Karnataka High Court
Annapurna W/O Bharat Madgaonkar vs The National Insurance Co.Ltd on 21 February, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
M.F.A. No. 103531/2015 (MV)
C/W
MFA CROB No. 100012/2016
IN M.F.A. No. 103531/2015
BETWEEN:
THE NATIONAL INSURANCE COMPANY
LTD., REPRESENTED BY ITS BRANCH
MANAGER, BRANCH OFFICE, KARWAR
(INSURER OF THE MOTOR BIKE
REG. NO. KA-31/S-3749).
NOW REPRESENTED BY ITS
DEPUTY MANAGER, NATIONAL
INSURANCE CO. LTD.,
REGIONAL OFFICE, II FLOOR,
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBBALLI-23. ... APPELLANT
(By Sri.S.K.KAYAKAMATH, ADVOCATE)
AND
1. ANNAPURNA
SINCE DECEASED, REPRESENTED BY
HER LR'S RESPONDENT NOS.2 TO 4
(CAUSE TITLE AMENDED
V/O DATED 22.12.2021)
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2. SHRUTHIDEEPA @ RAGINI
W/O RAGHAVENDRA HONAVARKAR
AGED ABOUT 27 YEARS
R/O:SURATKAL
3. SHILPA BHARAT MADGONKAR
AGED ABOUT 26 YEARS
R/O:BAPUJINAGAR,
SIRSI.
4. SURAJ BHARAT MADGAONKAR
AGED ABOUT 21 YEARS
R/O:BAPUJINAGAR,
SIRSI.
5. KERIYA BANGARI MADGAONKAR
AGED ABOUT 82 YEARS
R/O:BAPUJINAGAR,
SIRSI.
6. RADHA W/O KERIYA MADGAONKAR
AGED ABOUT 70 YEARS
R/O:BAPUJINAGAR, SIRSI.
7. DAYANAND HIRIYANNA GUDDADMANE
R/O:GUDDADMANE
HUBBALLI ROAD, SIRSI.
(OWNER OF THE MOTOR BIKE
REG. NO.KA 31/S-3749)
....RESPONDENTS
(BY SRI.S.G.KADADAKATTI & SRI. LINGESH V KATTIMANI,
ADVOCATES FOR R2 TO R4;
R1 (SINCE DEAD) DELETED, R5-R7 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S.173(1) OF MOTOR VEHICLES ACT 1988, AGAINST THE
JUDGMENT & AWARD DATED:15.07.2015, PASSED IN
MVC.NO.89/2012 ON THE FILE OF THE MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, SIRSI, AWARDING THE
COMPENSATION OF RS.33,02,600/- WITH INTEREST AT THE
RATE OF 9% P.A. FROM 25.08.2012 ON WHICH DATE PETITION
CAME TO BE FILED.
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IN MFA CROB No.100012/2016
1. ANNAPURNA
SINCE DEAD, REPRESENTED BY
HER LR'S OF CROSS OBJECTORS
NO.2 TO 4
(CAUSE TITLE AMENDED
V/O DATED 22.12.2021)
2. SHRUTHIDEEPA @ RAGINI
W/O RAGHAVENDRA HONAVARKAR,
AGED ABOUT 27 YEARS,
R/O. SURATKAL,
UDUPI DISTRICT. 576 101.
3. SHILPA BHARAT MADGAONKAR
AGED ABOUT 26 YEARS,
R/O. BAPUJINAGAR,
SIRSI.
UTARA KANNADA DISTRICT - 581 401.
4. SURAJ BHARAT MADGAONKAR,
AGED ABOUT 21 YEARS,
R/O. BAPUJINAGAR,
SIRSI.
UTTARA KANNADA DISTRICT - 581 401.
..CROSS OBJECTORS
(BY SRI.S.G.KADADAKATTI AND SRI.LINGESH V.KATTIMANI,
ADVOCATES)
AND
1. THE NATIONAL INSURANCE CO.LTD.,
REPRESENTED BY ITS BRANCH MANAGER,
BRANCH OFFICE: KARWAR
(INSURER OF THE MOTOR BIKE
REG.NO.KA 31/S-3749)
NOW REPRESENTED BY ITS
DEPUTY MANAGER,
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
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II FLOOR, ARIHANT PLAZA,
KUSAGAL ROAD,
KESHWAPUR,
HUBALLI-23.
2. DAYANAND HIRIYANNA GUDDADMANE,
R/O GUDDADMANE,
HUBBALLI ROAD,
SIRSI.
(OWNER OF THE MOTOR BIKE
REG.NO.KA 31/S-3749)
UTTARA KANNADA DISTRICT - 581 401.
3. KERIYA BANGARI MADGAONKAR,
AGED ABOUT 85 YEARS,
R/O. BAPUJINAGAR,
SIRSI.
UTTARA KANNADA DISTRICT -581 401.
4. RADHA W/O
KERIYA MADGAONKAR,
AGED ABOUT 71 YEARS,
R/O. BAPUJINAGAR,
SIRSI,
UTTARA KANNADA DISTRICT.
581 401.
...RESPONDENTS
(BY SRI.S K KAYAKAMATH, ADVOATE FOR R1;
NOTICE TO R2 DISPENSED WITH V/O. DT.2.9.2016
NOTICE TO R3 & R4 DISPENSED WITH V/O. DT.17.10.2019)
THIS MFA CROB IN MFA 103537/2015 IS FILED U/O.41
RULE 22 OF CPC, AGAINST JUDGMENT AND AWARD
DTD:15.07.2015, PASSED IN MVC NO.89/2012 ON THE FILE OF
THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SIRSI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THROUGH VIDEO CONFERENCING, THIS DAY, S.RACHAIAH J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal and cross objection are filed by the Insurance Company as well as claimants as against the judgment and award dated 15.07.2015 passed in MVC No.89/2012 by the Additional M.A.C.T, Sirsi.
2. Brief facts of the case:-
It is the case of the claimants that, on 07.07.2012 the deceased was proceeding on his motor cycle bearing its registration No. KA-30-K-7542 on Sirsi - Yellapur Road at about 3:30 P.M, when he reached the Mahasathi Circle, the motor cycle bearing its registration No.KA-31-S-3749 dashed the hind side of the motor cycle in which the deceased was proceeding, who fell down and sustained injuries all over the body and also to the head. Though he was shifted to the hospital, he succumbed to the injuries.
3. It is the case of the claimants that, the deceased was working as Assistant Sub - Inspector, aged about 49 years and was drawing salary of Rs.23,960/- as such, adequate compensation be awarded. -6-
4. The Tribunal after considering the evidence and documents on record, awarded the compensation of Rs.33,02,600/- with interest at 9% p.a.
5. Being aggrieved by the award passed by the Additional M.A.C.T Sirsi, the claimants have preferred the appeal seeking enhancement and modification of the award passed in M.V.C No.89/2012 in the form of cross - objection. Whereas, the insurance company has filed appeal for modification of the award on the ground of contributory negligence and also split multiplier respectively.
6. In MFA No. 103531/2015, the contention of the Insurance Company is that, with regard to the salary of the deceased is concerned; the Tribunal has not deducted appropriate deduction as per law. The liability of the deceased for his rash and negligent driving has not been fastened. The Tribunal has not considered the pension available to the deceased. It is further contended that, the Tribunal has committed an error in not adopting -7- the split multiplier. As such, the Insurance Company is seeking to modify the award in terms of the dictum of the Hon'ble Supreme Court in the case of Puttamma and others V/s K.L. Narayana Reddy and another reported in 2014 ACJ 526.
7. In M.F.A. Cross Objection No.100012/2016, the counsel for cross objectors has submitted that the Tribunal has committed an error in deducting 10% of the amount out of the salary income as TDS which is not correct and the Tribunal has not awarded adequate compensation on various heads and also further submitted that the Tribunal ought to have deducted 1/5th amount as personal expenses of the deceased instead of 1/4th, as the number of dependents are parents, wife, unmarried daughter and studying son. Hence, the counsel for the cross objectors is seeking for enhancement of the compensation and modify the award as per law. -8-
8. In the light of the rival contentions by the parties, the points which arises for our consideration in these appeals are;
1. Whether the Tribunal was justified in not taking note of the contributory negligence of the part of the deceased?
2. Whether the Tribunal was justified in concluding that the split multiplier is not applicable to the case?
3. Whether the Tribunal was justified in taking deduction of income of 1/4th as personal and living expenses instead of 1/5th deduction?
4. Whether the claimants have made out a ground to enhance the compensation? If yes, under which heads?
5. What order?
My findings to the above points are Point No.1: Negative Point no.2: Negative Point No.3: Affirmative Point no.4: Affirmative Point No.5: As per the final order -9-
9. The facts are not in dispute that, the claimant No.1 is the wife of the deceased and claimants 2, 3 and 4 are the children. The 5th and 6th claimants are the father and mother of the deceased respectively. The deceased was working as Assistant Sub- inspector and was drawing a salary of Rs.23,960/ p.m. and he was aged about 49 years as on the date of occurrence of the accident.
10. So far as liability of the deceased towards his rash and negligent driving is concerned, the claimants were examined as P.W.1 and P.W.2 and they are not the eye-witnesses to the incident. However, as per the records, no other complaint or F.I.R has been lodged with respect to the same incident. As per the charge - sheet, the Rider of the Motor cycle bearing its registration No. KA-31-S- 3749 has driven the vehicle in a rash and negligent manner and caused the death of the deceased. Hence, the evidence of the P.W.1 and P.W.2 cannot be disbelieved. The Insurance Company has failed to prove that, the accident has occurred on account of the rash and negligent driving of the deceased. Hence, the Tribunal is
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justified in not fastening the liability on the part of the deceased. Hence, we are of the considered opinion that, the Tribunal was justified in not fastening negligence on the part of the deceased. Accordingly, the submission of the insurance company deserves to be rejected.
11. The Insurance Company has contended that, Tribunal could have considered the split multiplier and contributory compensation could have been awarded as per the dictum of the Hon'ble Supreme Court in the case of Puttamma V/s K.L.Narayana Reddy and another reported in (AIR 2014 SC(Civil) 580). A perusal of the above judgment would disclose that, the Hon'ble Supreme Court has arrived at the conclusion that, the Split Multiplier cannot be automatically applied unless there is a specific evidence on record to that effect. Admittedly, the age of the deceased was 49 years as on the date of the accident which has occurred. There will be increase in the salary. The deceased has still 11 years of service. Hence, the split multiplier rule cannot be applicable.
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12. So far as, the deduction towards personal and living expenses are concerned, it appears from the record and evidence; that, the total numbers of dependents of the deceased are five. As per the decision of "Sarala Verma"
case, where the number of dependents are four to six, the deduction of expenses could have been taken as 1/5th. Accordingly, the Tribunal could have deducted the expenditure 1/5th out of the total income. However, it appears that, the Tribunal has deducted the expenditure 1/4th, hence, the same is required to be modified. Accordingly, we are of the opinion that the Tribunal has committed an error in taking the income as 1/4th instead of 1/5th . Therefore, we set aside the living expenses of 1/4th and considering the 1/5th.
13. So far as the enhancement of compensation is concerned, the submission of the Victim in Cross - objection deserves to be allowed on the following grounds:
a) As per the Ex.P9, the deceased was drawing salary of Rs.23,960/- p.m. after deducting the professional income of Rs.200/-, the rest of the salary would be
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Rs.23,760/- the proper deduction towards the income tax would be 5%. Then, Rs.22,572/- would be the salary. Now, it is required to add 30% towards the future prospectus. The net salary for the purpose of calculating the dependency would be Rs.29,343/-.
b) Now, the loss of dependency would be;
(Rs.29,343x12x13x3/4)=34,33,131/- In addition to the above compensation awarded towards loss of dependency, the loss of Consortium head is also required to be added by considering the agony and the loss of earning member of the family. We are of the opinion that, under the consortium head, the compensation would be Rs.40,000/- each required to be added. Accordingly, under the consortium head a sum of Rs.2,00,000/- has been enhanced instead of award which is passed by the Tribunal. However, the award of the Tribunal towards the loss of estate and funeral expenses would be same and does not required to be enhanced. After having enhanced the compensation, the final Calculation is shown in the table as below:
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Sl. Heads Compensation Compensation
No. awarded by enhanced by
the Tribunal this Court
1. Loss of dependency Rs.32,52,600/- Rs.34,33,131/-
2. Loss of consortium Rs.10,000/- Rs.2,00,000/-
(Rs.40,000x5)
3. Loss of estate Rs.10,000/- Rs.10,000/-
4. Towards transportation Rs.20,000/- Rs.20,000/-
of the dead body and
funeral expenses
Total Rs.33,02,600/- Rs.36,63,131/-
14. From the above calculations, we are of the considered opinion that the claimants/cross objector has made out a ground to interfere in the award for enhancement. Hence, we modified the award passed by the Tribunal under the different heads.
15. In view of the above observations made, we are of the opinion that the appeal filed by the insurance company is liable to be rejected. Whereas, the cross objection filed by the cross objectors is liable to be allowed. Accordingly, we pass the following:
ORDER
(i) The appeal filed by the insurance company/appellant is dismissed.
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(ii) The appeal filed by the cross objectors is allowed.
(iii) The claimants are entitled for compensation amount of Rs.36,63,131/- (Rupees Thirty Six lakhs sixty three thousand one hundred thirty one only) with interest at the rate of 9% p.a. from 25.08.2012 on which the petition came to be filed.
(iv) The appellant herein is directed to deposit the compensation within two months from the date of receipt of copy of this order.
(v) Registry is also directed to transmit the amount to the Tribunal which is deposited as mandatory at the time of filing of this appeal.
(vi) After depositing the above compensation amount, the ratio of the compensation is required to be distributed in terms of the award passed by the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE UN