Karnataka High Court
D L Shobha vs The Managing Director on 5 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.5214/2013 (MV)
C/W
M.F.A.NO.9486/2013 (MV)
IN M.F.A.NO.5214/2013
BETWEEN:
1. D.L. SHOBHA
W/O LATE MAHESH REDDY
AGED ABOUT 27 YEARS
2. KUMARI LEKHANA REDDY
D/O LATE MAHESH REDDY
AGED ABOUT 4 YEARS
3. MASTER LITISH REDDY
S/O LATE MAHESH REDDY
AGED ABOUT 2 YEARS
4. KRISHNA REDDY
S/O LATE MALLA REDDY
AGED ABOUT 73 YEARS
5. CHINNAMMA
W/O KRISHNA REDDY
AGED ABOUT 71 YEARS
ALL ARE RESIDING AT
NO.1/2, 4TH CROSS
BEGUR MAIN ROAD
BEHIND MAYUR JEWELLERS
2
BOMMANAHALLI
BANGALORE - 560 068
SINCE THE 2ND & 3RD APPELLANTS ARE MINORS
REPRESENTED BY THEIR MOTHER 1ST
APPELLANT AS NATURAL GUARDIAN
... APPELLANTS
(BY SRI. J.G. KUMBAR, ADVOCATE
FOR SRI.A. SREENIVASAIAH, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR
VRL LOGISTICS LTD,
REGD & ADMN OFFICE
BANGALORE ROAD, VARUR HOBLI
DHARWAD DISTRICT,
KARNATAKA-581207
2. THE MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
R.O.NO.18, 5TH FLOOR,
KRUSHI BHAVAN,
HUDSON CIRCLE,
BANGALORE - 560 001
...RESPONDENTS
(BY SRI. A.N.KRISHNASWAMY, ADVOCATE FOR R2;
V/O/DTD 05.02.2014 NOTICE TO R1 D/W)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
INDIAN MOTOR VEHICLES ACT, PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 28TH DAY OF JANUARY 2013
PASSED BY THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT BANGALORE CITY, IN
MVC NO.2052/2012 AND ENHANCE COMPENSATION FROM
Rs.11,78,800/- TO Rs.20,00,000/- WITH COST AND INTEREST,
IN THE INTEREST OF JUSTICE AND EQUITY.
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IN M.F.A.NO.9486/2013
BETWEEN:
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
5TH & 6TH FLOOR,
KRISHI BHAVAN,
NRUPATHUNGA ROAD,
BANGALORE - 560 001
... APPELLANT
(BY SRI. A.N.KRISHNAMURTHY, ADVOCATE)
AND:
1. SMT D L SHOBHA,
W/O LATE MAHESH REDDY,
AGED ABOUT 27 YEARS,
2. KUM LEKHANA REDDY,
D/O LATE MAHESH REDDY,
AGED ABOUT 4 YEARS,
3. MASTER LITISH REDDY,
S/O LATE MAHESH REDDY,
AGED ABOUT 1 YEAR 7 MONTHS,
RESPONDENTS NO.2 & 3 HEREIN SINCE MINORS
REPRESENTED BY THEIR NAUTRAL GUARDIAN / MOTHER
THE 1ST RESPONDENT HEREIN
4. KRISHNA REDDY,
S/O LATE MALLA REDDY,
AGED ABOUT 73 YEARS,
5. SMT CHINNAMMA,
W/O KRISHNA REDDY,
NOW AGED ABOUT 71 YEARS,
4
ALL ARE R/A NO.1/2,
4TH CROSS BEGUR MAIN ROAD,
BEHIND MAYUR JEWELLERS, BOMMANAHALLI,
BANGALORE-560068
6. THE MANAGING DIRECTOR
VRL LOGISTICS LTD
REGD & ADMINISTRATIVE OFFICE,
BANGALORE ROAD,
VARUR, HUBLI - 580 020
DHARWAD DISTRICT
...RESPONDENTS
(BY SRI. J.G.KUMBAR, ADVOCATE FOR
SRI. A SREENIVASAIAH, ADVOCATE FOR R1-R5;
V/O/DTD 05.02.2014, R6 NOTICE D/W)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 28TH
JANUARY 2013 PASSED BY THE COURT OF THE III ADDL.
SENIOR CIVIL JUDGE & MOTOR ACCIDENT CLAIMS TRIBUNAL,
BANGALORE, SSCH - 18, IN MVC NO.2052/2012 AND TO PASS
SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT
DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE
CASE, INCLUDING THE COSTS, IN THE INTEREST OF JUSTICE
AND EQUITY.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are arising out of judgment and award in MVC.2052/2012.
2. While MFA.No.5214/2013 is filed by petitioners seeking enhancement of the compensation, MFA.No.9486/2013 5 is filed by respondent No.2 Insurance company seeking reduction of the compensation on the ground that deceased contributed towards the cause of accident and also compensation granted under various heads is on higher side.
3. For the sake of the convenience the parties are referred to by their rank before the Tribunal.
4. FACTS: The facts leading to the filing of the claim petition are that petitioners are the wife, children and parents of deceased Mahesh Reddy. On 26.01.2012 at about 9.40 p.m., he was proceeding in car bearing registration No.KA-51-MD-1619 on Nice Road towards Bannerghatta. He was driving the said car. When he was near Purvankara Apartments, Uttarahalli, a lorry bearing registration No.KA-25-C-7425 (hereinafter referred to as offending vehicle), driven by its driver in a rash or negligent manner going in the same direction lost control and it dashed against the deceased's car from its behind. In the said accident, deceased sustained severe injuries and died on the spot.
4.1 In respect of the said accident, a criminal case was registered against the driver of the offending vehicle. Petitioners 6 being the wife, children and parents of deceased were dependent on him. Respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation.
5. Respondent No.1 appeared and filed written statement stating that the offending vehicle was duly covered by a valid policy issued by respondent No.2 and its driver was holding a valid and effective driving license. However, it has disputed that accident occurred due to the rash or negligent driving of the offending vehicle. Since deceased was driving the car in a zig-zag manner and suddenly came in the lane of the offending vehicle resulting in the accident. Respondent No.1 has also denied that petitioners are the legal representatives of the deceased. It has disputed the age, occupation, income and cause of death. The compensation claimed is on the higher side.
6. Respondent No.2 has filed written statement admitting the coverage of the offending vehicle, but its liability is subject to the terms and conditions of the policy. It has denied that accident occurred due to the rash or negligent driving of the 7 offending vehicle. Deceased contributed towards the accident and as such the owner and insurer of car bearing registration No.KA-51-MD-1619 are necessary parties. Petitioners are called upon to prove that they are the legal representatives of the deceased. The age, occupation, income and cause of death are disputed. The driver of the offending vehicle was not having a valid and effective driving license and as such respondent No.2 is not liable to indemnify respondent No.1.
7. Based on the pleadings the Tribunal has framed necessary issues.
8. In support of the case of the petitioners, petitioner No.1 is examined as PW-1 and Ex.P1 to 10 are marked.
9. Respondents have not led any oral and documentary evidence on their behalf.
10. Vide impugned judgment and award the Tribunal has partly allowed the claim petition granting compensation in a sum of Rs.11,78,800/- with interest at 8% p.a. as against respondent 8 Nos.1 and 2 and directed respondent No.2 to pay the compensation amount with interest, as detailed below:
Heads Amount in
Rs.
Towards Loss of dependency 11,08,800
Towards Consortium 20,000
Towards Loss of love and 20,000
affection
Towards Loss of Estate 20,000
Funeral Expenses 10,000
TOTAL 11,78,800
11. Not being satisfied with the quantum of
compensation, petitioners have filed MFA.No.5214/2013
contending that the compensation granted under various heads is on the lower side and have sought for enhancement.
12. On the other hand in MFA.No.9486/2013, respondent No.2 Insurance company has challenged the impugned judgment and award contending that the findings of the Tribunal regarding negligence is erroneous. It has not appreciated the fact that deceased contributed towards the accident and to that extent the compensation is liable to be reduced.
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12.1 In the absence of proof of the income of the deceased and also the fact that deceased left behind agricultural lands which are being enjoyed by the petitioners, the compensation granted is on the higher side. In the light of the decision of the Hon'ble Supreme Court reported in 2005 ACJ 1131 SC1 only loss of supervisory charges could be taken into consideration for granting loss of dependency. Since deceased was not a permanent employee, granting future prospects is erroneous in the light of decision of Hon'ble Supreme Court reported in 2009 ACJ 12982. When petitioner No.4 is eking out his livelihood by agriculture, the Tribunal erred in considering him as dependent and consequently, it erred in deducting only 1/5th of income towards personal expenses of the deceased. It should have been 1/4th and prays to modify the judgment and award.
13. Heard arguments and perused the records.
14. Before deciding the appeal filed by the petitioners and examining whether the compensation granted is just and reasonable, let me first decide the appeal filed by respondent 1 New India Assurance Company Ltd., Vs. Charley and another 2 Sarala Verma and Ors Vs. Delhi Transport Corporation and another 10 No.2. At the outset respondent No.2 has challenged the impugned judgment and award on the ground that there was contributory negligence on the part of the deceased and the said aspect has not been examined by the Tribunal. Even though respondent Nos.1 and 2 in their written statement have taken up such a contention, respondent No.1 has not at all cross-examined PW-1. Though respondent No.2 has cross-examined PW-1, not even a single suggestion is made with regard to the aspect of contributory negligence on the part of deceased. Altogether a different defence is taken during the cross-examination of PW-1 by suggesting that the offending vehicle is not at all involved in the accident and the car which was driven by the deceased is the only vehicle involved. Respondent No.2 has also not led any evidence to prove the contributory negligence on the part of deceased. In the absence of at least making formal suggestions respondent No.2 and by not cross-examining PW-1, respondent No.1 have failed to prove that there was contributory negligence on the part of the deceased. On the other hand documents placed on record, especially the police papers goes to show that the 11 accident occurred due to the rash or negligent driving by the driver of the offending vehicle.
15. The second ground of appeal urged by the respondent No.2 is that deceased has left behind agricultural land and therefore as per the decision of Hon'ble Supreme Court in Charle's case referred to supra only supervisory charges could be taken into consideration for awarding loss of dependency. However, the cross-examination of PW-1 reveal that the agricultural land in question are standing in the name of petitioner No.4 - the father of the deceased. Though PW-1 has admitted that her husband was assisting petitioner No.4 in agricultural operations, she has denied that he was not having any other income. Respondent No.2 has not led any evidence to establish that deceased was doing only agricultural operations. On the other hand testimony of PW-1 indicate that the deceased was also doing the real estate business. Therefore, Charle's decision is not applicable to the case on hand.
16. Relying upon Sarla Varma's case referred to supra, respondent No.2 has contended that the Tribunal has erred in 12 granting future prospects as deceased was not a permanent employee. It is true that in Sarla Varma's case, the Hon'ble Supreme Court held that only in case of permanent employees, future prospects are required to be added. However, subsequent decisions reported in (2017) 16 SCC 6803 as well as (2018) 18 SCC 1304, the Hon'ble Supreme Court has clearly held that in case of private employees also, there is prospects of their income being increased with the passage of time and therefore future prospects are required to be taken into consideration. Therefore, on this ground also the appeal filed by respondent No.2 fails.
17. Now coming to the appeal filed by the petitioners, seeking enhancement under the following various heads.
18. Loss of dependency: It is pertinent to note that at the time of her evidence, petitioner has given her age as 26 years. During her cross-examination she has denied that at the time of her evidence, she was aged 35 years and at the time of his death her husband was aged more than 40 years. Based on 3 National Insurance Co. Ltd vs Pranay Sethi and others 4 Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram 13 documentary evidence placed on record especially Ex.P10 - Election ID card and PM report, the Tribunal has rightly taken the age of the deceased as 32 years and consequently the multiplier 16 selected by the Tribunal is correct.
18.1 Even though during the course of the claim petition as well as the evidence of PW-1, petitioners have contended that deceased was earning Rs.15,000/-p.m., they have not placed any evidence on record to establish the same. In the absence of evidence to the contrary, the Tribunal has taken the income of deceased on notional basis as Rs.175/- per day i.e., Rs.5,250/- p.m. In the absence of contrary evidence by the petitioners, I hold that the notional income considered by the Tribunal is correct. To this the Tribunal has added 30% towards loss of future prospects. However, as per the decision of the Magma General Insurance Co.'s case, in case of private employees, where the age of deceased is less than 40 years, 40% income is required to be added. Therefore, 40% of Rs.5,250/- comes to Rs.2,100/- and consequently the income of the deceased is required to be taken as Rs.7,350/-. Since there are 5 dependents, the Tribunal has rightly deducted 1/5th of income of deceased 14 towards his personal and living expenses. Respondent No.2 has contended that since petitioner No.4 - father of the deceased is an agriculturist and having agricultural property, he should not be treated as dependent on the deceased.
18.2 It is true that as per Ex.P7 the petitioner No.4 is having some landed property. However, at the time of filing the petition, he was aged 72 years. Taking into consideration these aspects, the Tribunal has rightly considered him also as dependent on the deceased. Consequently, in the light of there being 5 dependents on the deceased, deduction of personal and living expenses of deceased to the extent of 1/5th is correct. The remaining 4/5th is required to be taken into consideration for calculating loss of dependency. With these components, the loss of dependency is 7350 x 12 x 16 x 4/5 = 11,28,960/-.
19. Loss of consortium: The Tribunal has granted Rs.20,000/- under the head loss of consortium and Rs.20,000/- under the head loss of love and affection. However, as per the decision of Pranay Sethi's case which is reiterated in Magma General Insurance Co.'s case, the spouse, children as well as 15 the parents of the deceased are entitled for compensation in a sum of Rs.40,000/- each under the head spousal, filial and parental consortium. Therefore, compensation in a sum of Rs.2,00,000/- is granted under the head loss of consortium, as against Rs.40,000/- granted by the Tribunal under the head loss of consortium and love and affection.
20. Funeral expenses: The Tribunal has granted compensation in a sum of Rs.10,000/- under the head funeral expenses. However, as per Pranay Sethi's case when a substantial sum of compensation is granted under loss of dependency and other heads, under the conventional head of funeral expenses Rs.15,000/- is required to be granted and accordingly, compensation is increased to Rs.15,000/-.
21. Loss to Estate: The Tribunal has granted compensation in a sum of Rs.20,000/- under the head loss to estate. However, in view of the decision of the Pranay Sethi's case, under this head the compensation is required to be restricted to Rs.15,000/- and accordingly the compensation under this head is reduced to Rs.15,000/-.
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22. Thus in all petitioners are entitled for total compensation in a sum of Rs.13,58,960/- as against Rs.11,78,800/- granted by the Tribunal as detailed below:
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Loss of dependency 11,08,800 11,28,960
20,000
Loss of Consortium Towards consortium 2,00,000
20,000
Towards loss of love
and affection
Loss of Estate 20,000 15,000
Funeral Expenses 10,000 15,000
TOTAL 11,78,800 13,58,960
23. The Tribunal has granted interest at the rate of 8% p.a. without any basis and therefore the same is reduced to 6% p.a.
24. In the result the appeal filed by respondent No.2 fails and appeal filed by the petitioners deserves to be allowed in part and accordingly, I proceed to pass the following: 17
ORDER
1) MFA.No.9486/2013 filed by respondent No.2 -
Insurance company is dismissed.
2) MFA.No.5214/2013 filed by the petitioners/claimants is allowed in part.
3) The petitioners/claimants are entitled for compensation in a sum of Rs.13,58,960/- with interest at 6% p.a. as against Rs.11,78,800/- granted by the Tribunal, from the date of petition till realization.
4) Respondent No.2 is directed to pay the compensation with interest (minus the amount if any already paid/deposited) within a period of six weeks from the date of this order.
5) The registry is directed to transfer the amount in deposit to the Tribunal to enable the petitioners to withdraw the same.
6) The registry is directed to transmit the trial Court records along with copy of this order.
Sd/-
JUDGE RR