Bajaj Allianz General Insurance Co. Ltd. vs Shobha Murthy and Others

S.N. Satyanarayana, J.

The 2nd respondent - Insurance Company in MVC No. 5835/2009 on the file of MACT., Bengaluru, has come up in this appeal challenging the quantum of compensation as well as the liability to pay the compensation to the claimants for the death of D.N. Manohar in a road traffic accident that occurred on 17.05.2009 at about 10:30 a.m. involving Honda Activa motor cycle bearing No. KA.01.U.894 belonging to his father.

The facts leading to this appeal are as under:-

"The vehicle bearing registration No. KA-01-U-894 is the vehicle belonging to the 4th respondent herein, Sri Narasimha Murthy, who is the father of the deceased D.N. Manohar. It is stated that on the ill-fated day, Manohar was traveling to Devarayanadurga on the said vehicle as pillion rider and one of his friend, namely, H.D. Devaraju, was riding the same. It is stated that on the way, near Urdigere Government school on Koratagere-Dabaspete Road, H.D. Devaraju, who was driving the vehicle in a rash and negligent manner, lost control over the same near a road hump, due to which impact, the pillion rider fell down and suffered serious injuries to his head and died instantly. Thereafter, the claim petition is filed by his mother and sisters seeking compensation for the death of Manohar. The said claim petition was opposed by the Insurance Company on various grounds."

The said claim petition was taken up for consideration and disposed of by the Tribunal by awarding compensation in a sum of Rs. 8,25,000/- to the claimants. For arriving at the said compensation, the Tribunal has taken the income of the deceased Manohar notionally at Rs. 10,000/- per month when admittedly, he had no avocation and no fixed income at the relevant point of time. The notional income of Rs. 10,000/- was taken by the Tribunal for the reason that he had completed his Diploma course in Animation at Animaster and SWIFT Jyothi Program at NUT.

Insurance Company, being aggrieved by the quantum of compensation as also the liability fastened on it, has come up in this appeal contending that the person deceased in the accident is none other than the son of the registered owner of the vehicle and though it is contended by the claimants that the said vehicle was driven by the friend of the deceased, in fact, it was driven by the deceased himself. Though such a ground is raised in this appeal, on going through the statement of objections filed by the Insurance Company before the Tribunal, it is seen that such a defence was not taken, before the tribunal

In the course of the arguments, learned counsel for the appellant, Sri A.N. Krishnaswamy, would submit that the investigation has revealed that the deceased himself was riding the motor cycle involved in the accident. The said contention is also not supported by the evidence available on record. Assuming for a moment that such ground is correct, nothing prevented the Insurance Company from adducing evidence to that effect with relevant material to support the same. In the absence of any oral or documentary evidence to substantiate the same and in the absence of any defence to that effect being taken in the proceedings before the Tribunal, it is not open for the appellant to raise the same for the first time in this appeal. Therefore, the grounds, which are urged with reference to liability are ill-founded and same are rejected.

Coming to the grounds urged with reference to the quantum of compensation, there appears to be some force in the argument of the learned counsel for the appellant. In these proceedings, the entire lower Court record is received. On going through the same, it is seen that there is nothing on record to demonstrate that the deceased Manohar was gainfully employed and that he was earning a sum of Rs. 10,000/- p.m.. In addition to that, there is no material to demonstrate that there was possibility of the deceased Manohar securing any job in the near future prior to the accident. Therefore, income of Rs. 10,000/- per month taken by the Tribunal is incorrect. Normally, in such circumstances where avocation of the deceased is not proved, Apex Court has held that income of the claimant should be taken on notional basis. In the instant case, when there is no avocation attributable to the deceased, it is just and reasonable to take the income of the deceased at Rs. 200/- per day. Since the accident is of the year 2009 and deceased Manohar being not employed, his notional income could be taken at Rs. 6,000/-per month. Since the deceased was a bachelor, after deducting 50% of his income towards personal and living expenses, the loss of dependency to his mother, class I heir, could be arrived at by taking Rs. 3,000/- per month and applying appropriate multiplier of 13 considering her age at the time of the death of her son. Hence, the compensation payable to the 1st claimant towards loss of dependency would come to Rs. 3000 x 12 x 13 i.e., Rs. 4,68,000/-. In addition to that, the 1st claimant is entitled to a sum of Rs. 25,000/-towards loss of love and affection and another Rs. 20,000/-towards funeral expenses as awarded by the Tribunal. With this, the 1st claimant in the Court below is entitled to Rs. 5,13,000/- as against Rs. 8,25,000/- awarded by the Tribunal.

Though the claim petition is filed by mother (respondent No. 1 herein) and two sisters (respondents 2 and 3 herein) of the deceased, sisters being major in age and married, they are not entitled to any share in the compensation, which is awarded and the same shall be exclusively taken by the mother of the deceased.

Accordingly, this appeal is allowed in part. The 1st claimant (respondent No. 1 herein) is entitled to compensation of Rs. 5,13,000/- as against Rs. 8,25,000/- awarded by the Tribunal. The revised compensation shall be deposited by the Insurance Company with interest at 6% per annum from the date of petition till the date of deposit of the entire amount. In view of the appeal being allowed in part, the amount in deposit is ordered to be transmitted to the Tribunal to be released in favour of the 1st claimant.