Karnataka High Court
Legal Manager vs Smt Roopa G S on 17 November, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
M.F.A. NO.1595 OF 2019
C/W
M.F.A. NO.2752 OF 2019 (MV)
M.F.A. NO.1595 OF 2019
BETWEEN:
LEGAL MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
RGIC, NO.28, EAST WING
5TH FLOOR, CENTENARY BUILDING
M.G. ROAD, BANGALORE-560001.
... APPELLANT
(BY SRI. PRADEEP B, ADV.,)
AND:
1. SMT. ROOPA G.S.
W/O LATE RAVISHANKAR H. SHAMANNA
AGED ABOUT 40 YEARS.
2. SHRAVYA R
D/O LATE RAVISHANKAR H. SHAMANNA
AGED ABOUT 1 YEAR
SINCE RESPONDENT 2 IS MINOR
REPRESENTED BY N/G HER
MOTHER SMT. ROOPA G.S.
2
3. SMT. MANGALAMBA
W/O LATE H.D. SHAMANNA
AGED ABOUT 74 YEARS.
PERMANENTLY R/AT. NO.103
NO.32/4, NANDANA GREEN APARTMENTS
SOMESHWARA LAYOUT
BILEKAHALLI, BENGALURU-560076.
ALSO R/AT. NO.10/68, 12TH MAIN
23RD B CROSS, JAYANAGAR
3RD BLOCK EAST, BENGALURU-560011.
4. R.M. NALINI
NO.147/19, A.R. COMPOUND
MYSORE ROAD, CHAMRAJPE
BENGAURU-560018.
... RESPONDENTS
(BY SRI. K.T. GURUDEVA PRASAD, ADV., FOR R1 & R3
SRI. G.V. DAYANANDA, ADV., FOR R4
R2 MINOR REP. BY R1)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.11.2018 PASSED
IN MVC NO.2145/2017 ON THE FILE OF THE II ADDITIONAL
JUDGE & XXVIII ACMM, COURT OF SMALL CAUSES, BENGALURU
(SCCH-13), AWARDING COMPENSATION OF RS.1,33,19,552/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
M.F.A. NO.2752 OF 2019
BETWEEN:
1. SMT. ROOPA G.S.
W/O LATE RAVISHANKAR H. SHAMANNA
AGED ABOUT 41 YEARS.
2. SHRAVYA R
D/O LATE RAVISHANKAR H. SHAMANNA
AGED ABOUT 2 YEAR
2ND APPELLANT IS MINOR
REPRESENTED BY N/G HER
MOTHER SMT. ROOPA G.S.
3
3. SMT. MANGALAMBA
W/O LATE H.D. SHAMANNA
AGED ABOUT 75 YEARS.
PERMANENTLY R/AT. NO.103
NO.32/4, NANDANA GREEN APARTMENTS
SOMESHWARA LAYOUT
BENGALURU.
ALSO R/AT. NO.10/68, 12TH MAIN
23RD B CROSS, JAYANAGAR
3RD BLOCK EAST, BENGALURU-560011.
... APPELLANTS
(BY SRI. GURUDEV PRASAD K.T. ADV.,)
AND:
1. M/S. RELIANCE GENERAL INS. CO. LTD.
MOTOR CLAIMS HUB
REPRESENTED BY ITS MANAGER
NO.28, 5TH FLOOR, CENTENARY BUILDING
EAST WING, NEAR CITI BANK
M.G. ROAD, BENGALURU-560001.
2. SMT. R.M. NALINI
NO.147/19, A.R. COMPOUND
MYSORE ROAD, CHAMARAJPET
BENGALURU-560018.
... RESPONDENTS
(BY SRI. B. PRADEEP, ADV., FOR R1
SRI. G.V. DAYANANDA, ADV., FOR R2)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.11.2018 PASSED
IN MVC NO.2145/2017 ON THE FILE OF THE II ADDITIONAL
JUDGE & XXVIII ACMM, COURT OF SMALL CAUSES, MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-13), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
MFA 2752/2019 has been filed by the claimants seeking enhancement of the amount of compensation whereas MFA No. 1595/2019 has been filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) against the judgment dated 29.11.2018 passed by the Motor Accident Claims Tribunal. Since both the appeals arise out of the same accident and the same judgment, they are heard analogously and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeals briefly stated are that on 20.01.2017, the deceased Ravishankar H Shamanna was riding his motorcycle bearing Registration No.KA-05-HR-8463. When he reached near New Horizon college, Outer Ring Road, Bengaluru, a bus bearing Registration No.KA-01-C-0983 which was being driven in rash and negligent manner by its driver came from the opposite direction and dashed against the motorcycle of the 5 deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.
3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 42 years at the time of accident and was employed as a software engineer at Harmann International Pvt. Ltd and was earning a sum of Rs.20,00,000/- per annum. It was further pleaded that accident took place solely on account of rash and negligent driving of the driver of the bus. The claimants claimed compensation to the tune of Rs.3,00,00,000/- along with interest.
4. The insurance company filed its written statement, in which the issuance of insurance policy in respect of the offending vehicle was denied. It was further pleaded that its liability if any was subject to the terms and conditions of the policy. It was also pleaded that the driver of the offending vehicle did not possess a valid and effective driving license as well as permit to ply the route as on the date of accident. The owner of the offending vehicle also filed his written statement in which inter alia it was pleaded that 6 the bus was duly insured with the insurance company from 25.10.2016 to 24.10.2017 and that the driver of the bus was holding a valid and effective driving license at the time of the accident. It was further pleaded that the bus was being plied under a valid and effective permit bearing No.23/07-08 which was valid upto 9.5.2017. The mode and manner of the accident as well as the age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1 and Nagendra Prasad (PW2) and got exhibited documents namely Ex.P1 to Ex.P32. The respondents examined KP Gangadhar Acharya as RW-1 and Thrinethra MN as RW2 and got exhibited documents namely Ex.R1 to Ex.R10. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the bus by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that 7 the claimants are entitled to a compensation of Rs.1,33,19,552/- along with interest at the rate of 6% per annum to be paid by the insurance company. Being aggrieved, these appeals have been filed.
6. Learned counsel for the insurance company submitted that the Tribunal has grossly erred in holding that the offending bus had a valid and effective permit at the time of the accident. It is submitted that the insurance company has examined the concerned RTO Officer as RW1 who has stated in his evidence that the bus was being plied without a valid and effective permit and therefore, as per the law laid down by the Supreme Court in AMRIT PAUL VS. TATA AIG GENERAL INSURANCE CO. (2018) 7 SCC 558, the insurance company be directed to pay the amount of compensation in the first instance and recover the same from the owner of the bus. Alternatively, it is submitted that the documents Ex-R6 to R9 are not proved in accordance with law and therefore, the matter has to remanded to the Tribunal to prove the same. With regard to the quantum of compensation, it is submitted that the Tribunal erred in not deducting the death benefits given by the employer to the 8 family of the deceased as well as income tax and professional tax from the salary of the deceased.
7. Learned counsel for the owner of the offending bus submitted that the RTO Officer RW1 himself has admitted in his cross examination that the offending bus had a valid permit which is evident from the orders of this court viz., Ex.R6 to Ex.R9 and that the Tribunal has rightly fixed the liability to pay the compensation on the insurance company.
8. On the other hand, learned counsel for the claimant has submitted that the Tribunal has grossly erred in assessing the income of the deceased as Rs.1,09,371/- per month when Ex.P28 to Ex.P32 clearly show that the income of the deceased was Rs.1,48,057/- per month as on the date of accident. It is further submitted that Tribunal grossly erred in not adding any sum to the income of the deceased on account of future prospects. It is also submitted that the sum awarded under the conventional heads are on the lower side and the same are to be enhanced suitably.
9. We have considered the submissions made by learned counsel for the parties and have perused the record. The twin issues which arises for our consideration in this 9 appeal is with regard to the quantum of compensation and with regard to the liability for payment of compensation. The Supreme Court in STATE OF HARYANA VS JASBIR KAUR 2003 ACJ 1800 has held that "damages" awarded by the Tribunal is to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the 10 background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrary. If it is not so it cannot be just. (ALSO SEE: 'HELEN C. REBELLO V. MAHARASHTRA STATE ROAD TRANSPORT CORPORATION' AIR 1998 SC 3191, 'K. SURESH VS. NEW INDIA ASSURANCE COMPANY LTD. AND ORS'. 2012 ACJ 2694 and 'PAPPU DEO YADAV VS. NARESH KUMAR AND ORS'. AIR 2020 SC 4424)
10. The claimants have examined PW2 Nagendra Prasad, employer of the deceased to prove Ex.P28 Authorization Latter, Ex.P29 Salary Slip, Ex. P30 Insurance Policy and Ex.P32 Salary of the deceased paid to the first petitioner which discloses the net income of the deceased to be Rs.1,48,057/- per month as on the date of accident. It is to be noted that the employer paid an amount of Rs.1,26,235/- (excluding Rs.37,500 Joining Bonus) to the 11 claimants as salary of deceased for period of 23 working days for the month of January. Therefore, the income of the deceased is assessed at Rs.1,48,057/- per month. From the aforesaid income, deductions amounting to Rs.200/- on account of professional tax and Rs.19,417/- per month on account of income tax (Tax slabs for the assessment year 2016-2017 being 30% for amount in excess of Rs.10 Lakhs) are to be made. Thus the monthly income of the deceased is assessed at Rs.1,28,440/- per month.
11. In view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 25% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.1,60,550/-. Since, the number of dependants are three, therefore, 1/3 of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.1,07,033/-. Taking into account the age of the deceased which was 42 years at the time of accident, the multiplier of '14' has to be adopted. Therefore, 12 the claimants are held entitled to (Rs.1,07,033x12x14) i.e., Rs.1,79,81,544/- on account of loss of dependency.
12. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. PW2 Nagendra Prasad in his evidence has stated that the employer had obtained group insurance for all its employees and an amount Rs.20,00,000/- was paid to the legal heirs on account of the death of the deceased due to the injuries sustained in the accident. It is well settled in law that deductions are admissible from the amount of compensation in case the claimant receives the benefit as a 13 consequence of injuries sustained in the accident. (SEE:
RELIANCE GENEERAL INSURANCE CO. VS. SHAHSHI SHARMA (2016) 9 SCC 627). Therefore, an amount of Rs.20,00,000/- which is paid by the employer to the claimants has to be deducted from the compensation payable to the claimants. Thus, in all, the claimants are held entitled to a total compensation of Rs.1,61,31,544/-. Needless to state that the aforesaid amount shall carry interest at the rate of 6% per annum from the date of filing of the petition till payment is made.
13. The insurance company has examined KP Gangadhar Acharya (RW1) who is the RTO Officer, Ramanagara to show that the offending bus was being plied without a valid permit. However, the aforesaid witness in his cross examination has admitted that the offending bus was having a temporary but valid permit to operate as on the date of accident in view of Ex.R6 to R9 viz, orders of this court. Therefore, the tribunal has rightly fixed the liability to pay compensation on the insurance company. 14
To the aforesaid extent, the judgment passed by the Claims Tribunal is modified. The amount in deposit is ordered to be transferred to the Tribunal for disbursement.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss