Karnataka High Court
Gopayya And Ors vs Anand & Anr on 21 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
MISCELLANEOUS FIRST APPEAL NO.202098/2017 (MV)
C/w
MISCELLANEOUS FIRST APPEAL NO.202019/2017 (MV)
In MFA No.202098/2017
BETWEEN
1. Gopayya S/o Tirupati Kasturi,
Age 62 years, Occ. Business and Agriculture (now nil),
2. Smt.Nirmala W/o Gopayya Kasturi,
Age 51 years, Occ. Household,
3. Vijaylaxmi D/o Gopayya Kasturi,
Age 29 years, Occ. Household,
All are residing at H.No.13/81, Ward No.6,
Sadguru Nagabhushan Nilaya,
Near Mandakini English Medium School,
Ganesh Nagar, Shahapur,
Now residing at H.No.2-811,
Opp. M.R.Medical College,
Sedam Road, Kalaburgi.
...Appellants
(By Sri S.V.Paraddy, Advocate)
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AND
1. Anand S/o Sangangouda Police Patil,
Age 28 years, Occ. Business and owner of the vehicle
bearing Reg.No.KA-32-A-7930,
R/o Plot No.5/A, GDA, 2nd N.D.Block,
Veerendra Patil, Sedam Road, Kalaburgi.
2. The United Assurance Co.Ltd.,
Through its Divisional Manager,
Dr.B.G.Jawali Complex,
Super Market, Kalaburgi
Police No.2406003114P107310950
Valid from 11.12.2014 to 10.12.2015
...Respondents
(By Sri S.S.Aspalli, Advocate for R2;
Notice to R1 served)
This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicles Act praying to call for
records in MVC No.283/2016 passed by the I Additional
Senior Civil Judge and MACT at Kalaburagi and to allow the
appeal and award compensation of Rs.64,00,000/- along
with interest of 18% per annum by modify the judgment
and award dated 16.08.2017 passed by I Additional Senior
Civil Judge and MACT at Kalaburagi in MVC No.283/2016.
In MFA No.202019/2017
BETWEEN
The United India Insurance Co.Ltd.,
Through its Divisional Manager,
Dr.B.G.Jawali Complex, Super Market,
Kalaburgi.
...Appellant
(Sri S.S.Aspalli, Advocate)
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AND
1. Gopayya S/o Tirupati Kasturi,
Age 62 years, Occ. Business and Agriculture (now nil),
2. Smt.Nirmala W/o Gopayya Kasturi,
Age 50 years, Occ. Household,
3. Vijaylaxmi D/o Gopayya Kasturi,
Age 29 years, Occ. Household,
All are residing at H.No.13/81, Ward No.6,
Sadguru Nagabhushan Nilaya,
Near Mandakeni English Medium School,
Ganesh Nagar, Shahapur,
Now residing at H.No.2-811,
Opp. M.R.Medical College,
Sedam Road, Kalaburgi.
4. Anand S/o Sangangouda Police Patil,
Age 28 years, Occ. Business and owner of the vehicle
R/o Plot No.5/A, GDA, 2nd N.D.Block,
Veerendra Patil, Sedam Road, Kalaburgi.
...Respondents
(By Sri S.V.Paraddy, Advocate for R1 to R3;
Notice to R4 served)
This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicles Act praying to call for
records in MVC No.283/2016 passed by the I Additional
Senior Civil Judge and MACT at Kalaburagi and to set-aside
the judgment and award dated 16.08.2017 in MVC
No.283/2016 passed by the I Additional Senior Civil Judge
and MACT at Kalaburagi by allowing the above appeal.
These appeals coming on for admission this day,
K.N.PHANEENDRA J., delivered the following:
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JUDGMENT
MFA No.202098/2017 is filed by the aggrieved claimants in MVC No.283/2016 vide award dated 16th of August, 2017 passed by the I Additional Senior Civil Judge and MACT, Kalaburagi for enhancement of the compensation. Wherein against the same judgment and award the Insurance Company has also preferred an appeal in MFA No.202019/2017. Both the matters connected with each other, they are clubbed and common judgment is passed.
2. The appellants claimants have called in question the said judgment and award passed by the Tribunal only on the main contention that the Tribunal has not taken the monthly income of the deceased who was a Bachelor holder of Business Management degree and he was given with an offer letter by a company i.e., I Process Service (India) Private Limited, New Delhi and subsequently he was deputed to Bengaluru. The offer letter has been produced at Ex.P.9 and as well as Ex.P.11 -5- which is the deputation letter. They show that the salary offer was at Rs.11,660/-.
3. Per contra in the appeal filed by the Insurance Company the learned counsel appearing for the appellant strenuously contended that the Tribunal has taken Rs.11,660/- salary is not proper because of the reason that no salary certificate has been produced and joining report is also not been produced. Therefore, the salary, which has not been taken by the deceased at any point of time, the claimants, could not have claimed such an amount. Therefore, he claims that the Tribunal has committed serious error in considering Rs.11,660/- as the monthly income of the deceased.
4. After securing the lower court records, we have carefully perused the oral and documentary evidence produced by the claimants before the Tribunal. The documents which are produced before the court clearly discloses that as per Ex.P.9 a letter issued by the above said company to the deceased Pradeep, Ex.P.10 is the -6- joining letter and Ex.P.11 is the letter showing deputation of Pradeep to Bengaluru. These documents i.e., particularly Ex.P.10 also shows if he joined the duty his salary would be Rs.11,660/-. The Tribunal has taken the salary of the deceased rounding of the same to Rs.12,000/- per month and out of the said amount 50% has been added towards future prospects and total annual income of the deceased was calculated at Rs.2,16,000/-. Calculating the same applying the multiplier, it is the loss of dependency an amount of Rs.19,44,000/- is added.
5. The learned counsel for the Insurance strenuously contends that as said person has not produced any salary certificate. There is no presumption that he joined the duty and drawn the salary.
6. We failed to accede to the submission made by the learned counsel because once an offer letter has been issued by the company and accepted by the deceased the potentiality of the deceased has been shown to the court that if he would have joined the duty, he had the capacity -7- to earn Rs.12,000/- per month. It cannot be said that throughout his life he would have receive the salary of Rs.12,000/-. Therefore, there should have been some hike in the salary as such the Tribunal has taken same into consideration the potentiality of the deceased who has completed the Bachelor of Business Management and particularly he was in the door steps of the appointment. Therefore, adding of 50% towards future prospects is nowhere illegal by the Tribunal. Therefore, we do not want to disturb the awarding of the compensation towards the loss of dependency as awarded by the Tribunal. However, the Tribunal has awarded an amount of Rs.75,000/- towards loss of love and affection. The deceased had no wife and children and the claimants are the parents of the deceased. Therefore, awarding of an amount of Rs.75,000/- towards loss of love and affection may not be a proper and correct. However, the Tribunal has awarded Rs.30,000/- towards funeral and transportation of dead body and medical expenses of Rs.1,90,537/- is also proper and correct. Hence, in all the claimants are entitled for -8- compensation of Rs.22,39,527-75,000=21,64,527/- as against the total sum of Rs.22,39,527/- as awarded by the Tribunal.
7. Sofar as interest, releasing of the money and deposit are concerned the order of the Tribunal is not disturbed.
8. The learned counsel for the Insurance Company also contended before this court that there is considerable delay in filing the complaint regarding the accident. After three days of the accident the complaint has been filed. Further it is contended that all the documents have been created for the purpose of getting compensation before the Tribunal. The said documents have been produced before the Tribunal and they were all subjected to cross-examination by the Insurance Company. It appears except making suggestion in the course of cross-examination no independent enquiry has been conducted or the police reports submitted by the police, have not been challenged before the court for -9- seeking quashing of the said proceedings. Therefore, it remains as a defence before the Tribunal by the Insurance Company, which ought to have taken steps to disprove the said documents by adducing cogent and convincing evidence before the Tribunal. The Tribunal having considering the said defence taken by the Insurance Company has come to the conclusion that, the claimants have made-out a case and due to the negligence of the driver of the impugned vehicle, the accident was happened but now seriously the above defence has been taken by the Insurance Company. We don't find any strong reasons to divert ourselves from the opinion expressed by the Tribunal. Hence, we are of the opinion, there is no need to interfere with the judgment passed by the Tribunal. However, as we have noted above the compensation awarded by the Tribunal is little on the higher side. Therefore, the same is ordered to be reduced as noted above. In view of the above said findings the following order is passed ;-
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ORDER Both the miscellaneous first appeals are disposed of in the light of the above said observations.
The amount in deposit is ordered to be transmitted to the Tribunal in the appeal filed by the Insurance Company.
Registry is hereby directed to send back the lower court record forthwith.
Sd/-
JUDGE Sd/-
JUDGE sn