Karnataka High Court
Legal Manager vs Smt. Pavitra .S on 28 August, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
M.F.A. NO.6795/2016
C/W
M.F.A. NO.2171/2017 (MV)
M.F.A. NO.6795/2016
BETWEEN:
LEGAL MANAGER
ICICI LOMBARD GIC LTD.,
#89, II FLOOR, SVR COMPLEX
2ND FLOOR, HOSUR ROAD
BANGALORE-68
NOW REP BY ITS
LEGAL MANAGER
ICICI LOMBARD GIC LTD.,
#121, THE ESTATE BUILDING
9TH FLOOR, DICKSON ROAD
BANGALORE-42.
... APPELLANT
(BY SRI. B. PRADEEP, ADV.,)
AND:
1. SMT. PAVITRA .S
W/O LATE SHIVAKUMARASWAMY
NOW AGED ABOUT 25 YEARS.
2
2. AKASH S
S/O LATE SHIVAKUMARASWAMY
NOW AGED ABOUT 5 YEARS.
3. CHANDAN
S/O LATE SHIVAKUMARASWAMY
NOW AGED ABOUT 3 YEARS.
4. CHIKKAMADEGOWDA
S/O LATE DODDAMADEGOWDA
NOW AGED ABOUT 61 YEARS.
5. SUNANDA @ SUNANDAMMA
W/O CHIKKAMADEGOWDA
NOW AGED ABOUT 56 YEARS.
RESPONDENT NOs.2 AND 3 ARE SINCE MINOR
REP. BY THEIR NATURAL GUARDIAN MOTHER
1ST RESPONDENT.
ALL ARE R/AT. SIDDANAHALLI VILLAGE
BEVOORUMANDYA POST
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-571511
PRESENTLY R/AT NO.24,
5TH CROSS, AZAD NAGAR,
BENGALURU-560013.
6. KUMARA S
S/O SUBRAMANYA
NO.11/3, 3RD CROSS, 4TH MAIN
BRHMAPURA, SRIRAMPURA
RAJAJINAGAR, BANGALORE-21.
... RESPONDENTS
(BY SRI. M. PRABHAKAR, ADV., FOR R1, R4 & R5
R2 & R3 ARE MINORS REP. BY R1
R6 SERVED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.07.2016 PASSED
IN MVC NO.2550/15 ON THE FILE OF THE 21ST ADDITIONAL
SMALL CUASE JUDGE & 19TH ACMM, MEMBER, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.25,20,000/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.
3
M.F.A. NO.2171/2017
BETWEEN:
1. SMT. S. PAVITHRA
S/O LATE SHIVAKUMARASWAMY
AGED ABOUT 25 YEARS.
2. SRI. S. AKASH
S/O LATE SHIVAKUMARASWAMY
AGED ABOUT 5 YEARS.
3. SRI. CHANDAN
S/O LATE SHIVAKUMARASWAMY
AGED ABOUT 3 YEARS.
4. SRI. CHIKKAMADEGOWDA
S/O LATE DODDAMADEGOWDA
AGED ABOUT 62 YEARS.
5. SMT. SUNANDA @ SUNANDAMMA
W/O CHIKKAMADEGOWDA
AGED ABOUT 57 YEARS.
APPELLANTS NO.2 & 3 ARE MINORS
REPRESENTED BY THEIR MOTHER AND
NATURAL GUARDINA SMT. S. PAVITHRA
APPELLANT NO.1.
ALL ARE R/AT SIDDANAHALLI VILLAGE
BEVOORUMANDYA POST
CHANNAPATANA TALUK
RAMANAGARA DISTRICT.
PRESENTLY R/AT. NO.24, 5TH CROSS
AZAD NAGAR, BENGALURU.
... APPELLANTS
(BY SRI. M. PRABHAKAR, ADV.,)
AND:
1. SRI. S. KUMAR
S/O SUBRAMANYA, MAJOR
OWNER OF SWRAJ MAZDA
BEARING NO. KA-52-3595
4
R/AT NO.11/3, 3RD CROSS, 5TH MAIN
BRAHMAPURA, SRIRAMPURA,
RAJAJINAGARA, BENGALURU-560 021.
2. ICICI LOMBARD GEN. INS., CO. LTD.,
REP: BY ITS MANAGER
POLICY NO.3004/A/81613235/01/000
FROM 24.07.2014 TO 23.07.2015
REGIONAL OFFICE, NO.89
2ND FLOOR, C.V.R. COMPLEX
HOSUR MAIN ROAD, MADIWALA
BENGALURU-560 068.
... RESPONDENTS
(BY SRI. B. PRADEEP, ADV., FOR R2
V/O DTD:20-06-2018 NOTICE TO R1 IS D/W)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.07.2016 PASSED
IN MVC NO.2550/2015 ON THE FILE OF THE XXI ADDITIONAL
SENIOR CIVIL JUDGE AND XIX ACMM, MEMBER-MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE M.F.As. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.6795/2016 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the insurance company, whereas, M.F.A.No.2171/2017 under the Act has been filed by the claimants seeking enhancement of the amount of compensation. Since, both the appeals arise out of the same accident and the judgment dated 05.07.2015 passed by the 5 Motor Accident Claims Tribunal (hereinafter referred to as 'the MACT' for short), they were heard together and are being decided by this common judgment.
2. Facts leading to filing of these appeals briefly stated are that on 04.11.2014 at about 10.30 p.m., deceased Shivkumar Swamy was riding Hero Honda Motor cycle bearing registration No.KA-42-J-652 along with his friend from Channapatna towards Siddanahalli. When they reached Bugubanadoodi, Channapatna Taluk, one Swaraj Mazda bearing registration No.KA52-3595, which was being driven in a rash and negligent manner by its driver came from the opposite direction and dashed the motor cycle driven by the deceased. As a result of the aforesaid accident, the deceased as well as pillion rider fell down and sustained grievous injuries. The deceased succumbed to the injuries.
3. The claimants thereupon filed a petition under Section 166 of the Act inter alia on the ground that deceased at the time of the accident was aged about 32 years and was working in Sannitha Granites, Industrial Area, Maddur and was also engaged in agricultural operations and used to earn 6 Rs.30,000/- p.m. It was further pleaded that deceased was the only earning member of the family and the accident took place on account of rash and negligent driving of the Swaraj Mazda Mini bus by its driver. The claimants claimed compensation to the extent of Rs.50 Lakhs.
4. The respondent No.1 did not enter appearance and was proceeded exparte. The respondent No.2 filed the written statement in which inter alia it was pleaded that the accident did not take place due to negligence of the driver of the Swaraj Mazda Mini Bus. However, it was admitted that aforesaid mini bus was insured with respondent No.2 and the respondent No.1 had handed over the vehicle to a driver who was not having valid and effective driving licence. Thus, the vehicle was being plied in breach of the terms and conditions of the policy and the claimants are not entitled to any relief.
5. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues. The claimants in support of their case examined two witnesses viz., Smt.Pavithra (PW1) and R.G.Nazir Khan (PW2) and exhibited 18 documents as Ex.P1 to Ex.P18. The respondents neither adduced any oral 7 nor any documentary evidence. The Claims Tribunal vide impugned judgment inter alia held that the accident took place on account of rash and negligent driving of the driver of the Swaraj Mazda Mini Bus, as a result of which accident took place and deceased sustained injuries and expired. It was further held that claimants are entitled to compensation to the tune of Rs.25,20,000/- along with interest at the rate of 6%. Being aggrieved, these appeals have been filed.
6. Learned counsel for the claimants submitted that the Tribunal grossly erred in assessing the income of the deceased notionally at Rs.10,000/-. It is further submitted that the employer was examined before the Tribunal who has stated that he used to pay a sum of Rs.25,000/- per month to the deceased and therefore, the Tribunal ought to have treated the monthly income of the deceased at Rs.25,000/- and should have also added the amount of 40% on account of future prospects. Thereafter, the loss of dependency should have been computed accordingly. On the other hand, learned counsel for the insurance company has submitted that in the absence of any evidence with regard to the 8 income, the notional income of the deceased ought to have been assessed at Rs.8,500/- and the amount on account of loss of consortium and loss of love and affection has been awarded in contravention of the law laid down by the Supreme Court in 'NATIONAL INSURANCE COMPANY LTD V. PRANAY SETHI', AIR 2017 SC 5157.
7. We have considered the submissions made by learned counsel on both the sides and have perused the record. Even though PW1 Pavithra viz., the widow and R.G.Nazir Khan (PW2) have stated in their evidence that deceased was employed in Sannitha Granites, Industrial Area, Maddur, however, it is pertinent to mention here that neither any document has been filed to show that PW2 is either associated in any manner with Sannitha Granites nor any document has been filed to show that deceased was employed in Sannitha Granites, Industrial Area, Maddur. It is pertinent to mention here that PW2 has admitted in his evidence that in respect of the employees, pay role as well as attendance sheet is maintained. However, neither the pay role nor the attendance sheet has been produced. Therefore, 9 the claimants have not adduced any evidence with regard to income of the deceased. However, the deceased had passed SSLC examination and was maintaining his wife and two minor children and parents and was engaged in agricultural operations as well. Therefore, in the facts of the case, the income of the deceased can safely be inferred to be Rs.10,000/- in view of law laid down by the Supreme Court in 'NATIONAL INSURANCE COMPANY LTD V. PRANAY SETHI', AIR 2017 SC 5157, 40% of the amount is required to be added towards future prospects. Thus, the monthly income of the deceased comes to Rs.14,000/-. Out of the aforesaid amount, 1/4th of the amount is required to be deducted on account of personal expenses as number of dependants is 5. Thus, the amount of monthly dependency comes to Rs.10,500/-. The claimants are held entitled to a sum of (Rs.10500x12x16) Rs.20,16,000/-, on account of loss of dependency. In view of laid down by Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL 10 NO.2705/2020 DECIDED ON 30.06.2020, each of the claimants is held entitled to a sum of Rs.40,000/- on account of consortium as well as loss of love and affection. The claimants are held entitled to a sum of Rs.2,00,000/- under the aforesaid head. In addition, they are held entitled to a sum of Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a sum of Rs.22,46,000/-. Needless to state that the aforesaid amount shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent the judgment passed by the Claims Tribunal is modified. The amount in deposit shall be transmitted to the Claims Tribunal for disbursement.
In the result, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss