Karnataka High Court
Reliance General Insurance Company Ltd vs Smt. T. Manimekalai on 17 February, 2020
Bench: Alok Aradhe, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO. 2223 OF 2015 (MV-D)
C/w. MFA No.2068/2015 (MV-D)
IN MFA NO. 2223 OF 2015 (MV-D)
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY LTD
NO. 28, 5TH FLOOR, WEST WING
CENTENARY BUILDING
M G ROAD
BANGALORE-560001
REP BY ITS MANAGER
...APPELLANT
(BY SRI.H N KESHAVA PRASHANTH, ADVOCATE)
AND:
1. SMT. T. MANIMEKALAI
W/O LATE K THENNARASU
NOW AGED ABOUT 31 YEARS
2. MASTER T NISHOK
S/O LATE K THENNARASU
NOW AGED ABOUT 13 YEARS
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3. KUMARI T SUBHASHREE
D/O LATE K THENNARASU
NOW AGED ABOUT 11 YEARS
PETITIONER NOS.2 AND 3 ARE MINORS,
REPRESENTED BY THEIR MOTHER
SMT MANIMEKALAI, PETITIONER NO.1
AS NATURAL GUARDIAN
4. SRI KARUNANITHI
S/O ADIVAPPA
NOW AGED ABOUT 72 YEARS
5. SMT VEDHAVALLI
W/O KARUNANITHI
NOW AGED ABOUT 64 YEARS
ALL ARE R/A VANDAYARIRUPPU VILLAGE
AND POST, ORATHANADU TALUK
THANJAVUR DISTRICT
TAMIL NADU STATE-614019
6. M/S TRAVEL WORLD
SRIRAMA MANSION
NO. 5-6, GROUND FLOOR
KUMARAPARK WEST, 4TH MAIN
SUBRAMANYA TEMPLE ROAD
BANGALORE-560021.
...RESPONDENTS
(BY SRI.PRAKASH.M.H, ADVOCATE FOR R1 TO R5;
R6 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:09.01.2015 PASSED IN MVC NO.5494/2013 ON
THE FILE OF THE JUDGE, COURT OF SMALL CAUSES,
26TH ACMM, (SCCH-09), BANGALORE, AWARDING A
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COMPESNATION OF RS.44,18,000/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
IN MFA NO. 2068 OF 2015 (MV-D)
BETWEEN:
1. SMT. T. MANIMEKALAI
W/O LATE K THENNARASU
NOW AGED ABOUT 31 YEARS
2. MASTER T NISHOK
S/O LATE K THENNARASU
NOW AGED ABOUT 13 YEARS
3. KUMARI T SUBHASHREE
D/O LATE K THENNARASU
NOW AGED ABOUT 11 YEARS
4. SRI KARUNANITHI
S/O ADIVAPPA
NOW AGED ABOUT 74 YEARS
5. SMT VEDHAVALLI
W/O KARUNANITHI
NOW AGED ABOUT 64 YEARS
ALL ARE R/A VANDAYARIRUPPU VILLAGE
AND POST, ORATHANADU TALUK
THANJAVUR DISTRICT
TAMIL NADU STATE-614019
SINCE APPELLANTS
NOS.2 AND 3 ARE MINORS,
ARE PRESENTLY REPRESENTED
BY THEIR MOTHER
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SMT MANIMEKALAI
APPELLANT NO.1
...APPELLANTS
(BY SRI.PRAKASH M.H. ADVOCATE)
AND:
1. RELIANCE GENERAL
INSURANCE COMPANY LTD
NO. 28, 5TH FLOOR, WEST WING
CENTENARY BUILDING
M G ROAD BANGALORE-560001
REP BY ITS MANAGER
2. M/S TRAVEL WORLD
SRIRAMA MANSION
NO. 5-6, GROUND FLOOR
KUMARAPARK WEST, 4TH MAIN
SUBRAMANYA TEMPLE ROAD
BANGALORE-560021
REP.BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI.H.N. KESHAVA PRASHANTH, ADVOCATE FOR
R1; V/O DATED 17.08.2015 NOTICE TO R2 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:09.01.2015 PASSED IN MVC NO.5494/2013 ON
THE FILE OF THE JUDGE, COURT OF SMALL CAUSES,
26TH ACMM, (SCCH-09), BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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THESE APPEAL COMING ON FOR ADMISSION,
THIS DAY, ALOK ARADHE J., DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.2223/2015 has been filed by the Insurance company whereas MFA No.2068/2015 has been filed by the claimants against the judgment and award dated 09.01.2015 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Claims Tribunal' for short). Since both the appeals arise out of the same accident, they were heard together and were decided by this common judgment.
2. The facts giving rise to filing of these appeals briefly stated are that the deceased K. Thennarasu, on 31.07.2013 at about 6.10 a.m. was crossing the road carefully and cautiously in front of Air Force Gate, MES Ring Road, G.G. Palya, Bengaluru, at that time, a Mahindra Xylo Car bearing registration No.KA-02-AB- 1927 being driven in a rash and negligent manner dashed against the deceased K. Thennarasu. As a result of the aforesaid accident, deceased sustained grievous 6 injuries and was shifted to Commando Hospital and where he was declared dead. Thereafter, the Claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 in which inter alia it was pleaded that the deceased at the time of accident was aged about 44 years and was working in the office of the Chief Engineer, Air Force, Bengaluru and was getting a salary of Rs.49,000/- per month. The claimants claimed compensation to the tune of Rs.1,00,00,000/-. In response to the notice, respondent No.1 entered appearance before the Tribunal, whereas respondent No.2 failed to appear and was placed exparte. Respondent No.1 in its written statement denied the mode and manner of the accident as well as the age, income and avocation of the deceased. It was pleaded that the accident took place on account of negligence of the deceased as he was crossing the road negligently without observing the movements of the traffic. It was further pleaded that the driver of the offending vehicle did not have a valid and effective driving license and had violated the terms and conditions of the insurance 7 policy. It was also urged that the compensation claimed by the claimants is excessive.
3. The Claims Tribunal, on the basis of the pleadings of the parties, framed the issues and recorded the evidence. The Claimant No.1 was examined as PW1 and two witnesses were examined as PW2 and PW3 and got marked 18 documents, namely, Exs.P-1 to P-18. The respondent No.1 examined two witnesses, namely, RW-1 and RW-2 and got exhibited 3 documents, namely, Exs.R-1 to R-3. The Claims Tribunal, on the basis of the evidence on record, inter alia, held that the deceased had contributed towards 25% to the accident as he was trying to cross the road where there was very dense traffic movement and there was no zebra crossing. The Claims Tribunal, however, held that the claimants are entitled to a compensation of Rs.44,18,000/- along with interest at the rate of 6% p.a. Being aggrieved, these appeals have been filed.
4. Learned counsel for the Insurance Company while inviting attention of this Court to the evidence of 8 Lt. Col. Gopalkrishnan K., namely, PW2, has urged that the aforesaid witness in his cross-examination has admitted that the age of retirement of a Subedar is 46 years and since the deceased was employed as Subedar, therefore, the Tribunal ought to have adopted split multiplier method towards computation of loss of dependency.
5. On the other hand, learned counsel for the claimants submitted that the deceased was employed as Subedhar (Junior Engineer Electrical & Mechanical JC331957Y-SUB) and was holding the post of Havaldar. It was further submitted that no plea has been taken in the written statement with regard to applicability of the split multiplier method for computation of loss of dependency. It is further submitted that PW2 in his evidence has stated that the retirement age insofar as it pertains to an employee is dependent upon the rank which the person holds. It is also submitted that the Tribunal ought to have taken into account the future prospects at the rate of 30%.
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6. We have considered the submissions made by learned counsel on both the sides and perused the records. Admittedly, at the time of accident, the deceased was going on the left side of the road, which is evident on the spot sketch. The offending vehicle has traveled from the opposite side and dashed against the deceased who was on the left hand side of the road. Therefore, the finding recorded by the Tribunal that the deceased at the time of accident was trying to cross the road from the place where there was no zebra crossing, is based on the Surmises and Conjectures and cannot be accepted. Therefore, the finding recorded by the Claims Tribunal that the deceased has contributed towards the negligence in causing the accident, is hereby set aside.
7. We may now advert to the issue with regard to application of split multiplier. It is pertinent to mention here that Hon'ble Supreme Court in 'PUTTAMMA AND OTHERS VS. K.L.NARAYANA REDDY 10 AND ANOTHER', 2014 ACJ 526 wherein the Supreme Court has held:-
"34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this court in the case of Sarla Verma, 2009 ACJ 1298 (SC), as affirmed in the case of Reshma Kumari, 2013 ACJ 1253 (SC).
8. In the instant case, it is pertinent to note that in the written statement, no plea with regard to application on split multiplier has been taken and no evidence has been adduced to show that application of split multiplier in the fact situation of the case is necessary. In absence of any evidence on record we are not inclined to accept the plea raised by learned counsel for the Insurance Company.
9. Now we may advert to issue with regard to the quantum of compensation. A Constitution Bench of the Hon'ble Supreme Court in case of 'NATIONAL INSURANCE COMPANY VS. PRANAY SETHI', AIR 2017 SC 5157 has held that the 30% amount has to be added 11 to the income of the deceased. The age of the deceased at the time of accident was aged about 40 years and as per the decision (supra) if the age is between 40-50 years 30% has to be added on account of future prospects. Annual income of the deceased admittedly is Rs.4,81,350/- after deducting the amount towards income tax. To the aforesaid amount 30% has to be added on account of future prospects. Thus the annual income of the deceased comes to Rs.6,25,755/-. Taking into account the number of dependents 1/4th has to be deducted on account of personal expenses. Thus the annual dependency comes to Rs.4,69,316/- and if taking into account the age of the deceased which was 44 years at the time of the accident, multiplier of 14 is applied, the claimants are entitled to a sum of Rs.65,70,424/- on account of loss of dependency. In addition the claimants shall be entitled to a sum of Rs.40,000/- each on account of loss of consortium, as well as loss of love and affection in view of the law laid down by the Hon'ble Supreme Court in case of 'MAGMA GENERAL INSURANCE COMPANY LIMITED VS. NANU RAM @ 12 CHUHRU RAM AND OTHERS.,' (2018) 18 SCC 130. Thus, the claimants are entitled to a sum of Rs.2,00,000/- under the head loss of consortium and loss of love and affection. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus in all the claimants shall be entitled to a sum of Rs.68,00,424/- as compensation. The aforesaid amount shall carry interest at the rate of 6% p.a. from the date of filing of the petition till the payment is made. The amount in deposit may be transmitted to the Claims Tribunal for disbursement to the claimants. To the aforesaid extent, the judgment of the tribunal is modified.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE BVK