Karnataka High Court
The Manager vs V B Nirmala on 23 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.3198 OF 2015 (MV)
C/W
MISCELLANEOUS FRIST APPEAL NO.9509 OF 2018
In MFA No.3198 of 2015
BETWEEN
The Manager
Reliance General Insurance
Company Ltd.,
Branch Office No.28
5th Floor East Wing
Centenary Building
M G Road
Bengaluru-560 001.
...Appellant
(by Shri H N Keshava Prashanth, Advocate)
AND
1. V B Nirmala
W/o late V K Balasubramanyam
Now aged about 54 years
2
2. V B Subhashini
D/o late V K Balasubramanyam
Now aged about 28 years
3. V B Bhaskar
S/o late V K Balasubramanyam
Now aged about 24 years
All are residents of
No.810 Asheervad
2nd Main Road 2nd Phase
5th stage BEML Layout
Rajarajeshwari Nagar
Bengaluru-560 098.
4. Smt. N Shoba
W/o M Ramesh
Aged about 41 years
Residing at No.1010
16th Main
Banashankari I Stage
Hanumanthanagar
Bengaluru-560 050.
5. Sri M Ramesh
S/o Madaiah
Aged about 45 years
Residing at No.1010
16th Main
Banashankari I Stage
Hanumanthanagar
Bengaluru-560 050.
6. Sri Krishna Murthy
S/o late Sreenivasaiah
Aged about 86 years
7. Smt. V K Gowramma
W/o Krishnamurthy
3
Aged about 76 years
2nd Cross 3rd Block
East Jayanagar
Bengaluru-560 011.
Both are Residing at No.71
LIC Colony IHCS, 2nd Cross 3rd Block
East Jayanagar
Bengaluru-560 011.
...Respondents
(By Shri Arjun Rao, Advocate for R-1 to R-3;
Shri Vijaya Kumar Prakash, Advocate for R-4 & R-5;
Shri Janardhan Reddy, Advocate for R-6 & R-7)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 23.02.2015 passed in MVC No.588/2012 on the file
of the IX Additional Small Causes Judge, XXXIV ACMM Court of
Small Causes, Member, Additional MACT-7, Bengaluru, awarding
a compensation of Rs.77,71,585/- with interest @ 6% p.a. from
the date of petition till the date of payment.
In MFA No.9509 of 2018
BETWEEN
1. V B Nirmala
W/o late V K Balasubramanyam
Now aged about 54 years
2. V B Subhashini
D/o late V K Balasubramanyam
Now aged about 28 years
3. V B Bhaskar
S/o late V K Balasubramanyam
Now aged about 24 years
4
All are residents of
No.810 Asheervad
2nd Main Road 2nd Phase
5th stage BEML Layout
Rajarajeshwari Nagar
Bengaluru-560 098.
...Appellants
(By Shri Arjun Rao, Advocate)
AND
1. Smt. N Shoba
W/o M Ramesh
Aged about 41 years
Residing at No.1010
16th Main
Banashankari I Stage
Hanumanthanagar
Bengaluru-560 050.
2. Sri M Ramesh
S/o Madaiah
Aged about 45 years
Residing at No.1010
16th Main
Banashankari I Stage
Hanumanthanagar
Bengaluru-560 050.
3. The Manager
Reliance General Insurance
Company Ltd.,
Branch Office No.28
5th Floor East Wing
Centenary Building
M G Road
Bengaluru-560 001.
4. Sri Krishna Murthy
5
S/o late Sreenivasaiah
Aged about 86 years
Residing at No.71
LIC Colony IHCS
2nd Cross 3rd Block
East Jayanagar
Bengaluru-560 011.
5. Smt. V K Gowramma
W/o Krishnamurthy
Aged about 76 years
Residing at No.71
LIC Colony IHCS
2nd Cross 3rd Block
East Jayanagar
Bengaluru-560 011.
...Respondents
(by Sri Vijay Kumar Prakash, Advocate for R-1 & R-2;
Sri H N Keshava Prashanth, Advocate for R-3;
Sri G Jairaj, Advocate for R-4 & R-5)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 23.02.2015 passed in MVC No.588 of 2012 on the
file of the IX Additional Small Causes Judge, XXXIV ACMM Court
of Small Causes, Member, Additional MACT-7, Bengaluru, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
These Miscellaneous First appeals coming on for hearing,
this day, INDIRESH J., delivered the following:
JUDGMENT
These appeals are directed against the judgment and award dated 23rd February, 2015 passed in MVC No.588 of 2012 6 on the file of the IX Additional Small Causes Judge and Additional Motor Accident Claims Tribunal, Bangalore (for brevity, hereinafter referred to as 'Tribunal').
2. Miscellaneous First Appeal No.3198 of 2015 is filed by the Insurance Company challenging the impugned judgment and award on the ground of liability and quantum of compensation; and MFA No.9509 of 2015 is filed by the claimants seeking enhancement in compensation.
3. The claimants and respondents No.4 and 5 are the legal representatives of deceased-V.K. Balasubramanyam who died on 10th January, 2012 in road traffic accident. The averments made in the claim petition are that, on 10th January, 2012 the deceased was proceeding for his official work to Hospet in Innova car bearing registration No.KA-05-D-7952 and the said vehicle was engaged on hire basis by the deceased to go to Hospet and at around 11.30 am, the said vehicle had reached Bharat Petoleum bunk on Tumkur-Sira National Highway-4, and at that time, the Driver of the said car drove the same in a rash and negligent manner and lost his control over the vehicle and 7 thereby crashed into the back-side of the lorry bearing registration No.GJ-10-W-6433 and as a result of the same, the deceased-V.K. Balasubramanyam succumbed to the injuries. Pursuant to the same, Kallambella Police have registered FIR in Crime No.13 of 2012 for the offences punishable under Section 279, 337, 338 and 304(A) of Indian Penal Code against the driver of the Innova car. It is further stated in the claim petition that the deceased was a qualified Chartered Account employed with M/s. Oriental Structural Engineers Private Limited, as a Consultant and was earning Rs.2,00,000/- per month. It is further stated that in view of the untimely death of the deceased, the claimants have put to financial difficulties as well as lost the bread-earner of the family and accordingly, have filed MVC No.588 of 2012 on the file of the Tribunal and sought for compensation of Rs.2,00,00,000/- with interest. During the pendency of the petition, parents of the deceased were arraigned as respondents No.4 and 5. After service of notice, respondents No.1 and 2 have filed written statement denying the averments made in the claim petition. Respondent No.1 has stated that she is the RC owner of the Innova car and the same 8 was insured with the third respondent and further submitted that the alleged accident occurred due to negligence on the part of the driver of the ongoing lorry who had applied brake suddenly and thereby caused accident, and accordingly, sought for dismissal of the claim petition. The respondent No.3-Insurance Company has stated that the accident occurred due to the negligence on the part of the driver of the lorry and further submitted that the issuance of the policy in favour of the Innova car is subject to terms and conditions of the Policy. It is also stated that the liability is subject to the valid and effective driving licence of the driver of the vehicle in question. Accordingly, they sought for dismissal of the claim petition. Based on the above said pleadings, the Tribunal framed issues for its consideration. In order to prove their case, the claimants have examined claimant No.1 as PW1 and produced documents marked as Exhibits P1 to P12. The Respondent No.1 herself has been examined as RW1 and produced document and same is marked as Exhibit R1. Respondent No.3-Insurance Company has examined its officer as RW2 and also examined two witnesses as RW3 and RW4 and produced documents as Exhibits 9 R2 to R8. The Tribunal, after considering the material produced by the parties and the contentions raised by the learned counsel for the parties, by its Judgment and award dated 23rd February, 2015 allowed the claim petition in part and ordered that the claimants and respondents No.4 and 5 are entitled for compensation of Rs.77,71,585/- with interest at the rate of 6% per annum from the date of claim petition till its realisation.
4. Being not satisfied with the compensation awarded by the Tribunal, the claimants have filed MFA No.9509 of 2018 seeking enhancement in compensation; and the Insurance Company has preferred MFA No.3198 of 2015 questioning liability and quantum.
5. We have heard Shri H.N. Keshava Prashanth, learned counsel appearing for the appellant-Insurance Company and Shri Arjun Rao, learned counsel appearing for the claimants and also Shri Vijay Kumar Prakash, learned counsel appearing for Respondents No.4 and 5.
6. Shri H.N. Keshava Prashant, learned counsel appearing for the Insurance Company submitted that the Tribunal failed to 10 consider the contribution made by the driver of the ongoing lorry bearing Registration No.GJ-10-W-6433 in respect of the alleged accident. He further submitted that the income of the deceased taken by the Tribunal at Rs.74,966/- per month is without any basis, which requires to be reduced in this appeal. He further submitted that the Tribunal failed to consider the evidence of RW4 adduced by the Insurance Company, while fastening the entire liability of the vehicle in question. He further submitted that adding 15% of the income of the deceased towards future prospects is without any basis and accordingly sought for setting aside the impugned judgment and award.
7. Shri Arjun Rao, learned counsel appearing for the claimants submitted that the Tribunal, after considering the material on record has passed the impugned judgment and award, which do not require any interference in this appeal in respect of issue No.1. However, he submitted that the award of compensation made by the Tribunal is on the lower side without considering the annual income of the deceased and as such, he emphasised for enhancement of compensation in this appeal. 11
8. Shri Vijay Kumar Prakash, learned counsel appearing for respondents No.4 and 5 also submitted for enhancement of compensation.
9. We have gone through the impugned judgment and award passed by the Tribunal as well as perused the original records carefully. On examination of the finding recorded by the Tribunal on issue No.1, it is found that the claimants have produced Exhibit P1-FIR, P3-Postmortem report and Exhibit P4- Charge Sheet filed against the driver of the Innova car would clearly establish the fact that the driver of the innova car had negligently drove the vehicle in question and dashed to the ongoing lorry bearing Registration No.GJ-10-W-6433 and as such the finding recorded by the Tribunal on issue No.1 is just and proper. Though the Insurance Company has contended that the driver of the ongoing lorry has also contributed to the accident in question, however it has not adduced any evidence through an independent witness to prove the said fact, except the evidence of the driver of the Innova car and perusal of the testimony of RW4-driver of the Innova car could not be a basis 12 to arrive at the conclusion that the driver of the lorry has contributed to the accident and in that view of the manner, the contentions raised by the learned counsel for the Insurance Company is liable to be rejected.
10. Insofar as the award of compensation is concerned, the Tribunal had taken the income of the deceased at Rs.74,966/- per month. The contents of Exhibits P11 and 12 would establish that the net income of the deceased for the Assessment Year 2010-11 is Rs.9,69,116/-; for the assessment year 2011-12 is Rs.11,66,015/-; and for the assessment year 2012-13 is Rs.12,93,150/- and having taken the average of the same, the income of the deceased could be arrived at Rs.34,28,281/- per annum and after deducting Income-tax, the net annual income comes to Rs.26,98,785/- (Rs.34,28,281 - 7,29,496/-) and accordingly, the average income of the deceased for one year comes to Rs.8,99,595/- per annum and as such, the Tribunal has arrived at the monthly income of the deceased, at the time of the accident, at Rs.74,966/- which is just and proper and the same does not call for interference in 13 this appeal. As per the post-mortem report, the age of the deceased at the time of accident was 54 and in view of the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier applicable is 11 and in terms of the law laid down in the case of PRANAY SETHI 10% of the income of the deceased to be added towards future prospects and after deducting of one third towards the personal expenses of the deceased, the compensation under the head loss of dependency would be Rs.72,56,656/- (Rs.82,462 x 12 x 11 x 2/3). In view of the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 ACJ 2700, towards conventional heads, all put together, Rs.70,000/- is awarded. Further, in view of the law declared by the Hon'ble Supreme Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED v. SOMWATI AND OTHERS reported in 2020 SCC ONLINE 720, Rs.40,000/- each is awarded towards parental consortium to respondents No.4 and 5. 14 Accordingly, the claimants and respondents No.4 and 5 are entitled to compensation as follows:
Head Amount (Rs.)
Loss of dependency 72,56,656.00
Conventional heads 70,000.00
Parental consortium (Rs.40,000/- x 2) 80,000.00
Total 74,06,656.00
11. Hence the following:
ORDER
1. MFA No.3198 of 2015 is partly allowed; and MFA No.9509 of 2018 is dismissed;
2. Judgment and award dated 23rd February, 2015 passed in MVC No.588 of 2012 on the file of the Tribunal, is modified by reducing the compensation to Rs.74,06,656/- as against Rs.77,71,585/- awarded by the Tribunal which shall carry interest at 6% per annum from the date of petition till the date of realisation;
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3. The portion of the order of Tribunal inasmuch as liability, apportionment and disbursement remains intact;
4. Amount in deposit, if any, is directed to be transmitted to the jurisdictional Tribunal forthwith;
5. It is also made clear that the deposit, if any found in excess, shall be refunded to the Insurance Company.
6. Registry to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE lnn