Karnataka High Court
The New India Assurance Co. Ltd., vs Smt. Suma W/O Ratnakar Gogi, on 2 July, 2013
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 2nd day of July 2013
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
Miscellaneous First Appeal No.24535/2010 (MV)
C/w M.F.A. Crob No.878/2012
In M.F.A. No.24535/2010
Between:
The New India Assurance Company
Limited, Represented by its
Divisional Manager, Divisional Office,
Arya Ediga Hostel, Complex,
Double Road, Bellary.
Represented by its Regional
Manager, Regional Office,
II Floor, Srinath Complex,
New Cotton Market, Hubli-580029. ...Appellant
(By Sri. G.N.Raichur, Advocate)
And:
1. Smt. Suma, W/o Ratnakar Gogi,
Age: 26 years, Occ: Household work,
R/o: Muddebihal, Now at Koppal.
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2. Siddantha, S/o Ratnakar Gogi,
Age: 2 years, R/o Muddebihal,
Now at Koppal, since minor
Represented through guardian
Mother i.e., petitioner No.1.
3. Bahubali, S/o Gundappa Gogi,
Age: 61 years, Occ: Agri/Business,
R/o Muddebihal, Now at Koppal.
4. Sridhar, S/o Baburao Parabhat,
Age: 36 years, Occ: Driver,
R/o Krishnapur Oni, Hubli.
(Driver of Tanker No.KA-25/A-5625)
5. Murugeppa, S/o Gurusiddappa Indi,
Age: 51 years,
R/o: C/o Indi Petrol Pump,
Karwar Road, Hubli,
Dist: Dharwad. (Owner of Tanker
No.KA-25/A-5625) ...Respondents
(By Sri. Laxman T.Mantagani, Advocate for R1 to R3
Sri. C.B.Patil, Advocate for R5)
(R4 - notice dispensed)
--------
This appeal is filed under Section 173(1) of the
Motor Vehicles Act against the judgment and award
dated 03.09.2010 passed in MVC No.666/2009 on the
file of the Member, Additional MACT and Presiding
Officer, Fast Track Court-I, Koppal, awarding the
compensation of Rs.51,33,000/- with interest at the
rate of 8% p.a. from the date of petition till the date of
deposit.
--------------
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In MFA Crob No.878/2012
Between:
1. Smt. Suma, W/o Ratnakar Gogi,
Age: 26 years, Occ: Household work,
R/o: Muddebihal, Now at Koppal.
2. Siddantha, S/o Ratnakar Gogi,
Age: 2 years, R/o Muddebihal,
Now at Koppal, since minor
Represented through guardian
Mother i.e., petitioner No.1.
3. Bahubali, S/o Gundappa Gogi,
Age: 61 years, Occ: Agri/Business,
R/o Muddebihal,
Now at Koppal. ...Cross Objectors
(By Sri. G.R.Turmari for Sri. Laxman T.Mantagani, Adv.)
And:
1. Sridhar, S/o Baburao Parabhat,
Age: 36 years, Occ: Driver,
R/o Krishnapur Oni, Hubli.
2. Murugeppa, S/o Gurusiddappa Indi,
Age: 51 years, Occ: Business,
R/o: C/o Indi Petrol Pump,
Karwar Road, Hubli,
3. The New India Assurance Company
Limited, Represented by its
Divisional Manager, Divisional Office,
Arya Ediga Hostel, Complex,
Double Road, Bellary.
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Represented by its Regional
Manager, Regional Office,
II Floor, Srinath Complex,
New Cotton Market, Hubli-580029. ...Respondents
(By Sri. G.N.Raichur, Advocate for R3)
This MFA cross objections is filed under Order 41
Rule 22 of CPC against the judgment and award dated
03.09.2010 passed in MVC No.666/2009 on the file of
the Member, Addl. MACT and Presiding Officer, Fast
Track Court-I, at Koppal, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This appeal and cross objections coming on for
Admission this day, N.Kumar, J, delivered the
following:
JUDGMENT
This appeal is preferred by the insurance company challenging the judgment and award passed by the Additional Motor Accident Claims Tribunal & Fast Track Court-I at Koppal, awarding a sum of Rs.51,33,000/- as compensation for the death of lone bread-earner of the family.
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2. For the purpose of convenience, the parties are referred to as they are referred to in the claim petition.
3. The 1st claimant is a young widow of the deceased Ratnakar Gogi, the 2nd claimant is one year child and the 3rd claimant is the father of the deceased. On 01.04.2009, at about 3.30 p.m., the deceased Ratnakar Gogi was traveling in the car bearing No.KA- 25/A-5625 on his office duty. The car was driven by one Krishnamurthy. When the car reached Belavinal Seema on N.H.63, the tanker bearing No.KA-25-A-5625 driven by its driver in a rash and negligent manner came from the opposite direction and dashed against the car. The deceased and the driver of the car died at the spot. Therefore, the claimants preferred a claim petition claiming a sum of Rs.80,00,000/- as compensation. It is their specific case that the deceased was a Masters Degree holder in Agricultural Sciences and that he was employed, as on the date of death, in Monsanto a multi- :6: national company as a Territorial Manager earning a sum of Rs.7,20,000/- per annum.
4. After service of notice, the respondents entered appearance. The 1st respondent is the driver and 2nd respondent is the owner of the Tanker, and the 3rd respondent is the insurance company. They contested the claim petition. They did not dispute the accident and the death of the deceased. But, their defence was that the accident was on account of rash and negligent driving of the driver of the car and, therefore, they were not liable to pay compensation.
5. On the aforesaid pleadings, the Tribunal framed the following issues:
"1. Whether the petitioner proves that, the deceased Ratnakar Gogi died in the accident which occurred on dated 01.04.2009 at abut 3.30 p.m. on Koppal to Hospet N.H.63 road, at Belavinahal Seema, due to rash and negligent driving :7: of Tanker bearing No.KA-25-A-5625 by its driver/respondent No.1?
2. Whether the petitioner is entitled for copensation? If so, how much and from whom?
3. What order or award?"
6. The claimants, in order to substantiate their claim, examined 1st claimant as P.W.1, one Shri. Ningappa an eye witness to the accident as P.W.2 and Shri. Shambulinga, the Manager of Monsanto Company, as P.W.3. They also produced 32 documents which are marked as Exs.P.1 to P.32. On behalf of the insurance company, the Assistant Manager, Shri. B.V.Venkatesha, was examined as R.W.1. They marked the insurance policy as Ex.R.1. The Tribunal, on consideration of the aforesaid oral and documentary evidence on record, held that the accident was on account of rash and negligent driving of the driver of the tanker in question and thus, :8: the claimants had established actionable negligence and consequently they were entitled to compensation. Thereafter, it took note of the educational qualification of the deceased and the fact that he was employed in Monsanto company and was drawing salary of Rs.4,61,604/- per annum; it deducted 1/3rd of the income towards his personal expenses; the deceased being aged 28 years, it applied multiplier of '17' and, thereafter, had arrived at a sum of Rs.51,08,000/- as compensation payable under the head 'loss of dependency'. The Tribunal also awarded a sum of Rs.5,000/- to the 1st claimant towards 'loss of consortium', Rs.5,000/- towards 'grief and mental agony', Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. Thus, in all, a sum of Rs.51,33,000/- was awarded as compensation. The said amount was directed to be paid with interest at 8% per annum from the date of petition till the date of deposit. :9:
7. Aggrieved by the said judgment and award passed by the Tribunal, the insurance company has preferred this appeal. After service of notice of this appeal, claimants have preferred cross-objections seeking enhancement of compensation.
8. Learned counsel for the insurance company assailing the impugned judgment and award urged three grounds. Firstly, he contended that the claimants had filed a petition earlier claiming compensation which came to be dismissed for default and, therefore, the second petition was not maintainable. Secondly, it was contended that the accident occurred in the middle of the road, therefore, even if the driver of the tanker in question was held to be negligent, it was a case of contributory negligence and the driver of the car also should have been held to have contributed to the extent of 50% to the accident. Thirdly, it was contended that the amount of compensation awarded is excessive. He : 10 : submitted that, on the date of death of the deceased, he had just completed 79 days' service in Monsanto company, he was on probation; there is no evidence placed on record to show that, after completion of the probationary period, he would have been absorbed in service. Further, the documents produced show that a sum of Rs.9,500/- was paid as special allowance which ought not to have been taken into consideration in deciding the loss of dependency. Further, it was contended that the Tribunal has deducted only a sum of Rs.10,899/- towards income tax which was deducted when he was employed with the Reliance as per Ex.P.31 when his salary was Rs.1,38,000/- and, therefore, it was submitted that the award requires to be set aside.
9. Per contra, learned counsel appearing for the claimant not only supported the impugned award but, in support of their counter claim, also contended that the deceased was duly qualified as a M.Sc degree holder in : 11 : Agriculture. The evidence on record shows that he had been jumping from one employment to another and was drawing a high salary and, therefore, the Tribunal committed a serious error in not awarding 50% of the base amount towards future prospects and therefore, he submits that a case for enhancement of compensation is made out. He also submitted that the amount of compensation awarded under conventional heads is very low and it requires to be enhanced.
10. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:
i) Is the claim petition filed not
maintainable?
ii) Whether the case of contributory
negligence has been made out?
iii) Whether the compensation awarded by the Tribunal is a just compensation, or a : 12 : case for enhancement or reduction is made out?
11. Point No.1 It is not in dispute that the claimant had preferred a claim petition claiming compensation in M.V.C. No.315/2009 earlier. Unfortunately, the said petition came to be dismissed for non-prosecution. Immediately, thereafter, they preferred the present claim petition. The cause of action for this claim petition is the death of the deceased. Till the compensation is paid or rejected on merits, the cause of action to claim compensation continues. It is a case of continuing cause of action. By amendment to the Motor Vehicles Act, in the year 1988, the period prescribed as limitation for filing the claim petition was deleted. In other words, today, no limitation is prescribed for preferring a claim petition under the Act. In that view of the matter, when a cause of action is continuing one and when no period of limitation is : 13 : prescribed for preferring a claim petition, merely because, a petition has been field which came to be dismissed for non-prosecution would not render the second petition for compensation not maintainable. Therefore, we do not see any merit in the said contention and, accordingly it is rejected.
12. Point No.2 It is not in dispute that the accident had occurred in the middle of the road. Ex.P.8 is the sketch on which reliance is placed by both the parties. A bare perusal of the sketch shows that the car was proceeding towards Koppal from Hospet side, whereas the tanker was proceeding from Koppal towards Hospet side. The sketch further discloses that the car was on the left side of the road, the tanker was also on the left side of the road. It is the tanker which came to the right side and hit the car, which was proceeding on the correct side of the road. The measurement mentioned in the sketch shows that there : 14 : was 15 feet gap between the left side of the footpath and the place of the accident in which direction the lorry was proceeding, whereas it was only 12 feet to the left of the car and the accident. Therefore, it is obvious that it was the lorry which crossed the middle of the road and dashed against the car which was coming in the opposite direction on the right side. Therefore, the Tribunal on proper appreciation of the evidence on record rightly held that the accident was on account of rash and negligent driving of the driving of the tanker and the driver of the car had no role to play and, in fact, he had died in the accident at the spot. P.W.2, who is the complainant and also an eye witness to the incident, has spoken about the accident which is consistent with the sketch produced in the case. In that view of the matter, when the Tribunal has recorded a finding of fact on the basis of the legal evidence, we do not find any justification to interfere with the said finding of fact recorded by the Tribunal. Hence, we do not see any merit in the second contention also. : 15 :
13. Point No.3 Insofar as the award of compensation is concerned, the evidence on record discloses that the deceased was a Masters Degree holder in Agricultural Sciences. He obtained his degree from the University of Agricultural Sciences, Dharward, in the year 2001 and the Masters degree in the year 2003 in Agricultural Entomology. He was appointed as an Assistant Manager in Reliance Industries Limited on a salary of Rs.3,25,000/- per annum as per Ex.P.23. He was also eligible for performance linked incentive of Rs.25,000/- Subsequently, he has been appointed as a Territorial Manager (Sales) by Monsanto India Limited with starting salary of Rs.17,000/-. The certificate issued by Monsanto India Limited as per Ex.P.28 shows the other emoluments which was paid to him was Rs.8,500/-towards HRA, Rs.800/- towards conveyance allowance, Rs.9,500/- towards special allowance, Rs.1,417/- towards : 16 : leave/travel allowance and Rs.1,250/- towards medical allowance. Thus, his gross salary was Rs.38,467/- per month and the salary per annum was Rs.4,61,604/- and the aforesaid emoluments was paid to the deceased during probationary period. After completion of six months period, he would have been confirmed. Unfortunately, even before his confirmation, he died in the accident in the course of his employment. A sum of Rs.20,753/- was deducted for the month of March 2009 and Rs.20,714/- was deducted for the month of April 2009 towards income tax. The evidence on record clearly establishes that the deceased was drawing salary of Rs.38,467/- per month. In all Rs.4,61,604/- per annum. However, out of the said amount we have to deduct income tax payable which would be around Rs.1,00,000/-. After giving deduction to the income tax, we could take the basic figure as Rs.3,60,000/-. Out of Rs.3,60,000/- 1/3rd has to be deducted towards his personal expenses. Thus, the multiplicand would be : 17 : Rs.2,40,000/- p.a.. As he was aged 28 years, multiplier applicable is 17 and therefore, the compensation payable under the head 'loss of dependency' would be Rs.40,80,000/-. The Tribunal has awarded a meager sum under the conventional heads. The first claimant, a young widow, is entitled to consortium at the rate of Rs.20,000/-, father of the deceased and the son of the deceased are entitled to a sum of Rs.10,000/- each towards loss of love and affection. A sum of Rs.10,000/- towards loss of estate and yet another sum of Rs.10,000/- towards funeral expenses. Thus in all a sum of R.60,000/- is awarded towards conventional heads. Thus, the claimants are entitled to a sum of Rs.41,40,000/-.
14. Learned counsel for the claimant contended, in view of the judgment of the Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009 ACJ 1298), claimants are entitled to : 18 : 50% of the amount so awarded towards future prospectus in life.
15. It is a case of permanent employee where he has a definite job and particular pay sale and periodical promotion. It is only in those cases the Apex Court had held that the claimants should be entitled to additional compensation by way of future prospects. In the instant case, the evidence on record shows that the deceased was jumping from one job to another. Therefore the deceased was not in a permanent employment. Therefore, claimants are not entitled to compensation towards future prospects. In that view of the matter, we do not see any merit in the cross-appeal. Hence, we pass the following ORDER
(i) The appeal is partly allowed.
(ii) In substitution of the award of the Tribunal, we award a sum of Rs.41,40,000/- as : 19 : compensation with interest at the rate of 8% per annum from the date of petition till the date of payment. Apportionment of the compensation shall be in terms of the order of the Tribunal.
(iii) Cross-objection is dismissed.
(iv) Parties to bear their own costs.
The amount deposited by the insurance company before this Court shall be transmitted to the Tribunal forthwith for being paid to the claimant.
SD/-
JUDGE SD/-
JUDGE Kms/Kmv