Karnataka High Court
Legal Manager vs Smt. Smitha on 28 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.7845 OF 2015 (MV)
c/w
MFA NO.9247 OF 2015
In MFA 7845 of 2015
BETWEEN
Legal Manager
Reliance General
Insurance Co. Ltd.,
Regional office
5th Floor, Centenary Building
No.28, M G Road
Bengaluru-560 001.
...Appellant
(By Shri Pradeep B., Advocate)
AND
1. Smt. Smitha
W/o late Prathap
Now aged about 37 years
2. Master Dhanush
S/o late Prathap
Now aged about 12 years
3. Kum. Meghana
D/o late Prathap
2
Now aged about 9 years
4.Smt. Shanthakumari
W/o late Srinivas @ Srinivasamurthy
Now aged about 63 years
Respondents No. 2 and 3 are
Since minors rep. by their natural
Guardian mother as Respondnet No.1
All are residing at Jail Road
Raghavendra Krupa
Shimoga - 577 203.
5.Sri Venkatachalam V
S/o P Venkatachalam
R/at No.52-A Kattayanoor
Kathuripatti Villa
Shankari Raluk
Salem District.
Tamilnadu-600 009.
...Respondents
(by Shri K T Gurudev Prasad, Advocate for R-1 to R-4;
R-5 served)
This Miscellaneous First Appeal is filed under Section 173(1)
of Motor Vehicles Act, 1988 against the judgment and award dated
26.08.2015 passed in MVC No.3058 of 2014 on the file of the II
Additional Small Causes Judge, XXVIII ACMM, MACT, Bengaluru,
awarding a compensation of Rs.37,35,545/- with interest @ 6% per
annum from the date of petition till the date of deposit.
In MFA 9247 of 2015
BETWEEN
1. Smt. Smitha
W/o late Prathap
aged about 37 years
2. Master Dhanush
3
S/o late Prathap
aged about 12 years
3. Kum. Meghana
D/o late Prathap
aged about 9 years
4. Smt. Shanthakumari
W/o late Srinivas @ Srinivasmurthy
aged about 63 years
since appellants No. 2 and 3 are
since minors rep. by their mother
as a natural Guardian
Appellant No.1 Smt. Smitha
All are residing at Jail Road
Raghavendra Krupa
Shimoga - 577 203.
...Appellants
(by Shri K T Gurudev Prasad, Advocate)
AND
1. Sri Venkatachalam V
S/o P Venkatachalam
R/at No.52-A Kattayanoor
Kathuripatti Villa, Shankari Raluk
Salem District.
Tamilnadu-637 303.
2.The Reliance General
Insurance Company Limited
5th Floor, Centenary Building
M G Road
Bangalore-560 001.
...Respondents
(by Shri B Pradeep, Advocate for R-2;
R-1 served)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
4
award dated 26.08.2015 passed in MVC No.3058 of 2014 on
the file of the II Additional Small Causes Judge & XXVIII
ACMM, MACT, Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These Miscellaneous First appeals coming on for final
hearing, this day, INDIRESH J., delivered the following:
JUDGMENT
These appeals are directed against the judgment and award dated 26th August, 2015 passed in MVC No.3058 of 2014 by the II Additional Small Causes Judge and XXVIII ACMM and Motor Accident Claims Tribunal, Bengaluru, (for short, hereinafter referred to as 'the Tribunal'). MFA 7845 of 2015 is filed by the appellant-Insurance Company challenging judgment and award on the question of liability as well as quantum of compensation; and MFA No.9247 of 2015 is filed by the claimants seeking enhancement of compensation.
2. For the sake of convenience, the parties in these appeals are referred to as per their status before the Tribunal.
3. It is the case of the claimants that on 19th May, 2014 at about 11.30 am, deceased Prathap was riding motorcycle bearing registration No.AP-21-AK-8403 on Outer Ring Road towards Hennur junction and when he reached near Nagavara flyover, at that time a milk tanker bearing registration No.TN- 5 52-D-9524 being driven by it driver in rash and negligent manner, dashed against the motorcycle from behind, due to which the said Pratap fell down and succumbed to the injuries. In view of the untimely death of Prathap, the legal representatives of the deceased have filed MVC No.3058 of 2014 on the file of the Tribunal and sought for compensation of Rs.50,00,000/- on account of his death in Road Traffic Accident. After service of notice, respondent No.1 did not appear before the Tribunal and accordingly respondent No.1 was placed ex-parte. Respondent No.2 entered appearance before the Tribunal and filed detailed statement of objections, disputed the involvement of the offending vehicle in the accident. The Insurance Company further contended that the accident occurred due to rash and negligent driving of the motorcycle by the deceased and submitted that the issuance of the Policy in favour of the offending vehicle is subject to terms and conditions of the Policy and as such the Insurance Company sought for dismissal of the claim petition.
4. Based on the aforementioned pleadings, the Tribunal has framed issues for its consideration. Claimant No.1 was examined as PW1 and got examined one more witness as 6 PW1 and produced 27 documents as Exhibits P1 to P27. The respondents have not led any evidence. The Tribunal, after considering the material on record and the contentions raised by the parties, by its judgment and award dated 26th August, 2015 allowed the claim petition in part and directed the respondents to pay compensation of Rs.37,35,545/- to the claimants together with interest at the rate of 6% per annum from the date of petition till its realisation. Being aggrieved by the impugned judgment and award passed by the Tribunal, the Appellant-Insurance Company has preferred MFA No.7845 of 2015 challenging on the ground of quantum and liability, and MFA No.9247 of 2015 is preferred by the claimants seeking enhancement of compensation.
5. Shri B. Pradeep, learned counsel appearing for the insurance company submitted that the Tribunal has committed an error in fixing the entire negligence on the part of the driver of the offending vehicle despite the fact that the claimants have failed to examine the eye-witness to prove the alleged accident. It is his further submission that adding of 50% of income of the deceased towards future prospects by the Tribunal while computing the loss of dependency is 7 unwarranted in the circumstances of the case, as the deceased was not having a stable job and accordingly, he sought for interference of this Court in the impugned judgment and award passed by the Tribunal.
6. Per contra, Shri K. T. Gurudev Prasad, learned counsel for the claimants submitted that the award made by the Tribunal is inadequate and requires enhancement in this appeal. He further submitted that the Tribunal failed to appreciate the fact that the deceased was a Civil Engineer at M/s. D.S. Max Properties and was drawing a monthly salary of Rs.25,000/- per month and in spite of producing sufficient materials before the Tribunal, the annual salary of the deceased of Rs.3,00,000/- was not considered by the Tribunal while computing loss of dependency. Accordingly, he prays for awarding just and proper compensation as provided under Section 166 of the Motor Vehicles Act.
7. We have carefully examined the impugned judgment and award passed by the Tribunal and also perused the original records. It is not in dispute that the claimants are the legal representatives of the deceased-Prathap, who died in road traffic accident on 19th May, 2014 at about 11.30 am 8 involving motorcycle bearing registration No. AP-21-AK-8403 and milk tanker bearing registration No.TN-52-D-9524. The jurisdictional Banaswadi Traffic Police have registered FIR in Crime No.62 of 2014 against the driver of the milk tanker for the offences punishable under Section 279 and 304(A) of Indian Penal Code. The claimants, in order to prove the negligence on the part of the driver of the tanker, have produced the sketch and mahazar marked as Exhibits P3 and P4 respectively, which reveal that the alleged accident occurred due to negligence on the part of the driver of the milk tanker. First Information Report and Charge sheet produced as Exhibits P1 and P7 respectively, by claimants would clearly indicate that the charge-sheet is laid against the driver of the offending vehicle and as such contentions raised by the learned counsel for the Insurance company is without any basis and on the other hand the Insurance Company has not proved their plea without examining the independent witness to corroborate their case regarding fixing the contributory negligence on the part of the deceased and hence, we affirm, the finding recorded by the Tribunal with regard to issues No.2 and 3 is just and proper and do not call 9 for interference in this appeal. The claimants have produced the SSLC marks card (Exhibit P12) from which, age of the deceased can be calculated as 37 years at the time of accident. The claimants have produced the Bank pass book of the deceased and the appointment letter marked as Exhibits P11 to P16, which reveals that the deceased was working as a Senior Site Engineer at M/s. DS Max Properties and his gross salary for the month of April 2014 was Rs.25,000/-. The claimants have also examined the HR Manager of M/s. DS Max Properties as PW2. The claimants have produced Exhibit P15 (Form 16) for the assessment year 2014-15 which reveals that the Gross Salary of the deceased was Rs.3,05,000/- per annum. The deceased was given deduction of Rs.40,600/- under Section 10 and Rs.42,250/- under Sections 80C, 80CCC and 80CCD of the Income Tax Act and accordingly assessed the annual income of the deceased at Rs.2,16,750/- and again deducted Rs.1,725/- towards Income Tax and taken the net income of the deceased at Rs.2,15,025/-. The finding recorded by the Tribunal insofar as deducting Rs.40,600 and Rs.45,250/- as stated above, is contrary to the law. The Tribunal is permitted to deduct only 10 Income Tax of Rs.1,725/- and Profession Tax of Rs.2,400/-. If those deductions are done, the annual income of the deceased would be Rs.3,00,875/- and the same is to be taken for the purpose of calculation of loss of dependency. In view of the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700, 40% of income of the deceased is to be added towards future prospects. The deceased has died leaving behind his wife, two minor children and mother and accordingly the proper deduction would be one fourth and as such, the calculation under the head loss of dependency would be Rs.4,21,225/- x 15 x ¾ = Rs.47,38,781/-. As per the law declared by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra) the claimants are entitled for Rs.70,000/- towards conventional heads. Further, in view of the law declared by the Hon'ble Supreme Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED v. SOMWATI AND OTHERS reported in 2020 SCC ONLINE 720, Rs.40,000/- each is awarded towards filial consortium for two minor claimants and Rs.40,000/- is awarded as parental consortium and 11 accordingly, the claimants are entitled for total compensation of Rs.49,28,781/- as against Rs.37,35,545/- awarded by the Tribunal. Hence, the following order:
ORDER
1. Appeals are disposed of;
2. Judgment and Award dated 26th August, 2015 passed in MVC No.3058 of 2014 by the Tribunal is modified and the compensation is enhanced to Rs.49,28,781/- as against Rs.37,35,545/-
awarded by the Tribunal. The compensation shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation;
3. The portion of the Order of the Tribunal inasmuch as liability, apportionment and disbursement is concerned, remain unaltered; 12
4. Amount in deposit, if any, shall be transferred to the Tribunal along with the original records forthwith.
5. Registry to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE lnn