MANU/KA/1424/2018

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

M.F.A. No. 7060/2016 (MV) and MFA Crob. No. 74/2017

Decided On: 06.04.2018

Appellants: The Legal Manager, Bharati AXA General Insurance Co. Ltd.
Vs.
Respondent: Bhagyamma and Ors.

Hon'ble Judges/Coram:
B.A. Patil, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Pradeep B., Advocate

For Respondents/Defendant: Venkataram C.R., Advocate

Subject: Motor Vehicles

Cases Referred:
National Insurance Company Limited vs. Pranay Sethi and Ors. MANU/SC/1366/2017

JUDGMENT

B.A. Patil, J.

1. MFA. No. 7060/2016 is filed by the Insurance Company, whereas MFA.Crob. No. 74/2017 is filed by claimants, assailing the judgment and
award dated 18.8.2016 passed by the MACT, Bangalore (SCCH-11), in MVC. No. 2623/2014.

2. Though these matters are listed for admission, by consent of both parties, the same are taken up for final disposal.

3. The accident that occurred on 11.3.2014 is not in dispute, so also the death of the deceased due to the said accident and the involvement of
the offending vehicle which is insured with the Insurance Company, i.e., appellant in MFA. No. 7060/2016.

4. Learned counsel appearing on behalf of the Insurance Company has contended that the impugned judgment and award is contrary to law.
The Tribunal has added future prospects while awarding compensation ignoring the ratio laid down by the Apex Court; the compensation
awarded by the Tribunal is excessive; though it was the contention of the Insurer that the offending vehicle was not having any fitness
certificate as on the date of the accident and there is violation of terms and conditions of the policy, the liability is fixed on the Insurance
Company. On these grounds, he prayed for setting aside the impugned judgment and award by allowing the appeal.

5. Per contra, learned counsel appearing on behalf of the claimants, i.e., cross-objectors in MFA.Crob.74/2017 has vehemently argued and
contended that the Tribunal instead of deducting 1/3rd towards the personal expenses of the deceased, has deducted 50% and has awarded
interest at 6% per annum instead of 9%. Even the Tribunal has taken notional income on the lower side and has awarded compensation on the
lower side and hence the same requires to be enhanced. On these grounds, he prayed for allowing the cross-objections by enhancing the
compensation awarded by the Tribunal.

6. The first contention taken up by the learned counsel for the Insurance Company is that the Tribunal has failed to note that the vehicle in
question was not having any fitness certificate as on the date of the accident and there is violation of policy conditions. But the liability has
been fixed on the Insurance Company. As could be seen from the records, the Insurance Company in order to substantiate the said contention,
have got examined R.W. 1, who has deposed that Insurance Company had cancelled the policy issued in respect of tipper lorry as the cheque
which was issued towards premium was dishonored. In the written statement, the Insurance Company have not taken up the defence that the
insured has violated the terms and conditions of the policy and the vehicle was not having fitness certificate as on the date of the accident.
Without there being any pleadings in this behalf, if Insurer takes up the said contention and no evidence has been led while R.W. 1 came to be
examined, then under such circumstances, the said contention has remained as a contention without there being any proof. Under such
circumstances, the said contention is liable to be rejected and accordingly it is rejected.

7. The second contention of the Insurance Company is that the compensation awarded by the Tribunal is on the higher side and the same is
required to be reduced. Whereas, the learned counsel appearing for the claimants has prayed for enhancement of the compensation awarded
by the Tribunal by deducting 1/3rd of the income of the deceased towards personal expenses. In order to substantiate his contention, he has
relied upon a decision of the Hon'ble Apex Court in the case of Puttamma & Ors. Vs. K.L. Narayana Reddy & Anr. in Civil Appeal No. 10013/2013,
decided on 9.12.2013. I have gone through the said decision. Under the facts and circumstances of that case, 1/3rd has been deducted
towards personal expenses of the deceased. However, it is well settled principle of law that whenever deceased died as a bachelor, 50% of the
income has to be deducted towards the personal expenses. In that light, the contention raised by the claimants is not acceptable. As could be
seen from the impugned judgment and award, it was the contention of the claim petitioners that the deceased was working as a driver and was
earning Rs. 20,000/- per month. Though in order to substantiate the said fact, claimants have produced the copy of the driving license at Ex.
P10, they have not produced any documents to show that he was working as a driver and was drawing a salary of Rs. 20,000/- per month. In the
absence of any such material, the Tribunal by taking notional income of Rs. 6,000/- per month, after deducting 50% towards personal expenses,
and after applying proper multiplier, has awarded an amount of Rs. 9,72,000/- towards loss of dependency. Though under the normal
circumstances, the method adopted by the Tribunal appears to be justifiable, however, in view of the decision of the Hon'ble Apex Court in the
case of National Insurance Company Limited Vs. Pranay Sethi & others, reported in MANU/SC/1366/2017 : AIR 2017 SC 5157, while
considering the future prospects, the Court has to keep in mind that there must be an evidence to establish that the deceased was having a
settled income or a permanent income in this behalf. In the instant case, as there is no material to show that the deceased was having any
settled income or permanent income, the Tribunal ought not to have granted future prospects. In that light, the Tribunal has erred in grating
future prospects. Further, at the time of taking notional income, the Tribunal ought to have taken into consideration the year of accident and the
wages prevailing during the said period. Admittedly, the accident is of the year 2014 and Rs. 8,500/- is the yardstick which is even being
adopted before the Lok Adalath for settlement of cases. If that were to be taken into consideration and if 50% is deducted towards personal
expenses of the deceased and after applying proper multiplier of '18' the claimants are entitled to an amount of Rs. 9,18,000/- towards loss of
dependency.
8. As could be seen from the impugned judgment, the Tribunal has awarded an amount of Rs. 85,000/- under conventional heads, which
appears to be not justifiable. In view of the decision in Pranay Sethi's Case (cited supra), the claimants are entitled to an Rs. 30,000/- towards
conventional heads. Thus, the claimants are entitled to total compensation of Rs. 9,48,000/- with interest at 6% per annum as against Rs.
10,57,000/-.

Accordingly, MFA. No. 7060/2016 is partly allowed and the impugned judgment and award dated 18.8.2016 passed by the Tribunal in MVC. No.
2623/2014 is modified to the extent as indicated above. However, the liability which is fixed on the Insurance Company is confirmed.

MFA Crob. 74/2017 is dismissed being devoid of merits.

The amount in deposit before this Court shall be transmitted to the jurisdictional Tribunal forthwith. Remaining amount of compensation shall
be deposited by the Insurance Company within a period of six weeks from the date of receipt of a copy of this judgment.

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