The Oriental Insurance Co. Ltd. vs Srinivasa A. and Others

N.K. Patil, J.

This appeal by the appellant- Insurer is directed against the impugned judgment and award dated 13/02/2015, passed in MVC No. 6459/2013, by the I Additional Small Causes Judge and XXVII ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-11), (hereinafter referred to as '' Tribunal'' for short).

The Tribunal by its judgment and award, has awarded a sum of Rs. 25,38,233/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the claimants for a sum of Rs. 15,00,000/-, on account of the death of the deceased Sri. Sureshkumar. A.S., in the road traffic accident.

In brief, the facts of the case are:

"The claimants are the parents and sister of the deceased Sri. Sureshkumar AS.. They have filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation against the Insurer and previous and present owners of the offending vehicle, contending that, on 9-10/07/2013 at about 12.00 a.m., deceased was proceeding on Karizma Motor Cycle bearing No. KA.09.EF.1931, as a pillion rider on NH 206 Bypass road, Bhadravathi near Ujjampura circle and his friend Sharath was riding the motorcycle in order to go Sagar to the house of the rider. The rider of the said motor cycle rode the same with high speed in a rash and negligent manner and inspite of repeated requests made by the deceased to ride the motor cycle slowly, he did not listen to him and when they reached near circle, due to over speed, rider lost control over the motorcycle and dashed against the road side barricades. As a result, both the rider and pillion rider fell down along with motor bike and sustained injuries. Immediately, deceased was shifted to Maggan hospital, Shimoga by ambulance vehicle, where first aid was given and he was shifted to Sahyadri Narayana Multispeciality hospital, where he was treated as an inpatient for two days, underwent operation for his head injury and he was discharged and again, he was admitted to Kasturba hospital, Manipal, where he has taken treatment as inpatient and inspite of best efforts, he died on 17.7.2013."

It is the further case of the claimants that, deceased was aged about 22 years, working as Sales Promotor in ISD in CMP India Sales and Marketing Private Limited as an ISD and drawing the salary of Rs. 15,000/- 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 as they lost their earning member, it has affected the financial condition of the family.

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. 25,38,233/- with interest at 6% p.a., from the date of petition till its realization.

Being aggrieved by the said judgment and award, the Insurer has filed this appeal contending that, the compensation awarded by the Tribunal is on the higher side and it requires to be reduced by modifying the impugned judgment and award passed by the Tribunal.

We have heard learned counsel appearing for the Insurer and learned counsel appearing for claimants at considerable length of time.

The submission of Sri. C.R. Ravishankar, learned counsel appearing for the Insurer is that, the Tribunal has erred in assessing the income of the deceased at Rs. 12,000/- per month and adding another 50% towards future prospects and therefore, it is liable to be modified, on the ground that, deceased was aged about 22 years and working in a private limited Company as Sales Promotor. Further he submits that, the Tribunal ought to have deducted 50% instead of 1/3rd towards the personal and living expenses of the deceased in the light of the law laid down by the Apex Court in Sarla Verma''s case as deceased was a bachelor. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel for claimants inter-alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and reasonable and after due consideration of the oral and documentary evidence available on file. Further he submits that, as the deceased was the only earning member in the family and the dependants are his parents and sister, the Tribunal has justified in deducting 1/3rd towards his personal expenses and awarded the reasonable compensation towards loss of dependency. Further he has submitted that the compensation awarded by the Tribunal towards loss of love and affection, towards loss of estate and towards transportation and funeral expenses 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 in catena of judgments. He further submits that the rate of interest awarded by the Tribunal at 6% p.a., from the date of petition till its realization is on the lower side and is liable to be enhanced atleast to 8 to 9% since the accident has occurred in the year 2013. Therefore, he submitted that the impugned judgment and award is liable to be modified by awarding just and reasonable compensation towards loss of dependency and conventional heads.

After careful consideration of the submission of learned counsel for both parties, after perusal of the materials available on file, including the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant death of the deceased are not in dispute. Further it emerges that, it is the case of the claimants that, deceased was aged about 22 years working as Sales Promotor in a Private Limited Company and dependants are his parents and sister. The Tribunal, taking all these aspects into consideration has justified in assessing the income of the deceased at Rs. 12,000/- per month and adding another 50% towards future prospects and in assessing his total income at Rs. 18,000/- per month. But the Tribunal has erred in deducting 1/3rd towards personal and living expenses of the deceased instead of 50% as per the law laid down by the Apex Court in Sarla Verma''s case and therefore, it needs to be modified. Out of Rs. 18,000/- per month, if 50% ( Rs. 9,000/-) is deducted towards the personal and living expenses of the deceased, his net income comes to Rs. 9,000/- per month. The appropriate Multiplier applicable taking into consideration the age of the younger parent, mother of the deceased as 45 years would be ''14'' in view of the law laid down by the Apex Court in Sarla Verma''s case instead of ''17'' adopted by the Tribunal. Therefore, we re-determine the loss of dependency at Rs. 15,12,000/- ( Rs. 9,000/- x 12 x 14) instead of Rs. 24,48,000/- and accordingly, it is awarded.

Having regard to the facts and circumstances of the case as the parents have lost their son who was the only earning member in the family and underwent mental shock and agony and sister is deprived of the love and affection and guidance of her brother and in the light of the judgment passed by the Apex Court and this Court in hosts of judgment, we award a sum of Rs. 75,000/- towards loss of love and affection at the rate of Rs. 25,000/- each to the claimant Nos. 1 to 3, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards transportation and funeral expenses.

However, a sum of Rs. 50,233/- awarded by the Tribunal towards medical expenses, including conveyance and other incidental expenses as per the medical bills produced by the claimants is just and reasonable and therefore, it does not call for interference. In all, the claimants are entitled to the total compensation of Rs. 16,87,233/- instead of Rs. 25,38,233/- awarded by the Tribunal. There would be a reduction of compensation of Rs. 8,51,000/-.

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the claimants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the entire compensation instead of 6% awarded by the Tribunal.

For the foregoing reasons, the appeal filed by the Insurer is allowed in part.

The impugned judgment and award dated 13/02/2015, passed in MVC No. 6459/2013, by the I Additional Small Causes Judge and XXVII ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-11), is hereby modified, reducing the compensation from Rs. 25,38,233/- to Rs. 16,87,233/- with interest at 9% p.a. from the date of petition till its realization. There would be a reduction of compensation of Rs. 8,51,000/-.

The Insurer is directed to deposit the compensation amount with interest, after deducting whatever amount paid 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.

In view of disposal of main matter on merits, the relief sought for by the appellant in I.A. No. 1/2015 does not survive for consideration and therefore, it is disposed of as having become infructuous.