Karnataka High Court
Regional Manager Oriental Insurance Co ... vs Fazeela Beevi F on 13 September, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF SEPTEMBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
M.F.A.NO.12407 OF 2006 (MV)
C/W
M.F.A. Nos. 12408, 12410, 12405, 12406 OF 2006 (MV)
M.F.A.NO.12407 OF 2006
BETWEEN
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, # 44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025. ... APPELLANT
(BY SRI A.N. KRISHNA SWAMY, ADV.,)
AND
1. FAZEELA BEEVI F,
D/O M THAHA,
AGED ABOUT 31 YEARS,
R/AT NO.168/A, NEW RAILWAY QUARTERS,
VASANTHANAGAR,
BANGALORE,
2. JAYANNA S/O ERADIMMAIAH
AGE MAJOR,
R/O UJJANAKUNTE,
THAVAREKERE POST,
GOWGAGERE HOBLI,
2
SIRA TALUK.
3. MANAGING DIRECTOR
M/S SOFT WARE & SILICON SYSTEM,
INDIA PVT. LTD.,
NO.20, PRESTIGE MERIDIAN,
8TH FLOOR, M.G.ROAD,
BANGALORE - 560 001. ... RESPONDENTS
(BY SRI.M.S.RAJENDRA PRASAD - SR. COUNSEL A/W
SMT. KALPANA P.V. ADV. FOR R1,
R-2 SERVED, NOTICE TO R-3 DISPENSED WITH V/O
DATED:03.08.09)
THIS MFA FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 27/2/2006 PASSED
IN MVC NO.3528/01 ON THE FILE OF THE IX ADDL
JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES,
BANGALORE (SCCH.7), AWARDING A COMPENSATION OF
RS.4,40,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF PAYMENT.
M.F.A.NO.12408 OF 2006
BETWEEN
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, # 44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD, BANGALORE - 560 025.
... APPELLANT
(BY SRI. A N KRISHNA SWAMY, ADV.,)
AND
1. SMT SAREENA (THAMMATTAN)
W/O VIVEK SHENOY
AGED ABOUT 34 YEARS,
R/AT NO.386, 1ST CROSS, 7TH MAIN,
IV BLOCK, KORAMANGALA,
3
BANGALORE.
2. JAYANNA S/O ERADIMMAIAH
AGE: MAJOR,
R/O UJJANAKUNTE,
THAVAREKERE POST,
GOWGAGERE HOBLI,
SIRA TALUK.
3. MANAGING DIRECTOR
M/S SOFT WARE & SILICON SYSTEM,
INDIA PVT. LTD.,
NO.20, PRESTIGE MERIDIAN,
8TH FLOOR, M.G. ROAD,
BANGALORE -560 001. ... RESPONDENTS
(BY SRI.M.S.RAJENDRA PRASAD - SR. COUNSEL A/W
SMT. KALPANA P.V. ADV. FOR R1,
R-2 SERVED, NOTICE TO R-3 DISPENSED WITH V/O
DATED:03.08.09)
THIS MFA FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 27/2/2006 PASSED
IN MVC NO.3746/01 ON THE FILE OF THE IX ADDL
JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES,
BANGALORE (SCCH.7), AWARDING A COMPENSATION OF
RS.8,14,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF PAYMENT.
M.F.A.NO.12410 OF 2006
BETWEEN
REGIONAL MANAGER
ORIENTAL INSURANCE CO LTD
REGIONAL OFFICE, # 44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560 025 ... APPELLANT
(BY SRI. A N KRISHNA SWAMY, ADV.,)
4
AND
1. SMT. SUJAMOL P.M.,
W/O LATE HANEEFA
NOW AGED ABOUT 34 YEARS
2. E K SULAIMAN,
S/O LATE AHMED KUTTY,
NOW AGED ABOUT 60 YEARS
3. JAMEELA V P,
W/O E.K.SULAIMAN,
NOW AGED ABOUT 55 YEARS,
ALL R/A VAZHAYIL PARMBATH HOUSE,
KUTHUPARAMBA, KANNURFDIA,
KERALA
4. JAYANNA S/O ERADIMMAIAH
AGE: MAJOR, R/O UJJANAKUNTE
THAVAREKERE POST,
GOWGAGERE HOBLI,
SIRA TLAUK.
5. MANAGING DIRECTOR,
M/S. SOFTWARE & SILICON SYSTEM
INDIA PVT. LTD.,
# 20, PRESTIGE MERIDIAN
8TH FLOOR, M.G.ROADM,
BANGALORE - 560 001. ... RESPONDENTS
(BY SRI.M.S.RAJENDRA PRASAD - SR. COUNSEL A/W
SMT. KALPANA P.V. ADV. FOR R1 - R-3,
R-4 SERVED, NOTICE TO R-5 DISPENSED WITH V/O
DATED:03.08.09)
THIS MFA FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 27/2/2006 PASSED
IN MVC NO.3781/01 ON THE FILE OF THE IX ADDL
JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES,
BANGALORE (SCCH.7), AWARDING A COMPENSATION OF
RS.1,39,75,890/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF PAYMENT.
5
IN M.F.A.NO.12405 OF 2006
BETWEEN
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, #44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025. ... APPELLANT
(BY SRI. A N KRISHNA SWAMY, ADV.,)
AND
1. SMT S FATHIMA
W/O M THAHA
AGED ABOUT 55 YEARS,
R/AT T C 43, KAMALESHWARAM,
MANACHUD POST,
TRIVANDRUM 695 009
2. JAYANNA S/O ERADIMMAIAH
AGE MAJOR
R/O UJJANAKUNTE,
THAVAREKRE POST,
GOWGAGERE HOBLI,
SIRA TALUK.
3. MANAGING DIRECTOR
M/S SOFTWARE & SILICON SYSTEM,
INDIA PVT. LTD.,
NO.20, PRESTIGE MERIDIAN,
8TH FLOOR M.G.ROAD,
BANGALORE - 560 001. ... RESPONDENTS
(BY SRI.M.S.RAJENDRA PRASAD - SR. COUNSEL A/W
SMT. KALPANA P.V. ADV. FOR R1,
R-2 SERVED, NOTICE TO R-3 DISPENSED WITH V/O
DATED:03.08.09)
THIS MFA FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 27/2/2006 PASSED
6
IN MVC NO.3526/01 ON THE FILE OF THE IX ADDL
JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES,
BANGALORE (SCCH.7), AWARDING A COMPENSATION OF
RS.1,05,97,560/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF PAYMENT.
M.F.A.NO.12406 OF 2006
BETWEEN
REGIONAL MANAGER
ORIENTAL INSURANCE CO LTD.,
REGIONAL OFFICE, # 44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025 ... APPELLANT
(BY SRI A N KRISHNA SWAMY, ADV.,)
AND
1. SMT P.M. SUJAMOL
W/O LATE HANEEFA
AGED ABOUT 34 YEARS
R/A #8, 12 'B' MAIN,
8TH CROSS, HAL 3RD STAGE,
BANGALORE.
2. JAYANNA S/O ERADIMMAIAH
AGE: MAJOR, R/O UJJANAKUNTE
THAVAREKERE POST,
GOWGAGERE HOBLI,
SIRA TLAUK.
3. MANAGING DIRECTOR
M/S. SOFTWARE & SILICON SYSTEM
INDIA PVT. LTD.,
# 20, PRESTIGE MERIDIAN,
8TH FLOOR, M.G.ROAD,
BANGALORE-560 001. ... RESPONDENTS
(BY SRI.M.S.RAJENDRA PRASAD - SR. COUNSEL A/W
SMT. KALPANA P.V. ADV. FOR R1,
7
R-2 SERVED, NOTICE TO R-3 DISPENSED WITH V/O
DATED:03.08.09)
THIS MFA FILED U/S.173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 27/2/2006 PASSED
IN MVC NO.3527/01 ON THE FILE OF THE IX ADDL
JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES,
METROPOLITAN AREA, BANGALORE (SCCH.7), AWARDING
A COMPENSATION OF RS.1,50,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
PAYMENT.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, N. KUMAR J., DELIVERED THE FOLLOWING:-
JUDGMENT
All these five appeals arise out of the same accident and a common judgment and award passed by the Tribunal. Therefore, they are taken up for consideration together and disposed of by this common judgment.
2. All these appeals are by the Insurance Company challenging the quantum of compensation in all the five cases and also the finding regarding the negligence in one case.
8
3. For the purpose of convenience the parties in these appeals would be referred to as they are arrayed in the claim petitions before the tribunal.
4. On 25.1.2001 at about 8 p.m. the three deceased Mohammed Ismail, V.P. Haneefa, Hanna Farzin along with the injured Fazeela Beevi and Sareena were proceeding in a car bearing No.KA03 Z 9132. The deceased V.P. Haneefa was driving the car. When the car was near Tavarekere gate situated on N.H.4, the tractor bearing No.KA06 T.3481-82 which was going ahead of the car driven by its driver in a rash and negligent manner applied brake suddenly without giving any signs by way of reflectors. Though Haneefa, the driver of the car, also applied brake still, the car dashed against the tractor and caused the accident. In the said accident, the said Mohammed Ismail, Hanna Farzeen and Haneefa the driver of the car died. Fazeela Beevi the petitioner in MVC No.3528/01 and Sareena, the petitioner in MVC 3746/01 were seriously injured. Thereafter, the legal heirs of Mohammed Ismail, 9 M.Thaha, the father, S.Fathima, the mother, preferred MVC No.3526/01. The widow of the deceased V.P.Haneefa i.e. Suzomol, his father E.K.Sulaiman and his mother Jameela preferred MVC 3781/01. The widow i.e., Suzomol who is also the mother of Hanna Farzeen preferred MVC 3527/01. In all these petitions they arrayed the owner of both the vehicles involved in the accident as well as the insurance company. Incidentally both the vehicles were insured by the Oriental Insurance Co.Ltd. All the claimants contended the accident was on account of the rash and negligent driving of the driver of the tractor which resulted in death and injuries and therefore, the claimants are entitled to compensation. In each of the petitions the amount of compensation claimed are clearly set out.
After service of notice, among the respondents the owners of the vehicles remained absent. They were placed exparte. However, the Insurance Company filed the written statement contesting the claim. The Insurance company specifically pleaded that the accident was on account of the rash and negligent 10 driving by V.P.Haneefa,. the driver of the car and therefore, he is not entitled to any compensation. At any rate he also contributed to the accident and therefore, to the extent of contributory negligence, he is not entitled to compensation. They did not dispute the insurance coverage.
On the aforesaid pleadings the Tribunal framed the following issues in all the cases.
Common issues in MVC Nos.3526/01, 3527/01 and 3781/01 :-
1. Whether the petitioners prove that the deceased Mohammed Ismail, Hannah Farzin and the deceased V.P.Haneefa succumbed th injuries sustained in RTA that occurred on 25.1.2001 at about 8.00 p.m. while proceeding in Car bearing No.KA 03 Z 9132 near Thavarekere Gate due to negligence of the driver of tractor bearing No.KA06 T 3481-82?
2. Whether the petitioners prove that they are entitled for compensation? If so, what amount and from whom?
3. What order?
Common issues in MVC Nos.3528/01, and 3746/01 :-
1. Whether the petitioners prove that they have sustained injuries in RTA that occurred on 25.1.2001 at about 8.00 p.m. while proceeding in Car bearing No.KA 03 Z 9132 near Thavarekere Gate due to negligence of the driver of tractor bearing No.KA06 T 3481-82?11
2. Whether the petitioners prove that they are entitled for compensation? If so, what amount and from whom?
3. What order?
Common evidence was recorded after clubbing all the petitions.
The claimants in order to establish their claim examined the claimants as PWs 1 to 5. PW6 is the doctor who treated the injured. PW7 is an official of the Company where the deceased Mohammed Ismail was employed who has given evidence regarding the salary earned by Mohammed Ismail. The claimants produced in all 62 documents which are marked as exhibits P1 to P62. On behalf of the respondents (the driver of the tractor-Jadhav) was examined as RW1 and 15 documents were produced which are marked as Exs.R1 to R15.
The Tribunal on consideration of the aforesaid oral and documentary evidence on record held the accident was on account of the rash and negligent driving by the driver of the tractor. The contention of the Insurance Company that the driver of the car is the cause for the 12 accident was negatived. Further, the Tribunal has held the claimants have established actionable negligence and therefore, they are entitled to compensation. Thereafter, it considered the claim in each petition. Taking into consideration the educational qualification, the nature of work performed by the deceased Mohammed Ismail and V.P.Hannefa and the income earned by them and after taking note of the age of the mother in both the cases, who is the sole dependent on the deceased, awarded a sum of `1,05,97,560/- as compensation in MVC No.3526/2001, it awarded a sum of `1,39,75,890/- for the death of V.P.Haneefa in MVC 3781/01. It awarded `1,50,000/- for the child Hanna Farzeen who was aged about 3 years at the time of death in MVC 3527/01. It awarded a sum of `4,40,000/- for the injuries sustained to the claimant- Fazeela Beevi in MVC 3528/01. It awarded a sum of `8,14,000/- for the injuries sustained to the claimant- Sareena in MFA 3746/01. Aggrieved by the said awards, the Insurance Company has preferred these five appeals.
13
5. The learned counsel for the Insurance Company assailing the impugned awards, in particular in MVC No.3526/01 and MVC 3781/01, contended the tribunal has proceeded to accept the oral testimony of PW7 in assessing the compensation for the death of both Mohammed Ismail and V.P.Haneefa, ignoring the income tax returns where the income of Mohammed Ismail is clearly mentioned. However, in the case of V.P.Haneefa the income tax returns which is filed subsequent to his death has been produced whereas, the income tax returns for the previous year is not produced. Even if the income from salary in that return is taken into consideration, the question of taking into consideration the value of the stock option as the part of the salary of the deceased is impermissible in law. Similarly, the multiplier applied is also not proper and therefore, he contended the compensation awarded in those two cases is on the higher side and it requires to be reduced.
14
In MVC No.3781/01 wherein the driver of the car- V.P.Haneefa died, it was contended that the accident was on account of the negligence of the driver of the car also and therefore, negligence has to be fixed on the said driver as he has contributed to the accident and to that extent compensation is to be reduced.
Insofar as the compensation awarded to the death of three years child Hanna Farzeen in MVC 3527/01, he fairly conceded that `1,50,000/- paid is a reasonable compensation. Similarly, the compensation awarded in the other two injury cases i.e. MVC No.3528/01 and MVC 3746/01 was on the higher side and therefore, he sought for reduction of the same.
6. Per contra, the learned Senior Counsel appearing for the respondents in all these appeals submitted that the award of compensation in all the cases is just and in fact in the case of death as both the deceased are younger, the Tribunal has not taken into consideration their future prospects as laid down by the Apex Court in Sarala Verma's case and if it had been applied, they were entitled to higher compensation than 15 what has been awarded and therefore, he submits no case for interference is made out.
7. In the light of the aforesaid material on record and the rival contentions, the points that arise for our consideration in all these appeals are :-
i) Whether the compensation awarded by the Tribunal is just compensation, if not, a case for reduction is made out?
ii) Whether the driver of the car V.P.Haneefa has contributed to the accident and to that extent any compensation has to be reduced?
8. Re.point No.2 . The facts are not in dispute. The car bearing Regn.No.KA03 Z 9132 was driven by the deceased Haneefa. All others were the occupants of the car. The accident took place at 8 p.m. in the night. It took place near Tavarekere gate on NH4. It is also not in dispute the Tractor bearing KA 06 T.3481 82 was proceeding in front of the car. The evidence on record discloses sugarcane was loaded to the tractor which was roughly 16 weighing about 45 tonnes. There were no street lights on either side of the road. The mahazer, FIR, charge sheet, spot sketch prepared by the police are all produced and marked in the case. Even the judgment of the Criminal Court acquitting the driver of the tractor is produced. On that basis it was argued on behalf of the Insurance Company that the accident has occurred when the driver of the car was trying to overtake the tractor and in the opposite direction when a vehicle came, the driver of the car lost control and dashed against the tractor. Therefore, the cause for the accident is the driver of the car. The Insurance Company in support of their case, examined the driver of the tractor. His evidence shows he was not aware of the car which was following the tractor. Only when he heard a big sound he stopped the tractor and when he got down from the tractor and went to its rear side to find out the cause for the noise, he noticed that the car had dashed against the back side of the trailer. The evidence makes it very clear he has not seen the accident at the time of accident and he was driving the 17 tractor looking forward. Therefore, his evidence is of not much assistance to find out how exactly the accident took place on the hind side of the trailer. The evidence on record shows 45 tonnes of sugarcane was being carried in the Tractor. Therefore, the tribunal on a proper appreciation of the legal evidence available on record and also having the advantage of the demeanor of RW1, rightly held that the accident was on account of the rash and negligent driving of the driver of the tractor and the evidence on record is not sufficient to point any accusing finger towards the driver of the car. As the finding of the tribunal is based on legal evidence and on appreciation of the entire evidence on record, the said question being purely a question of fact, we do not see any justification to interfere with the said finding of fact. Therefore, we do not see any merit in the contention of the Insurance Company that V.P.Haneefa, the driver of the car, is also the cause for the accident. Therefore, the case of contributory negligence is not established and the Tribunal was justified in fastening the entire liability on the Ins. Co. Thus, the material on record 18 clearly establishes the accident took place on account of the rash and negligent driving by the driver of the tractor and thus the claimants have established actionable negligence and are entitled to compensation.
9. Re.Point No.1 :
Insofar as the quantum of compensation is concerned, in MVC No.3526/01 the claimants are the father and the mother of the deceased Mohammed Ismail. Unfortunately during the pendency of the claim petition the father of the deceased died and therefore, the mother became the sole claimant. The evidence on record discloses Mohammed Ismail was working at Tallabs International Inc. Bangalore. Ex.P10 is the income tax returns filed for the assessment year 2000-
01. It discloses the salary of the deceased Mohammed Ismail at `6,11,957/- and a sum of `1,70,933/- was the income tax paid to the aforesaid income. Thus, the salary of the deceased was `4,41,024/-. However, the Tribunal has taken the evidence of PW7 to the effect that he was drawing a salary of `8,87,835.60/-. On the date of his death there was a possibility of upward 19 salary adjustment of 10% to 15% for the year 2001. In addition to that he had an income from stock options which works out to `22,70,000/- and therefore, it took `32,92,000/- p.a. It also took note of the salary mentioned in the salary certificate at `7,49,896/- and `24,22,224/- as the income from stock options and arrived at a figure of `21,14,510/- p.a. It deducted 50% towards the personal expenses of the deceased and thus arrived at `10,57,256/- as the multiplicand. It took the age of the claimant at 57 years, applied the multiplier of 11, instead of 9 and arrived at the figure of `1,05,72,560/-. It awarded `5,000/- towards funeral expenses, `10,000/- each towards loss of expectancy of life and loss of estate and awarded total compensation in a sum of `1,05,97,560/-. It is this compensation that is awarded which is under attack in this appeal.
10. The learned counsel for the Insurance Company contends when the income tax return is filed, the question of acting on the oral evidence of a witness, which runs counter to the income tax returns was not 20 proper. Similarly, the stock option cannot be treated as the part of the salary. If as an incentive the employer sold the stocks at a concessional rate to its employees that cannot be treated as income of an employee. Therefore, he submits that the entire calculation made is erroneous. Multiplier applied is also erroneous and therefore, he submits that a case for reduction is made out.
11. We have gone through the evidence both oral and documentary, number of documents produced starting from the appointment order, appreciation letters some benefits which are given from time to time and also we have the evidence of PW7 who on oath has stated regarding the salary the deceased was drawing on the date of death. When the claim is based on salary, the question of depending on the oral evidence would not arise. The best evidence is, the order of appointment, salary certificate or salary slip, if any, and the income tax returns filed disclosing the income to the department. In this regard if we look at Ex.P10 which is the income tax return prior to his death which would be 21 relevant, the total income from his salary which he has declared to the department is `6,11,957/-. A sum of `1,70,933/- is paid as income tax. Therefore, the income which was in the hand of the deceased was `4,41,024/- p.a. In the light of the unimpeachable undisputed document, the Tribunal committed a serious error in acting on the oral evidence of PW7 who stated that the salary which was drawn by the deceased was `8.87,835/-. In fact if that was the fact, nothing prevented PW7 from producing the document to establish the said fact. No such documents are forthcoming. In fact, he has pleaded ignorance on all factual aspects and the tribunal was not justified in acting on the same.
The Tribunal rightly took the age of the mother as 57 years as admittedly she had 13 children and the deceased was her 5th child. After taking her age correctly it committed error in taking the multiplier of 11 whereas, the correct multiplier was 9. That is yet another error committed by the Tribunal for arriving at the compensation. It was also submitted by the learned 22 counsel for the claimants in view of Sarala Verma's case when the deceased was a brilliant Engineer and he was hardly in his 30's, 50% of the income is to be taken towards future prospects. We do not see any substance in the said contention for two reasons :-
i) This is not the claim petition filed by the wife and children whereas it is filed by the mother who is already 57 years; Therefore, the question of taking the future prospects to compensate her loss of dependency would not arise.
ii) Secondly, the document produced in the case shows, initially the deceased was appointed for three months and the period of employment was renewed from time to time and therefore, it is not a case of permanent employment. His salary is dependent on his performance and market conditions. Under these circumstances it is not safe to apply Sarala Verma's case which is made applicable in respect of employment which is permanent where there will be gradual 23 enhancement of salary every year by giving increments and also pay revisions periodically.
Therefore, this is not a case where any amount could be taken into consideration towards future prospects. In this background when we take the income at `4,41,000/- p.a, mother being the sole claimant, 50% is deducted towards the expenses of the deceased, the multiplicand was `2,20,500/- if it is multiplied by the multiplier of 9, we get `19,84,500/-. To that if we add `30,000 towards conventional heads, the amount payable is `20,14,500/- which can be rounded of to `20,15,000/-. That in our view would be the just compensation payable. Therefore, the compensation awarded by the tribunal is excessive and it requires to be reduced. Accordingly, the award of the Tribunal is modified, in place of `1,05,97,560/- the compensation payable would be `20,15,000/-.
Insofar as MFA 3781/01 is concerned, here the deceased was a B.E.graduate in Electronics from Institution of Engineers (India) and a M.tech IIT Madras 24 and was a rank holder. He was drawing salary of `11,31,220/-. However, in the income tax returns filed which is at Ex.P37 which is filed after his death, a sum of `30,93,088 p.a. is shown as the income from stock option. The claimants ought to have produced income tax returns filed for the previous year prior to the date of death. The evidence on record shows what is the stock option. The company in which he was working, as an incentive to his employees, were selling their stock at concessional rates which was worth much more than the face value in the market. Therefore, the stock option is not a part of income or salary and it is only an income for which deceased has to pay money and purchase. That is shown as income and an attempt is made to boost the income of the deceased. That is the reason why the returns filed prior to his death at an undisputed point of time is kept back from the Court. Therefore, no credence could be given. Unfortunately, the Tribunal has acted on the said document and has taken the income by way of salary at `30,93,088 as income from stock options and it has arrived at a sum 25 of `41,65,534/- as the income of the deceased p.a. It has deducted 50% of which towards his personal expenses and it has arrived at `13,95,089/- as the multiplicand, applied the multiplier of 10 and arrived at a figure of `1,39,50,890/- as the compensation payable. It added another `25,000/- under conventional heads and the total compensation awarded is `1,39,75,890/-. In this case the deceased left behind his wife. He had a daughter and mother. The daughter died in the very same accident. His wife after filing of the claim petition married and therefore, she ceased to be his dependent and therefore, she did not prosecute the petition. It is only the father and mother who have prosecuted the petition. As stated above, it is an undisputed fact that he was earning `11,31,220/-, if `3,00,000/- is deducted towards his personal expenses, `8,31,220/- would be the income. If 50% is deducted towards his personal expenses, the multiplicand would be `4,15,610/-. The question of adding stock option would not arise and that is where the Tribunal has committed error. It is not the income and it is not part of the salary, it is only 26 an incentive and to have that stock option he has to pay from his pocket and therefore, it has to be excluded. Once we exclude that amount, the multiplicand would be `4,15,610/-. The multiplier applicable would be 11 and therefore, the compensation payable would be `45,71,710/- for which we have to add another `30,000/- under conventional heads. Thus, the compensation payable would be `46,01,710/- which can be rounded of to `46,00,000/-. Therefore, the compensation awarded by the Tribunal in a sum of `1,39,75,890/- is fanciful, arbitrary and it is not a just compensation and the just compensation would be `46,00,000/-.
Insofar as the claim in MVC 3527/01 is concerned, it is preferred by the mother for the death of her child which was three years old. A sum of `1,50,000/- has been paid as compensation which is legal and valid and therefore, we do not see any merit in the appeal of the Insurance company where this amount is challenged. Thus, MFA 12406/06 is devoid 27 of merit and it is to be dismissed. Accordingly, it is dismissed.
In MVC 3528/2001 the claimant is a B.E. graduate in Electrical and Electronics from the University of Kerala. On the date of accident she was employed at Digital India, Bangalore, in the capacity of Software Specialist with the basic salary of `82,500/- p.a. with flexible benefit plan of `1,50,000/- p.a. In the accident she sustained grievous injuries to her left eye, fracture of left frontal bone, right frontal bone, hematoma, multiple abrasions over the face and one LW over right cheek. She was first admitted to NIMHANS and from there she was shifted to Manipal hospital where she was treated as inpatient from 26.1.2001 to 12.2.2001. After discharge she also took treatment at Kerala for six months and still she is suffering from diplopia on left eye i.e. double vision. Her evidence discloses that she can feel the glass pieces in the eyes and even now the glass pieces come out when she combs the hair and deposed that she is not able to close the eye lid completely. She has spent about `50,000/- 28 towards treatment and the treatment is continuing and she is spending about `1,000/- to `1,500/- p.m. In support of the said contention she has produced the discharge summary, case report, visual potential, ophthalmology report, consultation report, plastic surgery certificate. She has also produced the income tax reports for the year 2002-03 as Ex.P26 and her degree certificates at Exs.P61 and 62. Dr.Ashfakh Ahmed who treated her also has deposed. Taking into consideration all these aspects, the Tribunal awarded a sum of `35,000/- under the head pain and suffering, `10,000/- towards medical expenses including conveyance, food and nourishment charges. A sum of `41,000/- has been awarded under the head loss of earnings during the period of treatment, `2,89,000/- under the head loss of future earnings taking the permanent disability at 10%, a sum of `15,000/- is also awarded towards loss of amenities including future medical expenses, a sum of `50,000/- has been awarded under the head damage to eye and loss of marital prospects. Thus, it has awarded a sum of 29 `4,40,000/-. In view of the nature of injuries sustained, her educational qualification, nature of work she was performing, the permanent disability she has suffered which also has a serious impact on her future marital life and marriage prospects, we are of the view in fact the compensation awarded under the heading of medical expenses, nourishment, attendant charges conveyance are on the lower side. However, as the claimant has not preferred any appeal, the question of enhancement does not arise. Therefore, what is awarded by the Tribunal is just and does not call for interference. Therefore, MFA 12407/06 is devoid of merits and accordingly, it is dismissed.
The claimant in MVC No.3746/01 is one Smt.Sareena. She is a graduate and very fluent in English, Hindi and Malayalam and working in Cipla,
Johnson and Johnson and working at Kernel Soft ware as H.R.Manager. In the accident she suffered injuries to her head and fracture of left femur and right humerus and fracture of zygoma. Initially she was admitted to Nimhans from where she was shifted to Manipal 30 hospital and treated as inpatient from 26.1.2001 to 5.3.2001. She was in ICU for 13 days. She underwent multiple operations for maxillo facial for fracture of bones of face, surgery on left leg, implants were put to the right humerus, when it was shattered it was reconstructed by surgery. It is deposed that even after discharge she continued on wheel chair for one month and was not in her normal senses. She has completely lost her memory. It is deposed that she has to lie down on the bed and also developed inconvenience and had to wear adult napkin for three months. It is deposed that she had undergone physiotherapy for two years at Manipal hospital. She has paid `2,000/- p.m. for an attendant for a period of 6 months. She has also appointed a care taker to look after her child aged 3½ years and paid `2,000/- p.m. She had appointed a driver and was paying `3,500/- p.m. and she spent `5,00,000/- towards medical expenses, conveyance, food and nourishment. In order to establish the injuries sustained she has produced 5 discharge summaries at Exs.P41 to P46, letter issued by the employer is at 31 Ex.P47, appointment order is at Ex.P48, resignation letter is at Ex.P49. Letters issued by Manipal hospital is at Ex.P50. She also examined Dr.Ashtak Ahmed regarding treatment given, the percentage of disability suffered and according to the doctor the total body disability is assessed at 39.5%. Taking into consideration the aforesaid evidence on record, the tribunal has awarded a sum of `50,000/- under the heading pain and suffering, `25,000/- towards medical expenses and a sum of `1,00,000/- under the heading loss of earnings during the period of treatment. Taking the disability at 39% and her income at `96,000/- p.a., a sum of `5,99,000/- is awarded towards loss of future income, `25,000/- is awarded towards loss of amenities, `15,000/- towards future medical expenses. In all a sum of `8,14,000/- is awarded. In the light of the medical evidence on record, her status in life, the salary she was drawing, the inconvenience she was put to which resulted in employing a care taker to the child , driver to the car and an attendant, we are of the view the compensation awarded under the aforesaid heads is 32 just and reasonable and do not call for any interference. Accordingly, we do not find any merit in MVC NO.3746/2001 and accordingly, it is dismissed.
12. Hence, we pass the following order :-
1) MFA 12406/06, MFA 12407/06, MFA 12408/06 are all dismissed;
2) MFA 12405/06 is allowed modifying the amount of compensation awarded by the Tribunal and reducing the compensation from `1,05,97,560/- to `20,15,000/- with interest at 6% p.a. from the date of the petition till realisation;
3) Similarly, MFA 12410/06 is also allowed modifying the award of the tribunal and reducing the compensation from `1,39,75,890/- to `46,00,000/-
with interest at 6% p.a. from the date of the petition till realisation;
Parties to bear their own cost.
The High Court Registry is directed to transmit the amount deposited by the Insurance Company to the Tribunal forthwith for being paid to the claimants. 33 If the Insurance Company has deposited any excess compensation in MVC No.3746/01 and MVC NO.3781/01, the excess amount shall be repaid.
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