Karnataka High Court
The New India Assurance vs Smt.Sumitra W/O Salikumar Mahajan on 7 August, 2018
Bench: Raghvendra S. Chauhan, B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 7th day of August 2018
Present
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
And
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
M.F.A. No.100333/2016 (MV)
Between
The New India Assurance Company
Limited, Branch Office Janaki Plaza,
Dr.Pikle Road, Karwar,
Taluk: Karwar,
Represented by its Authorized Signatory,
The New India Assurance Company Limited,
Regional Office, TP-HUB,
II Floor, Srinath Complex,
New Cotton Market, Hubballi-580029. ...Appellant
(By Sri. G. N. Raichur, Advocate)
And
1. Smt. Sumitra,
W/o Salikumar Mahajan
Age: 37 Years, Occ: Not Shown,
R/o: K-Block, 6th West Kaiga Township
Mallapur-581400, Taluka Karwar.
2. Kumari Yamini,
D/o Salikumar Mahajan,
Age: 17 Years, Being minor
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represented by her guardian
next friend mother,
Smt. Sumitra, W/o Salikumar Mahajan,
Age: 37 Years, Occ: Not Shown,
R/o: K-Block, 6th West Kaiga Township
Mallapur-581400, Taluka Karwar.
3. Kumari Himashrita,
D/o Salikumar Mahajan
Age: 13 Years, Being minor
represented by her guardian
next friend mother,
Smt. Sumitra, W/o Salikumar Mahajan,
Age: 37 Years, Occ: Not Shown,
R/o: K-Block, 6th West Kaiga Township
Mallapur-581400, Taluka Karwar.
4. Mennakumari Nayak,
W/o Laxmidhar Nayak,
Age: 62 Years, Occ: Not Shown,
R/o: K-Block, 6th West Kaiga Township
Mallapur-581400, Taluka Karwar.
5. Laxmidhar Nayak,
S/o Sricharan Nayak,
Age: 77 Years, Occ: Not Shown,
R/o: K-Block, 6th West Kaiga Township
Mallapur-581400, Taluka Karwar.
6. Rajeswar, S/o Annappa Naik,
Age: 46 Years, Occ: Not Shown,
R/o: Kangad Post Kangad Bettakoppa
Kalki Sirsi, Taluka Sirsi. ...Respondents
(By Sri. Narayana V. Yaji, Advocate for R1-R5
Sri. Ravi V.Hosamani, Advocate for R6)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, against the judgment & award dated
28.09.2015, passed in M.V.C. No.27/2012, on the file of
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the Member, I Additional Motor Accident Claims Tribunal,
Karwar, awarding compensation of Rs.62,61,216/- along
with interest at the rate of 6% p.a. from the date of
petition till the realisation of the entire amount.
This MFA coming on for Admission this day,
RAGHVENDRA S. CHAUHAN, J, delivered the following:
JUDGMENT
Aggrieved by the award, dated 28.09.2015, passed by the First Additional Motor Accident Claims Tribunal, Karwar ('the learned Tribunal', for short), whereby the learned Tribunal has granted compensation of Rs.62,61,216/-, along with interest at the rate of 6% per annum from the date of filing of the petition till realization, New India Assurance Company Limited has approached this Court.
2. Briefly, the facts of the case are that on 11.12.2011, at 12.15 p.m., Mr. Salilkumar Mahajan was riding a motor bike on the Karwar-Kadra Road. Suddenly, a car, bearing registration No.KA-31/6019, being driven rashly and negligently came and dashed against the motor bicycle. Mr. Salilkumar Mahajan sustained head 4 injuries; he died on the spot. Since the claimants- respondents suddenly lost the sole bread-earner of the family, they filed a claim petition before the Tribunal. In order to substantiate their case, they examined four witnesses, and submitted sixteen documents. On the other hand, the Insurance Company examined a single witness, and submitted five documents. After going through the evidence produced by both parties, the learned Tribunal granted the compensation, along with interest, as aforementioned. Hence, this appeal by the Insurance Company.
3. Mr. G.N.Raichur, the learned counsel for the insurance company, has raised three contentions before this Court: firstly, the driver of the offending vehicle did not have a valid driving licence. For, the driving licence did not contain any specific endorsement with regard to the type of the vehicle to be driven. Therefore, the Insurance Company is not even liable to pay the compensation to the claimants-respondents. 5
Secondly, according to the claimants/respondents, Mr. Salilkumar Mahajan was working as Scientific Assistant in NPCIL at Kaiga Project. In order to prove his monthly income, they had produced the payslip for the month of November 2011, (Ex.P.5), and the salary certificate, (Ex.P.9). According to the salary certificate (Ex.P.9), Mr. Salilkumar Mahajan was paid a production incentive of Rs.5,768/-. Since the said amount was a variable amount, the learned Tribunal should have deducted the said amount from his gross salary in order to assess his net salary. However, the learned Tribunal has failed to do so. Thus, the learned Tribunal has misassessed the income of the deceased.
Thirdly, the basic pay of the deceased remained the same from 2011 to 2013. Therefore, the claimants- respondents are not entitled to receive any compensation for "loss of future prospects". Hence, the learned Tribunal has erred in granting the same to the claimants-respondents.
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4. On the other hand, the learned counsel for the claimants-respondents, Mr. Narayan V. Yaji, has raised the following contentions before this Court:-
Firstly, relying on the case of Mukund Dewangan vs. Oriental Insurance Company Limited [AIR 2017 SC 3668], the learned counsel has pleaded that there is no requirement of law that a specific endorsement with regard to the type of vehicle has to be made in the driving licence. Therefore, the insurance company cannot absolve itself of its liability to pay the compensation, ostensibly on the ground of absence of specific endorsement in the driving licence.
Secondly, merely because the productive incentive may be a variable amount, but nonetheless, the said amount is based on a specific scheme floated by the NPCIL, the employer. Moreover, merely because it is a variable amount, there is no law which requires that the said amount should be deducted from the gross salary in order to arrive at net salary. Relying on the cases of National Insurance Co. Ltd. Vs. Indira Srivastava and 7 Others [(2008)2 SCC 763], and Kalpanaraj and Others Vs. Tamil Nadu State Transport Corporation [(2015)2 SCC 764], the learned counsel has pleaded that two amounts, which could be deducted from the gross salary, are the amount paid towards income tax and professional tax. Therefore, according to the learned counsel, the learned counsel for the appellant is unjustified in arguing that the amount of Rs.5,768/-, paid as productive incentive, should have been deducted from the gross- salary.
Lastly, although the salary certificate has been issued on 08.08.2013, it merely reveals the income earned by the deceased in November 2011. There is no evidence on record to show that the basic pay continued to be same between Novermber 2011 and 2013. Moreover, even if the basic pay continued to be the same, relying on the case of National Insurance Company Limited v. Pranay Sethi and others [AIR 2017 SC 5157], the learned counsel has pleaded that even then, the claimants-respondents would be entitled to 8 receive a compensation in the category of 'loss of future prospects'.
Therefore, the learned counsel has supported the impugned award.
5. Heard learned counsel for the parties, perused the impugned award, and examined the records placed by the learned counsel for the appellant.
6. The issue, whether an Insurance Company can be absolved of its liability to pay the compensation if the driving licence does not contain a specific endorsement with regard to the type of vehicle to be driven, or not, has recently been settled by the Hon'ble Supreme Court in the case of Mukund Dewangan (supra). According to the Apex Court, there is no legal requirements that the driving licence must contain a specific endorsement with regard to the type of vehicle to be driven. Therefore, the first contention raised by the learned counsel for the appellant that since there was no specific endorsement with regard to the type of vehicle in 9 the driving licence, the driver of the offending vehicle did not have a valid driving licence, the said contention is clearly unacceptable.
7. With regard to the amount paid as productive incentive, according to the testimony of Ishwar Ramakant Hegde (P.W.2), the said incentive was being paid on the basis of the scheme floated by the employer. Merely because it is a variable amount, the said amount cannot be deducted from the gross salary in order to arrive at the net salary. In the case of Indira Srivastava (supra) and Kalpanaraj (supra), the Hon'ble Supreme Court has opined that only the income tax, and the professional tax, payable by the deceased, can be deducted from his gross salary in order to assess his net salary. When the Hon'ble Supreme Court has not opined that a variable amount could equally be deducted from the gross salary in order to assess the net salary, the second contention raised by the learned counsel for the appellant is clearly untenable.
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8. In the case of Pranay Sethi (supra), the Hon'ble Supreme Court has clearly opined that the claimants would be entitled to receive compensation for loss of future prospects. Therefore, the contention raised by the learned counsel for the appellant that they would be disentitled to receive the loss of future prospects is unacceptable. Moreover, a bare perusal of the salary certificate (Ex.P.9) clearly reveals that though the said document is dated 08.08.2013, it reflects the income earned by the deceased in the month of November 2011. Hence, there is not an iota of evidence to establish the fact that the basic pay remained the same from 2011 to 2013, as argued by the learned counsel for the appellant. Therefore, the third contention raised by the learned counsel for the appellant is clearly unsustainable.
9. For the reasons stated above, this Court does not find any merit in this appeal. Hence, the appeal is, hereby, dismissed.
Consequently, the Registry is directed to transfer the amount deposited by the Insurance Company to the 11 concerned Tribunal. The learned Tribunal is directed to verify the identity of the claimants-respondents, and to release the compensation amount to them within a period of three weeks from the date of filing of the certified copy of this order.
SD/-
JUDGE SD/-
JUDGE Kms