Karnataka High Court
Smt G D Lalitha vs United India Insurance Co Ltd on 6 July, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
M.F.A. NO. 9821 OF 2010 (MV)
BETWEEN:
SMT. G. D. LALITHA,
W/O LATE K.B. SHESHADRI IYENGAR,
AGED ABOUT 63 YEARS,
THE APPELLANT R/AT NO.3,
GROUND FLOOR, IST FLOOR,
GAANA REGENCY,
YELACHENAHALLI,
KANAKAPURA ROAD,
BENGALURU - 78.
... APPELLANT
(BY SRI.SHRIPAD V SHASTI AND
SRI. K.V. NAIK, ADVOCATES )
AND
1. UNITED INDIA INSURANCE CO. LTD.,
R.O.25, SHANKAR NARAYANA
BUILDING M.G. ROAD,
BENGALURU - 01.
BY ITS MANAGER.
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2. VIJAY KIRAN PENUMASTA,
S/O LAKSHMI PATHIRAJU,
MAJOR , R/AT NO.10/24/B,
NEAR LIONS CLUB, GUDIVADA,
KRISHNA D.T.,
ANDHRA PRADESH
.... RESPONDENTS
(BY SRI. M.S. SRI RAM, ADVOCATE FOR R1
R2- NOTICE DISPENSED WITH)
---
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.12.2009 PASSED IN
MCV.NO.7210/2007 ON THE FILE OF THE IX
ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
MEMBER, MACT-7, METROPOLITIAN AREA, BENGALURU,
(SCCH NO.7), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This claimant's appeal is directed against the judgment and award dated 01.12.2009 entered by the M.A.C.T. Bengaluru (SCCH-7) allowing her 3 M.V.C.No.7210/2007, whereby a compensation of Rs.2,82,000/- is awarded with interest at the rate of 6% annually thereon. The grievance of the appellant is that the compensation of Rs.2,82,000/- awarded for the death of Software Company employee in Bengaluru, is too meager to be mentioned.
2. The brief facts of the case are:
a) In a vehicular accident that happened on 25.08.2007 at around 11.30 am., on Sarjapura road near St.Johns Hospital Bus stop in Bengaluru, one Mr.Srinivas Ramnuja, who was on his motor-cycle bearing Registration No.KA-51-K-5771 sustained fatal injuries and succumbed to the same, because of the lorry bearing Registration No. AP-16-Y-0267 hitting the same from behind.
b) The mother of the deceased Smt. G.D.Lalitha filed the claim petition in M.V.C.No.7210/2007, alleging that the vehicular accident in question happened because of the rash and negligent driving of the lorry mentioned 4 above. The Insurance Company resisted the claim petition by filing the Written Statement.
c) To prove her claim, the claimant herself was examined as PW-1 and another person, namely, Srilatha, a colleague of the deceased who was in the know of his employment particulars, was examined as PW-2. In their evidence, 16 documents came to be marked as per Exs. P- 1 to P-16. None was examined from the side of the insurer.
3. Looking to the pleadings of the parties and after assessing the evidence placed on record, the M.A.C.T. allowed the claim vide judgment and award which are put in challenge in this appeal on the sole ground of inadequacy of compensation and also the breach of principles for assessing the compensation.
4. The appellant had filed an application in I.A.1/2013 on 26.07.2013 seeking a direction to the Manager, City Bank, M.G.Road, Bengaluru to furnish the Statement of Account concerning the S.B. Account of the 5 deceased and the same came to be allowed vide order dated 04.10.2016,which reads as under:
"ORDER ON I.A.Nos.1/2015, 2/2015 and 1/2016 A memo has been filed for not pressing I.A.Nos.1 and 2 of 2015. Therefore, the said I.As. are hereby dismissed as not pressed.
An application is filed for correcting the order dated 02.08.2013.
According to the learned counsel for the appellant, the appellant, Smt.G.D.Lalitha, happends to be the mother of Srinivas Ramanuja S., who is the deceased in the case. In order to prove the salary earned by her son, she had requested the Bank Manager of the City Bank, M.G. Road, Bengaluru, to issue the bank account extract of Mr. Srinivas Ramanuja S. However, the Manager refused to do so. Therefore, by order dated 02.08.2013, this Court had directed the Manager of the City Bank to issue the account extract of Srinivas Ramanuja S., bearing No.5268562801, from the month of Many,2007 to August, 2007.
However, in the last line of unnumbered para No.1 of the order, it has been recorded as "issue bank account extract of K.B.Sheshadri Iyengar to his wife Smt. G.D.Lalalitha to prove his income". However, the line should be read as "issue bank account extract of Srinivas Ramanjua S. to his mother G.D. Lalitha to prove his income'. Therefore, this Court modifies the said order to the limited extent, that in unnumbered para No.1, it should be 6 read as " to issue bank account extract of Srinivas Ramanuja S. to his mother Smt. G.D. Lalitha to prove his income".
Consequently, even in the last line of the unnumbered para No.3, it shall be read as "Manager, City Bank, M.G.Road Branch, Bangalore to issue copy of the account extract of the deceased bearing No.5268562801 from the month of May, 2007 to August,2007 to Smt. G.D.Lalitha, wife of late K.B.Sheshadri Iyengar and mother of Srinivas Ramanuja S". To the limited extent, the order stands modified.
Pursuant to the direction, the Bank Manager has furnished to the appellant an authentic copy of the Statement of Account, of the deceased for the relevant period by Blue Dart courier vide Bar Code No.43433705092. The appellant has filed an application in I.A.No.2/2016 supported by an affidavit seeking leave of this Court for placing on record the aforesaid Blue Dart courier envelope and also the authentic copy of Statement of Account. For the reasons stated in the accompanying affidavit, there being no objection from the other side, the said application is allowed; the Statement of Account is marked as Ex.P-17 and the courier envelope is marked as Ex.P-17(a).
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5. The learned counsel for the appellant takes me through the original Lower Court Records to bring home the point that the deceased son of the claimant was in the regular employment of Focus Infosys (India) Pvt Ltd, an IT Company; PW.1 the claimant and PW.2 the colleague of the deceased have spoken about this employment. Exhibit P-14 is the letter of the employer company authorizing PW2 to produce the initial annual salary statement of the deceased at Ex.P-15, which again is supported by the salary slip at Ex.P-13. The authenticity of these documents is not in challenge.
6. The learned counsel for the appellant on the basis of Ex.P-17 i.e., the Statement of Account of the deceased in S.B Account No.5-268562-801 (domestic), Citi Bank, Bangalore for the period between 01.05.2007 and 31.12.2007, submits that the employer has credited monthly salary to the bank account of the deceased. The particulars are as under:
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Amount credited as salary in
Rupees
Date
07.05.2007 33,157 + 3,657 = 36,814
06.06.2007 27,752 + 7,353.90 = 35,105.90 06.07.2007 26,619 +2,438 = 29,057 06.08.2007 24,131 + 973 = 25,104 Total 1,26,080.9
7. The learned counsel for the appellant by arithmetical calculation points that the total amount of salary for a period of four months comes to Rs.1,26,080.90/- and so, the average for each month comes to Rs.31,520.22/-, whereas, the MACT in the absence of the Bank Statement of Account has taken it to be Rs.6,000/- per month disregarding the salary slip at Ex.P-13 which mentions Rs.28,811/- per month. The learned Judge also has ignored Form No.16 at Ex.P-15, which shows deduction of tax at source.
8. Lastly, the learned counsel submits that in view of the decision of the Apex Court in Pranay Sethi's case reported in (2017) 16 SCC 680, the deceased being the 9 salaried man, there has to be addition of 50 %, regard being had to the nature of his employment and the career prospects. If that is done, the monthly salary of the deceased would be Rs.47,270.33/-.
9. I have heard the learned counsel for the parties and I have perused the original Lower Court Records and also the appeal papers.
10. The deceased was in the employ of Focus Infosys (India) Pvt. Ltd, at Bangalore and he was drawing a monthly salary of Rs.28,211/- stands established by Ex.P13 which is the last drawn pay slip produced by the PW2 -the colleague of the deceased on authorization by the employer. It is further strengthened by the Bank Statement obtained pursuant to the order of this Court. The Bank Statement although states higher amount of salary presumably because of variable incentives, this Court has taken the figures in the salary slip alone.
11. From the above established salary component, every month Rs.4,680/- was deductible by way of Income 10 tax and thus, the figure comes to Rs. 24,131/-. To this is added 40% because of the decision of the Apex Court in Pranay Sethi's case i.e., AIR 2017 16 SCC 680 at Para 61. Although on the basis of the said judgment, the counsel for the claimant pressed for addition of 50%, this court has taken it to be 40% since the deceased was not in the public employment, as rightly contended by the counsel for the insurer. This amount after calculation comes to Rs.24,131/- (salary after deduction of Income Tax) + Rs.9,652/- (40% of the salary) = Rs.33,783/-. Since the deceased was a bachelor, 50% deduction has to be made from this on account of his personal expenses. Thus, the income component comes to Rs.16,891/-.
12. The learned counsel for the appellant points out from the record that the deceased was 34 years when he had breathed his last in the accident and therefore, the correct multiplier is '16' whereas the Tribunal had wrongly taken '7'. There is force in this uncontroverted submission. With these altered values, the compensation has to be reworked out as under:
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16,891x12x16 = 32,43,072/-.
13. To this, is added Rs.10,000/- as funeral expenses, Rs.10,000/- for loss of love and affection and Rs.10,000/- for the loss of estate, as awarded by the MACT under the impugned judgment. These figures do not call for any alteration as rightly submitted by the learned counsel for the opposing side. Thus, in all, the compensation payable comes to Rs. 32,43,072/- minus Rs.2,82,000/- already paid under the impugned award.
14. Accordingly, the appeal succeeds in part; the impugned judgment and award are modified enhancing the compensation from Rs.2,82,000/- to Rs. 32,43,072 minus the amount already paid, and thus, the balance of the amount payable is Rs.29,61,072/- with interest at the rate of 6 % till actual payment. The respondent-insurer shall pay the enhanced compensation minus the amount paid if any, forthwith.
Sd/-
JUDGE Snb/