Karnataka High Court
The New India Assurance Company Limited vs Smt. Veena Sinha @ Vina Sinha on 2 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2413, 2021 (1) AKR 659
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.8578 OF 2016(MV)
BETWEEN:
The New India Assurance Company Limited,
TP Claims Hub, 2nd floor,
Mahalakshmi Chambers,
No.9/2, M.G. Road,
Bangalore-560 001,
By its Manager.
.... Appellant
(By Sri. H.S.Lingaraj, Adv.)
AND
1. Smt. Veena Sinha @ Vina Sinha,
Wife of Shri Krishna Mohan,
Aged about 56 years.
Permanent resident of
No.A-122, Dayal Sadan,
No.18, Rajivnagar,
Patna-800 024, Bihar.
Presently residing at
2
C/O Ankith, No.B-303,
Vesions Lansdale,
Opp. Sigma Techpark,
Near Forum Value Mall,
Next to Prestige Ozon Villa,
Whitefield, Bangalore-560 066.
2. Smt. Sonal Sinha,
Daughter of Shri. Krishna Mohan,
Aged about 33 years,
Residing at Flat No.B-402,
Splendid Square,
S.No.277, Dhanoti,
Lothegaon Road,
Pune-411 047, Maharashtra.
3. Shri. Johnlagadda Venkatappaiah @
Venkatappaiah Jonnalagadda,
Son of Shri. Tirupathaiah,
Major,
Residing at No.5-92/A,
Indiranagar, Mulapadu Post,
Ibrahimpatna Mandal,
Krishna District,
Vijayawada Thermal Station,
Andhra Pradesh-521 456.
...Respondents
(By Sri. G. Sukumaran, Adv. for R1& R2:
R3 is served and unrepresented)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated: 25.10.2016
passed in MVC No.2255/2013 on the file of the IX
3
Additional Small Causes Judge, & XXXIV. ACMM,
Member, MACT-7, Court of small causes, Bangalore,
awarding compensation of Rs.41,22,560/- with
interest @ 6% p.a. from the date of petition till
payment.
This MFA Coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
JUDGMENT
This appeal 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 being aggrieved by the judgment dated 25.10.2016 passed by the Motor Accident Claims Tribunal, Bangalore.
2. Facts giving rise to the filing of the appeal briefly stated are that on 30.11.2012 at about 5.13 p.m. the deceased was proceeding on his motorcycle bearing registration No.KA-03-HK-7614, when he was 4 trying to take a right turn to move towards Prashanth Layout, ITPL Main Road, Bangalore City very carefully, cautiously and observing traffic rules, at that time, all of a sudden, a Trailer Lorry bearing Registration No.AP-16-TX-3349, driven by its driver at high speed, came in a rash and negligent manner and dashed against the motorcycle of the deceased and he fell down and wheel of the lorry ran over the head of the deceased. Due to the said impact, the deceased sustained severe grievous injuries all over the body and died at the spot.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 26 years at the time of accident and was employed as an Asst. System Engineer at TCS, Whitefield and was earning Rs.28,000/- per month. The claimants claimed compensation to the tune of Rs.90,00,000/- along with interest. 5
4. On service of summons, the respondents appeared through counsel and filed written statements in which the averments made in the petition were denied. The respondent No.1, insurance company has pleaded that the petition is not maintainable either in law or on fact. It has further pleaded that the Trailer Lorry bearing registration No.AP16/TX-3349, was covered by "Commercial Vehicle Package" Policy No.62082231110100010095 valid from 10.02.2012 to 09.02.2013. It has further pleaded that the liability of the Insurance Company, if any, is subject to terms and conditions of the insurance policy. It has further pleaded that the driver of the Lorry bearing registration No.AP-16/TX-3349 was not having valid driving licence as on the date of accident. It has further pleaded that at the time of accident, the owner of the lorry had no valid certificate of fitness and permit. It has further pleaded that the accident 6 occurred on account of actionable negligence of two drivers namely, driver of motorcycle bearing registration No.KA-03-/HK-7614 ridden by the deceased and driver of lorry bearing registration No.AP-16/TX-3349. As such, both the vehicles involved in the accident must be held to be guilty of composite negligence. The owner and insurer of the other vehicle i.e., motorcycle are not impleaded, hence, the present case is not maintainable. It has further pleaded that the amount of compensation claimed is highly exaggerated, illegal and fanciful. Hence, respondent No.1-Insurance Company prays for dismissal of the claim petition.
The respondent No.2-owner of the lorry bearing registration No.AP-16/TX-3349, has pleaded that he was having valid permit and driver of the lorry was having valid driving licence at the time of the accident, and the vehicle is insured with the 1st 7 respondent and the policy was in force at the time of alleged accident. It has further pleaded that claim of the claimants is false and highly excessive. Hence, he prays for dismissal of the claim petition against respondent No.2.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined two witnesses as PWs-1 and 2 and got exhibited documents namely Ex.P1 to Ex.P25. On behalf of respondents, five witnesses were examined as RWs-1 to 5 and got exhibited documents namely Ex.R1 to Ex.R44. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle bearing registration No.AP- 16/TX-3349 by its driver, as a result of which, the deceased sustained injuries and succumbed to the 8 injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.41,22,566/- along with interest at the rate of 6% p.a. and directed the respondent No.1 to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. Sri. H.S.Lingaraj, learned counsel appearing for the insurance company has urged mainly on two grounds. Firstly, the tribunal while assessing the 'loss of dependency', instead of considering the age of the mother of the deceased, has considered the age of the deceased for applying the multiplier. But he submits that in view of the subsequent judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], the age of the deceased considered by the tribunal for applying multiplier is correct and he will 9 not press on that ground. Secondly he has urged that the claimants have received a sum of Rs.18,90,864/- from the insurance company as benefit under Group Accident Insurance Policy, taken by the employer, for which no contribution was made by the deceased as an employee. The tribunal failed to deduct the same from the total compensation awarded to the claimants. In support of his contention, he has relied upon the decision of the Apex Court in the case of Helen C. Rebello (Mrs) and Others -v-
Maharashtra State Road Transport Corporation and Another (1999 (1) SCC 90). Hence, he prays for allowing the appeal.
7. Per contra, learned counsel appearing for the claimants has contended that the Group Accident Insurance Policy is taken on contribution of both employer as well as employee. The said amount cannot be deducted from the compensation awarded 10 by the tribunal. In support of his contention, he has relied upon the decision of the Apex Court in the case of Sebastiani Lakra and Ors. -v- National Insurance Company Limited and Anr. (AIR 2018 SC 5034). Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the judgment and award of the Tribunal.
9. It is not in dispute that deceased Sri.Saurab Sinha died in the road traffic accident occurred on 30.11.2012 due to rash and negligent driving of the Lorry bearing registration No.AP-16/TX- 3349 by its driver. The only contention raised by the appellant is that the claimants have received a sum of Rs.18,90,864/- from the insurance company as benefit under Group Accident Insurance Policy and the same has not been deducted by the tribunal from the 11 compensation. It is very clear from the evidence of the parties and materials available on record that this group insurance policy is taken on the contribution of both employer as well as employee.
The Apex Court in the case of Sebastiani Lakra (supra) in paragraph Nos. 12, 13 & 14 has held as follows:
"12.The law is well-settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to just compensation under the Motor Vehicles Act 12 as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his left time cannot be said to be outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.
13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his 13 death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tortfeasor cannot take advantage of the foresight and wise financial investments made by the deceased.
14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted. "14
Further, the Division Bench of this Court in MFA 16/2018 c/w 2222/2018 disposed on 26.7.2019 referring to the decision of the Apex Court in the case of Sebastiani Lakra (supra) has held that amount paid to the parents of the deceased under the Group Insurance Policy taken by the deceased cannot be deducted from the compensation awarded by the Tribunal to the claimants on the death of the deceased.
10. In view of the above decision of the Apex Court as well as the Division Bench decision of this Court, it is well-settled law that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. Therefore, the compensation of 18,90,864/- paid by the Insurance Company to the 15 claimants under the benefit of Group Accident Insurance Policy cannot be deducted from the compensation, which the claimants are entitled due to the death of the deceased in the road traffic accident under the Motor Vehicles Act. The Tribunal has rightly not deducted the said amount from the compensation awarded to the claimants. Therefore, there is no error in the judgment and award passed by the tribunal.
Accordingly, the appeal is dismissed. The amount in deposit is ordered to be transferred to the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE DM/-