Karnataka High Court
The Manager vs Sri Krishnan Unni G on 9 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.2091 OF 2019(MV)
C/W
MFA No.9863 OF 2018(MV)
IN MFA 2091/2019
BETWEEN:
The Manager,
M/s. Shriram General Insurance
Company Ltd.,
No.5, 2nd Floor,
White House, St. Marks Road,
Bengaluru-560 001.
Now represented by
The Manager
M/s. Shriram General Insurance
Company Ltd.,
No.5/4, 3rd Floor, S.V. Arcade,
Bilakahalli Main Road,
Off BG Road, IIM Post,
Bangalore-560076.
.... Appellant
(By Sri. H.N. Kehsava Prashanth, Adv.)
2
AND
1. Sri.Krishnan Unni G.,
S/o Late. Gopalan Unni,
Now Aged about 67 years.
2. Smt. Chitrakumari,
W/o Krihnan Unni,
Now aged about 59 years.
Both are resident of
R.V.Mandiram, Malayinkeezhu,
Malayinkil, Trivendram-695571,
Kerala State.
3. Mr. Satish K.N.,
S/o K.R.Nagaraj, Major,
R/a No.2485/5, AECS Layout,
"A"Block, Singasandra,
Bengaluru-560 068.
...Respondents
(By Sri.Sridhar D.S., Adv.)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:27.09.2018
passed in MVC No.5446/2016 on the file of the I
Additional Small Causes Judge & MACT, Bengaluru
(CCH-11), awarding compensation of Rs.51,44,448/-
with interest @ 6% p.a. from the date of petition till
realization.
IN MFA 9863/2018
BETWEEN
1. Krishnan Unni G.,
3
S/o Late. Gopalan unni,
Aged 66 years.
2. Smt. Chitrakumari V.R.,
W/o Krihnan Unni,
Aged 58 years.
Both are residing at R.V. Mandiram,
Malayinkeezhu, Malayinkil,
Trivendrum-695 571,
Kerala State.
...Appellants
(By Sri. Sridhar D.S., Adv.)
AND
1. M/s. Shriram General Insurance Co. Ltd.,
R/by it Manager,
Now at #5/4, 3rd Floor, S.V. Arcade,
Belakahalli Main Road,
Bannerghata Road, 2nd IIMB,
Bangalore-560076.
2. Satish K.N.,
S/o K.R.Nagaraj, Major,
R/at #2485/5, AECS Layout,
"A" Block, Sigasandra,
Bengaluru-560 068.
...Respondents
(By Sri. H.N.Keshava Prashanth, Adv. for R1)
This MFA Is filed under Section 173(1) of MV Act
against the judgment and award dated:27.09.2018
passed in MVC No.5446/2016 on the file of the 1st
Additional Small Causes Judge, MACT, Bengaluru
4
(SCCH-11), partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These MFAs coming on for admission, through
video conference, this day, H.T. Narendra Prasad J.,
delivered the following:
JUDGMENT
MFA No.2091/2019 has been filed by the insurance company and MFA No.9863/2018 has been filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 27.09.2018 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident as well as a common judgment, they are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeals briefly stated are that on 08.06.2016 at about 9.30 p.m. the deceased K.Ramesh Unni was about to cross 5 the Hosur Service road, near Canara Bank ATM, Konappana Agrahara, at that time, a Eicher Canter bearing registration No.KA-21/A-0549 which was coming from Electronic city towards Hosa road being driven by its driver at a high speed in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries at the hospital.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 25 years at the time of accident and was working as a Junior software Engineer at Tech Mahindra Limited and was earning Rs.31,570/- per month and the claimants were depending upon the deceased for their livelihood. The claimants have also spent Rs.2,00,000/- towards transportation of dead body, funeral and obsequies ceremonies. 6
4. On service of summons, the respondent No.1 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the allegations made in the petition as false and frivolous. It was pleaded that the quantum of compensation claimed by the claimants are exorbitant. Hence, he sought for dismissal of the petition. The respondent No.2 did not appear inspite of service of notice and was placed ex- parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 - father of the deceased as PW-1 and the employer of the deceased as PW-2 and got exhibited 35 documents namely Ex.P1 to Ex.P35. On behalf of respondents, an officer of the insurance company was examined as 7 RW-1 and got exhibited 1 document as Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the driver of the canter, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.51,44,448/- along with interest at the rate of 6% p.a. Being aggrieved, the insurance company has filed MFA No.2091/2019 and the claimants have filed MFA No.9863/2018.
6. The learned counsel for the claimants has raised the following contentions:
Firstly, the accident has occurred due to the negligence on the part of the deceased, the deceased was crossing the road where there was no pedestrian crossing or zebra crossing. Thus, he too has contributed in the accident. It is very clear from 8 sketch as per Ex.P4, FIR as per Ex.P1 and Charge Sheet as per Ex.P3 that the deceased was crossing the road where there was no pedestrian crossing. But the Tribunal has failed to consider this aspect of the matter.
Secondly, even though the claimants claim that the deceased was earning Rs.31,570/- but they have not established the same by producing necessary evidence and the Tribunal has wrongly held that monthly income of the deceased was Rs.31,570/-.
Even as per salary slip at Ex. P12, in addition to salary there are other benefits, advance amount, bonus, etc, the Tribunal has not deducted the same from the monthly income of the deceased.
Thirdly, the Tribunal has wrongly considered addition of future prospects at 50% instead of 40% in view of the law laid down by the Hon'ble Supreme Court in the case of 'NATIONAL INSURANCE CO.9
LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157.
Lastly he has contended that the claimant has received amount under Group Insurance Scheme but the Tribunal has failed to deduct the same from total amount of dependency. Hence, he sought for allowing the appeal filed by the Insurance Company.
7. On the other hand, learned counsel appearing for the claimants have made the following submissions:
Firstly, it is the specific case of the claimants that when the deceased was about to cross the road the driver of the offending lorry, without following traffic rules came at a high-speed in a rash and negligent manner and dashed against the deceased. It is the burden on the Insurance Company to prove the contributory negligence of the deceased. To discharge their burden they have not examined the driver of the 10 lorry and no documentary evidence has been produced. In fact, the Tribunal after considering all the materials available on record rightly held the issue No.1 in the affirmative.
Secondly, the claimant has produced the employer ID card, appointment letter, five pay slips and bank statement to prove the income of deceased.
He submitted income tax for the assessment year 2015 and 16 and up to the limit of 4 lakhs the income tax is exempted and in respect of professional tax, the same has been deducted by the employer.
Thirdly, the amount received by the claimant under Group Insurance Scheme cannot be deductible from the amount of compensation awarded. In support of his contention he relied on the judgment of Coo-ordinate Bench of this Court in MFA 16 of 2018 disposed of on 26 July 2019.11
Fourthly, the Tribunal has failed to grant any compensation for love and affection in view of the law laid down by the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V-
NANU RAM reported in 2018 ACJ 2782,. Hence he sought for dismissal of appeal filed by the Insurance Company and sought for enhancement of compensation.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. It is not in dispute that deceased Ramesh died in a road traffic accident occurred on 08.06.2016, when he was about to cross the Hosur service road, near Canara Bank ATM, at that time a vehicle bearing registration number KA-21/A-0549 dashed against the deceased, due to that impact deceased fell down on 12 the road the wheel of the canter ran over him and he died at the spot. The counsel for insurance company contended that the deceased was crossing a road where there was no pedestrian crossing or Zebra crossing, thus he too has contributed for the occurrence of the accident. No doubt, a person while crossing the road, whether it is a highway or any other vehicular traffic road, must be cautious. However, except stating that he was crossing the road, the negligence on his part has not been evidenced either in the oral evidence or in documentary proof. It is the burden on the insurance company to prove that the deceased has contributed to the accident. On the contrary, the claimants have specifically stated that deceased was about to cross the service road, even as per the sketch Ex.P4 and mahazar as per Ex.P5, it is clear that the width of the service road is 25 feet, the accident occurred 2 feet 13 from the edge of the road, the offending vehicle coming from electronic city Road came extreme left side and dashed to the deceased. It is very clear from the evidence of the parties and documents produced that the driver of the canter had ample opportunity to reduce the speed and control the vehicle. As per Ex.P1
- FIR, complaint - Ex.P2, charge sheet - Ex.P3, sketch - Ex.P4, and Mahazar - Ex.P5, the driver of the canter came at a high speed and in a rash and negligent manner, dashed against the deceased. Therefore, the Tribunal on the basis of oral and documentary evidence has rightly held the issue number one in the affirmative and held that the driver of the canter is responsible for the occurrence of the accident.
In respect of quantum is concerned, the Hon'ble Supreme Court in the case of 'VIMAL KANWAR AND OTHERS vs. KISHORE DAN AND OTHERS' (2013) 14 7 SCC 476, while dealing with the issue as to whether provident fund, pension and insurance receivable by the claimants come within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage has held as hereinbelow:
"19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage"15
liable for deduction. The following was the observation and finding of this Court:
"35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the 16 case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or 17 death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.".
Even this Court in MFA No.16/2018 has held that the amount paid from the Group Insurance Scheme to the parents of the deceased cannot be deducted from the compensation awarded by the Tribunal.
Hence, the Tribunal has rightly not deducted the amount received by the claimants under the Group Insurance Scheme. The Tribunal has rightly assessed the monthly income of the deceased as Rs.31,570/-. As per the income tax slab, for the assessment year 2015-16, up to Rs.2,50,000/- the income tax is 18 exempted, above Rs.250,000/-, 10% income tax has to be paid. The annual income of deceased was Rs.3,78,840/- out of which for Rs.1,28,840/-, 10% has to be deducted towards income tax. The annual income of the deceased would be Rs.3,65,956/- (Rs.3,78,840 - 12,884). As per the law laid down by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra) 40% of the income of the deceased has to be added towards future prospects, which comes to Rs.5,12,338/-. The deceased was a bachelor, 50% of the income has to be deducted towards his personal expenses, the annual dependency comes to Rs.2,56,169/-. At the time of the accident deceased was aged about 25 years and the multiplier applicable to that age group is 18. Accordingly, claimants are entitled to loss of dependency of Rs.46,11,045 (Rs.256169x 18).
19
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimant No.1, the parents of the deceased are entitled for compensation of Rs.40,000/- each under the head 'loss of filial consortium' .
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
10. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 46,11,045
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 47,21,045
The claimants are entitled to a total
compensation of Rs.47,21,045/-.
20
The Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, both the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE Cm/-