Karnataka High Court
The Manager vs Smt Parvathamma on 11 October, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.2561/2017(MV-D)
BETWEEN:
THE MANAGER
BHARATHI AXA GIC LTD.,
THE FERNS ICON,
1ST FLOOR, SURVEY NO.28,
DODDENEKUNDI, K.R.PURAM HOBLI
BANGALORE-560 037
...APPELLANT
(BY SRI.PRADEEP B, ADVOCATE)
AND:
1. SMT PARVATHAMMA
S/O LATE M KRISHNAPPA,
NOW AGED ABOUT 50 YEARS
2. SMT M SUDHARANI
W/O Y C VENKATARAVANA,
D/O LATE M KRISHNAPPA
NOW AGED ABOUT 30 YEARS
3. SMT M JYOTHI @ JYOTHIRANI
W/O Y C VENKATARAVANA,
D/O LATE M KRISHNAPPA,
NOW AGED ABOUT 28 YEARS
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4. SMT M THULASIRANI
W/O Y C VENKATARAVANA,
D/O LATE M KRISHNAPPA,
NOW AGED ABOUT 26 YEARS
ALL ARE R/AT NO.1-786, AMBEDKAR COLONY,
PILERU,CHITTOOR DIST,
ANDRA PRADESH-517214
5. M/S LANCO INFRATECH LIMITED
CHELUVANAHALLI VILLAGE,
ARABHIKOTHANUR VILLAGE,
KOLAR TALUK AND DIST-563101
...RESPONDENTS
(R1 TO R4 ARE SERVED & UNREPRESENTED;
V/O DATED 04/08/2021, NOTICE TO R5 IS D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 17.12.2016 PASSED IN MVC
NO.624/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM., AND MACT, KOLAR. AWARDING A
COMPENSATION OF RS.49,24,008/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, K.S.HEMALEKHA J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The present appeal is preferred by the insurance company assailing the judgment and award dated 17/12/2016, in MVC. No.624/2014 on the file of the Principal Senior Civil Judge and MACT, Kolar (hereinafter referred to as "the Tribunal" for the sake of convenience) whereby, the Tribunal has awarded compensation of Rs.49,24,008/- with interest @ 6% p.a. from the date of petition till the date of realization and fastened the liability upon the insurance company.
2. Brief facts of the case are that the claimants filed claim petition seeking compensation of Rs.50,00,000/- with interest @ 12% p.a. on account of death of one M. Krishnappa, who succumbed to the injuries sustained in a road traffic accident that occurred on 13.03.2012, when the deceased was going towards Pileru of Andhra Pradesh from -4- Bengaluru by traveling in a TATA Indica Car bearing registration No.AP-03-P-1865 with his son-in-law and when they reached Kumbiganahalli Gate on Devanahalli-Vijayapura Road, at that time, the driver of the Bolero Jeep bearing registration No.AP-28-X- 5294 came from opposite direction with high speed in a rash and negligent manner and went on to wrong side of the road and dashed against the Tata Indica car. Due to the impact of the accident, Krishnappa sustained grievous injuries and was taken to the hospital, where he succumbed to the injuries. The claimants are wife and children of deceased M. Krishnappa and according to the claimants, deceased was aged about 53 years and he was a line man and driver working at Southern Power Distribution Company of Andhra Pradesh and was earning Rs.49,081/- per month and the claimants were solely -5- depending upon the income of the deceased and hence, sought for compensation.
3. Pursuant to the notice issued by the Tribunal, respondent No.1-owner of the offending vehicle and respondent No.2-insurer of the vehicle appeared and filed separate written statement.
4. According to respondent No.1, the road traffic accident occurred due to rash and negligent driving of the driver of the Tata Indica car and the driver of the said vehicle did not possess valid and effective driving licence and stated that falsely the charge-sheet has been leveled against the driver of the Bolero Jeep and thus, sought to dismiss the claim petition.
5. Respondent No.2-insurance company denied the averments made in the claim petition and contended that the owner of the vehicle has violated -6- the terms and conditions of the policy and the income, avocation and factum of the accident and death of M. Krishnappa due to the accident and stated that the accident occurred due to the rash and negligent driving on the part of the driver of the Tata Indica car itself and not on the part of the driver of the Bolero Jeep and sought to absolve the liability.
6. The Tribunal, on the basis of the pleadings of the parties, framed following issues:-
"1. Whether the petitioners prove that deceased M. Krishnappa died due to road traffic accident occurred on 13-3-2012 at about 11.30 pm., near Thambiganahalli gate on Devanahalli-Vijayapura road, Shidlaghatta taluk due to the rash and negligent act of the driver of BOLERO camper bearing Regn. No.AP-28-X-5294?
2. Whether the petitioners are entitled for compensation? If so, from whom and how much?"-7-
7. In order to substantiate the contention of the claimants, claimant No.1/wife of the deceased examined as PW.1 and Senior Assistant of Southern Power Distribution Company Limited of Andhra Pradesh was examined as PW.3, who was employer of the deceased and got marked documents at Exs.P.1 to P.16. On the other hand, the respondents did not lead any oral and documentary evidence.
8. Considering both the oral and documentary evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the Bolero Jeep bearing registration No.AP- 28-X-5294 and due to the impact of the accident, the deceased M. Krishnappa suffered grievous injuries and succumbed to the injuries and thereby, fastened the liability upon the insurance company quantifying the compensation of Rs.49,24,008/- with interest @ 6% -8- p.a. from the date of petition till the date of realization.
9. Insurance company being aggrieved by the quantum of compensation being on the higher side awarded by the Tribunal has preferred the present appeal. The claimants have not preferred any appeal.
10. Heard the learned counsel for the parties to the lis.
11. Sri B. Pradeep, learned counsel appearing for the insurance company would contend that the compensation arrived by the Tribunal is erroneous and contrary to the material on record. According to the learned counsel, the Tribunal has considered the age of the deceased as 53 years, which is contrary to the evidence of PW.3, who was categorically stated that the deceased was aged about 56 years 8 months as on the date of the accident and thus, according to the -9- learned counsel, the multiplier of '11' applied by the Tribunal is not justifiable and proper multiplier is '9' and also contended that the Tribunal ought to have applied the split multiplier as the deceased was left with 1 ½ years of service. It is further contended by the learned counsel that the deductions of income towards personal expenses by the Tribunal at 1/4th is contrary to the dictum of the Hon'ble Apex Court and the deductions towards personal expenses to be deducted is 50% as the wife was the sole dependant of the deceased and the daughters of late Krishnappa were not dependant upon the deceased. It is further contended that in view of the multiplier of '11' being applied considering the age of the deceased as 53 years by the Tribunal is contrary and thus the award of compensation under the head loss of dependency is much on the higher side and thus, would contend that
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the same deserves to be scale down to a large extent and hence, sought to allow the appeal.
12. Per contra, Sri Gopala Swamy, learned counsel for the claimants/respondents would contend that the award of compensation is just and proper and does not call for any interference and fastening of the liability on the insurance company is due to the rash and negligent driving of the driver of the Bolero Jeep No.AP-28-X-5294. It is further contended that the Tribunal has rightly considered the age of the deceased as 53 years as it is been categorically stated by the claimants in the claim petition as well as in the evidence of PW.1, who is wife of the deceased. It is further contended that the split multiplier cannot be applied in the present case and the years left for service cannot be a criteria for applying the split multiplier and in order to substantiate his contention, the learned counsel relied upon the judgment of the
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Hon'ble Apex Court in the case of R. Valli and others Vs. Tamil Nadu State Transport Corporation Ltd., in Civil Appeal No.1269/2022 (R.Valli) and stating these grounds sought to dismiss the appeal filed by the insurance company.
13. Having heard learned counsel for the parties, the only point that arises for our consideration in the present appeal is:
"Whether the insurance company has made out a case for interference with the judgment and award of the Tribunal, in the facts and circumstances of the case?"
14. We have considered the rival contentions and carefully perused the material on record including the original records carefully.
15. The undisputed fact is that the accident occurred due to the rash and negligent driving of the driver of the Bolero Jeep bearing registration No.AP- 28-X-5294 as is evident from Ex.P.1-FIR, Ex.P.2-the
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Complaint, Ex.P.3-Spot Mahazar and Ex.P.6-the Charge-Sheet. The jurisdictional police have leveled the charge-sheet against the driver of the Bolero Jeep and admittedly, the appeal preferred by the insurance company is insofar as the quantum of compensation is concerned. Thus, the only dispute is regarding the quantum of compensation awarded by the Tribunal.
16. It is the contention of the learned counsel for the insurance company that the age of the deceased was 56 years at the time of the accident, but the Tribunal has erroneously taken the age of the deceased as 53 years and thus, the compensation arrived by the Tribunal under the head loss of dependency is on the higher side. It is relevant to note that though the claim petition filed by the claimants, who are the wife and daughters have categorically stated that the deceased was aged about 53 years and the same having been corroborated in
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the evidence of PW.1-the wife of the deceased. What is relevant to be noted here is that PW.3-Senior Assistant of Southern Power Distribution Company Limited, Operation Division, Pileru, Chittoor District, Andhra Pradesh, a Government of Andhra Pradesh undertaking, who was the employer of the deceased has categorically stated in his chief evidence that the date of birth of M. Krishnappa is 01.07.1955 and at the time of death of M. Krishnappa, he was aged about 56 years 8 months and 14 days and thus, from the evidence of PW.3, it can suffice that deceased was 56 years as on the date of the accident and as such, the said contention of the learned counsel for the insurance company is acceptable. Taking the age of the deceased as 56 years, the proper multiplier to be applied is '9'. Though the learned counsel for the insurance company would contend that the split multiplier needs to be applied as the deceased was left
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with 1 ½ years of service, is not acceptable for the reason that the Hon'ble Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation [(2009)6 SCC 121] (Sarla Verma) has categorically held that the age of the deceased at the time of the accident is the base for choosing the multiplier and not the years left in the employment and the dictum of the Apex Court in the case of Sarla Verma is taken note in the judgment referred by the learned counsel for the claimants in the case of R. Valli stated supra and at paragraph No.11 held as under:
"11. Thus, we find that the method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment of this Court in Pranay Sethi, affirming the judgment in Sarla Verma. Since the deceased was 54 years of age on the date of incident, therefore, the suitable multiplier would be 11 as per the judgment of this Court in Sarla Verma approved by this Court in Pranay Sethi."
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17. In light of this contention of the learned counsel for the insurance company that the split multiplier needs to be adopted does not appraise the mind of this Court. Accordingly, the said contention is not sustainable. However, taking into consideration the age of the deceased as 56 years the proper multiplier to be applied is '9' instead of '11' as taken by the Tribunal.
18. The Tribunal has taken the income of the deceased at Rs.48,526/- deducting the professional tax and the income tax. As the material documents would clearly depicts that the deceased was earning Rs.50,976/- as per Ex.P.7 and the said aspect is not disputed by the insurance company. This being so, after deduction of Rs.2,450/- towards professional tax and income tax from Rs.50,976/- the income that would be arrived is Rs.48,526/-. The Tribunal has deducted 1/4th of the income towards the personal
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expenses of the deceased, which is contrary to the dictum of the Apex Court in the case of Sarla Verma stated supra. If the dependants are three in number, deductions that has to be taken is 1/3rd and accordingly, we are of the considered opinion that 1/3rd needs to be deducted from the income of the deceased. It is also relevant to note that the considering the age of the deceased as 56 years and he was a permanent employee, the future prospect that needs to be added is 15% as per the dictum of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others [2017 ACJ 2700] (Pranay Sethi). Taking the income of the deceased at Rs.48,526/- per month, adding 15% [Rs.7,278/- as per the dictum of (Pranay Sethi)], the notional income that could be arrived at is Rs.55,804/- and deducting 1/3rd of the income towards personal expenses and applying the
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multiplier '9' taking into consideration the age of the deceased as 56 years, the total amount towards loss of dependency arrived at is Rs.40,17,924/- (37,203 x 12 x 9).
19. The Tribunal has not awarded the compensation as per the dictum of the Apex Court in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur and others [AIR 2020 SC 3076] (Satinder Kaur) and Magma General Insurance Company Ltd. Vs. Nanu Ram & Others [2018 ACJ 2782] (Magma General Insurance Company Ltd.) In order to award just and fair compensation, the proposition in the case of Satinder Kaur and Magma General Insurance Company Ltd needs to be applied, as the dependants are four in number Rs.40,000/- each needs to be awarded amounting to Rs.1,60,000/- and towards loss of estate, and funeral expenses and
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obsequies ceremony, a sum of Rs.15,000/- each has been awarded. Accordingly, the point framed for consideration is answered partly in the affirmative in favour of the insurance company.
20. On re-assessing the oral and documentary evidence on record, the claimants are entitled for just and fair compensation as under:
Loss of dependency 40,17,924/-
Loss of consortium and loss 1,60,000/-
of love and affection
(Rs.40,000 x 4)
Loss of estate 15,000/-
Funeral expenses 15,000/-
Total 42,07,924/-
21. The claimants are entitled to compensation of Rs.42,07,924/- with interest @ 6% p.a. as against Rs.49,24,008/-.
22. In the result, we pass the following:
ORDER
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(i) Appeal filed by the insurance company is allowed in part.
(ii) The judgment and award dated 17.12.2016
passed by the Tribunal in MVC
No.624/2014 is hereby modified.
(iii) The claimants are entitled for
compensation of Rs.42,07,924/- with
interest at 6% per annum from the date of petition till the date of realization as against Rs.49,24,008/-.
(iv) Insurance company is directed to deposit
the compensation amount of
Rs.42,07,924/- with interest @ 6% p.a. within a period of eight weeks from the date of receipt of this order.
(v) On such deposit, the release, apportionment and deposit shall be as per the order of the Tribunal.
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(vi) The amount in deposit shall be transmitted to the Tribunal forthwith.
(vii) The Trial Court Records be transmitted to the concerned Tribunal forthwith.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE MBM