Karnataka High Court
The Divisional Manager vs Smt Shailaja on 15 June, 2023
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NC: 2023:KHC:20722
MFA No. 2948 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 2948 OF 2017 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, CENTENARY BUILDING,
II FLOOR, GHS ROAD, MANGALORE.
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE:
2-B, UNITY BUILDING ANNEXE,
P.KALINGA RAO ROAD,
BANGALORE-560 027.
...APPELLANT
(BY SRI A N KRISHNA SWAMY, ADVOCATE)
Digitally signed AND:
by T S
NAGARATHNA
Location: High
Court of 1. SMT. SHAILAJA,
Karnataka
W/O. LATE VITTAL RAI,
NOW AGED ABOUT 31 YEARS.
2. DYUTHI,
D/O. LATE VITTAL RAI,
NOW AGED ABOUT 4 YEARS 8 MONTHS,
SINCE MINOR REPRESENTED BY MOTHER/NATURAL
GUARDIAN THE 1ST RESPONDENT HEREIN,
BOTH R/AT NO.1-48/1,
NEAR KOTEKAR PANCHAYATH OFFICE,
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NC: 2023:KHC:20722
MFA No. 2948 of 2017
KOTEKAR VILLAGE,
MANGALORE TALUK -575 022.
3. SMT. MOLIKA THAURO,
W/O. LATE AMBROSS CHARLES THAURO,
NOW AGED ABOUT 52 YEARS,
R/O KALLAKUMER, KATEEL POST,
MANNABETTU VILLAGE,
MANGALORE-574 148.
...RESPONDENTS
(BY SRI PRASANNA.V.R, ADVOCATE FOR R1 & R2;
R3 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.09.2016 PASSED IN MVC
NO.1194/2013 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE, MACT, MANGALURU, D.K., AWARDING
COMPENSATION OF `21,05,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insurance Company assailing the judgment and award in MVC No.1194/2013 passed by the learned III Additional Senior Civil Judge and JMFC and MACT, Mangaluru,D.K. whereby the claim petition came to be partly allowed, a sum of `21,05,000/- has been awarded as compensation to the petitioners on -3- NC: 2023:KHC:20722 MFA No. 2948 of 2017 account of the death of one Vittal Rai, in the road traffic accident and directed the Insurance Company to deposit the same.
2. The brief facts of the case are as below:
That on 30-1-2013 at about 6.45 p.m. Vittal Rai was proceeding from Kotekar Beedi towards Kolya side by riding his kinetic scooter bearing No.KA.19.L.9205 near Forest Check Post office, Beeri, a Tata Indica car bearing No.KA.20-B-4892 came in rash and negligent manner from opposite direction and while overtaking another car which was going ahead, came to the wrong side and dashed to the scooter. Due to which, Vittal Rai thrown on the road and sustained injuries. Immediately, he was admitted as inpatient in Unity Health Complex Mangalore, kept in ICU and later on the same day he succumbed to the injuries. The wife and daughter of deceased Vittal Rai filed the claim petition before the Tribunal seeking compensation on account of the death of the deceased Vittal Rai, contending -4- NC: 2023:KHC:20722 MFA No. 2948 of 2017 that they spent `1,50,000/- for the medical expenses and other ceremony and that deceased was hale and healthy prior to the accident, aged about 37 years, working as Supervisor in Bombay Saw Mill at Kotekar and was earning `20,000/- per month. They have also contended that the entire family were depending on the income of the deceased. They have further contended that the accident occurred due to the rash and negligent driving of the car and 1st respondent being the RC owner and 2nd respondent being the Insurer are liable to pay the compensation and claimed the compensation of `40,00,000/-.
3. On issuance of notice, respondent No.1 did not appear before the Tribunal and she was placed exparte. The respondent No.2-Insurance Company appeared before the Tribunal and filed its written statement.
4. Respondent No.2-Insurance Company in its objections denied the allegations made in the petition and -5- NC: 2023:KHC:20722 MFA No. 2948 of 2017 that the claim of the petitioners is unreasonable and untenable. It has also contended that the driver of the car bearing No.KA.20.B.4892 has no valid and effective driving licence as on the date of accident and therefore, respondent No.1 be absolved from liability. It has also contended that the accident occurred due to the negligence of the deceased and he was a temporary clerk and not earning `20,000/- per month and peittioner No1. was not depending on him and prayed to dismiss the petition.
5. On the basis of the above pleadings, necessary issues were framed by the Tribunal and the petitioner No.1 was examined as PW1 and one witness was examined on their behalf as PW 2 and Exs.P1 to P14 were marked. Respondent No.2 has not led any oral evidence, but copy of Insurance Policy was marked as Ex.R1.
6. After hearing both the sides, the Tribunal came to the conclusion that the liability has to be fastened upon -6- NC: 2023:KHC:20722 MFA No. 2948 of 2017 the respondent No.2-Insurance Company and passed an award granting a compensation of `21,05,000/- to the petitioners under the different heads as below:
Loss of dependency `18,00,000/- Love and affection ` 1,00,000/- Funeral and obsequies ceremony and ` 25,000/- transportation charges Future prospects ` 1,80,000/- Total `21,05,000/-
7. Aggrieved by the said judgment and award, the respondent No.2-Insurance Company has approached this Court in the appeal.
8. On issuance of notice, respondent Nos. 1 and 2 who are the claimants before the Tribunal have appeared through their counsel and respondent No.3 served.
9. On admitting the appeal, the Tribunal records have been secured and arguments of both the sides have been heard and perused the records.
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10. The learned counsel appearing for the appellant- Insurance Company submits that the Tribunal has accepted what has been mentioned in Ex.P10, the alleged salary certificate of the deceased to be true and correct and has over looked the fact that the author of the Ex.P10 was not examined by the petitioners and the veracity of the claim of the petitioners that the deceased was earning salary of `15,000/- per month is not established. He contends that the Tribunal has also erred in holding that 50% of the income of the deceased is to be considered for the future prospects and therefore, the compensation arrived by the Tribunal is incorrect. He further contends that the award passed by the Tribunal in respect of other conventional heads is also on the higher side and therefore, the exorbitant compensation awarded by the Tribunal needs to be considered by this Court.
11. Per contra, learned counsel appearing for respondent Nos. 1 to 3/ petitioners contends that deceased was working in Bahrain for considerably long -8- NC: 2023:KHC:20722 MFA No. 2948 of 2017 time as is proved by the petitioners through Exs.P11 to P13 and therefore, the Tribunal is justified in accepting Ex.P10 to be the proof of the income of the deceased. He submits that the petitioners are the wife and new born child of the deceased and therefore, the compensation awarded by the Tribunal is just and proper and no interference is required in the same.
12. On a careful perusal of the records, it is evident that Ex.P10 was issued by one Abdulla & Co., and the person who has signed it has not been examined before the Tribunal. It is also to be noted that Ex.P10 shows that the deceased was working from 2-3-2010 till his death on 30-1-2013. The said Abdulla & Co., appears to be Merchants, Lorry Owners, Government Coupe Contractors. It is evident that the author of Ex.P10 was not examined by the petitioners and therefore, the income cannot be said to have been proved as required under law. Even the other supporting documents like, the pass book of the deceased are not placed on record which could -9- NC: 2023:KHC:20722 MFA No. 2948 of 2017 have shown that the deceased was earning `15,000/- per month. However, Ex.P11 is the certificate issued by the Designer and Manufacturers of Pleasure and Commercial Crafts at Bahrain. It is relevant to note that this document show that the deceased was working at Bahrain as Laminator from 2001 to 2009. In order to establish that he was a skilled labourer, the petitioners have produced Exs.P11 and P13 which are the passports of the deceased. Therefore, these documents all together very well show that the deceased was working in Bahrain for about 09 years and as such, there could not be any doubt that he was a skilled laborer as a Laminator. This makes sense that the nature of the work he was working with Abdulla & Co., the alleged issuer of Ex.P10. Considering these documents which are available on record and also the fact that the petitioners could have produced the best evidence like, bank pass book, which have not been produced, it would not be safe to rely on Ex.P10 completely. At the same time, it cannot be ignored that the deceased was working in Bahrain for 9 long years and had acquired
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NC: 2023:KHC:20722 MFA No. 2948 of 2017 sufficient skill as Laminator. Combining these aspects, it is evident that the income of the deceased was slightly higher than the notional income that could have been awarded and considered for the purpose of assessing the compensation. By striking a balance between the skill of the deceased and also the notional income which is based on the guidelines issued by KSLSA and in turn which is in general conformity with the wages fixed under the Minimum Wages Act, it would be just and proper to hold that the deceased was earning `11,000/- per month. This assessment of the income by the Court is conservative in view of the fact that the best evidence which could have been produced by the petitioners have not made available to the Court. The rest of the aspect i.e. petitioners are the wife and child of the deceased is not in dispute and also the age of the deceased is also not in dispute.
13. The Tribunal has considered the future prospects at 50% in view of the fact that the evidence on record show that it was not a fixed job the principle laid down in
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NC: 2023:KHC:20722 MFA No. 2948 of 2017 the case of National insurance company Limited vs. Pranay Sethi and others1 has to be followed. Hence, by enhancing the income of the deceased by 40% towards future prospects, the multiplicand comes to `15,400/-. Hence, the loss of dependency is calculated as: `15,400/- x 12 x 15 x 2/3rd = `18,48,000/-.
14. By adding a sum of `48,400/-, `18,150 and `18,150/- towards loss of consortium or filial love and affection, loss of estate and funeral expenses as held in Pranay Sethi's case , the petitioners are entitled for the compensation of `19,32,700/- instead of `21,05,000/ as below:
Loss of dependency `18,48,000/- Loss of consortium or Love and ` 48,400/- affection
Funeral and obsequies ceremony and ` 18,150/-
transportation charges Loss of Estate ` 18,150/- Total `19,32,700/- 1 (2017) 6 SCC 680 - 12 - NC: 2023:KHC:20722 MFA No. 2948 of 2017 Thus, for the aforesaid reasons, the petitioners are
entitled for a sum of `19,32,700/- instead of `21,05,000/- awarded by the Tribunal together with interest and therefore, the appeal deserves to be allowed in part. Hence, the following ORDER
(i) The appeal is allowed in part
(ii) The impugned judgment and award passed by the Tribunal is modified holding that the petitioners/respondent Nos. 1 and 2 are entitled for a sum of `19,32,700/- as compensation along with interest at the rate of 6% p.a. from the date of petition till its deposit before the Tribunal.
(iii) The rest of the terms and conditions ordered by the Tribunal regarding apportionment and deposit remain unaltered.
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(iv) Insurance company is directed to deposit the compensation amount within four weeks from the date of the receipt of the copy of this judgment.
(v) The amount in deposit before this Court is ordered to be transmitted to the Tribunal forthwith.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 89