13) as against Rs. 24,39,684/- and Rs. 6,09,921/- awarded by the Tribunal towards loss of dependency and towards loss of future prospects and accordingly, it is awarded.

However, the Tribunal has justified in awarding a sum of Rs. 1,00,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate is just and proper and therefore, it does not call for interference. Having regard to the facts and circumstances of the case, we award a sum of Rs. 25,000/- towards transportation and funeral expenses as against Rs. 35,000/- awarded by the Tribunal.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 8% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court we award the rate of interest at 9% per annum instead of 8% awarded by the Tribunal.

In all, the claimants are entitled to a total compensation of Rs. 30,94,630/- as against Rs. 32,09,605/- awarded by the Tribunal. There would be a reduction of compensation of Rs. 1,14,975/-.

For the foregoing reasons, the appeal filed by the Insurer and the appeal filed by the claimants are allowed in part.

The impugned judgment and award dated 20/02/2015, passed in MVC No. 1567/2012, by the XXI A.C.M.M., & XXIII A.S.C.J., Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru (SCCH-25), is hereby modified, awarding the compensation of Rs. 30,94,630/- as against Rs. 32,09,605/- awarded by the Tribunal. There would be a reduction of compensation of Rs. 1,14,975/-.

The Insurer is directed to deposit the compensation amount with interest at 9% p.a., after deducting whatever amount deposited by it, within three weeks from the date of receipt of a copy of this judgment.

The apportionment and manner of disbursement ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court.

The amount deposited by the Insurer shall be transmitted to the jurisdictional Tribunal immediately.

Office is directed to draw the award, accordingly.