Karnataka High Court
Ms Joyeeta Bose vs Venkateshan V on 24 August, 2020
Bench: Aravind Kumar, Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE Mr. JUSTICE ARAVIND KUMAR
B
LAVANYA
Digitally
signed by
B
LAVANYA
Date:
2020.10.15
14:53:49
+0530
AND
THE HON'BLE Mr. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.5896 OF 2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NOS.4444/2018 &
4659/2018 (MV)
IN MFA.No.5896/2018
BETWEEN:
1. MS. JOYEETA BOSE,
WIFE OF SRI KAUSHIK BOSE,
AGED ABOUT 47 YEARS.
2. RAUNAK BASU,
SON OF SRI KAUSHIK BOSE,
AGED ABOUT 18 YEARS.
3. MS. RITWIKA BASU,
DAUGHTER OF SRI KAUSHIK BOSE,
AGED ABOUT 16 YEARS.
4. MS. DIPALI BOSE,
WIFE OF SRI SUNIL KUMAR BOSE,
AGED ABOUT 74 YEARS,
RESIDING AT NO. FD102, FD BLOCK,
SALT LAKE CITY, SECTOR 3,
KOLKATA, WEST BENGAL - 720 108.
... APPELLANTS
(BY SRI. C.G. GOPALASWAMY, ADVOCATE)
2
AND:
1. VENKATESHAN.V,
SON OF SRI R. VELUMURUGAN,
AGE NOT KNOWN TO THE PETITIONER,
NO. 140/B, 1ST MAIN,
2ND PHASE, RAJAJINAGAR,
MANJUNATHANAGAR,
BENGALURU - 560 010.
2. NANJEGOWDA,
SON OF SRI NAGARAJU,
AGE NOT KNOWN TO THE PETITONER,
HURULUGURKI VILLAGE,
VENKATAGIRI, KOTE POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT.
3. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD,
HAVING ITS HEAD OFFICE AT GE PLAZA,
AIRPORT ROAD, YERWADA,
PUNE - 411 006
AND BRANCH OFFICE AT
BANGALORE GOLDEN HEIGHTS,
4TH FLOOR, NO. 1/2,
59TH 'C' CROSS, 4TH M BLOCK,
RAJAJINAGAR,
BANGALORE -560 010.
INSURER OF THE VEHICLE BEARING
NO. KAO3 AC 4672.
4. UNITED INDIA INSURANCE COMPANY,
HAVING ITS HEAD OFFICE AT ,
NO.24, WHITES ROAD,
NEW INDIA ASSURANCE CO. LTD.
FIRE BRIGADE
SARASWATHIPURAM
MYSURU-570 009
REPRESENTED BY ITS
DIVISIONAL MANAGER .... RESPONDENTS
(BY SRI L. SUBRAMANI, ADVOCATE FOR R1;
SRI. K.S.VENKATARAMANA, ADVOCATE FOR R2;
SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R3 &
SRI. B.C. SEETHARAMA RAO FOR R4.)
*****
3
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 24.03.2018, PASSED IN
MVC.NO.2620/2016, ON THE FILE OF THE VII ADDITIONAL
SMALL CAUSES JUDGE & XXXII ACMM, MEMBER, MACT-3,
BENGALURU. PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA.No. 4444/2018
BETWEEN:
UNITED INDIA INSURANCE CO. LTD,
HAVING ITS HEAD OFFICE AT NO.24,
WHITES ROAD, CHENNAI -600 014.
BRANCH OFFICE AT;
NO. 40/3, GEETHA MANSION,
K.G.ROAD, BANGALORE - 560 009.
THROUGH ITS REGIONAL OFFICE,
REGIONAL MANAGER,
UNITED INDIA INSURANCE CO., LTD.,
VI FLOOR, KRISHI BHAVAN,
HUDSON CIRCLE, BENGALURU,
REP. BY ITS REGIONAL MANAGER MR. M.P. REVADI.
... APPELLANT
(BY SRI. SEETHARAMA RAO, B.C.ADVOCATE )
AND:
1. MS. JOYEETA BOSE,
WIFE OF SRI KAUSHIK BOSE,
AGED ABOUT 47 YEARS.
2. RAUNAK BASU,
SON OF SRI KAUSHIK BOSE,
AGED ABOUT 18 YEARS
3. MS. RITWIKA BASU,
DAUGHTER OF SRI KAUSHIK BOSE,
AGED ABOUT 16 YEARS.
ALL ARE RESIDING AT NO. 31/12,
HENNUR ROAD,
KALYAN NAGAR, BENGALURU.
4
PERMANENT ADDRESS
BLOCK NO.H3, TOWER-2,
FLAT 3C, SOUTH CITY GARDEN,
61, B.L.SAHA ROAD, KOLKATTA - 700 106.
4. MS. DIPALI BOSE,
WIFE OF SRI. SUNIL KUMAR BOSE,
AGED ABOUT 74 YEARS,
RESIDING AT NO. FD102, FD BLOCK,
SALT LAKE CITY, SECTOR 3,
KOLKATA, WEST BENGAL - 720 108.
5. VENKATESHAN.V,
SON OF SRI. R. VELUMURUGAN,
AGE NOT KNOWN TO THE PETITIONER,
NO. 140/B, 1ST MAIN,
2ND PHASE, RAJAJINAGAR,
MANJUNATHANAGAR,
BENGALURU - 560 010.
6. NANJEGOWDA,
SON OF SRI. NAGARAJU,
AGE NOT KNOWN TO THE PETITONER,
HURULUGURKI VILLAGE,
VENKATAGIRI, KOTE POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT.
7. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD,
HAVING ITS HEAD OFFICE AT GE PLAZA,
AIRPORT ROAD, YERWADA,
PUNE - 411 006
AND BRANCH OFFICE AT
BANGALORE GOLDEN HEIGHTS,
4TH FLOOR, NO. 1/2,
59TH 'C' CROSS, 4TH M BLOCK,
RAJAJINAGAR, BANGALORE -560 010.
INSURER OF THE VEHICLE BEARING
NO. KAO3 - AC- 4672.
.... RESPONDENTS
(BY SRI. C.G. GOPALASWAMY, ADVOCATE FOR R1 - R4;
SRI. L.SUBRAMANI, ADVOCATE FOR R5; SRI. K.S.
VENKATARAMANA, ADVOCATE FOR R6; SRI. A.N.
KRISHNASWAMY, ADVOCATE FOR R7. VIDE ORDER DATED
21/7/2020 R1,R2 & R3 ARE TREATED AS LRs. OF R4.)
*****
5
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 24.03.2020 PASSED IN MVC.NO.2620/2016
ON THE FILE OF THE VII ADDITIONAL SCJ & XXXIV ADMM
MEMBER, MACT-3, COURT OF SMALL CAUSES, BENGALURU,
AWARDING COMPENSATION OF RS. 3,00,59,000/- WITH
INTERST @ 8% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
IN MFA.No. 4659/2018
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD,
HAVING ITS HEAD OFFICE AT GE PLAZA, AIRPORT ROAD,
YERWADA, PUNE - 411 006
REPRESENTED BY ITS BRANCH OFFICE AT
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD
GOLDEN HEIGHTS, 4TH FLOOR,
NO. 1/2, 59TH 'C' CROSS, 4TH M BLOCK,
RAJAJINAGAR,
BANGALORE -560 010.
... APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)
AND:
1. MS. JOYEETA BOSE,
WIFE OF SRI KAUSHIK BOSE,
AGED ABOUT 47 YEARS.
2. RAUNAK BASU,
SON OF SRI KAUSHIK BOSE,
AGED ABOUT 18 YEARS
3. MS. RITWIKA BASU,
DAUGHTER OF SRI KAUSHIK BOSE,
NOW AGED ABOUT 16 YEARS. MAJOR
SINCE MINOR REPRESENTED
BY MOTHER/NATURAL GUARDIAN
THE 1ST RESPONDENT HEREIN.
ALL ARE RESIDING AT 404B,
JAIN HEIGHTS, 31/12,
HENNUR MAIN ROAD,
KALYAN NAGAR, BENGALURU.
6
PERMANENT ADDRESS:
BLOCK NO.H3, TOWER-2,
FLAT 3C, SOUTH CITY GARDEN,
61, B.L.SAHA ROAD,
KOLKATTA - 700 053.
.... RESPONDENTS
(BY SRI. C.G. GOPALASWAMY, ADVOCATE FOR R1- R4;
R5 SERVED; SRI. K.S. VENKATARAMANA, ADVOCATE FOR R6 ;
R7 SERVED VIDE ORDER DATED 21/7/2020 R1, R2 & R3 ARE
LR'S OF R4)
*****
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 24.03.2018, PASSED IN
MVC.NO.2620/2016, ON THE FILE OF THE VII ADDITIONAL
SMALL CAUSES JUDGE & XXXII ACMM, MEMBER, MACT-3,
BENGALURU. AWARDING COMPENSATION OF RS. 3,80,59,000/-
WITH INTERSEST @ 8% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR FURTHER ORDERS
THIS DAY, PRADEEP SINGH YERUR J., DELIVERED THE
FOLLOWING:
JUDGMENT
These three appeals under Section 173(1) of the Motor Vehicles Act, 1988 are filed against the judgment and award dated 24.03.2018 passed in MVC No.2620/2016 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (hereinafter referred to as 'the Tribunal' for brevity).
2. As these three appeals are filed against the common Judgment and Award passed by the Tribunal, the 7 parties shall be referred to as per their status before the Tribunal for the sake of convenience.
3. MFA No.5896/2018 has been preferred by the claimants, who are wife, two children and mother of the deceased, seeking for enhancement of compensation not being satisfied by the award passed by the Tribunal. MFA No.4444/2018 is preferred by respondent No.4 - United India Insurance Company Limited, who is the Insurer of the lorry bearing registration No.KA-43/3038 and MFA No.4659/2018 is preferred by respondent No.3 - Bajaj Allianz General Insurance Company Limited, Insurer of the Meru Cab Car bearing registration No.KA-03 AC-4672, seeking for modification of the award and for reducing the compensation awarded by the Tribunal.
4. The brief facts leading to the filing of these three appeals are as hereunder:
That on 22.02.2016 one Kaushik Bose was traveling from his place of residence to Kempegowda International Airport, Devanahalli, Bengaluru in Meru Cab Car bearing registration No.KA-03 AC-4672 owned by respondent No.1, insured with respondent No.3- Bajaj Allianz General 8 Insurance Company Limited and driven by one A.Anil Kumar. It is stated that said Meru Cab Car was driven in a rash and negligent manner by its driver and hit the back side (hind portion) of the lorry bearing registration No.KA-
43 / 3038 owned by the respondent No.2, which is insured with the respondent No.4 - United India Insurance Company Limited. It is stated that the lorry was parked on the flyover of National Highway leading towards Airport in a negligent manner without following precautionary measures. The driver of the Meru Cab Car having not seen the parked lorry on the left side of the road leading to Airport, dashed against the back side of the lorry, due to which Kaushik Bose suffered multiple injuries on his head and all other parts of the body and so also the driver of the Meru Cab Car Anil Kumar, sustained injuries on his neck.
5. Both Kaushik Bose and Anil Kumar were admitted to Apurva Mother and Child Hospital, Yelahanka Old Road, Bengaluru. Consequently, Kaushik Bose succumbed to the injuries on 22.02.2016 at 10.30 am. The jurisdictional Yelahanka Traffic Police have registered a case in Cr. No.35/2016 for the offences punishable under 9 Sections 279, 337 and 304-A of IPC r/w Section 134 (a) and (b) and Sec. 187 of IMV Act.
6. It is stated by the claimants that deceased was the sole bread winner of the family and he was employed in WIPRO GE Healthcare Private limited and drawing an average monthly salary of Rs.3,92,625/-. It is stated that he had good future and was holding high post / position in the company where he was working. It is stated that due to his sudden death in the road traffic accident unbearable loss has been caused to the family and having incurred heavy expenditure and they being in grave financial loss, claimants filed a petition claiming compensation in a sum of Rs.7 Crores from both the respondent - Insurance Companies.
7. On receipt of notice from the Tribunal respondents put in their appearance through their respective counsel. The respondent No.1 - Owner of the Meru Cab Car filed written statement taking the plea that his driver had picked up the passenger and was going in slow speed, when he reached at Jakkur Aerodrum, BB Road, on Flyover, Yelahanka, wherein the respondent No.2 10 lorry suddenly put the brake in front of the Meru Cab Car and in order to avoid the lorry the driver of the Meru Cab Car, unable to see the lorry due to flash lights of the oncoming vehicles dashed against the lorry.
8. Respondent No.2, who is owner of the lorry, in his objection statement has stated that driver of the lorry had stationed / parked the lorry on the extreme left side of the BB road on Flyover near Jakkur Aerodrome, due to the burst of lorry tyre. He further took a plea that in view of the tyre burst the National Highway Authority, ie., Navayuga Authority have tied caution danger tape around the said lorry, thereby taking all precautions as contemplated under the MV Act and Rules. It is further averred in the objection statement that the driver of the Meru Cab Car drove the said car in a rash and negligent manner, endangering human life, without observing the traffic rules and regulations and dashed against the stationed lorry, which was parked on the left side on the flyover leading to the Airport and therefore, the accident in question is not due to the negligence on the part of the respondent No.2 or driver of the lorry, but it is the 11 absolute negligence and rash driving of the driver of the Meru Cab Car which is responsible for the accident.
9. The respondent No.3, which is the Insurance Company of the Meru Cab Car in its statement of objections contended that the driver of the Meru Cab Car was not holding valid and effective driving license at the time of accident and as such the respondent No.1 - owner of the Meru Cab Car, giving possession of the vehicle to the said driver has contravened the terms and conditions of the Policy and provisions of the MV Act. It is further stated that there was absolutely no negligence on the part of the driver of the Meru Cab Car in the cause of accident. On the contrary, it is the absolute responsibility and negligence of the driver of the lorry, which was stationed on the tarred portion of the road in a dangerous position without switching on parking lights and assigning any indication of parking the vehicle. It is further stated that this respondent admits issuance of the insurance policy. Further, it has denied the age, avocation and income of the deceased and that the compensation claimed by the claimants was excessive and exaggerated. 12
10. The respondent No.4, who is the insurer of the lorry, which is owned by the respondent No.2, admits the issuance of insurance policy in favour of the respondent No.2 and pleaded that accident occurred on account of rash and negligent driving of driver of the Meru Cab Car who was proceeding in a careless manner and dashed to rear portion of the lorry, which was parked on the extreme left side of the road leading towards Airport with clear indication that due to tyre burst. Despite there being plenty and sufficient space in the middle and right side of the road, the driver of the Meru Cab Car moved towards left side of the road and dashed against the hind portion of the lorry. It is further plea of the respondent No.4 that the National Highway Authority, ie., Navayug Authority Patrolling personnel fixed a caution danger stop tape to the lorry since it was parked on the extreme left side of the road due to tyre burst. Further, as the driver of the Meru Cab Car could not control the vehicle, he dashed against the lorry without observing the indication of the read tape attached to the tyre burst lorry. In addition, it was further stated that the compensation claimed by the claimants was excessive and exorbitant. It has also denied the age, 13 avocation and income of the deceased as sought in the claim petition and sought for dismissal of the claim petition.
11. Based on the said pleadings, the Tribunal framed following issues:
"1. Whether the petitioners prove that they are the LRs/dependants of deceased Sri.Kaushik Bose?
2. Whether the petitioners prove that deceased Sri. Kaushik Bose died in RTA arising out of the accident alleged to have been taken place on 22.02.2016 at about 4.30 a.m., near Jakkur Aero Drum, B.B.Road , on Flyover, Yelahanka, Bengaluru, due to the rash and negligent driving of the driver of Car bearing No, KA-03-AC-4672 and negligent parking of the Lorry bearing No. KA-43-3038 as alleged in the petition?
3. Whether the petitioners are entitled for compensation? If so, what amount & from whom?
4.What order or award?"
12. In order to prove their claim, wife of the deceased, claimant got examined as PW1 and also examined one more witness i.e., HR Manager as PW2. They also got marked documents at Ex.P1 to P40. The respondents led their evidence and examined in all five witnesses as RW1 to RW5 and got marked Ex.R1 to R5. 14
13. On examination of the witnesses and the documents produced by the parties, Tribunal came to a conclusion that accident has taken place due to the wrongful act on the part of both the drivers of the Meru Cab Car and lorry, which belongs to respondents No.1 and 2 and the respective Insurance Company of the said vehicles are jointly and severally liable to pay the compensation. Accordingly, awarded compensation in a sum of Rs.3,80,59,000/- with interest at 8%pa from the date of petition till the date of deposit.
14. Aggrieved by the said Judgment and Award passed by the Tribunal, these appeals have been preferred by the claimants seeking for enhancement of compensation and the Insurer of Meru Cab Car and lorry have sought for modification and reduction of the compensation.
15. We have heard the arguments of learned counsel Sri C.G. Gopalaswamy appearing on behalf of the claimants, Sri L.Subramani, Advocate for respondent No.1, Sri K.S. Venkataramana, Advocate for respondent No.2, 15 Sri A.N.Krishnaswamy, Advocate for respondent No.3 and Sri B.C.Seetharama Rao, Advocate for respondent No.4.
16. It is contended by the learned counsel appearing on behalf of the claimants that deceased who met with an accident and succumbed to the injuries on 22.02.2016 was hale and hearty prior to the accident. It is contended that claimant No.1 is the unfortunate wife, claimants No.2 and 3 being the minor children and claimant No.4, is being mother of the deceased Kaushik Bose, have unfortunately lost his love and affection due to the rash and negligent act of respondents herein. The learned counsel for the claimants further contended that there is no dispute with regard to the relationship of the claimants with the deceased and PW1, the wife of the deceased has produced the birth certificate and passport of herself and children and the death certificate, which are marked as Ex.P1 to P9. Further it is contended by the learned counsel that all the claimants were financially depending on the income of the deceased and apart from his income there was no other income on which the claimants could rely for their living. It is further contended by the learned counsel that on 22.02.2016 in the early 16 hours of the day at about 4.30am, the deceased took Meru Cab Car bearing registration No. KA-03 AC-4672 to travel to the Airport, while the driver of the said car drove the car in a very rash and negligent manner and hit the said car to the rear portion of the lorry bearing registration No.KA-43 / 3038, which was negligently and dangerously stationed / parked on the left side of the fly over road leading to the Airport. Due to the said impact, the deceased suffered multiple head injuries and injuries all over the body and subsequently succumbed on 22.02.2016 in the hospital. The learned counsel further contended that the jurisdictional Yelahanka Traffic Police registered a complaint against the driver of the car and also against the driver of the lorry in Cr. No. 35/2016 for the offences punishable under Sections 279, 337 and 304-A of IPC, Section 134 (a) and (b) r/w Sec. 187 of IMV Act and a charge sheet came to be filed implicating the accused for the said offences. RW1 has produced police documents, such as, Complaint, FIR, witness statement, inquest report, sketch, mahazar, IMV report, PM report, and charge sheet, which are marked at Ex.P20 to 31. The learned counsel further contended that pursuant to the 17 investigation charge sheet came to be filed and the provision of Section 304-A of IPC came to be included against the drivers of both the vehicles. It is further contended by the learned counsel for the claimants that the deceased Kaushik Bose was employed in a Multi- National Company, namely, WIPRO GE Healthcare Private Limited and was drawing handsome salary and his position was of a Senior Executive and there were all possibilities that he could have reached further higher position in the said Company and would have earned more income for himself and for his family. He has further contended that accident occurred due to the wrongful act and gross negligence on the part of both the drivers of the Meru Cab Car and lorry and the Tribunal has rightly held the points in the affirmative and fixed the liability on both the drivers of the car and lorry. He further contended that while awarding the compensation, Tribunal has erred in awarding a meager amount of Rs.3,80,59,000/- as compensation as against claim of Rs.7 Crores. The learned counsel further contended that the Tribunal has erred in calculating the income of the deceased as on the date of his death and thereby made an erroneous calculation to 18 arrive at the compensation awarded by it. He further contended that Tribunal has not taken correct income as on the date of death of the claimant and has erred by taking meager income to award compensation towards "loss of dependency" to claimants. It is further contended by the learned counsel that Tribunal has further erred in adding 25% towards future prospectus, whereas Tribunal ought to have taken 30% to compute the future prospectus of the deceased as he was a permanent employee of WIPRO GE Healthcare Private Limited, which is a IT giant in the Country. The learned counsel further contended that Tribunal has mechanically granted compensation under the head of loss of estate and loss of consortium and expenditure towards transportation of dead body and obsequies of the deceased, which ought to have been considered as per the Judgment of the Constitution Bench in the case of National Insurance Company Limited v. Pranay Sethi reported in AIR 2017 SC 5157. Therefore, he contends that on all these aspects Tribunal has erred in granting a meager compensation to the claimants which requires enhancement at the hands of this Court. Hence, he has 19 sought for enhancement of the compensation to the claimants.
17. Per contra, Mr. A.N.Krishna Swamy, the learned counsel appearing on behalf of respondent - Insurance Company vehemently contended that there was no liability or negligence on the part of the driver of the Meru Cab Car and that the findings arrived and recorded by the Tribunal with regard to the liability and negligence on the part of both the drivers of the car and lorry is erroneous. He further contended that Tribunal erred to notice that the lorry was parked on the National Highway on the flyover road leading to the Airport, which is one of the most busy road across the Country by violating the public safety and against the Motor Vehicles Rules and Regulations. Hence, he contended that negligence on the part of the driver of the lorry necessarily should have been held at 100% rather than fixing the equal liability on the driver of the Meru Cab Car. The learned counsel further contended that Tribunal erred in not applying the provisions of Section 122 and 126 of the MV Act, which was not adhered to by the lorry and further the Tribunal has failed to notice the gross violation of Regulation 15 of 20 the Regulations of Rules of Road Regulations, 1989, wherein it is clear that any vehicle parked shall do so in such a manner that it does not or is not likely to cause danger or disturbance or undue inconvenience to the other road users. Further, the learned counsel contended that the person having heavier vehicle owes more responsibility and public safety towards public and therefore, the responsibility and negligence of the lorry is more than the driver of the Meru Cab Car. The learned counsel has further contended that salary taken for computation of income is on the higher side and that since the claimant No.4, who is mother of the deceased, is aged about 72 years, the Tribunal erred in taking the multiplier as 14, whereas the multiplier as per the age of the claimant No.1, who is wife of the deceased, ought to have been '5'. The learned counsel further contended that Tribunal has erred in deducting 1/4th of the income of the deceased towards his personal expenses, whereas 1/3rd ought to have been deducted. Learned counsel has further contended that Tribunal erred in granting interest @ 8% p.a. from the date of petition till deposit, whereas under Section 34 of the Code of Civil Procedure, awarding rate of interest shall 21 not exceed 6% pa from the date of petition till the date of deposit, whereas tribunal has awarded 8% pa, which is liable to be reduced. Therefore, in view of the aforesaid submissions he seeks for modification and reduction of compensation and prays for liability to be fixed entirely on respondent No.4 - Insurer of the lorry.
18. The learned counsel Mr. B.C.Seetharama Rao, appearing on behalf of the respondent No.4 - Insurance Company contends that Tribunal has committed grave error in attributing equal negligence on the part of the driver of the lorry and the car and said finding is perverse and arbitrary. He contends that Meru Cab Car came in a rash and negligent manner on the left side of the National Highway, which is the lane meant for the vehicle traveling at 40km speed per hour, but whereas the Meru Cab Car had traveled in a high speed viz., more than 100 km. and had dashed against the stationed / parked lorry, which had been parked due to burst / puncture of the tyre of the lorry on the extreme left side of the road flyover leading to the Airport. Learned counsel contends that it is not in dispute that lorry was parked on the extreme left side of the road on the flyover and if the driver of the Meru Cab Car had 22 driven the vehicle in a slow speed he could have avoided the accident or even if he had traveled on the right side lane or middle lane, where car traveled in a high speed ie., 40 km per hour, the driver of the Meru Cab Car could have avoided the accident or could have seen the parked vehicle with caution, indication and parking lights. Therefore, attributing negligence towards the driver of the lorry is erroneous by the Tribunal. He would further contend that tribunal has erred in not giving due weightage to the evidence of RW.3 and RW.4. The learned counsel has further contended that Tribunal has erred in attributing entire negligence to the driver of the lorry for having parked the lorry on the National Highway, despite the caution board and tape put around the lorry to indicate breakdown of lorry by Navyuga Highway Authority and Tribunal has erred in not considering the evidence of PRO of Navyuga Authority, who has been examined as RW4, who deposed that he has put caution board and red tape around the lorry. Further, the learned counsel contends that Tribunal has erred in not considering fact that the lorry was parked on the left side of the road and due to the tyre burst and nothing more could have been done by the 23 driver of the lorry till the puncture of the lorry is rectified. The learned counsel further contended that tribunal has erred in deducting 1/4th towards personal expenses of the deceased, whereas the Tribunal ought to have been deducted 1/3rd , in view of Judgment in the case of Sarla Verma v. DTC reported in (2009)6 SCC 121. The learned counsel further contended that tribunal has erred in taking the salary of the deceased at Rs.2,41,175/- as income and has further erred in adding 25% towards future prospectus. Therefore, compensation awarded by the Tribunal under the head of loss of dependency drastically requires to be reduced as the calculation made by the Tribunal is erroneous. Further learned counsel has contended that Tribunal has seriously erred in awarding interest at 8%pa, which is in violation of Section 35 of CPC, wherein the rate of interest prescribed is 6% p.a. and it could not exceed more than what is prescribed. On these submissions, he seeks for modification of award and reduction of the compensation awarded by the Tribunal.
19. We have heard the learned counsel appearing for the claimants and Insurance Company. Perused the records.
24
20. The points that would arise for our consideration are as follows:
"(a) Whether the accident has occurred due to the negligence of the driver of the Meru Cab Car?
OR Whether the accident has occurred due to the negligence of the driver of the lorry?
(b) Whether the claimants are entitled for enhanced compensation?
(c) Whether the interest awarded by the Tribunal is just and proper or it is liable to be modified?"
RE.POINT (a):
21. It is an undisputed fact that accident occurred on 22.02.2016 on the flyover near Jakkur Aerodrome. There is no dispute with regard to the claimants being the wife, children and mother of the deceased Kaushik Bose. The respondent No.1 is the Owner and respondent No.3 is the Insurer of the Meru Cab Car and the respondent No.2 is the Owner and respondent No.4 is the Insurer of the lorry in question. Claimant No.1 got herself examined as 25 PW1 and has produced documents to establish her relationship with the deceased and birth certificates of the children, who are claimant No.2 and 3, which are not disputed.
22. Respondent Nos.1 and 3 have specifically contended that there was no negligence on the part of the driver of the Meru Cab Car in the occurrence of the accident as he was observing the traffic rules and regulations while driving the car at 4.30am. No doubt, they have contended that entire negligence is on the part of respondent No.2 and 4, ie., owner and insurer of the lorry, which was admittedly parked / stationed on the left side of the National Highway road on the flyover leading to the Airport. It is contended that entire liability and negligence was on the part of the driver of the lorry, since said vehicle was parked without even putting any indicator lights, warning lights or caution board to show that there is breakdown of the lorry. On the other hand, respondent No.2 and 4 have put the entire blame on the Meru Cab Car, ie., respondent Nos.1 and 3, who are owner and insurer of the said car, as being responsible for the accident which was due to negligence of driver in driving 26 the car in a high speed on the left side of the road, which is mainly used for slow moving vehicles and had dashed against stationed / parked lorry though proper care and caution had been taken by switching the indicator lights and caution board has also been displayed to show that there is stationed vehicle due to tyre burst. Therefore, question of contributing negligence to the driver of the lorry or respondent No.2 and 4 does not arise as they have taken due care and precautions to see that on coming vehicles, are warned by displaying the board and indicator lights on the stationed vehicle.
23. In the background of aforestated pleadings, we have to analyze and re-appreciate the evidence adduced by the parties to ascertain as to who was responsible for the accident and due to whose negligence accident had occurred.
24. The driver of the car, namely, Anil Kumar, has been examined as RW1, who has deposed in his evidence that he was driving Meru Cab Car bearing registration No. KA-03 AC-4672 on 22.02.2016 and he had picked up the deceased from his house to travel towards Airport and at 27 4.30am as it was dark and there was no street lights and a lorry bearing registration No. KA-43 / 3038 was stationed / parked at the left side of the National Highway leading to Airport without any signal or parking light or red flag or warning caution, he dashed against the said lorry as he could not see it was parked and stationed. RW1 was cross examined by the claimants, where he has denied that there is any illuminated light at the spot where the accident had occurred. He has deposed that there were no lights on the flyover and he has also denied the question that it is due to his negligence accident had occurred. Further the said witness was cross examined by the respondent No.4. In the cross examination it is elicited that he had picked up the deceased around 4.25am and he took 30 minutes to drive to the spot where the accident occurred. He further said that on the said day he had only two trips and in between those two trips there was a gap of 3 to 4 hours and he has denied the question of the respondent No.4 that as he had two trips throughout night on the date of accident, he was short of the rest and sleep, hence, he was driving the car in a careless manner. He also denied the suggestion that he had fallen asleep and 28 thereby caused the accident due to his wrongful act. This witness has further denied the suggestion that highway patrolling authority by name Navayug had put parking signs like crossed stripe lines in order to alert other vehicles to show about the stationing of lorry. This witness has further stated that if the lorry was not parked / stationed on the left side of the road leading to the Airport, despite dark night and no lights near the accident spot, the accident would not have occurred. He has further stated that due to vehicles coming from opposite direction with high beam lights, he had driven the car on the left side of the road and due to parking of the lorry without any signals, the accident had occurred.
25. The owner of the lorry Mr. Nanjegowda, has been examined as RW2. He has deposed that the lorry bearing registration No. KA-43 / 3038 was stationed on the extreme left side of the road leading to Airport on the flyover, near Jakkur Aerodrome due to the burst of the tyre of the lorry. The National Highway Authority, ie., Navayuga Authority have tied caution danger tape around the said lorry, thereby taking necessary precautions as prescribed under law and as expected of a prudent person. 29 He has further stated that it is the driver of the Meru Cab Car bearing registration No. KA-03 AC-4672, who came in a rash and negligent manner endangering human life without observing the traffic rules and regulations and had dashed against the parked / stationed lorry. Therefore, accident due to his rash and negligent manner of driving by the driver of the car. According to him, he had got his vehicle (lorry) insured with the respondent No.4, ie., United India Insurance Company vide Policy No.0727003115P111362429, which is valid from 29.12.2015 to 28.12.2016 (the date of accident being 22.02.2016). According to him, the Policy was in force as on the date of accident and the driver of the lorry was also possessing valid and effective driving licence to drive the said lorry. Further, he has deposed that he is not a necessary party as he has already insured his vehicle and the Insurer had appeared before the Court. The said witness has produced two documents at Ex.R1 - copy of the statement of the lorry driver and Ex.R2 - copy of the spot sketch. This witness has been cross examined by respondent No.3 - Insurer of the Meru Cab Car. In the cross examination it is clearly stated that one Anand, who 30 was driving the lorry and Keshav was cleaner of the lorry. The lorry driver and cleaner have informed him about the fact of stationing of the lorry in view of the burst of tyre at the spot at 4.00am on the date of accident and he has clearly admitted that he has not informed the Police about stationing of the lorry or there being any tyre burst of the lorry. He has also admitted to the fact that charge sheet is filed against the driver of the lorry by name Anand and that it is because of not taking precautionary measures of the lorry driver the accident had occurred. He has further deposed that driver of the lorry had informed the National Highway Authority about stationing of the lorry over phone, but same was not given in writing. He claims that lorry was stationed due to burst of the tyre.
26. Sri Anand Kumar, the driver of the lorry bearing registration No. KA-43 / 3038 was examined as RW3. He has deposed in his evidence that on 22.02.2016 he was driving the lorry from Devanahalli to Jigani loaded with stones and after unloading the stones he was returning back to Devanahalli and while driving on the extreme left side of the BB Road slowly at about 4.00am, when he reached Jakkur Aerodrome on the flyover road 31 leading to Airport, the front wheel tyre got burst, due to which he parked the lorry on the extreme left side of the road and the Navayuga Highway Patrolling personal came to the spot and fixed the caution danger stop tape and barricade behind the lorry. He has further stated that he was changing the burst tyre at 4.30am at that time the driver of the Meru Cab Car bearing registration No. KA-03 AC-4672 came from Bangalore side in a rash and negligent manner endangering human safety without observing any traffic rules and regulations and dashed against the parked lorry. Immediately, he came out and noticed that driver of the Meru Cab Car and the inmates of the car had suffered serious injuries and later he came to know about the death of Kaushik Bose at the hospital.
27. RW3 has been cross examined by respondent No.3. He has admitted in the cross examination to the effect that charge sheet is filed against him to the effect that he had not taken precautionary measures. He has further deposed that he had not parked the lorry deliberately as the tyre of the lorry had burst and left with no option, he had to park the vehicle to replace the burst tyre. The claimants have also cross examined this 32 witness, wherein this witness was questioned to the effect that moving heavy load vehicles is prohibited on the flyover, to which this witness replied that he was driving the vehicle which was not loaded and it was empty. He has denied the question that tyre of the lorry had not got burst at the spot. According to him at the time of accident he was changing the front wheel tyre of the lorry and he heard huge sound of the car dashing against the lorry. He has further deposed in the cross examination that he is not aware with regard to non-mentioning of the burst of the tyre in the IMV report.
28. Mr. Nagendra Prasad, PRO of Navayuga Devenahalli toll was examined as RW4. He has stated in his evidence that on 22.02.2016 around 4.00am the toll gate received an information through Highway Traffic Management System through helpline number about the breakdown due to tyre puncher at Jakkur Flyover junction. According to him after receipt of the information as a safety and precautionary measures RPO team that was patrolling the area, immediately went to the spot and tied the caution tape around the lorry. He has further deposed that he had received one more information about the fact 33 that a swift desire car came and dashed against the parked vehicle. It is relevant to note here that this witness has stated in his evidence that there were no street lights on the flyover near the accident spot and the accident spot is flying zone and there is a school near by Jakkur Aerodrome and there were no street lights installed. This witness was cross examined by the claimants and he admits in the cross examination that he has not produced any proof of information about the accident and he has further deposed that they maintain log book to record any complaints and information, but he has not produced the same before the Court. This witness has further stated that he has taken photo of the lorry that was tied with caution tape, but he has not produced any such photo to prove said fact. This witness was cross examined by respondent No.3 and he has admitted that he has not visited the spot after receipt of the telephonic information about cause of accident and that he went to the spot after one hour after the accident, during which time the Police had taken the vehicle to the Police Station. He has further deposed and admitted that he has not personally seen the condition of the vehicle prior to the accident and after the accident and is deposing 34 only on the basis of the figures. He further admits that he has not produced any document to show that he had put a precautionary tape and reflectors on the lorry to prevent any accident.
29. Smt. M.S. Savitha, the Administrative Officer of the respondent No.4 - Insurance Company, who has been examined as RW5 has admitted for having issued the Policy to the lorry belonging to the respondent No.2, which was valid from 29.12.2015 to 28.12.2016. According to her the accident is caused due to the rash and negligent manner of driving of the driver of the Meru Cab Car and there is no negligence or liability of the lorry as the same had breakdown due to tyre burst and has parked on the extreme left side of the road and National Highway Authority, Navyuga Highway patrolling personnel have taken precautionary measures by fixing caution danger stop tape and by putting barricades to the lorry. It is her case that Police have falsely filed charge sheet against the driver of the lorry and that driver of the lorry has contested the said charge before the Criminal Court. This witness produced two documents as Ex.R4 - Authorisation letter and Ex.R5 - Policy copy of the lorry. This wtiness 35 has been cross examined by respondent No.3. She has admitted in the cross examination that she has not produced any document to show that lorry was parked after taking necessary precautionary measures and she further admits that there was no such mention of any precautionary measures being taken in the Police records. She further denied that accident has been caused on the sole negligence of the driver of the lorry.
30. It is seen from the evidence of RW.1 - driver of car bearing No.KA-03-AC-4672 drove the car on the left side of the flyover leading to the Airport and admittedly, there was no street lights and at the time of the accident i.e. 4.30 a.m. it was dark and due to high beam light flashing from oncoming vehicle, he was driving on the left side of the road and since there was no indicator lights or warning sign or caution notice board with regard to the breakdown of the lorry ahead, he had dashed against the stationed lorry. It is possible that due to darkness and time being around 4.30 a.m. and admittedly, there being, no street lights at the accident spot and due to the high beam light flashing from the oncoming vehicles, the driver of the car may not have seen the stationed and parked vehicle on 36 the flyover and he has dashed against the lorry. In this regard, it is essential to look at Regulation 15 of the Rules of the Road Regulations, 1989 reads as under:
"15. Parking of the vehicle.--(1) Every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner. (2) A driver of a motor vehicle shall not park his vehicle:--
(i) at or near a road crossing, a bend, top of a hill or a humpbacked bridge;
(ii) on a foot-path;
(iii) near a traffic light or pedestrian crossing;
(iv) in a main road or one carrying fast traffic;
(v) opposite another parked vehicle or as obstruction to other vehicle;
(vi) alongside another parked vehicle;
(vii) on roads or at places or roads where there is a continuous white line with or without a broken line;
(viii) near a bus stop, school or hospital entrance or blocking a traffic sign or 37 entrance to a premises or a fire hydrant;
(ix) on the wrong side of the road;
(x) where parking is prohibited;
(xi) away from the edge of the footpath."
31. It is seen from the evidence of RW.4 that lorry was parked on the flyover leading to the Airport near Jakkur Aerodrome without showing/indicating any signal of parking lights and there was no warning/caution notice to warn the oncoming vehicles with regard to the breakdown of the vehicle either by the driver of the lorry or Navayuga Highway Patrolling Team, who are responsible for putting up warning and caution board whenever there is a breakdown of any vehicle on the National Highway. Though RW.4 has deposed before the Court as Public Relation Officer of Navayuga, Devanahalli, Toll way Private Limited that as a safety precautionary measure, the patrolling officer of RPO team had tied a caution tape around the vehicle, has failed to produce any documents before the tribunal or before this Court to demonstrate such precautionary measures were taken and vehicles were warned and caution notice was put on the stationed lorry to avoid occurrence of any accident. In view of admission 38 of RW.4 that he had not produced any photographs or the log book maintained for having received the complaint with regard to break down or tyre burst of the lorry, we cannot accept the theory put-forth by RW.4 that as a responsible officer of Devanahalli Toll Way Private Limited, they had acted in a responsible manner by taking all precautionary measures to inform the drivers of the vehicles that vehicle i.e. lorry had been parked.
32. RW.2-the driver of the lorry has stated that he parked the vehicle on the flyover of National Highway near Jakkur Aerodrome due to burst of tyre. Though he has also stated that a caution/danger stop tape and barricade behind the aforesaid lorry was put up by RPO Patrolling Team, RW.4 has not produced any documents or photographs before the tribunal or this Court to show that such precautionary measures were taken by him or the RPO Patrolling team of Devanahalli Toll way Private Limited personnel to prevent any untoward incident or accident occurring on the National Highway due to parking of such vehicle. In view of the evidence of RW.4, who has admitted that no documents have been produced to show preventive measures having been taken either by the lorry 39 driver or by the RPO Patrolling Team, it is apparent on the face of the record and evidence adduced by the said witnesses that accident had occurred due to the wrongful act and negligence of the driver of lorry for having parked the lorry on the flyover of the National Highway near Jakkur Aerodrome without properly notifying the public to avoid any incident.
33. It is not only the duty and responsibility of the driver of lorry and RPO Patrolling team, it is also the prudence and common sense of a person to put up the warning board/caution notice and visible indicator lights that too in the middle of the dark night, when vehicles would be coming in a high speed traveling to reach the International Airport. Therefore, we are of the view that the accident has occurred due to wrongful act and negligence of the lorry being stationed and parked on the National Highway. Hence, we answer point (a) in the affirmative.
34. At the same time, we cannot rule out the fact that if the driver of the car had driven the same in a slow and caution manner or in the middle of the road or 40 towards right side of the road, the accident could have been probably avoided. Therefore, we are of the opinion that lorry being bigger vehicle, the responsibility lies on the driver of the vehicle who intends to park or station his vehicle by following Regulation No.15 of the Regulations. In view of the same, there is contributory negligence on the part of driver of the car in the cause of the accident and also car bearing No.KA-03-AC-4672 cannot be solely held responsible and negligent for the cause of accident. Therefore, we saddle the liability at 75% on the lorry and 25% on the driver of the car. Accordingly, we answer point No.2 partly in the affirmative. Therefore, respondent Nos.1 to 4 are jointly and severally liable to pay the compensation to the appellants/claimants in proportion to the liability fastened on them. In view of the fact that there was valid insurance policy of respondent Nos.1 and 2, respondent Nos.3 and 4-Insurance Companies of the offending vehicles are liable to indemnify the award. RE.POINT (b):
35. PW1 - Joyeeta Bose, wife of the deceased Kaushik Bose, in her evidence has deposed that she got married to Kaushik Bose on 19.01.1997 and they have two 41 children from the marriage. She deposed that her husband was employed in M/s WIPRO GE Healthcare Private Limited and drawing annual salary of Rs.31,41,000/-. According to PW1, her husband booked a cab to go to Airport on 22.02.2016 at early hours with Meru Cabs. On that day, the car bearing registration No.KA-03 AC-4672 came and picked up her husband to go to Airport. On the way to Airport the said car dashed against the stationed lorry on the flyover near Jakkur Aerodrome. Due to the impact, her husband suffered multiple injuries over head and other parts of the body and driver of the Meru Cab Car sustained injuries on his neck. Both were admitted to Apurva Mother and Child Hospital, Yelahanka Old Town, Bangalore. Due to the grievous injuries sustained, her husband died on 22.02.2016 at 10.30am. The Police registered a case in Cr. No.35/2016 for the offences punishable under Sections 279, 337 and 304(A) of IPC against driver of the lorry. Post Mortem examination of the body of Kaushik Bose was conducted as per Ex.P29.
36. She has further deposed that her husband was working in a Senior Managerial position at WIPRO GE 42 Healthcare Private Limited and had bright future. Due to death of her husband her family has suffered irreparable loss and injury, since he was the sole bread winner of the family. She further deposed that she along with her two children and mother-in-law she has filed a claim petition seeking compensation of Rupees Seven Crores.
37. PW1 got marked Ex.P1 - marriage certificate to show that she was married to the deceased on 19.01.1997 and their marriage was registered before the Registrar, No.30, Bidhan Sarani, Calcutta, wherein the age of the deceased was shown as 25 years. Therefore, as on the date of accident, ie., on 22.02.2016 the deceased was aged around 44 years. Tribunal has held that the claimants has not produced any cogent evidence with regard to the age of the deceased, is not acceptable as Ex.P1 can be taken for computing the age of the deceased so also Ex.P29, which is PM report, which indicates the age of the deceased as 45 years. Under the circumstance, we can take the age of the deceased as 44 years for assessing the compensation in the present case.
43
38. PW1 has further got marked IT returns, salary slips and Form No.16 from the Tax Department, apart from cab booking records, which are marked as Ex.P11 to P18 and Ex.P34 to P40. She has relied on these documents to substantiate her case with regard to relationship of herself with the deceased, her children and mother-in-law, booking of the cab by the deceased to travel to Airport on 20.02.2016 to travel back on 22.02.2016, income tax returns, Form No.16, to show that her husband was gainfully employed and was drawing handsome salary and it was the only source of income to the entire family.
39. PW1 has further got marked Police records being the complaint, FIR, copy of the witness statement, Police intimation, Inquest report, spot sketch, spot mahazar, IMV report, PM report, wound certificate and charge sheet, which are marked as Ex.P20 to P31. PW1 had relied on the Police documents mentioned above to substantiate her case that Police have conducted and filed charge sheet and have also clearly held that the driver of the car and the driver of the lorry be responsible and are liable for the cause of the accident and they were prosecuted for the same on criminal charges. To prove the 44 same she produced Ex.P19 the order sheet of MMTC-III Court in CC No.11439/2016, wherein accused No.1 and 2 driver of the car and the lorry have been charge sheeted for the offences punishable under Sections 279, 337, 304- A IPC and Section 124 (a) and (b) r/w Section 187 of IMV Act. With these documents PW.1 has proved that accident was caused due to the gross negligence of the driver of the Meru Cab Car and driver of the lorry who had parked lorry on the National Highway without displaying any warning signs and indicator lights. It is also proven by production of the charge sheet submitted by the Police against the drivers of both the vehicles in CC No.11439/2016, which is marked as Ex.P19 that drivers of both vehicles were responsible for the accident.
40. PW1 has been cross examined by the learned counsel for respondent No.3 and 4, whereas respondent No.1 and 2 have not cross examined her due to their absence and as such, it was taken as nil. Nothing worthwhile has been elicited in the cross examination by the respondent No.3 and 4, rather both respondent No.3 and 4 have tried to impute the negligence against each other while cross examining the PW1 and since PW1 is not 45 the person who traveled with the deceased, she would not be an eye witness to testify as to who caused the negligence either driver of the car or driver of the lorry.
41. The claimants have got examined PW2-Tarun Thomas, who is HR Manager of M/s WIPRO GE Healthcare Private Limited, who has corroborated the statement made by PW1 with regard to employment of the deceased in the said company. PW2 has clearly stated that deceased came to be employed by WIPRO GE Healthcare on 26.03.2001 and was holding the position of General Manager, Radiology Solutions and that as on date of accident the annual emoluments of deceased was Rs.31,41,000/- excluding performance linked bonus. He has further deposed that if deceased had continued in the Company, his salary would have grown @ 10.93% per annum and he would have been entitled for annual increment and higher bonus for higher performances. This witness has produced Ex.P32 to P38, which are the authorization letter, notarized copy of ID, service letter, salary statement, salary slips, Form No.16 for the year 2015-16 and Form No.16 for the year 2016-17 relating to deceased. This witness has been cross examined by respondent Nos.3 and 4. Nothing 46 worthwhile to discredit his testimony, which has been elicited by respondent No.3 in the cross examination of PW.2. Respondent No.4 has also cross examined this witness by suggesting that yearly income of the deceased as shown in the documents produced to be false, which is denied by this witness. To the question that claimants have paid the death benefits from the Company, is also denied by this witness. Further, it is deposed that no compassionate job appointment is provided to the claimants as none of them have approached the Company. Nothing has been elicited by the respondent No.4 while cross examining this witness to disprove the case of the claimants with regard to the employment, salary and the potentiality of growth of the deceased in the said Company.
42. It is seen from the evidence of PW.1 that there is no dispute with regard to the relationship of the deceased with claimants and also there is no dispute to the fact that the age of the deceased was 44 years as on the date of accident, which is clearly evident from Ex.P1- registered marriage certificate. Though tribunal has recorded a finding that no cogent proof regarding the age 47 of the deceased is produced by the claimants, has relied on Ex.P29-Post Mortem report, wherein age of the deceased is mentioned as 45 years. Ex.P1-registered marriage certificate shows the age of the deceased was 25 years as on 19.01.1997 and it would be 44 years as on the date of the accident i.e. on 22.02.2016. Therefore, the age of the deceased is taken as 44 years.
43. The evidence of PW.1 with regard to the salary of the deceased has been established by production of income tax returns and Form No.16 and PW.2, who is the HR Manager has further produced the documents marked as Exs.P32 to P38, which also include salary statement, salary slips and Form No.16 for the assessment years 2015-16 and 2016-17.
44. On careful analysis of these documents, it is clearly establishes that deceased was gainfully employed in M/s.Wipro GE Healthcare Private Limited, Bengaluru as a General Manager, Radiology Solutions and was earning a handsome salary. The salary slips for the months of August to December, 2015, January, 2016 and February, 2016 have been produced and marked as Ex.P36. PW.2- 48 HR Manager has produced Ex.P35, which is the details of fixed salary and variable pay projected till his retirement. This document shows that deceased was entitled to a component of fixed salary and another component of a variable pay, which together was paid to the deceased as salary.
45. PW.2-HR Managar has also produced Ex.P38, which is Form No.16 relating to the period 01.04.2015 to 31.03.2016. This document clearly shows that total income derived by the deceased from the Company and total deduction of income tax for the assessment year 2016-17. Since deceased succumbed to injuries in the road accident occurred on 22.02.2016, this document will be aptly useful to determine the actual income deceased was earning. On going through Ex.P38, it reveals that salary paid to the deceased was Rs.52,85,628/- for the whole year and tax deducted was Rs.10,33,321/-. Hence, when income tax is deducted from total salary i.e. Rs.52,85,628/- (-) Rs.10,33,321/-, his take home salary was Rs.42,52,307/-. This would be the income per annum that was drawn by the deceased as on the date of his death.
49
46. It is seen that deceased was aged 44 years as on the date of his death and noting that deceased was in a permanent job, 40% is added towards future prospects, in the light of judgment of Hon'ble Apex Court in the case of Pranya Sethi (supra). Adding 40% to the total income of Rs.42,52,307/- would be Rs.59,53,229/-. It is not in dispute that family of the deceased was consisting of four members and therefore, deduction towards personal expenses would be 1/4th as indicated in the judgment of Hon'ble Apex Court in the case of Sarla Verma (supra) and accordingly, 1/4th of total income is to be deducted which would be Rs.14,88,307/-. Thus, loss of dependency would be Rs.59,53,229/- (-) Rs.14,88,307/- = Rs.44,64,922/-. As the deceased was aged 44 years as on the date of the accident, as per the case of Sarla Verma (supra), the multiplier that would be applicable to the age group from 41 to 45 years is '14'. Accordingly, multiplier of '14' is adopted to compute loss of income to dependants and it would be Rs.44,64,922/- x 14 = Rs.6,25,08,908/- and same is awarded to the claimants towards loss of dependency.
50
47. As there are two children to the deceased, the parental consortium for two children would be Rs.40,000/- x 2 = Rs.80,000/- and spousal consortium would be Rs.40,000/- towards love and affection as held by the Hon'ble Apex Court in the case of Union India Insurance Co. Ltd. v. Satinder Kaur reported in 2020 SCC OnLine SC 410. In addition to this, a sum of Rs.15,000/- requires to be awarded towards funeral expenses and another sum of Rs.15,000/- requires to be awarded towards loss of estate, as held in the case of Pranay Sethi (supra). Thus, claimants, in all, would be entitled to the following compensation:
Loss of Dependency Rs.6,25,08,908.00
Parental Consortium
Rs.40,000/- x 2 Rs. 80,000.00
Spousal Consortium Rs. 40,000.00
Funeral Expenses Rs. 15,000.00
Loss of Estate Rs. 15,000.00
Total Rs.6,26,58,908.00
Hence, point (b) is answered in the affirmative i.e. in favour of the claimants.
RE.POINT (c):
48. Tribunal has awarded interest @ 8% p.a. from the date of petition till date of deposit. Learned Advocates 51 appearing for the Insurance Company have raised serious objections with regard to award of interest by the tribunal @ 8% p.a.
49. Section 149(1) of the Motor Vehicles Act, 1988 reads that insurer would be liable to pay to the decreeholder in respect of liability fastened on it and on any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
50. Under Rule 253 of Karnataka Motor Vehicles Rules, 1989, tribunal is empowered to exercise power of a Civil Court under the provisions of the CPC insofar as they may be applicable to Sections 30, 32, 34, 35, 35-A, 75(a) and (c), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152 and 153 and 153-B.
51. It is seriously contended by the learned counsel for the respondents-Insurance Companies that award of interest @ 8% p.a. is on the higher side and we accept the said contention. Section 34 of CPC reads as under:
"34. Interest.--(1) Where and in so far as a decree is for the payment of money, the 52 Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie."53
52. Thus, under Section 34 of CPC being squarely applicable to the interest awarded by the tribunal and Section 34 empowering the tribunal to award pendente lite interest and discretion being vested with the Court/tribunal to award interest from the date of suit or petition is to the maximum extent of 6% p.a. or in other words, not exceeding 6% p.a., the contention raised by the learned Advocates appearing for the Insurance Company deserves to be accepted and accordingly, it is accepted. Hence, we answer point No.4 partly in the affirmative.
53. During the pendency of appeal, mother of the deceased i.e. mother-in-law of first appellant and grandmother of second and third appellants having died on 17.03.2019, question of awarding compensation to her does not arise, as such, the award of compensation is restricted to appellant Nos.1 to 3 only.
54. It is noticed that during the pendency of these appeals, both the minor children of deceased have attained majority.
55. For the reasons stated hereinabove, we proceed to pass the following:
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ORDER
(i) Appeals are allowed in part.
(ii) Judgment and award passed in MVC.No.2620/2016 is modified and in substitution to the compensation awarded by the tribunal, we hereby award a sum of Rs.6,26,58,908/- (Rupees Six Crores Twenty Six Lakhs Fifty Eight Thousand Nine Hundred and Eight Only) with interest @ 6% per annum from the date of filing of petition till payment or deposit, whichever is earlier.
(iii) Respondent Nos.1 to 4 are jointly and severally liable to pay the compensation to the claimants and in view of valid insurance policies of both vehicles, the insurer of both vehicles are directed to deposit the award amount in proportionate to their liability within a period of four weeks from the date of receipt of copy of this judgment.
(iv) Total compensation awarded is
apportioned in the ratio of 60:20:20
to claimant Nos.1 to 3.
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(v) 50% of the award amount with
accrued proportionate interest shall be kept in a Fixed Deposit for a period of five years in the name of claimant Nos.1 to 3 in any nationalized or scheduled Bank of their choice and they would be entitled to withdraw periodical interest and remaining 50% with accrued proportionate interest is ordered to be released in favour of claimant Nos.1 to 3 on proper identification by the tribunal or in the alternate if claimants furnish their photo identify certification by their Banks, the amounts shall be transferred to their accounts by the tribunal through RTGS or NEFT as may be requested by claimant Nos.1 to 3.
(vi) All pending applications stands
consigned to record.
Sd/-
JUDGE
Sd/-
JUDGE
VK/LB