In the absence of concrete materials, the judge is expected to utilize his personal experience into the facts of the case and assess compensation.-High court of Karnataka.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY 2015 THE HON BLE MR. JUSTICE M.F.A.NO.8728 2010c w IN M.F.A.NO.8728 2010NATIONAL INSURANCE CO.LTD BRANCH JODUMARGA 574 219 THROUGH ITS REGIONAL OFFICE NO.144 SUBHARAM COMPLEX M.G.ROAD BANGALORE 560001 REP BY ITS ADMINISTRATIVE OFFICER By Sri: B C SEETHARAMA RAO ADV.) 1. MRS NELLY D SOUZA AGED ABOUT 42 YEARS W O LATE DAVID D SOUZA APPELLANT R A NIRKARA HOUSE VOGGA POST BANTWAL TLUK KUM BABY DINY AGED ABOUT 18 YEARS D O LATE DAVID D SOUZA KUM BABY DAFENY D SOUZA AGED ABOUT 13 YEARS W O LATE DAVID D SOUZA SINCE MINOR REP BY HER MOTHER & NATURAL GUARDIAN MRS NELLY D SOUZA 4. MRS MONTHI PINTO AGED ABOUT 69 YEARS W O LATE JOKIM D SOUZA R A KARIANGANA HOUSE AMTOOR VILLAGE BANTWAL TALUK 5. MRS S K ABOOBAKAR MAJOR S O FAKEERABBA R O SALETHOOR HOUSE KARIGANA HOUSE AMTOOR VILLAGE BANTWAL TALUK OWNER OF AUTORICKSHAW NO.KA 19 A 671) RESPONDENTS By Sri: P P HEGDE ADV. FOR R1 4 R5 SERVED) MFA FILED U S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.6.2010 PASSED IN MVC NO.1413 2000 ON THE FILE OF MACT VI & II ADDITIONAL SENIOR CIVIL JUDGE MANGALORE DAKSHINA KANNADA AWARDING A COMPENSATION OF RS.3 98 200 WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. IN M.F.A.NO.7937 20101. MRS NELLY D SOUZA AGED 42 YEARS W O LATE DAVID D SOUZA R AT NIRKARA HOUSE VOGGA POST BANTWAL TALUK BABY DAINY AGED 17 YEARS BABY DAFNY D SOUZA AGED 13 YEARS NOS 2 AND 3 MINOR CHILDREN OF APPELLANT NO. 1 MRS NELLY D SOUZA AND THEY ARE REP BY MOTHER NEXT FRIEND AND NATURAL GUARDIAN MRS NELLY D SOUZA W O LATE DAVID D SOUZA R AT NIRKARA HOUSE VOGGA POST BANTWAL TALUK 4. MRS.MONTHI PINTO AGED 69 YEARS W O LATE JOKIM D’SOUGZ RESIDING AT KARINGANA HOUSE AMTOOR VILLAGE BANTWAL TALUK. APPELLANTS By Sri: P P HEGDE) 1.MR S K ABOOBAKAR S O FAKEERABBA R AT SALETHUR HOUSE KARINGANA AMTOOR VILLAGE BANTWAL TALUK 2.NATIONAL INSURANCE CO. LTD. 2ND FLOOR GANESH BUILDING B.C. ROAD P.O. RESPONDENT(S) By Sri. Smt : R1 S K ABOOBAKAR SD) MFA FILED U S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.6.2010 PASSED IN MVC NO.1413 2000 ON THE FILE OF MACT VI & II ADDITIONAL SENIOR CIVIL JUDGE MANGALORE DAKSHINA KANNADA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING: The main appeal M.F.A.8728 10 has been filed by the insurer on the ground that no liability should have been fastened on it to initially indemnify the claimants and later on to recover the same from the owner of the offending vehicle. The further grievance of the insurer is that the offending vehicle did not have fitness certificate as on the date of the accident and therefore the insurer should not have been asked to indemnify the claimants. The connected appeal M.F.A.7937 10 is filed by the claimants on the ground that compensation awarded is grossly inadequate in the light of death of the lone earning male member of the family. It is their further grievance that the amount awarded under conventional heads like loss of love and affection loss of consortium loss to estate and funeral expenses is also grossly inadequate. The facts leading to the filing of the claim petition before the MACT Mangalore are as follows: a) One person by name David D’souza husband of 1st claimant Nelly father of claimants 2 and 3 and son of 4th claimant Monthi Pinto died in a road accident that occurred on 27.1.2000 at 7.00 p.m. near a place called Mithabail of Mooda village Bantwal Taluk. He had opened the door of his car after purchasing vegetables from a nearby shop. At that time an auto bearing registration no.KA 19 A 671 being driven in a rash and negligent manner dashed against him and caused grievous injuries as a result of which he died in Fr. Mullers’ Hospital Kankanady Mangalore on 18.2.2000. b) A claim petition was filed by his wife children and mother before the MACT compensation of Rs.15 00 000 . The 1st respondent also contested the said petition on various grounds and the insurer 2nd respondent also contested the claim petition. Claimants have been called upon to prove the manner in which the accident took place and the cause for the death and loss of future dependency. c) Ultimately the petition has been allowed granting Rs.3 98 200 as compensation making it clear that the owner and insurer should jointly and severally pay the compensation amount. The 2nd respondent insurer has been directed to indemnify the claimants and later on recover the same from the 1st respondent owner of the vehicle in question. d) It is this judgment and award which is called in question by the insurer on the ground of violation of policy conditions and by the claimants on the ground of inadequacy of compensation. First this court would like to consider inadequacy of compensation. Admittedly the deceased was the lone earning member in his family. He is survived by his wife two minor children and aged mother. His monthly income is assessed by the Tribunal at Rs.3 000 . Admittedly he ad an Ambassador car of his own and was earning income by plying it as a taxi. This speaks of his financial capacity. In the absence of exact income the same will have to be assessed on the broad preponderance of probabilities as per the decision case of CHATURBHUJA PANDE .v. DISTRICT COLLECTOR RAIGAD 6 SCC 121). Therefore Rs.13 500 will have to be deducted from the annual loss of dependency which would be Rs.40 500 . The deceased was aged 38 years as on the date of the accident and the proper multiplier would be 15. Thus the net loss of dependency would be Rs.6 07 500 1968 13 and the said petition is said to be pending. Considering the same another Division Bench in M.F.A.2595 07 c w M.F.A.2593 07 has held that the insurer will have to initially indemnify the claimants and later on recover the same from the owner and the said order would be subject to the final outcome of SLP.1968 13. The Division Bench of this court in M.F.A.2595 07 has held as follows in paragraph 7 of the judgment which is relevant: ‘In view of the submission made by the learned counsel appearing for the parties these appeals are allowed the liability saddled on the appellant insurance company is set aside subject to the outcome of the judgment to be rendered by the Hon’ble Supreme Court in SLP(CC) No.1968 13 holding that both the parties are bound by the judgment of the Hon’ble Supreme Court. The amount if any in deposit in these appeals are ordered to be refunded to the appellant insurance company.’ Insofar as the claimants’ appeal is concerned compensation is enhanced from Rs.3 98 200 to Rs.7 22 500 . In the result I pass the following order: O R D E R I) The appeal filed by the insurer M.F.A.8728 10 is allowed making it clear that the decision in the present case is subject to the outcome of the decision that would be rendered by the Hon’ble apex court in SLP.1968 13. II) The appeal filed by the claimants M.F.A.7937 10 is allowed in part enhancing compensation from Rs.3 98 200 to Rs.7 22 500 awarding interest at the rate of 6% p.a. on the enhanced amount of Rs.3 24 300 from the date of petition till realization. In regard to apportionment of compensation the apportionment done by the Tribunal holds good for the enhanced III) The amount deposited shall be returned to the insurer. IV) Parties to the appeals shall bear their own costs. V) Office to send back the lower court records to the Tribunal as early as possible so as to enable the claimants to withdraw compensation. Sd JUDGE 

Summary: In the absence of concrete materials, the judge is expected to utilize his personal experience into the facts of the case and assess compensation.-High court of Karnataka. There are cases in which the appeal filed by the insurer on the ground that no liability should have been fastened on it to initially indemnify the claimants and later on to recover the same from the owner of the offending vehicle. Such issue was decided in the case of NATIONAL INSURANCE COMPANY VS MRS NELLY D SOUZA (M.F.A.NO.8728/2010 (MV)) by the judgement given by the single bench of HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA. In which it was briefly described that The further grievance of the insurer is that the offending vehicle did not have fitness certificate as on the date of the accident and therefore, the insurer should not have been asked to indemnify the claimants. The learned counsel of petitioner submitted that the insurer is before this court on the ground that the driver of the offending vehicle did not possess a valid driving license as on the date of the accident and therefore insurer is not liable to indemnify the claimants. It is not the case of the insurer that the driver did not possess any driving license at all, but that the D.L. had expired as on the date of the accident. Almost one year and 5 months had elapsed from the date of expiry of D.L.A distinction has to be drawn between a person who does not possess a driving license at all and a person who has driving license but has expired. The learned counsel of the Respondent submitted that co-ordinate Bench of this court has considered this aspect in M.FA.2596/07. The said appeal filed by the insurance company has been allowed by order dated 27.12.2012 stating that there cannot be any order against the insurance company to satisfy the award by indemnifying the claimants and thereafter to recover compensation by it from the owner. Of course the claimants have filed appeal against the judgment of this court in 11 M.F.A.2596/07 by way of SLP.(CC) 1968/13 and the said petition is said to be pending. Considering the same, another Division Bench in M.F.A.2595/07 c/w M.F.A.2593/07 has held that the insurer will have to initially indemnify the claimants and later on recover the same from the owner and the said order would be subject to the final outcome of SLP.1968/. After taking an note of the averments made in the case the hon’ble court held that “ appeal filed by the insurer, M.F.A.8728/10 is allowed, making it clear that the decision in the present case is subject to the outcome of the decision that would be rendered by the Hon’ble apex court ,awarding interest at the rate of 6% p.a. on the enhanced amount of Rs.3,24,300/- (three lakhs twenty four thousand three hundred only) from the date of petition till realization. In regard to apportionment of compensation, the apportionment done by the Tribunal holds good for the enhanced compensation. The amount deposited shall be returned to the insurer.  Parties to the appeals shall bear their own costs.”