Karnataka High Court
M/S United India Insurance Co Ltd vs Sri A Velayudhan on 11 February, 2013
Author: N.K.Patil
Bench: N.K.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
MFA No.1139/2009 (MV)
C/W
MFA No.10494/2008 (MV)
In MFA No.1139/09
Between:
M/s United India Insurance Co. Ltd.,
Branch Office, Tarapore Towers,
7th Floor, 826, Annasalai,
Chennai - 560002.
Rep. by its Deputy Manager,
United India Insurance Co. Ltd.,
Regional Office,
No.25, Shankaranarayana
Building, M.G.Road,
Bangalore - 560001. ...Appellant
(By Sri M.U.Poonacha, Advocate)
And:
1. Sri A.Velayudhan,
S/o Arunachalam,
Aged about 59 years.
2
2. Smt.V.Kalivani,
W/o A.Velayudhan,
Aged about 53 years.
3. V.Malathi D/o A.Velayudhan,
Aged about 25 years.
Physically handicapped girl
Rep. by her natural guardian
Father A.Velayudhan.
All are R/at No.506, Kalyani
Co-operative Housing Society
Layout, Jananbharathi Post,
Opp.Bhuvaneshwarinagar,
Bangalore - 560056.
4. Sri Thiru S.Navalan,
S/o Thiru Selvam,
Major, R/at Srinivasapuram,
Kambalimedu District,
Cuddalore, Tamilnadu-607001. ...Respondents
(By Sri N.Gopalkrishna, Adv. for R-1 to R-3
R4 - Served)
This MFA is filed under Section 173(1) of M.V.Act against
the judgment and award dated 07.08.2008 passed in MVC No.
5656/2006 on the file of III Addl. Judge and Member, MACT,
Bangalore, awarding a compensation of Rs.9,09,000/- with
interest @ 6% p.a. from the date of petition till realisation.
In MFA No.10494/2008:
Between:
1. Sri A.Velayudhan,
S/o Arunachalam,
Aged about 58 years.
3
2. Smt.V.Kalivani,
W/o A.Velayudhan,
Aged about 52 years.
3. V.Malathi,
D/o A.Velayudhan,
Aged about 24 years.
Physically handicapped girl
Rep. by her natural guardian
Father A.Velayudhan.
All are R/at No.506, Kalyani
Co-operative Housing Society
Layout, Jananbharathi Post,
Opp.Bhuvaneshwarinagar,
Bangalore - 560056. ...Appellants
(By Sri N.Gopalkrishna, Advocate)
And:
1. Thiru S.Navalan,
S/o Thiru Selvam,
Srinivasapuram, Kambalimedu
District, Cuddalore,
Tamil Nadu - 607001.
2. United India Insurance Co. Ltd.,
Tarapore Towers,
7th Floor, 826, Annasalai,
Chennai - 600002.
Rep. by its Branch Manager. ...Respondents
(By Sri S.Srishaila, Adv. for R2
Notice to R1 dispensed with vide order Dt.02.12.09)
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This MFA is filed under Section 173(1) of M.V.Act against
the judgment and award dated 07.08.2008 passed in MVC No.
5656/2006 on the file III Addl. Judge and Member, MACT,
Bangalore, SCCH-18, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs coming on for admission this day, N.K.PATIL
J., delivered the following: -
JUDGMENT
These two appeals are by the Insurer and the claimants being aggrieved by the same judgment and award dated 7th August 2008 passed in M.V.C. No.5656/2006 on the file of the III Additional Judge and Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as the 'Tribunal' for short).
2. The Tribunal by its impugned judgment and award has awarded a sum of Rs.9,09,000/- with interest at 6% p.a. from the date of petition till realization on account of the death of Vijay in the road traffic accident. Being aggrieved by the quantum of compensation awarded as inadequate and requires consideration and the Insurer being aggrieved by the 5 quantum of compensation Awarded by the Tribunal as disproportionate to the income of the deceased and is on higher side and liable to be reduced, both have presented these two appeals.
3. The brief facts of the case on hand are :
The claimant No.1 is the father, claimant No.2 is the mother and claimant No.3 is the physically handicapped sister of the deceased. The 3rd claimant represented by natural guardian father - the 1st claimant. They had filed the claim petition under Section 166 of the M.V. Act against the owner and Insurer on account of untimely death of the deceased Sri. Vijay, claiming compensation of Rs.25,00,000/- contending that the deceased succumbed to the injuries sustained in the motor vehicle accident that took place on 1.9.2006 at about 9.45 p.m. at Kengeri Ring Road, 1st Cross, near Railway Bridge, Kengeri, Bangalore, due to rash and negligent driving of Ashok Leyland Lorry 6 bearing No. TN-21/R-5157 being driven by its driver. Due to the impact the deceased sustained injuries and succumbed to the injuries. Further, it is contended that the deceased was aged about 31 years, hale and healthy prior to the accident and was working as Software Test Engineer in HSBC Bank and at the time of accident he was working as Customer Service Executive and drawing a net take-home take salary of Rs.1,61,856/- p.a. as per Ex.P15. He was the only bread earning member of the family and due to the untimely death of the deceased the family members have lost love and affection, inspiration and security in life and bright future of the deceased and the social and economic condition of the family is affected. Further, entire future life of the parents and the physically handicapped sister has been jeopardized. Therefore, they were constrained to file a claim petition before the Tribunal under Section 166 of M.V. Act claiming compensation against the insurer and owner on account 7 of the untimely death of the deceased in the road traffic accident. The said claim petition had come up for consideration before the Tribunal. The Tribunal in turn after appreciating the oral and documentary evidence and other material available on file, assessed the income of the deceased at `9,000/- p.m. and deducted 1/3rd towards personal expenses of the deceased. The Tribunal considering the age of the younger parent of the deceased, i.e. mother aged about 50 years, determined the compensation towards loss of dependency at Rs.8,64,000/- (9,000 x 12 x 12 x 2/3) and also awarded a sum of Rs.45,000/- towards conventional heads. In all the Tribunal has awarded a sum of Rs.9,09,000/- with interest at 6% p.a. Being dissatisfied with the impugned Judgment and Award passed by the Tribunal, the appellants have presented the appeal seeking enhancement of compensation. 8
4. Sri M.U. Poonacha, learned Counsel appearing for the appellants at the outset, submitted that the Tribunal has committed grave error in assessing the income of the deceased at `9,000/- p.m. and deducted 1/3rd towards personal expenses of the deceased and by taking the multiplier as 12 considering the age of the mother, is not justified in awarding a sum of Rs.8,64,000/- towards loss of dependency, and it is disproportionate and no documents are produced regarding the source of income of the deceased to show that the deceased was getting salary of Rs.1,61,856/- p.a. Therefore, the Tribunal having regard to the facts and circumstances of the case erred in assessing the income of the deceased at Rs.9,000/- p.m. and it is on the higher side. The employer where the deceased was working has also not produced any statement or document to show that the said salary was earned by the deceased after deducting income tax and professional tax. Therefore, he submitted that the income of the deceased assessed at Rs.9,000/- by the Tribunal may be reduced and re- 9 determine the compensation by modifying the impugned Judgment and award passed by the Tribunal.
5. Per contra, the learned Counsel appearing for the claimants inter-alia contended that the Tribunal erred in taking the income of the deceased at only Rs.9,000/- p.m. even though the deceased was getting salary of Rs.1,61,856/- p.a. The deceased was aged about 31 years and he had bright future as Software Test Engineer and at the time of accident the deceased was working as Customer Service Executive. The claimants have adduced the evidence of employer of deceased i.e. Advisor Legal at HSBC Electronic and Data Processing India Pvt. Ltd. and he was the only security for the future of the appellants. Due to untimely death of the deceased, the Tribunal ought to have awarded just and reasonable compensation. Therefore, he prays that another 30% may be added towards future prospects of the deceased in view of the judgment of the Apex Court in the case of Santosh Devi Vs. National 10 Insurance Company Ltd., and Ors. reported in 2012 AIR SCW 2892 and after deducting 1/3rd towards personal expenses of the deceased since the there is physically handicapped sister and the parents of the deceased were depending upon the entire source of income of the deceased. Therefore, the appellants prays that the impugned judgment and award may be modified by enhancing the reasonable compensation.
6. After careful consideration of the submissions made by the learned Counsel for both the parties and on perusal of the material available on record including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is:
"Whether the quantum of compensation
awarded by the Tribunal is just and
reasonable?"
7. After considering the submissions of the learned Counsel for the parties and after perusal of the material 11 available on record including the impugned judgment and award passed by the Tribunal, the occurrence of the accident resulting in the death of the deceased is not in dispute. Further it is not in dispute that the deceased was aged about 31 years, working as a Software Test Engineer/Customer Service Executive in HSBC Commercial Bank. Having regard to the avocation of the deceased, dependents i.e. parents and the physically handicapped sister and the year of accident, we can safely re-assess the monthly income of the deceased at `10,000/- p.m. out of which Rs.200/- is deducted towards Professional Tax and remaining amount comes to Rs.9,800/- p.m. to meet the ends of justice. As rightly pointed out by the learned Counsel for the appellants and taking into consideration Santosh Devi's case, if 30% (`2,940/-) towards future prospects is added to the income of the deceased, it comes to `12,740/-. Taking into consideration the dependents i.e. parents and the physically handicapped 12 sister, if 1/3rd is deducted towards personal expenses of the deceased i.e. Rs.4,246/-, the remaining amount comes to Rs.8,494/-. The younger age of the parents i.e. the age of the mother of the deceased is taken at 50 years, the appropriate multiplier would be '13'. Accordingly, we re-determine the Loss of Dependency at `13,25,064/- (`8,494 x 12 x 13) and it is granted. The Tribunal is justified in awarding a sum of Rs.45,000/- towards conventional heads and the same does not call for interference by this Court.
8. Accordingly, the claimants are entitled for a total compensation of Rs.13,70,064/- as against Rs.9,09,000/- awarded by the Tribunal. There will be enhancement of Rs.4,61,064/- with interest at 6% p.a. from the date of petition till the date of realisation.
The appeal filed by the appellant/insurance company is hereby dismissed as devoid of merits. 13
The appeal filed by the claimants is hereby allowed. The impugned Judgment and Award dated 7th August 2008 passed in M.V.C. No.5656/2006 on the file of the III Additional Judge and Motor Accident Claims Tribunal, Bangalore is hereby modified, awarding a sum of Rs.4,61,064/- with interest at 6% p.a. from the date of petition till its realisation in addition to the compensation awarded by the Tribunal.
The appellant - Insurer is directed to deposit the enhanced compensation of `4,61,064/- with interest at 6% p.a. from the date of petition till the date of realisation, within a period of three weeks from the date of receipt of copy of this judgment.
Out of the enhanced compensation of `4,61,064/-, Rs.1,00,000/- each with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the claimants Nos.1, 2 and 3 for a period of ten years and renewable for further 14 ten years and they are at liberty to withdraw periodical interest accrued on it.
The remaining amount of `1,61,064/- with accrued interest shall be released in favour of the claimant Nos. 1 to 3, immediately, on deposit by the insurer.
The amount in deposit if any, is directed to be transmitted to the jurisdictional Claims Tribunal immediately.
Office is directed to draw the award, accordingly.
Sd/-
Judge Sd/-
Judge Rbv/-