Karnataka High Court
The Oriental Insurance Co. Ltd vs Meenakshi W/O Somanna And Anr on 2 August, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2017
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
M.F.A.NO.200311/2016 (MV)
Between:
The Oriental Insurance Co. Ltd.,
Through its Senior Divisional
Manager, N.G. Complex,
First Floor, Opp : Mini Vidhana
Soudha, Station Road,
Kalaburagi - 585 102. ... Appellant
(By Sri Manvendra Reddy, Advocate)
And:
1. Meenakshi
W/o. Somanna Matoor,
Age: 47 Years,
Occ: Household,
R/o Village Kamalapur,
Tq. & Dist. Kalaburagi - 585 313.
2. Sagar
S/o. Srishail @ Srishailappa Munolli,
Age: 30 Years,
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Occ: Owner and rider of Motorcycle
No.KA-32/ED-4738 and
Finance Work,
R/o Nandi Colony,
Near Nandikeshwar Temple,
Kalaburagi - 585 102. ... Respondents
(By Sri Babu H. Metagudda, Advocate for C/R-1; R-2
served & unrepresented)
*****
This MFA is filed under Section 173(1) of MV Act, by
the Advocate for appellant, praying to call for the records
and set aside the judgment and award dated 25.11.2015
passed by the Principal Senior Civil Judge and MACT at
Kalaburagi in MVC No.887/2013 by allowing the appeal as
prayed for.
This MFA coming on for final disposal this day,
Nagarathna J., delivered the following:
JUDGMENT
Though the matter was listed initially to consider I.A.No.2/2016 seeking release of award amount, thereafter, the appeal has been heard at length and with the consent of learned counsel for respective parties, the appeal is heard for final disposal.
2. The insurance company has preferred this appeal being aggrieved by the quantum of compensation -3- awarded by judgment dated 25/11/2015, by the Prl. Senior Civil Judge and MACT, at Kalaburagi in MVC No.887/2013.
3. For the sake of convenience, parties shall be referred to in terms of their status before the Motor Accidents Claims Tribunal (hereinafter, referred to as "the Tribunal", for the sake of brevity).
4. Respondent No.1 filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of her son, Suryakanth S/o Somanna Matoor in a road traffic accident that occurred on 29/08/2013. According to the claimant, her son was working as a Service Consultant (Network Engineer) at Cable and Wireless India Company Limited, Bangalore, registered under the provisions of the Companies Act, 1956. He was working at Bangalore and according to her, he was earning a sum of Rs.56,935/- per month. That on 29/08/2013, Suryakanth was proceeding as a pillion rider on motorcycle bearing No.KA-32/ED-4738, from Nandi -4- Colony, Gulbarga, via Aland check post to Central Railway Station, Gulbarga, in order to proceed to Bangalore, along with respondent No.1, who was riding the motorcycle. When they approached near Mirchi Godown, behind Hussaini Garden, situated on ring road, within the limits of Grameen Police Station, Gulbarga, the motorcycle being driven by respondent No.1 in a high speed, rash and negligent manner, endangering human life and due to a fly in the eye of the rider of motorcycle, he lost control of the motorcycle. As a result, the vehicle skidded and both rider and pillion rider fell down and sustained multiple injuries. Suryakanth had fracture of 6th to 10th ribs and injuries to the cheek, neck and shoulder, contusion on the back of the abdomen and severe loss of blood from nose and ear due to which he became unconscious. He was shifted to United hospital, Gulbarga and on the advice of the doctor, he was shifted to Basaveshwara hospital for better treatment and thereafter, he was taken to Yashodha hospital, Hyderabad, in an ambulance but succumbed to injuries on the way. The doctor at Yashodha hospital, Hyderabad, informed that -5- Suryakanth had died on the way. After post mortem was conducted at Gandhi hospital, Secunderabad, his body was brought back to the house in a rented ambulance. The report of accident was registered as crime No.402/2013, against the respondent No.2 herein.
5. Respondent No.1-claimant contended that her son Suryakanth was hale and healthy prior to the accident, he was 26 years of age and his date of birth is 01/01/1988 and he was earning a good salary working as a Service Consultant (Net Work Engineer) at Cable and Wireless India Company Limited, Bangalore. That the future prospects of Suryakanth were bright, as he was young and brilliant and a qualified person who had completed Diploma in Electronics and Communication Engineering, in First class and also completed successfully CISCO Certification requirement. That on 17/11/2011, Suryakanth was appointed as Service Consultant on an annual gross salary of Rs.4,20,000/- and within a short span of service it was increased to Rs.4,88,982/- i.e., on 21/06/2013 and -6- thereafter, to Rs.56,935/- per month. Contending that she had lost her only son and had suffered, as a result of the death of her son, she filed claim petition under Section 166 of the said Act, seeking compensation on various heads.
6. In response to the claim petition, respondent No.1 appeared through his counsel and filed objections by contending that the vehicle was insured with respondent No.2-insurance company and in case the Tribunal was to conclude that he was liable to satisfy the award, it has to be shifted on respondent No.2. The insurance company appeared and filed its objections, denying the contents of the claim petition and submitted that the insurance company would be liable only if there was no breach in the terms and conditions of the policy. The insurance company-respondent No.2 before the Tribunal sought dismissal of the petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration: -7-
1. Whether petitioner proves that on 29.08.2013 at about 9.30 p.m. the deceased Suryakanth was proceeding as a pillion rider on a motor cycle bearing No.KA-32/ED-4738 from Nandi Colony Gulbarga to Central Railway Station Gulbarga to go to Bangalore alongwith one Sagar i.e. Respondent No.1 who was riding the above said motor cycle, when they were opposite to Mirchi Godown behind Hussaini Garden on Ring road, at that time the rider of the above said Motor cycle drove it in a rash and negligent manner with high speed and lost control over the motor cycle resulting the deceased fell down on the road and sustained grievous injuries and during treatment the deceased succumbed to the injuries?
2. Whether the Respondent No.2 proves that the rider of the offending motor cycle was not holding valid and effective DL at the time of accident and violate the terms and conditions of the policy?-8-
3. Whether petitioner is entitled for compensation? If so, what amount and from whom?
4. What award or order?
8. In support of her case, the claimant examined herself as PW-1 and another person was examined as PW- 2, she produced twenty-six documents, which were marked as Exs.P-1 to P-26. The respondents did not let in any evidence. Exs.R-1 to R-4 were marked by consent. On the basis of the said evidence, the Tribunal answered issue Nos.1 and 3 partly in the affirmative and issue No.2 in the negative and awarded compensation of Rs.1,04,01,000/- with interest at the rate of 6% per annum from the date of claim petition till realization. Being aggrieved by the quantum of compensation awarded by the Tribunal, the insurer has preferred this appeal.
9. We have heard learned counsel for the insurance company and learned counsel for respondent -9- No.1-claimant and perused the material on record as well as original record.
10. Appellant's counsel contended that the award of compensation is huge and exorbitant. He drew our attention to the documents produced by respondent No.1- claimant and contended that Ex.P-15 is the appointment letter, Ex.P-16 is the salary review letter, Exs.P-17 to P-20 are the salary certificates and Ex.P-24 is the income tax returns while Ex.P-25 is Form No.16. Out of all these documents, the most appropriate document that had to be considered by the Tribunal was Ex.P-16, which was the annual salary package, that was prescribed by the company to deceased Suryakanth. He submitted that the Tribunal could not have taken into consideration Ex.P-17 salary slip for the month of August-2013 and on that basis construed the salary at Rs.50,942/- per month for the purpose of awarding compensation on the head loss of dependency.
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11. Learned counsel for the appellant further submitted that a salary slip is quite distinct from a salary package. The salary package as per Ex.P-16 is for the entire year, but the salary slip is for a particular month and that there are always variations in the emoluments paid in a particular month. Thus, according to appellant's counsel salary paid in a particular month cannot depict the salary paid for the entire year. He submitted that Ex.P-16 ought to have been considered by the Tribunal for the purpose of awarding compensation on the head loss of dependency. He further submitted that the Tribunal ought not to have made any addition to the salary that was awarded, on the basis of aggregation and the principle of future prospects, as deceased was the only son of respondent No.1-claimant and that there was nobody else, who would have been entitled to the benefit of compensation. He submitted that even without any addition to future prospects, compensation awarded would be more than adequate for respondent No.1-claimant and that the same would be a just compensation. That the Tribunal could not have -11- reckoned the entire salary which has been earned by the deceased by keeping in mind the fact that respondent No.1-claimant being the mother is the only dependent of the deceased as there is no other member of her family dependent on the compensation. While awarding the compensation, the fact that public fund is involved also had to be borne in mind by the Tribunal. He further contended that the total award of compensation of Rs.01,04,01,000/- with interest at the rate of 6% per annum from the date of claim petition till realization is on the higher side and that an appropriate award be made in the instant case by reducing the quantum of compensation. In support of his contention, he relied upon a recent decision of the Hon'ble Supreme Court in the case of Reliance General Insurance Company Limited vs. Shashi Sharma and Others reported in (2016) 9 SCC
627.
12. Per contra, learned counsel for respondent No.1-claimant strenuously defended the judgment passed -12- by the Tribunal. He contended that Ex.P-17 is the pay slip for the month of August-2013, Ex.P-18 is the pay slip for the month of June-2013 and Ex.P-19 is the pay slip of May, 2013. Out of these three pay slips, the pay slip for month of June-2013 which is the highest amount of emoluments has to be considered for the purpose of awarding compensation on the head loss of dependency. However, at this stage it may be noted that the Tribunal has considered Ex.P-17 for the purpose of computing compensation on that head i.e., Rs.50,942/- per month. Further he submitted that Ex.P-16 does not take into consideration bonus plan and the deceased was to get a sum of Rs.16,659/- as annual bonus for the year, 2012-
13. Learned counsel for the respondent No.1-claimant further contended that there is nothing wrong in the Tribunal taking into consideration these factors in applying the principle of future prospects in the instant case, as the deceased was only 26 years of age and he had long way to go, but for the unfortunate death. On this contention, learned counsel placed reliance on the decisions of the -13- Hon'ble Supreme Court in the case of Munna Lal Jain and Another vs. Vipin Kumar Sharma and Others reported in 2015 SAR (Civil) 821 (Munna Lal Jain) and Rajesh and Others vs. Rajbir Singh and Others reported in (2013) ACJ 1403 (Rajesh) and also Smt.Sarala Varma and others vs. Delhi Transport Corporation and another reported in 2009 (4) SCJ 91. On the other hand, the award of compensation on the heads of "loss of love and affection", "transportation and funeral expenses" are on the lower side and that no compensation has been awarded towards "loss of estate". He therefore, submitted an appropriate award may be granted by enhancing the compensation thereby dismissing the appeal filed by the insurance company.
13. Having heard learned counsel for the parties and on perusal of the material on record as well as original record, the following points would arise for our consideration :-
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1. Whether the award of compensation by the Tribunal on the head of "loss of dependency" calls for any interference?
2. Whether the award of compensation on the conventional heads calls for any interference?
3. Whether there ought to be re-
assessment of compensation in the
instant case?
4. What order?
14. From the material on record, it is noted that the respondent-claimant has established that her son Suryakanth died on account of an accident that occurred on 29/08/2013. It has also been established that he was working as Service Consultant (Network Engineer, Cable and Wireless India Company Limited, Bangalore). The first point to be considered in this case is with regard to the award of compensation on the head loss of dependency before going into that aspect, the award of compensation by the Tribunal on various heads could be noted as under:--15-
1. Loss of Love and Affection : Rs. 25,000-00
2. Funeral Expenses: Rs. 25,000-00
3. Loss of Dependency: Rs.1,03,51,368-00
---------------------
Total Compensation Rs.1,04,01,368-00 ============ Rounded off Rs.1,04,01,000-00
15. In so far as point No.1 is concerned, the Tribunal had awarded Rs.1,03,51,368/- towards loss of dependency. The Tribunal has considered Ex.P-17, which is the salary slip for the month of August and taken Rs.50,942/- per month as the gross salary and deducted Rs.200/- per month towards Professional Tax and arrived at net salary of Rs.50,742/- per month. The annual salary has been calculated at Rs.6,08,904/-, 50% has been deducted from that salary, as the deceased was a bachelor and the mother is the only claimant. Accordingly, Rs.3,04,452/- being the annual salary has been taken as the basis for the calculation of the compensation on the head loss of dependency. 50% of the said amount has -16- been added on the principle of future prospects and the annual salary has been assessed as Rs.6,08,904/-. The age of the deceased was 26 years. Multiplier '17' has been applied and compensation of Rs.1,03,51,368/- has been awarded on the head loss of dependency. We find that the approach of the Tribunal is erroneous on the various grounds, while assessing the compensation on the head loss of dependency. Firstly, we find that the Tribunal has totally ignored Ex.P-16, which is the annual salary review for the year, 2013. The same is dated 21/06/2013. The said document would indicate that deceased Suryakant would have received the aforesaid annual salary as opposed to the pay slip for the month of August, 2013. The pay slip for that particular month contains, apart from basic salary, house rent allowance, conveyance allowance, special allowance and referral bonus. Hence, the total gross salary is Rs.50,942/- for the said month. Whereas, Ex.P-16 is the annual salary review for the year 2013, containing components as under :-
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Particulars Amount in INR
A) Basic Salary Rs.2,30,652/-
B) House Rent Allowance Rs.1,15,326/-
C) Flexible Benefit Plan Rs.1,15,326/-
D) Company Contribution Rs. 27,678/-
To PF
Annual CTC (A+B+C+D) 4,88,982/-
Rupees Four Lakhs Eighty
Eight Thousand Nine
Hundred Eighty Two per
annum
16. The aforesaid amount of Rs.4,88,982/- is the annual gross salary, the same in our view would realistically reflect what the deceased, Suryakanth would have received for the year, 2013. From that document it is noted that he was also entitled to a gross bonus of Rs.16,659/- which is the annual bonus for the year, 2012-
13. Hence, the same also has to be added to the annual salary package of Rs.4,88,982/-. In which event, the total emoluments as per Ex.P-16, would be Rs.5,05,641/-. As per decisions of the Hon'ble Supreme Court, in the case of Munna Lal Jain and Rajesh, 50% of the basic salary would have to be added towards future prospects, that would be Rs.1,15,326/-, as the basic salary was Rs.2,30,652/- per -18- annum. Thus total salary would be Rs.6,20,967/- per annum. Rs.2,400/- would have to be deducted towards professional tax and the amount would be Rs.6,18,567/-.
17. Secondly, 10% of the said amount would have to be deducted towards income tax as learned counsel for respondent No.1-claimant has produced the rate of income tax that was applicable for the period of 2013-14. Hence, Rs.61,857/- is deducted, that the total annual income would be Rs.5,56,710/-. As the deceased was 26 years of age. The applicable multiplier is '17'. 50% of the said amount would have to be deducted, as the deceased was a bachelor. 50% is deducted towards personal expenses based on the dictum of Hon'ble Supreme Court in Sarala Varma's case referred to above. Thus, the compensation on the head loss of dependency would be Rs.47,32,035/-. We have deducted 10% towards the income tax on the basis of what the deceased would have earned including future prospects and thus, a sum of Rs.6,18,567/- is the annual salary. Although, as per Ex.P-16 it was only -19- Rs.4,88,982/-, but the sum of Rs.6,18,567/- includes the amount, which is added towards future prospects also and deduction towards professional tax and income tax. Therefore, the Tribunal was not right in awarding Rs.1,03,51,368/- on the head loss of dependency.
18. We have also considered only basic salary for the purpose of application of principle of future prospects to an extent of 50% by keeping in mind the peculiar facts, of this case as the sole claimant-respondent No.1, unfortunately lost her only son but at the same time, there is no other dependent or no other claimant who has sought compensation. We have, therefore, as a matter of prudence taken only the basic salary and not included house rent allowance, flexible benefit plan, contribution towards provident fund etc., for the purpose of adding 50% on the principle of future prospects. In this regard, we are conscious of the observations made by Hon'ble Supreme Court time and again that an accidental death in the family cannot result in a bonanza or a windfall, but the -20- same time we are equally conscious of the fact that claimant lost her only son, who was earning a good salary by working as a Service Consultant in a private company. Keeping in mind the uncertainties and vicissitudes of life, but without losing note of the fact that respondent No.1- claimant has lost her son and bearing in mind the feelings of loss, we have sought to adequately compensate her but at the same time, we have not gone to the extent to which the Tribunal has awarded i.e., Rs.1,04,01,000/-. The approach of the Tribunal in awarding such an exorbitant compensation without bearing in mind the facts and realities of the case and by blindly applying the principles of law in the instant case is shocking. Further the Tribunal has directed 50% of Rs.1,04,01,000/- to be released to the claimant with interest. Whereas, the object and purpose of awarding compensation is to financially secure the claimant who in the instant case has lost her only son and does not have any other member in her family. In the circumstances, the re-assessed compensation on the head loss of dependency is only Rs.47,32,035/-. Hence, point -21- No.1 is accordingly, answered in favour of the appellant- insurance company.
19. As far as compensation awarded on the conventional heads are concerned, we are of the view that the amount towards "loss of love and affection" is on the lower side and the same is enhanced to Rs.1,00,000/-. The amount awarded towards "funeral and transportation expenses" is Rs.25,000/-. No compensation has been awarded on the head of "loss of estate", a sum of Rs.1,00,000/- is awarded on that head. Hence, point Nos.2 and 3 are answered in favour of the claimant.
20. Thus re-assessment of compensation as per the above calculation is as under:-
1. Loss of Dependency: Rs.47,32,035/-
2. Loss of Love and Affection: Rs.01,00,000/-
3. Funeral Expenses: Rs. 25,000/-
4. Loss of Estate: Rs.01,00,000/-
Total Compensation : Rs.49,57,035/--22-
The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
The amount in deposit made by the insurer to be transmitted to the Tribunal. The insurance Company to re- compute any further amount to be deposited, and to deposit the same within a period of one month from the date of receipt of the certified copy of this judgment. If it is found that excess amount has been deposited by the insurance company, the same is directed to be refund to the appellant-company after reckoning interest upto the date of deposit.
Out of the said amount, 75% of the compensation with proportionate interest shall be deposited in any nationalized banks or post office or any other State Government or Central Government deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance -23- compensation with proportionate interest shall be released to her after due identification.
Appeal is allowed in part in the aforesaid terms. No cost.
Sd/-
JUDGE Sd/-
JUDGE RSP