Karnataka High Court
M/S United India Insurance Company ... vs Smt Anitha on 11 December, 2020
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA.NO.5149 OF 2016(MV-D)
C/W
MFA.NO.4274 OF 2016(MV-D)
IN MFA.NO.5149 OF 2016
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LIMITED
NO 266, 1ST FLOOR
GANGADHARAPPA COMPLEX
SUNKADAKATTE, MAGADI MAIN ROAD
VISHWANEEDAM
BENGALURU - 560 091
NOW REP. BY ITS REGIONAL OFFICE
6TH KRISHI BHAVAN
NRUPATHUNGA ROAD
BENGALURU - 560 001
REP. BY ITS MANAGER
....APPELLANT
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR
SRI. A.M. VENKATESH, ADVOCATE)
2
AND:
1 . SMT. ANITHA
W/O LATE P. CHANDRASHEKAR @ CHANDRU
AGED ABOUT 41 YEARS
OCC: HOUSE WIFE
2 . MASTER DHRUVADARSHAN
S/O LATE P. CHANDRASHEKAR @ CHANDRU
AGED ABOUT 17 YEARS
OCC: STUDENT
SINCE MINOR REP. BY HIS MOTHER SMT. ANITHA
RESPONDENT NO.1 HEREIN
3 . KUMARI C THOSHITHA
S/O LATE P. CHANDRASHEKAR @ CHANDRU
AGED ABOUT 11 YEARS
OCC: STUDENT
SINCE MINOR REP. BY HIS MOTHER SMT. ANITHA
RESPONDENT NO.1 HEREIN
4 . SMT AMMAYAMMA
W/O LATE PUTTASWAMAYYA @
MUNIVENKATAPPA
AGED ABOUT 78 YEARS
OCC: NIL
ALL ARE R/AT NO.840
BHEL LAYOUT, 2ND STAGE EXTN.
PATTANAGERE
RAJARAJESHWARI NAGAR
BANGALORE SOUTH-560 098
RESPONDENT NO.4'S NATIVE PLACE
SMT. AMMAYAMMA
W/O PUTTASWAMAYYA @
MUNIVENAKTAPPA
R/AT TAMASANDRA
KANAKAPURA TALUK
3
RAMANAGARA DISTRICT -571 511
5 . SRI SIDDARAJU K
S/O KEMPA HANUMAIAH
NO 24/2, PARAMANNA LAYOUT
NELAMANGALA
BENGALURU RURAL DISTRICT - 562 123
(R C OWNER OF THE LORRY
BEARING REG NO KA- 17/B-2779)
6 . THE MANAGER
MAGMA HDI GENERAL
INSURANCE CO. LTD.
NO 40, 2ND LANE
CKC GARDEN, 4TH FLOOR
MISSION ROAD, NEAR LALBAGH
BENGALURU - 560 027
(INSURER OF THE LORRY
BEARING REG NO KA-17/B-2779)
7 . SRI MANOHAR .K
S/O LATE KARIGOWDA
AGE MAJOR, NO 8/9
LAKSHMI NILAYA, 4TH MAIN, PIPE LANE
SOLLAPURADAMMA EXTENSION
SUNKADAKATTE
BENGALURU - 560 091
(R C OWNER OF THE TEMPO
TRAVELLER BEARING REG NO KA- 04/B-9273)
....RESPONDENTS
(BY SRI. SURESH .M. LATUR, ADVOCATE FOR R1 AND R4
R2 AND R4 ARE MINORS REPRESENTED BY R1
SRI. O. MAHESH, ADVOCATE FOR R6
SRI. R. CHANDRA KUMAR, ADVOCATE FOR R5
NOTICE TO R7 IS SERVED AND UNREPRESENTED)
4
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
23.03.2016 PASSED IN MVC NO.3837/2013 ON THE FILE
OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND XX
ACMM, MEMBER, MACT, BENGALURU, AWARDING
COMPENSATION OF RS.32,90,020/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA.NO.4274 OF 2016
BETWEEN:
1 . SMT. ANITHA
W/O. LATE. P. CHANDRASHEKAR
@ CHANDRU, AGE 41 YEARS
OCC: HOUSE WIFE
2 . MASTER DRUVADARSHAN
S/O. LATE. P. CHANDRASHEKAR @ CHANDRU
AGE 16 YEARS, OCC: STUDENT
REP. BY HIS MOTHER AND NATURAL GAURDIAN
SMT. ANITHA
3 . KUM. C. THOSHITHA
D/O. LATE. P. CHANDRASHEKAR @ CHANDRU
AGE 10 YEARS, OCC: STUDENT
REP. BY HIS MOTHER AND NATURAL GAURDIAN
SMT. ANITHA
ALL ARE R/AT NO. 840
BHEL LAYOUT, 2ND STAGE
EXTEN. PATTANAGERE
RAJARAJESHWARI NAGAR
BENGALURU SOUTH
5
4 . SMT. AMMAYAMMA
W/O PUTTASWAMAYYA @ MUNIVENKATAPPA
AGE 78 YEARS, OCC: NILL
R/AT TAMASANDRA, KANAKAPURA TALUK
RAMANAGAR DISTRICT
....APPELLANTS
(BY SRI. SURESH .M. LATUR, ADVOCATE)
AND:
1 . SRI SIDDARAJU
S/O. SRI. KEMPA HANUMAIAH
R/AT NO. 24/2
PARAMANNA LAYOUT
NELAMANAGALA
BENGALURU RURAL-562 123
2 . THE MANAGER
MAGAM HDI GENERAL INS CO. LTD.
NO. 40, 2ND LANE
CKC GARDEN, 4TH FLOOR
MISSION ROAD, NEAR LALBHAG
BENGALURU-560 027
3 . SRI. MANOHAR K
S/O. LATE. KARIGOWDA
AGE MAJOR, R/O. NO. 8/9
LAKSHMI NILAYA, 4TH MAIN
PIPE LINE, SOLLAPURADAMMA EXTENSION
SUNKADAKATTE
BENGALURU-560 091
4 . THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
NO. 266, 1ST FLOOR
GANGHADARAPPA COMPLEX
SUNKADAKATTE, MAGADI MAIN ROAD
6
VISHWANEEDAM
BANGALORE-560 001
....RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R2
SRI. R. CHANDRA KUMAR, ADVOCATE FOR R1
NOTICE TO R3 IS SERVED AND UNREPRESENTED
SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR
SRI. A.M. VENKATESH FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
23.03.2016 PASSED IN MVC NO.3837/2013 ON THE FILE
OF THE 22ND ADDITIONAL SMALL CAUSES JUDGE, 20TH
ACCM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.10.2020, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN
SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeals are filed challenging the judgment and award dated 23.3.2016 passed in MVC.No.3837/2013 by the XXII Addl.Small Causes Judge and XX A.C.M.M. & Member, MACT, Bengaluru. 7 MFA.No.5149/2016 is filed by the Insurer of the tempo-traveler questioning the negligence and also the quantum of compensation awarded. MFA.No.4274/2016 is filed by the claimants questioning the quantum of compensation awarded.
2. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.
3. The brief facts of the case are as under:
The claimants in MFA.No.4274/2016 filed a claim petition contending that on 29.03.2013 at about 1.30 a.m. the deceased was travelling in a tempo traveler bearing Regn.No.KA-04-B-9273 on NH.4 road. When the tempo-traveler reached Haraganhalli village, Harihara, on NH-4 road, the driver of the offending lorry bearing Regn.No.KA-17-B-2779 came from opposite direction i.e. from Ranebennur side towards Bengaluru, on one way road in a rash and negligent 8 manner and dashed against the tempo-traveler. Due to the impact, the deceased sustained fatal injuries and died on the spot. The appellants have contended that at the time of accident, the deceased was aged about 45 years and was earning Rs.32,000/- per month as employee of 'A' grade at K.E.B. and was contributing his full earnings to the maintenance of the family. The claimants are facing severe financial problems and their lives have become dark and miserable. Hence, they filed claim petition claiming compensation of Rs.25 Lakhs.
Inspite of service of notice, the first and third respondents who are the owners of the lorry and tempo traveler respectively remained absent and were placed exparte.
The insurer of the offending lorry which was arrayed as second respondent contested the proceedings and stoutly denied the entire averments 9 made in the claim petition. It was specifically contended in the written statement that the driver of the offending vehicle which was insured with the second respondent-Insurance company did not possess valid and effective driving licence. The liability, if any, is limited to the terms and conditions of the policy. Further, contended that there was no rashness or negligence on the part of the driver of the lorry. It is the driver of the tempo-traveler drove the same in a rash and negligent manner without observing the oncoming vehicles on the road and came to the centre of the road and dashed against the lorry and caused the accident. The petition is bad for non-joinder of proper and necessary parties to the petition. Further, denied the age, income, occupation of the deceased. On these set of defences, the Insurance company has sought for dismissal of the claim petition against them with cost. 10
The insurer of the tempo-traveler which was arrayed as fourth respondent, who is the appellant in MFA.No.5149/2016 contested the proceedings and stoutly denied the entire averments made in the claim petition. The liability, if any, is limited to the terms and conditions of the policy. The claim of the claimants is highly exorbitant and unreasonable. Further contended that as per the police records, the alleged accident was caused by the driver of the lorry bearing Regn.No.KA-17-B-2779 and the police have rightly filed charge sheet against the lorry driver. The petition is bad for non-joinder of proper and necessary parties to the petition. Further, denied the age, income, occupation of the deceased. On these set of defences, the fourth respondent-Insurance company has sought for dismissal of the claim petition against them with cost.11
The Tribunal based on the pleadings, framed the following issues:
"1. Whether the petitioners prove that deceased P. Chandrashekar died due to accidental injuries arising out of accident alleged to have been taken place on 29.03.2013 at about 1.30 a.m., near Haraganahalli village, NH-4, Harihar Taluk due to the rash and negligent driving of the driver of the Lorry bearing Reg.No.KA-07-B- 2779?
2. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
3. What order or award?
Additional Issue No.1
1. Whether the respondent no.2 proves that, the accident took place due to negligence on the part of the driver of the Tempo-Traveller bearing Reg.No.KA-04-B- 9273?"
In support of their contentions, the claimants got examined claimant No.1 as P.W.1 and two witnesses as P.Ws.2 and 3 and the fourth claimant got herself 12 examined as P.W.4 and got marked Exs.P1 to P17. In support of their respective case, the second respondent has got examined two witnesses as R.W.1 and 3 and got marked Ex.R1 and the fourth respondent examined one witness as R.W.2 and got marked Exs.R2 to R5.
The Tribunal on appreciation of the oral and documentary evidence on record has answered issue No.1 in the negative and additional issue No.1 in the affirmative holding that the accident took place due to negligence on the part of the driver of the tempo- traveler bearing Regn.No.KA-04-B-9273.
The Tribunal while assessing the compensation, by taking note of the salary certificate as per Ex.P17 has assessed the income of the deceased at Rs.30,637/- per month. Deducting Rs.200/- towards professional tax, the monthly income is arrived at Rs.30,437/- per month and Rs.3,65,244/- per annum. 13 After deducting 10% towards income tax, the Tribunal has assessed the income of the deceased at Rs.3,28,720/- per annum. By deducting 1/4th towards personal expenses and applying the multiplier of 13, the Tribunal has awarded Rs.32,05,020/- towards loss of dependency. Under conventional heads, Rs.85,000/- is awarded and in all, the Tribunal has awarded total compensation of Rs.32,90,020/- with interest at the rate of 6% per annum from the date of petition till its realisation. Being aggrieved by the same, both the Insurance Company and the claimants have preferred these appeals seeking enhancement.
4. The learned counsel appearing for the appellant in MFA.No.5149/2016 who is the insurer of the tempo traveler, insofar as negligence is concerned, contends that the Tribunal without considering the evidence of the parties more particularly the evidence of the Investigating Officer 14 and the driver of the tempo-traveler, contents of FIR, charge sheet and mahazar and only relying on the rough sketch prepared by the police has proceeded to hold that the accident occurred due to the rash and negligent driving of the driver of the tempo traveler. The sketch drawn is contrary to what is stated in mahazar and other documents like FIR and complaint and as such the Tribunal ought to have ignored the contents of sketch. Hence, learned counsel for the Insurance Company submits that the finding recorded on Issue No.1 and additional Issue No.1 suffers from serious infirmities and hence, the same requires to be re-examined by this Court.
On quantum, the learned counsel for the Insurance company would submit that the compensation awarded under the head of loss of dependency is on the higher side. Even under conventional heads, learned counsel submits that the 15 Tribunal erred in adding 85,000/- which is improper and needs to be set aside by this Court. Further, the Tribunal has not properly deducted 20% of the earnings of the deceased and erred in deducting only 10% and thereby erred in taking Rs.3,26,720/- as net income of the deceased. Therefore, learned counsel submits that the total compensation awarded by the Tribunal is liable to be interfered with.
5. Per contra, learned counsel for the claimants in MFA.No.4274/2016 would submit to this Court that Tribunal has not added future prospects while determining the loss of dependency. The amount awarded under the head of loss of dependency and loss of consortium and loss of estate is on the lower side. On these set of grounds, learned counsel would submit that the judgment and award needs to be modified on the disputed question of negligence as well as quantum.
16
On negligence, the learned counsel would support the arguments advanced by the counsel for the insurer of the tempo traveler.
6. Per contra, learned counsel appearing for the second respondent-insurer of the offending lorry would submit that the finding arrived at by the Tribunal on Issue No.1 and Additional Issue No.1 is in accordance with law and does not suffer from any illegality.
7. Heard the learned counsel for the respective parties. Perused the pleadings of the parties and reassessed the entire oral and documentary evidence on record.
8. Regarding Negligence:
This Court while examining the negligence in MFA.No.1884/2016 arising out of the same accident has held that it is the driver of the offending lorry who 17 was responsible for the accident and accordingly, the entire negligence is fixed on the driver of the offending lorry. In view of the negligence fixed on the driver of the offending lorry, the finding recorded by the Tribunal on Issue No.1 and additional Issue No.1 is set aside and accordingly, the negligence is fixed on the driver of the offending lorry owned by the first respondent.
9. Regarding quantum:
In the present case on hand, the deceased was aged 46 years and was permanently employed and drawing salary of Rs.30,637/- per month and Rs.3,67,644/- per annum. Towards professional tax Rs.2,400/- has to be deducted at the rate of Rs.200/- per month, which works out to Rs.3,67,644 - Rs.2,400 = Rs. 3,65,244/-. The Tribunal has deducted 10% towards income tax from the total annual income, which is improper. For the assessment year 2013-14, 18 upto Rs.2,00,000/- there is exemption. In excess of Rs.2,00,000/- and upto Rs.5,00,000/-, 10% slab is applicable. Therefore, on the balance amount i.e. Rs.3,65,244-Rs.2,00,000=Rs.1,65,244/-, 10% is taxable, which works out to Rs.16,524/-. After deducting the said amount, the total annual income of the deceased comes to Rs.3,65,244-Rs.16,524= Rs.3,48,990/-. The Tribunal while assessing the compensation under the head of loss of dependency has not added future prospects. Hence, the determination of the compensation under the head of loss of dependency is opposed to the dictum laid down by the Hon'ble Apex Court in National Insurance Company .vs. Pranay Sethi and others [2017 ACJ 2700]. In the present case on hand, admittedly, the deceased was aged 46 years and was permanently employed and hence, 30% needs to be added towards future prospects, which works out to 19 Rs.3,48,990x30/100= Rs.1,04,697/-. By adding the said amount to the total income it works out to Rs.3,65,244+Rs.1,04,697= Rs.4,69,941/-. After deducting 1/4th towards personal expenses of the deceased and applying the multiplier of 13, the total loss of dependency is re-assessed at Rs.4,69,991x13x3/4= Rs.45,81,925/-.
Under conventional heads, the claimants are entitled to Rs.1,90,000/- i.e. Rs.40,000/- towards spousal consortium to the first claimant, Rs.40,000/- each towards parental consortium to the second and third claimants and Rs.40,000/- towards filial consortium to the fourth claimant and Rs.30,000/- towards loss of estate and funeral expenses.
Thus, the total compensation re-determined by this Court comes to Rs.47,71,925/-, to which the claimants are held entitled with interest at the rate of 20 6% per annum from the date of petition till its realisation.
10. Hence, the following:
ORDER
1. The appeal filed by the Insurance Company in MFA.No.5149/2016 is allowed in part and the appeal filed by the claimants in MFA.No.4274/2016 is allowed.
2. The impugned judgment and award is modified fixing the negligence on the driver of the offending lorry owned by the first respondent.
3. The compensation awarded is modified and enhanced to Rs.47,71,925/- as against Rs.32,90,020/- awarded by the Tribunal with Interest at the rate of 6% per annum from the date of petition till its realisation, which the insurer of the lorry and the owner namely 21 respondents 1 and 2 are jointly and severally held liable to pay.
4. The second respondent-insurer of the lorry in question shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
5. The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact.
6. The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
7. Draw modified award accordingly.
8. The Registry shall refund the amount in deposit, if any, to the appellant-insurer of the tempo-traveler.22
9. The Registry transfer the original records to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE *alb/-.