IN THE HIGH COURT OF KARNATAKA AT BAN
DATED THIS THE 29TH DAY 01? SEPTEMBER.
:PRESENT:
THE HON'BLE MR.JUsTt91; >_1\T.K.lE'}\'i'fi_f,~'t: «
AND , . u " .
THE HON'BLE MR.JUST'IQE ll
M.F.A. No.
Between: 'A l
1. Smt. Vani @ StzvarnaAPar?1_dit VA
W/ o. Late Satish'._G.Ifandit'3.: _ V _
Aged about V =
2. Master . V «_
S / 0. ,Late.ASa_tis1'i;:{}.._ Pandit, "-
Agecfl abot_£t'S_.yea3fs.
3. Srajafia "
D / o. Late__Satish, ;
Aged about years.
Appeilan't-- No. 2 &"3'a1'e minors,
. ' =Rep1.'_eseutedVby their mother as
VNate1vro._l lGé1ard.ian.
All are residing at Heera Bagh
Clompvouud,
Barmanje Post,
as Udupi'.
V. . . . Appellants
V" {fsy Sri. Dayananc1.S. P til' Advocate)
ax €,_;a§3
And:
1. The Managing Director
M / s. Thriveni Earth Movers
Pvt, Ltd..
Sea Bird Project Area,
Argha, ,
Karwar,
U.K. District.
2. United Endia insurance Co..*Ltd_..
By its Branch Manager, '
Karwar Branch,
Uttara Kannada District; 1
it ., .~ Respondents
(By sn. O.Mahe.si’1:.:Advocate» i’oi~
Notice to R1 ‘d3ipsp§r1sedvV£IitI1_if/0’_date’dV’l3’f08/2009}
p
is”fi_1e_d”–U;5s. 1’73.{.l}’of MV Act against the
Judgment andfiwardoda-ted.f_ 12/05/2005 passed in MVC No.
1 193/2G-O3′ on the?”-file»a,ofa.etl*1el District Judge and Member
MACT, *Udupi,’ allowing the claim petition for
compensation and Vseercingp enhancement of compensation.
coming on for Hearing this day,
” “N.K;vtPA’rIL J, delivered the following:
:JUDG MENT:
it ‘ l filed by the appellants is directed against
impugned judgment and award dated 12/05/2005
A ~TpaA,sééa_. in MVC No. 1193/2003 by the District Judge and
Motor Ac%nts Claims Tribunal, Udupi,
,2.’
(hereinafter referred to as ‘ Tribunal’ for short)_,___ for
enhancement of compensation.
2. The Tribunal by its judgment and ~
determined the Compensation of; 32,4»1′;9E}i)’/+’V”‘under.V4 it”
different heads and awarded a sum{erajczszadaao/»;larafter;
deducting ?1,89,560/– awarded~~…t0 by
Commissioner of W0rkrnen’s gC.oVri1pensatior1,– rwitghiinterest
at 8% per annum frorn i–ol.”. till realisation
with cost against’*t_1f1e clairn for a sum of
34,00,000/-,___ it iofnithe deceased Sri.
3:.¥.__In case are:
The appellantl wife and appellant Nos. 2
and are the children of the deceased Sri. Satish G.
“they filed a claim petition before the
1 section 163-A of M.V. Act, claiming
it con1pens_at’iQn?olf ?4,o0,o0o/–, on account of the death of the
‘deceasedin the road traffic accident that occurred on
i at about 9.30 a.n’1., due to the rash and negligent
of the driver of the Ternpo 407 bearing
,-“X hwwfiwmwwfiwmdfi
N o.KA.30.5699 near Sea Bird Area, Argha, Karavara. It is the
further ease of the appellants that, the deceased uzaaaged
about 38 years, hale and healthy, working as ~
L 81 T Company, High Chip Bird Jointl/e’nturr3,V ” ”
earning ?’3,000/– per month and 1ookin:g’a.tter’»th’e
the family and due to his unt’ii:1e_iy death the§f”st1.’i’:1′.eHred’3 lot
as they have lost the earninghieoiber of The
said Claim petition had before the
Tribunal. The Tribtgnal, the oral
and documentairyi ‘ ‘raaterial available
on fiie, has petition in part,
determined of ?2,41,900/- under
different ‘heads ‘a’nVd””.awar–die’d’ a sum of $2,340/-. after
deducgtiiag awarded to the appeliants by
the._,ConZ1rnis’sioner of Workmerfs Compensation, with
:ree14ee,t “a£””_~vséxeVfjper annurn from the date of petition till
V _ realisation.’ ‘Not being satisfied with the compensation
the Tribunal, the appellants have presented
— [j_-thisiiailipeal, for enhancement of compensation.
ff” mM
;
4. We have heard the learned counsel appearing
for the appellants and learned counsel for
respondent~Insurance Company.
5. The learned counsel appe’ari–ng for
Sri. O. Mahesh, at the outset that_A.th,e«.
petition filed by the appellants”‘iindehr’sectio’nlVl”i:é3¥A of it
the M.V. Act, is not m’aintaii1’able’iaridzit islvliable to be
rejected at threshold on appellants
herein have under the
Workrnen’s there is a total bar to
not referred in the
said petitioii received the compensation
under-the \?l7orl:I’nen’s”-Cornpensation Act. Therefore, he
. lllsiibniltted that entertaining this appeal and enhancing
lt–hle..quia.ntu.n1 of compensation does not arise.
against this, learned counsel for the
ll.'”””–.nappellants has supported the impugned. judgment and
passed by the Tribunal. Further he submitted
-that, before the Tribunal the learned counsel for the
appellants has admitted that they have received
compensation under the Workmerfs Compensatiazt
and contended that the petition filed under .
A of M.V. Act, is maintainable. si11ce.the cot4npfensatior1._V
under the W.C. Act was paid
being any claim made by Fuhftheighe stibtriitted ” it
that this specific contentio:1″”o.f’Vc_:’the..insn1’ert has been
duly considered by reliance on the
judgment of of Dee-pa}
Girishbhai India Insurance
Co.. and the decision of
the and Haryana High Court
in the case” of ~Yas1A1*.PVéil’V Sharma Vs. Giridhari L31 and
. d ‘totfiees fcapijrted ACJ 1434 wherein, it is held that,
1 “i:’_vs.rit11oi2.t triakitig a claim, the claimant is given any amount
under Compensation Act, there is nothing in
Sectio11”::i67 which diserititle him from preferring a
under Motor Vehicle Act’-‘I.;_ Therefore, he subrnitted
Ln
Z
that the submission made by the learned counsel for___ the
Insurer is liable to be rejected.
7. in the light of the above submissions:.:l.madé:”’ .
learned counsel for both the parties_ and”a’fter. cz’itica1.c,v
evaluation of the material available,
impugned judgement and awardagtassed.
emerges that, in fact, the aboveiglibiriission l.o-fivlthelfilearned
counsel for the Insurer been by Punjab
and Haryana High I Shanna
vs. ‘in*i2003 ACJ 1434,
and at paras. Bar of section 167 is
only to make claim either
under l\/Ilotolr’Vlehic’les:’Act.:go’r«lWorkmen’s Compensation Act:
if without making hclailmftlhe claimant is given any amount
it I “und’erC’W..0rkmen’s Comlplensation Act, there is nothing in
fietgtion would disentitle him from preferring a
claiqillundercillwotor Vehicles Act.” Further, it could be seen
‘7fI’O1″I1 theliirecords that, except making submission, learned
“:i.coulns*el for the Insurer has not placed any authenticated
documents to show that cl/jajmants herein have filed a claim
.«»_»_M__M_W_c_,,
petition under the Workmen’s Compensation Act and this
fact has been specifically observed by the Tribunal’
judgment and award. Therefore, we are of the__-r’onside:red”v…_ ‘ .
View that the Tribunal has rightly rejected ,
taken by the Insurer. In View of law
Apex Court and Punjab and i’IV_&aryana’-High
supra), there is no bar for thel”-a:ppVellant’s..V:to claim
petition under section M;;_’tfV;. theretore, we
are of the considered vieiir…tl4:.3:’~ i’s”vno’:Visgju1hstance in the
submission the Insurer and
the same accordingly, it is
r6J”l:cted;.: tttt H l it it V
8. has erred in assessing
the income ‘of..,i;Aheh”‘ deceased at $1,800/– per month for
l loss of detiendency and the same is on lower side
‘vdan:d».thei*ei’o.re,lit-needs to be modified. It is the case of the
ap1:ie~Elants’ the deceased was aged about 38 years,
Supervisor at L 8: T Company, High Chip
a.”Sea’»-Bird Joint Venture, Karavara and earning ?3,000/–
per month. Hating regard to the age, occupation and since
the accident was occurred in the year 2002, we re–as_sess
the income of the deceased at ?3,000/- per mont_h’.–l
per Schedule» II to Section 163–A of ”
income of the deceased is taken at ‘?3-,O0O7:/– nerlfrénorith,
the appellants are entitled’ for
?’5,40,000/– towards loss of’
aged about 38 years. O*ut of A/3r{1« i§.,.&(;duCted
towards the personal the net
amount of which, if
?1,89,560/ “Commissioner of
jiislllllvivdeducted, the net
compens’atio’nV of dependency comes to
?’1,7O,{l4.()L/– accordingly, it is awarded.
. \’ A:’9j–.”As” per thewsaid schedule, the appellants are
” of ?5,000/- towards loss of
l cons’o.rtinvrr;,.vidalsurn of $2,500/- towards loss of estate
a’11.d_a of €2,000/– towards funeral expenses and
.’acco1’d’«ing1y. it is awarded. In all, the appellants are
it .:’_4″‘e11’titled for a compensation of Rs.1,”/9,940/– with
arm
/
fie/*3’ corn;-cted v/0.
interest at 6% p.a., from the date of petition till its
realisation.
10. For the forgoing reasons, the .
appellants is allowed in part and the ti”
and award passed by the Tribunal l”(:’-‘f’:’
hereby modified, awarding the’co_ignper1sation .
unih_interest at 696 ;»a.,1ionile{¢ date or peiiion tfliits
realisation. Ah K t R A H
The Insurer is dire::t.eiti~.Vtov’V_depo’s’it’ compensation
H after. de-;iu<:ti;ig_ brie-V_ ameent deposited by it.
with interest,_;{t;}'itlif;;3i'a "of from the date of
receipt of a 'award.
oi’ ?1,79,940/-, a sum of
?’50,O0O/A? shall be kept in Fixed
Depositing or Scheduled Bank in the name
it ‘of . .appellantAvNos.2 and 3 till they attain majority.
is entitled to withdraw the interest
aocrueci on their welfare.
“A sum’ of ?’50,000/- with proportionate interest shall
iaieptvvin Fixed Deposit in the name of appellant No.1 in
;
§ttl$’li*2D10o g “””””””
any Nationalized or Scheduled Bank for a period of five years
renewable for another five years with liberty to
withdraw the interest accrued on it periodically.
The remaining sum of ?’29.94(_)_y/..–. with; l”
interest shall be released in favouffiof at3p€lllE:l1;.ti
immediately, on deposit by the_V:I’1a,surer. _ V
Office is directed to draw.-tlievaward, laccordihgly.
Sd/-
Iudge
iiii sa/~..:
Iudcxe
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