Karnataka High Court
Smt. Arati W/O Suresh Angadi, vs Gouspeer Hussainsab Makandar, on 20 January, 2014
Bench: N.Kumar, C.R.Kumaraswamy
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JANUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
MISCELLANEOUS FIRST APPEAL NO.25007/2012
C/W MISCELLANEOUS FIRST APPEAL NO.25650/2012(MV)
IN MFA NO.25007/2012
BETWEEN:
1. SMT. ARATI, W/O SURESH ANGADI
AGE 45 YEARS, OCC: HOUSEHOLD WORK
R/O PLOT NO.5, SUBASHCHANDRA NAGAR
RANI CHANNAMMA NAGAR, TILAKWADI,
BELGAUM.
2. AAKASH, S/O SURESH ANGADI
AGE 24 YERS, OCC: STUDENT
R/O PLOT NO.5, SUBASHCHANDRA NAGAR
RANI CHANNAMMA NAGAR,
TILAKWADI, BELGAUM.
3. ABHISHEK, S/O SURESH ANGADI
AGE 21 YEARS, OCC: STUDENT
R/O PLOT NO.5, SUBASHCHANDRA NAGAR
RANI CHANNAMMA NAGAR, TILAKWADI
BELGAUM.
4. SMT. MRINALINI,
W/O SHRIKANT ANGADI
AGE 74 YEARS OCC: HOUSEHOLD WORK
R/O PLOT NO. 5, SUBASHCHANDRA NAGAR,
:2:
RANI CHANNAMMA NAGAR, TILAKWADI,
BELGAUM.
...APPELLANTS
(BY SRI. M.S. HIREMATH, ADV. FOR C.A. CHAKALABBI))
AND:
1. GOUSPEER HUSSAINAB MAKANDAR
AGE MAJOR, OCC: BUSINESS
R/O WARD NO.5 SULIBHAVI HUNGUND
TQ. HUNGUND, DIST. BAGALKOT.
OWNER OF TRUCK NO.KA 29/9721
2. THE DIVISIONAL MANAGER
CHOLAMANDALAM, M.S. GENERAL
INSURANCE CO. LTD, DARE HOUSE
II FLOOR, NSC BOSE ROAD
CHENNAI 600001.
INSURER OF TRUCK NO.KA 29/9721 VALID FROM
04/10/2009 TO 3/10/2010 POLICY CERTIFICATE
NO.3379/00383948/000/00
...RESPONDENTS
(BY SRI ANAND R. KOLLI, ADV. FOR R1,
SRI. RAVINDRA R. MANE ADV. FOR R2)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 14/08/2012
PASSED IN MVC NO.1869/2010 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT I AND MEMBER, ADDL. MACT
BELGAUM PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.25650/2012
BETWEEN:
THE DIVISIONAL MANAGER
CHOLAMANDALAM, MS GENERAL
INSURANCE CO. LTD., DARE HOUSE
:3:
2ND FLOOR, NSC BOSE ROAD,
CHENNAI 01 TAMIL NADU.
.. APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADV.)
AND:
1. SMT. ARATI, W/O SURESH ANGADI
AGE 47 YEARS, OCC: HOUSEHOLD WORK
R/O PLOT NO.5, SUBASHCHANDRA NAGAR
RANI CHANNAMMA NAGAR, TILAKWADI,
BELGAUM.
2. AKASH, S/O SURESH ANGADI
AGE 26 YEARS, OCC: STUDENT
R/O PLOT NO.5, SUBASHCHANDRA NAGAR
RANI CHANNAMMA NAGAR,
TILAKWADI, BELGAUM.
3. ABHISHEK, S/O SURESH ANGADI
AGE 23 YEARS, OCC: STUDENT
R/O PLOT NO.5, SUBASHCHANDRA NAGAR
RANI CHANNAMMA NAGAR, TILAKWADI
BELGAUM.
4. SMT. MRINALINI,
W/O SHRIKANT ANGADI
AGE 77 YEARS OCC: HOUSEHOLD WORK
R/O PLOT NO. 5, SUBASHCHANDRA NAGAR,
RANI CHANNAMMA NAGAR, TILAKWADI,
BELGAUM.
5. GOUSPEER HUSSAINAB MAKANDAR
AGE MAJOR, OCC: BUSINESS
R/O WARD NO.5 SULIBHAVI HUNGUND
TQ. HUNGUND, DIST. BAGALKOT.
OWNER OF TRUCK NO.KA 29/9721
...RESPONDENTS
(BY SRI M.S. HIREMATH, ADV. FOR C.A. BHAKALABBI FOR R1,
R2 TO R5 SERVED.)
:4:
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 14/08/2012
PASSED IN MVC NO.1869/2010 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT I AND MEMBER, ADDL. MACT
BELGAUM AWARDING THE COMPENSATION OF RS.25,70,000/-
WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
N.KUMAR J, DELIVERED THE FOLLOWING:
JUDGMENT
Miscellaneous First Appeal No.25007/2012 is filed by the claimant seeking enhancement of compensation whereas Miscellaneous First Appeal No.25650/2012 is filed by the insurance company challenging the quantum of compensation awarded.
2. As both these appeals arise out of the common order, they are taken up for consideration together and disposed of by this common order. For the purpose of convenience, the parties are referred to, as they are referred to in the claim petition. :5:
3. One Suresh Shrikant Angadi was proceeding on his Active Honda No.KA-22/U-1810 towards III railway gate on congress road, Belgaum on 20/04/2010. One truck bearing No.KA-29/9721 came from behind driven by its driver in a rash and negligent manner dashed against the said motor cycle. On account of the accident, said Suresh Shrikant Angadi sustained grievous injuries all over his body. He was immediately shifted to KLE Hospital, Belgaum, where he was declared dead. First claimant is widow. Claimant Nos.2 and 3 are major sons and 4th claimant is the mother of the deceased. They preferred a claim petition claiming compensation in a sum of Rs.65,00,000/- against the first respondent owner of the truck and the second respondent which had insured the said truck. After service of notice, the respondents entered appearance and filed their statement of objections. They did not dispute the :6: accident nor the insurance coverage. It was contended that the accident was on account of rash and negligent driving by the deceased and therefore they are not liable to pay any compensation.
4. On the aforesaid pleadings, the Tribunal framed 3 issues as under:
"1. Whether the petitioner proves that Suresh Shrikant Angadi died in a motor vehicle accident that occurred at about 8.30 p.m on 20/04/2010 near 2nd Railway Gate bus stop on Congress road at Tilakwadi, Belgaum, while he was proceeding on his two wheeler No.KA-22/U-1810 at that time truck No.KA- 29/2971 came and dashed from his behind in rash and negligent manner by its driver?
2. Whether petitioners are entitled for compensation? If so, what amount and from whom?
3. What Order and Award?":7:
5. The claimants in support of their case examined first claimant as PW-1 and a witness by name Shrikant Veerappa Hospet as PW-2 to speak about the salary drawn by the deceased. They also produced 16 documents which are marked as Exs.P-1 to P-16.
6. On behalf of the respondents, no oral evidence was adduced. However, by consent of the parties, 4 documents were marked as Exs.R-1 to R-4.
7. The Tribunal, on consideration of the aforesaid oral and documentary evidence on record, held that the accident was on account of rash and negligent driving by the driver of the truck and therefore, the claimants have made out a case for payment of compensation. Thereafter, it considered the evidence of PW-1, took note of the income tax returns filed as well as the salary certificate on which :8: reliance is placed, which showed that the deceased was drawing salary of Rs.42,577/- but came to the conclusion that it cannot be acted upon, as in Form No.16, which is produced as EX.P-13, salary of the deceased is shown as Rs.3,10,155 per annum. Therefore, it proceeded to take Rs.3,00,000/- as income of the deceased per annum. As there were 4 claimants, it deducted 1/4th towards personal expenses of the deceased, applied multiplier of 11 and awarded a sum of Rs.24,75,000/- as compensation under the heading loss of dependency. It awarded a sum of Rs.20,000/- towards loss of consortium, Rs.45,000/- towards loss of love and affection to petitioners 2 to 4, Rs.20,000/- towards loss to estate and Rs.10,000/- towards transportation of dead body and funeral expenses. Thus, in all a sum of Rs.25,70,000/-. Aggrieved by the said award both the claimants as well as insurance company are in appeal. :9:
8. Learned counsel for the claimants submits that the salary certificate produced in the case as per Ex.P-7 discloses that the deceased was getting salary of Rs.42,577/-. However, the Tribunal committed a serious error in not taking that amount as salary and the reasons given for discarding the said piece of evidence is not satisfactory and therefore, he submits that a case for enhancement of compensation is made out.
9. Per contra, learned counsel for the insurance company submits that Ex.P-7 is the certificate issued in 2011 by the Assistant Engineer and it is not a salary certificate. Form No.16 filed before the income tax authorities shows Rs.3,10,155/- as the salary drawn per annum by the deceased. If Rs.42,777/- per month is the salary drawn it should have been reflected in Form No.16 which is not there. Therefore, he submits that the Tribunal was justified : 10 : in not taking Rs.3,10,155/- per annum as the salary of the deceased. Secondly, he contends that out of 4 claimants, two are sons who are majors and were studying in Engineering College. It is a question of some time, they become earning members of the family. Therefore, it cannot be said that 4 persons were depending on the deceased for the remaining of their career. Deduction of 1/4th towards personal expenses of the deceased is improper and it ought to be only 1/3rd. Further, he contended that as the deceased was aged 54 years, he was in Government service and he would have retired by the age of 60. Thereafter, he would be entitled to only pension. Therefore, though the multiplier of 11 taken is correct, out of 11 years, 6 years total salary has to be taken into for consideration. For the remaining 5 years, it is half of the salary, as deduction has to be taken into : 11 : consideration and therefore a case for deduction is made out.
10. In the light of the aforesaid facts and rival contentions, the point that arises for our consideration in these appeals is:
What is the just compensation payable to the claimants for the death of Suresh Shrikanth Angadi?
11. The facts are not in dispute. First claimant is the widow and claimants 2 and 3 are the sons and 4th claimant is the mother of the deceased Suresh Shrikanth Angadi. He was working as an Assistant Executive Engineer in PWD. Though Ex.P-7-salary certificate issued by the department shows, in all, he was drawing Rs.42,777/-, it is not in the prescribed form. That apart, the petitioners have produced Form No.16 filed before the Income Tax Authorities which is : 12 : prepared by the office. The said document disclose the annual income of the deceased as Rs.3,10,155/-. Therefore, rightly, the Tribunal was justified in not acting on Ex.P-7- Salary certificate. After deducting income tax payable thereon, the Tribunal has taken Rs.3,00,000/- as the income of the deceased per annum which is just and proper. However, the Tribunal committed a mistake in deducting 1/4th out of the said amount on the ground that there are 4 claimants. The description of the claimants given in the cause title discloses that first son is aged about 24 years and second son is aged 21 years and the evidence on record shows that they have completed engineering and it is a question of some time before they start earning. In the facts of this particular case, notwithstanding the fact that the deceased has left behind 4 legal heirs, all of them cannot be construed as dependents of the deceased and therefore : 13 : deducting 1/4th towards personal expenses relying on the judgment of the Supreme Court in the case of Sarla Verma & Others V/s. Delhi Transport Corporation & Another reported in 2009 ACJ 1298 SC is not proper. The correct deduction would be only 1/3rd. If it is so, then, the loss of income would be Rs.2,00,000/- per annum. The multiplier applied is
11. It is correct. The deceased was aged 54 years. He would have attained the age of superannuation in 6 years during which period alone, he was entitled to full salary. In which event, the loss of income for the 6 years would be 12,00,000/-. For the remaining 5 years period, if we take 50% of the same as the income of the deceased by way of pension, he would be entitled to Rs.5,00 000/- for the said period. Thus, Rs.17,00,000/- would be the loss of dependency to the claimants. The Tribunal has awarded about Rs.95,000/- under conventional heads which is : 14 : proper. Thus, 17,95,000/- would be the compensation payable which could be rounded of to Rs.18,00,000/- which in our view is a just compensation payable to claimants on account of death of deceased Suresh Shrikanth Angadi. However, while apportioning the said amount, the Tribunal has held that all the 4 persons are entitled to equal share. Again the Tribunal has committed a mistake. Compensation is paid for loss of dependency to the dependants. The widow and the mother were completely depending on the deceased. Though sons were also dependent to the extent of food and education, now that they have completed education and they have separate earnings by themselves. The compensation amount awarded cannot be distributed between them. Similarly, the 4th respondent being the mother, aged about 75 years, she has to be taken care of out of the compensation amount for the rest of the period.
: 15 :
12. In the facts of this case, it would be appropriate to direct the deposit of entire amount of compensation in the joint name of 1st and 4th claimant. Out of the interest received from the said compensation, 1/3rd shall be given to the 4th claimant and 2/3 belongs to the first claimant. After the death of 4th claimant, first claimant would be entitled to the entire interest as well as the amount in deposit. As the sons have, now, grown up, became engineering graduates, as long as they live their mother, they have the benefit of interest amount utilized by their mother towards maintaining the family. That is what they would be entitled in law. Hence, we pass the following order:
Miscellaneous First Appeal No.25007/2012 is dismissed.
Miscellaneous First Appeal No.25650/2012 is partly allowed. The award of the Tribunal is modified to the : 16 : extent that the claimants would be entitled to a sum of Rs.18,00,000/- with interest at 6% per annum from the date of petition till the date of payment. The said amount shall be kept in any Nationalized Bank in the name of 1st and 4th claimant and the first claimant shall be entitled to the benefit of periodical interest to an extent of 2/3rd and the 4th claimant would be entitled to 1/3rd.
Parties to bear their own costs. Amount in deposit in MFA No.25650/2012 be transmitted to the Tribunal for being paid to the claimants.
SD/-
JUDGE SD/-
JUDGE Kmv