Karnataka High Court
M/S Icici Lombard General Insurance ... vs Smt.K.K.Umadevi on 13 October, 2022
MFA.5285/2016 C/W
MFA CROB.103/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.5285 OF 2016 (MV) C/W
MFA CROB NO. 103 OF 2017 (MV)
IN MFA NO.5285 OF 2016 (MV)
BETWEEN :
1. M/S ICICI LOMBARD GENERAL INSURANCE
COMPANY LTD
REGIONAL OFFICE
NO.98, SVR COMPLEX
2ND FLOOR
HOSUR MAIN ROAD
MADIWALA
BANGALORE
NOW REP. BY ITS LEGAL MANAGER
M/S ICICI LOMBARD GIC LTD.,
REGIONAL OFFICE
THE ESTATE
9TH FLOOR
DICKENSON ROAD
M.G.ROAD
BANGALORE-42 ... APPELLANT
(BY SRI B.C. SHIVANNE GOWDA, ADVOCATE)
AND :
1. SMT.K.K.UMADEVI
W/O LATE SATHYANARAYANA.S
NOW AGED ABOUT 46 YEARS
2. KUMAR NAGABHUSHAN
S/O LATE SATHYANARAYANA.S
AGED ABOUT 18 YEARS
3. KUM. NAGASHREE
MFA.5285/2016 C/W
MFA CROB.103/2017
2
D/O LATE SATHYANARAYANA.S
AGED ABOUT 18 YEARS
ALL ARE RESIDING AT
NO.L-4-KIADB QUARTERS
I.B.MAIN ROAD
BOMMASANDRA
BANGALORE-99
4. DHANANJAYA A
S/O ANANDA REDDY M
AGED ABOUT 40 YEARS
R/O NO.17/4,
FIRST CROSS
2ND B MAIN,
NANJAPPA LAYOUT
ADUGODI
BANGALORE-30 ... RESPONDENTS
(BY SRI R.L. UDAYA KUMAR, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 IS DISPENSED WITH
VIDE ORDER DATED 30.06.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 4.2.2016
PASSED IN MVC NO.5622/2014 ON THE FILE OF THE MEMBER,
MACT, 16TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU, AWARDING A COMPENSATION OF
RS.27,12,000/- WITH INTEREST @ 9% P.A FROM THE DATE
OF PETITION TILL THE DATE OF PAYMENT.
IN MFA CROB. NO.103 OF 2017 (MV)
BETWEEN :
1. SMT. S. K. UMADEVI
W/O LATE SATHYANARYANA .S
AGED ABOUT 45 YEARS
2. SRI NAGABUSHAN
S/O LATE SATHYANARYANA .S
AGED ABOUT 19 YEARS
MFA.5285/2016 C/W
MFA CROB.103/2017
3
3. KUMARI NAGSHREE
D/O LATE SATHYANARYANA
AGED ABOUT 19 YEARS
AL ARE RESIDING AT
NO.L-4-KIADB QUARTERS
I B MAIN ROAD
BOMMASANDRA
BENGALURU-560 099 ...CROSS OBJECTORS
(BY SRI UDAYA KUMAR R.L., ADVOCATE)
AND :
1. SRI. DHANANJAYA. A
S/O ANDAD REDDY M
AGED ABOUT 41 YEARS
NO.17/4, FIRST CROSS
2ND B MAIN
NANJAPPA LAYOUT
AUDUGODI
BENGALURU-560 030
2. THE BRANCH MANAGER
ICICI LOMBARD GENERAL
INSURANCE CO.LTD.
NO.89, SVR COMPLEX
2ND FLOOR
HOSSUR ROAD, MADIVAL
BENGALURU-560068 ... RESPONDENTS
(BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH
VIDE ORDER DATED 05.03.2018)
THIS MFA.CROB IN MFA NO.5285/2016 IS FILED
UNDER ORDER 41 RULE 22 OF THE CPC READ WITH SECTION
173(1)OF M.V.ACT 1988, AGAINST THE JUDGMENT AND
AWARD DATED 04.02.2016 PASSED IN MVC NO.5622/2014
ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, BENGALURU(SCCH-14),
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA.5285/2016 C/W
MFA CROB.103/2017
4
THESE MFA AND MFA CROSS OBJECTION HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 23.09.2022 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No.5285/2016 is filed under Section 173(1) of the Motor Vehicles Act, 1988 ('the Act' for brevity) by the Insurance Company wherein after service of notice, the cross-
objectors/claimants/petitioners have filed M.F.A.Cr.Ob.No.103/2017 under Order XLI Rule 22 of CPC read with Section 173(1) of the Act, claiming enhancement of compensation awarded by the Motor Accident Claims Tribunal, Bangalore City ('the Tribunal' for brevity) in M.V.C.No.5622/2014 dated 04.02.2016.
For the sake of convenience, the parties will be referred to as per their rankings before the Tribunal.
2. The facts leading to filing of the claim and counter claim is that, petitioner No.1/S.K.Umadevi is the wife, petitioner Nos.2 and 3/Nagabhushan and MFA.5285/2016 C/W MFA CROB.103/2017 5 Nagashree are the twin children of petitioner No.1 and Sathyanarayana.S (in brevity 'the deceased'). The deceased was said to be the employee of New India Assurance Company Limited. On 29.07.2104 at about 8.30 p.m., the deceased was riding his motor cycle bearing registration No.KA-51/EF-5254 from Bommasandra towards their house situated at Bommasandra itself along with his nephew Sridhar Kumar as a pillion rider. When they came near Huskur Gate, petrol in the said motor cycle was exhausted and for this reason, the deceased and said Sridhar Kumar have parked the motor cycle near Huskur Gate, went to bring the petrol from Kammasandra Petrol bunk. When they were walking near Kammasandra Cross, a motor cycle bearing registration No.KA-01/EQ-5276 ridden by the first respondent in a rash and negligent manner came behind them and dashed against the deceased. Due to said impact, the deceased sustained head injury and other injuries and he was shifted to Sparsha MFA.5285/2016 C/W MFA CROB.103/2017 6 Hospital, Bangalore, where he died while under treatment. On account of his death, the petitioners suffered loss of love and affection, loss of estate and also loss of dependency. In respect of the accident, the nephew Sridhar Kumar has filed a complaint to the Hebbagodi Police Station, which was registered in Crime No.474/2014 against the first respondent. Claiming compensation of Rs.77,00,000/-, the petitioners have filed petition under Section 166 of the Act before the Tribunal, on the grounds that the policy was in force and respondent No.2 being the insurer is liable to indemnify the first respondent/owner of the motor cycle.
3. Before the Tribunal, the first respondent remained exparte, second respondent has opposed the claim that the rider of the motor cycle did not possess valid driving licence and therefore, there is a violation of the policy terms. The accident had occurred due to negligence of the deceased, who MFA.5285/2016 C/W MFA CROB.103/2017 7 was crossing the main road where there was no zebra crossing. The claim is made on false grounds.
4. The Tribunal framed the three issues and both sides have chosen to lead evidence wherein the first petitioner examined herself and two witnesses as PWs-1 to 3, relied upon Ex.P1 to P26 wherein the officer of the second respondent has been examined as RW-1.
5. The Tribunal, after considering the facts pleaded, the evidence relied upon and the submissions made, allowed the petition in part awarding compensation of Rs.27,12,000/- with interest @ 9% per annum. Aggrieved by the same, the second respondent/Insurance Company has come before this court on three grounds, such as, there is a contributory negligence on the part of the deceased, the same was not considered by the Tribunal, the monthly income of the deceased taken by the Tribunal at Rs.31,000/- is erroneous, split MFA.5285/2016 C/W MFA CROB.103/2017 8 multiplier was not applied as the deceased was left with only four years of service, in the light of the judgment in the case of Union of India and others Vs K.S.Lakshmi Kumar and others1, the Tribunal has also erroneously considered the future prospects at 15% without any evidence. No deduction towards income-tax has been considered and interest @ 9% per annum is excessive and the order of the Tribunal needs modification.
6. After receipt of the notice, the petitioners have come before the court with memorandum of cross-objections that there was no contributory negligence on the part of the deceased, as the accident took place while the deceased was walking on the left side of the road. Though Rs.77 lakhs with 12% interest was claimed, the same was not considered and the salary of the deceased was also revised and his salary was Rs.36,541/- per month, the Hon'ble Apex Court awarded the loss of 1 ILR 2000 KAR 3809 MFA.5285/2016 C/W MFA CROB.103/2017 9 consortium of Rs.1,00,000/- and the same was not considered by the Tribunal. Hence, they sought further enhancement of Rs.8 lakhs.
7. Heard the arguments of Sri.B.C.Shivanne Gowda, learned counsel appearing for the second respondent/insurer and learned Counsel Sri.R.L.Udaya Kumar for the petitioners. Perused the entire records and also the impugned judgment.
8. There is no dispute as to the accident in which the deceased as well as the first respondent both have sustained injuries and two motor cycles were involved in the accident i.e., KA-51/EF-5254 ridden by the deceased and KA-01/EQ-5276 Hero Honda motor cycle ridden by the first respondent. There is also no dispute as to the second respondent has issued the policy covering the accident. As regarding the first contention of the second respondent as to the contributory negligence is concerned, apart from the evidence of PWs-1 to 3 MFA.5285/2016 C/W MFA CROB.103/2017 10 and also RW-1, the petitioners have relied upon the Police records, such as, FIR, spot panchanama, spot sketch, charge sheet, IMV report and also inquest and postmortem report of the deceased. As seen from the spot panchanama as well as the averments made in the complaint that the deceased was walking on the left side of the road when the motor cycle was hit on his back and thereafter it had went and hit against the divider resulting injuries to the first respondent. The spot panchanama did point out that the accident took place on the extreme left side of the road at the National Highway, Bangalore- Hosur Road. The spot sketch as per Ex.P4 did point out that the accident occurred on the extreme left side of the road where the motor cycle came from Hosur side towards Bangalore and hit on the back of the deceased.
9. It has been argued by the learned counsel for the second respondent/insurer that there is a MFA.5285/2016 C/W MFA CROB.103/2017 11 contributory negligence. In this regard, learned counsel has relied upon the evidence of RW-1/Officer of the Insurance Company wherein he has stated that the deceased was crossing the road without observing the traffic relations. Admittedly, RW-1 is an Officer of the Insurance Company, who has given evidence based on the records. He was not an eye- witness. So also PW-1, the first petitioner, who is a hearsay witness and as such, the very important witness to the case is PW-2/Sridhar Kumar, the nephew of the deceased, who was the pillion rider of the motor cycle who accompanied the deceased to bring the petrol from the petrol bunk at Kammasandra. His evidence did point out that the accident was not taken place while the deceased was crossing the road, but the accident took place when they were going by walk on the left side of the road. It has been cross-examined on behalf of the Insurance Company that the accident was self-made by the deceased. In what way, it is not explained.
MFA.5285/2016 C/W MFA CROB.103/2017 12 It is PW-2, who carried the deceased as well as the first respondent, to Sparsh Hospital in an Ambulance for providing treatment for both.
10. Learned counsel for the second respondent also relied upon the evidence of Sparsha Hospital staff, who produced the records and it is brought out the history in Ex.P26/case sheet that the patient was hit by a two-wheeler while crossing the road. When the very eye-witness is present before the court and he has very much asserted how the accident took place, the evidence of PW-3 loses its importance. It is not the case pleaded or found in the evidence that the deceased was crossing the road or the accident had occurred due to head-on collision between both the motor cycles. Hence, I find strange in the argument advanced by the learned counsel for the second respondent and as seen from the entire records, nothing is available to attribute any contributory negligence against the deceased and MFA.5285/2016 C/W MFA CROB.103/2017 13 therefore, the ratio decided in Sri Narasimhaiah Vs General Manager and another2 and also in Manager, Reliance General Insurance Company Limited, Bangalore -vs- Krishna Reddy and Others3 rendered by this Court regarding application of contributory negligence cannot be applied as the eye witness i.e. PW-2, who has already deposed the manner of accident as pleaded by the petitioners and not as pleaded by the second respondent.
11. The another contention raised by the learned counsel for the second respondent is regarding application of split multiplier. The inquest mahazar as per Ex.P5 did refer that the deceased was aged 56 years and also in the postmortem report as per Ex.P7, the same is also referred. The Tribunal also considered the age of the deceased at 56 years, wherein the petitioners have produced Aadhar Cards pertain to the petitioners as well as the 2 ILR 1998 KAR 1934 3 AIR Online 2021 KAR 632 MFA.5285/2016 C/W MFA CROB.103/2017 14 deceased. As per the same, the date of birth of the deceased was 20.07.1958 with Aadhar Card number 860540748392. The deceased is said to be an official working in the New India Assurance Company Limited. If that is so, it is proper to assess the age of the deceased having regard to his date of birth and not on the basis of the Police records, such as, inquest or postmortem report. If that is so, the age of the deceased as on the date of accident will stand at 58 years not 56 years. But, it is not so relevant as the multiplier for the age of 56 to 60 years will be '9' in view of Sarla Verma and others Vs Delhi Transport Corporation and another4.
12. Learned Counsel for the second respondent relied upon the unreported judgment of this Court in MFA No.100513/2019 D.D.18.02.2019, wherein Division Bench of this Court in Smt. Geetha and others Vs Smt. Rajeshwari and another referring to the judgment of K.S.Lakshmi Kumar (supra), 4 (2009) 6 SCC 121.
MFA.5285/2016 C/W MFA CROB.103/2017 15 while referring to the age of the deceased at 57 held that the application of split multiplier by the Tribunal is not a fault, but the approach of the Tribunal was on factual reality.
13. On contrary, learned counsel Sri Uday Kumar for the first respondent has relied upon the judgment of the Hon'ble Apex Court in the case of N. Jayasree and others Vs Cholamandalam Ms General Insurance Company Ltd.5 wherein at para 28 of the judgment, the Apex Court held as under:
"28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi2, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job.5
AIR 2021 SC 5218 MFA.5285/2016 C/W MFA CROB.103/2017 16 In view of the above, the High Court was not justified in applying split multiplier in the instant case.
14. Now, in view of the law being laid down by Hon'ble Apex Court, when the petitioners are entitled for future prospects for the salaried persons, then we have to follow the latest dictum of the Hon'ble Apex Court referred supra. Hence, it is not a case where it warrants application of split multiplier and therefore, the contention of the learned counsel for the second respondent cannot be supported with.
15. As regarding the income is concerned, it has been argued by the learned counsel for the second respondent that there is no proof of occupation and also income of the deceased and therefore, the compensation has to be assessed on the basis of notional income and not on the avocation claimed by the petitioners. In order to answer the same, the petitioners relied upon several MFA.5285/2016 C/W MFA CROB.103/2017 17 records, such as, Form No.16 issued by the New India Assurance Company Limited for the year 2014- 2015 as per Ex.P16, in respect of the deceased and also the pay slip for the month of June 2014 as per Ex.P17. Learned Counsel for the petitioners contended that Form No.16 has been generated from the Income Tax Department portal, wherein it is specifically mentioned the details of the deceased as employee of the New India Assurance Company Limited, Bommasandra, Bangalore. The pay slip at Ex.P17 did refer the designation of the deceased as 'Record Clerk' at the New India Assurance Company Limited. Exs.P16 and P17 carry the seal of the employer and for the reason of non-examination of any of the officers of the employer, learned counsel for the second respondent contended that the employment is not established. It is the strange argument where the document said to have been issued by the employer of the deceased did point out the employment. Why officer of the MFA.5285/2016 C/W MFA CROB.103/2017 18 employer/Insurance Company requires to be examined when the record produced is sufficient and acceptable and I do not stand in support of the argument canvassed on behalf of the second respondent. Hence the records produced are sufficient to explain that the deceased was working as 'Record Clerk' in the New India Assurance Company Limited, Bangalore.
16. The second respondent is also an Insurance Company. If Exs.P16 and P17 are not the genuine documents, nothing should have prevented the second respondent to summon any of the officers from the New India Assurance Co.Ltd. to explain that the said documents are incorrect. No double- standard can be applied in accepting a record issued by a public authority. Hence, the Form No.16 and also the pay slip at Exs.P16 and P17 are suffice to accept that the deceased was an employee with the New India Assurance Company limited.
MFA.5285/2016 C/W MFA CROB.103/2017 19
17. Now, having regard to the income is concerned, there is a cross-objections, wherein the petitioners have produced the revised pay slip which was happened in the year 2016. As per Ex.P17, the gross salary of the deceased was Rs.31,706/- for the month of June 2014 which carry deduction of professional tax of Rs.200/- and TDS income-tax of Rs.411/-, which are statutorily required to be deducted while calculating the income of the deceased. Accordingly, the Tribunal has assessed the income of the deceased at Rs.31,706/-.
18. Now, in view of the cross-objection, the court has to consider what is the actual income of the deceased at relevant point of time. In this regard, the Computation sheet Wage Revision Arrears as Pre-Wage Notification of 2016 issued by the New India Assurance Co.Ltd., Regional Office, Unity Building, Mission Road, Bangalore, is produced before this court wherein it refers to the salary for MFA.5285/2016 C/W MFA CROB.103/2017 20 the month of June 2014 in respect of the deceased has been revised from Rs.31,706/- to Rs.36,941/-. This document was of the June 2016 wherein the impugned judgment was passed in the month of February 2016, which was available before the Tribunal. As such, the Court has to take note of the same as it was the income of the deceased at the time of his death. Hence, the basic income of the deceased at Rs.36,941/- by making the split figure at Rs.30,080/- as basic, Rs.5591/- as D.A. Rs.430/- as Travelling Allowance and this could be the proper income that the deceased was earning at the time of his death. Accordingly it is assessed.
19. Another aspect of the argument is regarding awarding 9% interest by the Tribunal. In the year 2014, there cannot be any doubt that the interest awarded for fixed deposit is around 9% and therefore, the discretion of the Tribunal in awarding 9% interest cannot be interfered with and as such, MFA.5285/2016 C/W MFA CROB.103/2017 21 the argument of the learned counsel for the second respondent holds no water.
20. In view of the rival contentions and also the discussion made above, the assessment of the compensation has to be taken up now. There is no scope for contributory negligence in this case. The age of the deceased was 58 years as discussed supra. Insofar as income of the deceased was assessed at Rs.36,941/- out of which, we need to deduct the income-tax, professional tax and also Travelling Allowance. Then the T.A. comes to Rs.430x12= Rs.5,160/-. Rs.2,400/- will be the Professional Tax and as indicated by the Form No.16, the income-tax deducted if taken into consideration at Rs.4,935/-, in all Rs.12,495/- has to be deducted from out of the yearly income of the deceased. The gross salary of the deceased at the income of Rs.36,941/- per month comes to Rs.4,43,292/-. Out of this amount, the tax component of MFA.5285/2016 C/W MFA CROB.103/2017 22 Rs.12,495/- is excluded, the income of the deceased after tax comes to Rs.4,30,797/-.
21. In view of the National Insurance Co.Ltd. -vs- Pranay Sethi and Others6 case, for the age group of 50 to 60 years, '15%' will be the future prospects and therefore, a sum of Rs.64,620/- has to be added, then it comes to Rs.4,95,417/-. If 1/3rd is deducted towards personal expenses, the actual income comes to Rs.3,30,278/-. For the age group of 56 to 60 years, the multiplier will be '9' and therefore, loss of dependency will stand at Rs.29,72,502/- (Rs.3,30,278x9).
22. The Tribunal has assessed Rs.1,45,000/- towards conventional heads. In view of the Pranay Sethi's case the conventional heads has been assessed at Rs.15,000/- each for the loss of estate and funeral expenses and loss of consortium at Rs.40,000/-. Here in this case, the Tribunal has 6 (2017) 16 SCC 680 MFA.5285/2016 C/W MFA CROB.103/2017 23 assessed loss of love and affection at Rs.45,000/-, loss of estate at Rs.45,000/-, transportation and funeral expenses Rs.30,000/-, loss of consortium Rs.25,000/-, but same is not correct and in view of the same, the petitioners are entitled for loss of estate at Rs.15,000/-, funeral expenses at Rs.15,000/- and Rs.40,000/- each towards loss of love and affection/consortium and accordingly, Rs.1,50,000/- is awarded towards conventional heads. Thus, the petitioners are entitled to a sum of Rs.31,22,502/- as against Rs.27,12,000/- awarded by the Tribunal. However, the interest @ 9% per annum as awarded by the Tribunal needs to be reduced to 6% per annum for the enhanced compensation.
23. Since the second respondent has admitted its liability, inspite of the first respondent remained absent, the second respondent is liable to pay the compensation.
MFA.5285/2016 C/W MFA CROB.103/2017 24
24. In view of the above, the appeal of the Insurance Company as well as the Cross Objections filed by the petitioners are to be allowed in part and the order of the Tribunal needs to be modified accordingly.
25. In the result I pass the following order:
The appeal and the Cross Objection are allowed in part.
The petitioners are entitled to a total compensation of Rs.31,22,502/- as against Rs.27,12,000/- awarded by the Tribunal.
The second respondent is directed to deposit the enhanced compensation with interest @ 6% on the enhanced compensation from the date of petition till the date of deposit.
So far as the apportionment is concerned, the order of the Tribunal is maintained.
Sd/-
JUDGE KNM/-