Karnataka High Court
National Insurance Co Ltd vs Jesudas C P on 8 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
M.F.A. NO.2487 OF 2016 (MV)
BETWEEN:
NATIONAL INSURANCE CO. LTD
MOTOR ACCIDENT CLAIMS HUB
NO.144, SHUBHARAM COMPLEX
M.G. ROAD, BENGALURU-560001
BY ITS REGIONAL MANAGER.
... APPELLANT
(BY SMT. RENUKA H.R. ADV.,)
AND:
1. JESUDAS C.P.
S/O CHINNAPPA
AGED ABOUT 70 YEARS.
2. J. ELIZABETH
D/O JESU DAS C.P.
AGED ABOUT 32 YEARS.
3. ROOTH VEDAKUMARI J
D/O JESU DAS C.P.
AGED ABOUT 30 YEARS.
4. J. PAUL DANIEL
D/O JESU DAS C.P.
AGED ABOUT 33 YEARS.
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ALL R/O NO.155, MLB SLUM
ADUGODI, BENGALURU-560030.
ALL R/O. NO.LF2/102/5
LF BDA FLATS, SFMS
BTM II STAGE
BENGALURU-560076.
5. K. GANESHAN
S/O K. KANDASWAMY, ADULT
NO.107, 4TH CROSS
KALASIPALYAM NEW EXTENSION
BENGALURU-560002.
... RESPONDENTS
(BY SRI. RAGHAVENDRA E.P. ADV., FOR R1 TO R4
V/O DTD:03.01.2018 NOTICE TO R5 HELD SUFFICIENT)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 14.9.2015 PASSED
IN MVC NO.1341/2014 ON THE FILE OF THE II ADDITIONAL
SMALL CAUSES JUDGE, 28TH ACMM, BENGALURU, AWARDING A
COMPENSATION OF RS.41,59,308/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the insurance company against the judgment dated 14.09.2015 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal' for short).
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2. Facts leading to filing of this appeal briefly stated are that on 29.11.2013, at about 1.00 p.m., deceased viz., Uday Kumar was walking on 15th Cross Ring Road, on the foot path and while walking, he slipped and fell down near Puttenhalli under pass, Bengaluru. At that time, a Cement Mixer Lorry viz., the offending vehicle bearing registration No.KA01-B-3046 which was being driven by its driver in a rash and negligent manner. The driver of the lorry lost control over the vehicle and ran over the head of the deceased. As a result of the aforesaid accident, the deceased succumbed to the injuries on the spot.
3. The claimants thereupon filed a petition under Section 166 of the Act inter alia on the ground that the deceased was aged about 38 years at the time of accident and was employed as Assistant Manager in New India Assurance Company, Bangalore and was earning a monthly salary of Rs.40,000/-. It was further pleaded that accident took place solely on account of 4 rash and negligent driving of the driver of the Cement Mixer Lorry. The claimants claimed compensation to the tune of Rs.50,00,000/- along with interest.
4. Respondent No.2 did not appear and was proceeded exparte. Respondent No.1-insurance company filed written statement, in which the mode and manner of the accident was denied. It was averred that the aforesaid accident took place due to negligence of the deceased himself since, he skidded and fell down on the road, abruptly without observing on going vehicular movements and was negligently crossing the road without choosing Zebra crossing meant for pedestrians to cross the road. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues. The claimant No.1 examined himself as PW1, Nagaraj Adiga as PW2 5 and got exhibited documents namely Ex.P1 to Ex.P13. The respondents neither examined any witnesses nor adduced any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained grievous injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.41,59,308/- along with interest at the rate of 6% per annum. Being aggrieved, this appeal has been filed seeking enhancement of the amount of compensation.
6. Learned counsel for the insurance company submitted that the claimant submitted that the Tribunal grossly erred in making an addition of 30% to the income of the deceased on account of future prospects as the evidence of PW2 clearly discloses that the deceased was entitled to earn 22 increments of which he 6 has already earned 21 increments and was eligible for only one increment before retirement. It is further submitted that the tribunal grossly erred in not deducting income tax from the income of the deceased while computing the loss of dependency. On the other hand, learned counsel for the claimant has submitted that PW2-Nagaraj Adiga in his evidence has stated that the deceased had 17 years of service left and was eligible to further promotions and consequently, hikes in the salary. It is also submitted that the deceased is entitled for one increment once in two years not exceeding seven increments. It is further submitted that due to typographical error, the cross-examination of PW2 shows that the deceased was entitled to 22 increments, out of which 21 are drawn.
7. We have considered the submissions made by learned counsel for the claimants and have perused the record. The only question, which arises for our consideration in this appeal is with regard to the 7 quantum of compensation. PW2-Nagaraj Adiga viz., the employer of the deceased in his examination-in-chief has stated that the deceased was drawing a gross salary of Rs.38,249/- per month and that his basic pay was Rs.7,640/- and after all the due increments, the deceased would be entitled to Rs.21,050/-. In his evidence he has further stated that deceased had another 17 years of service left and was eligible to compete for the promotions and hike in the salary. However, it is pertinent to note in his cross-examination, it is admitted that the deceased had already drawn 21 of the 22 increments that he was entitled to. From perusal of Ex.P9, the salary certificate of the deceased, it is clear that the deceased was drawing basis pay of Rs.20,210/-, which corroborates the admission of PW2-Nagaraj Adiga. Taking into account the evidence of the aforesaid witness that deceased had 17 years of service left and had future chances of promotion and consequent hike in salary, we maintain the finding recorded by the tribunal 8 with regard to addition of 30% to the income of the deceased on account of future prospects.
8. The tribunal has assessed the income of the deceased at Rs.37,567/- per month after deducting a sum of Rs.200/- towards professional tax and Rs.1,937/- towards income tax on the basis of Ex.P13, the salary slips. Therefore, the tribunal has rightly assessed the income of the deceased. To the aforesaid amount, 30% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.48,837/-. Since, the deceased was a bachelor, half of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.24,418/-. Taking into account the age of the deceased which was 43 years at the time of accident, the multiplier of '14' has to be adopted. Therefore, the claimants are held entitled to (Rs.24,418x12x14) i.e., Rs.41,02,316/- on account of loss of dependency. 9
9. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,60,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.42,92,000/-. Needless to state that the aforesaid compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. The amount in deposit shall be transmitted to the tribunal for disbursement to the claimants.
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Accordingly, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss