Karnataka High Court
Gundaiah vs D Maddanna Kuntappa on 17 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.99/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.99/2018 (MV-D)
BETWEEN:
1 . GUNDAIAH
S/O LATE CHIKKA BHEEMAIAH
AGED ABOUT 61 YEARS
2 . PARVATHAMMA
W/O GUNDAIAH
AGED ABOUT 51 YEARS,
3 . HANUMANTHARAYA G
S/O GUNDAIAH
AGED ABOUT 34 YEARS
4 . SUMA
W/O MOHAN
D/O GUNDAIAH
R/A GUBBI TOWN
AGED ABOUT 24 YEARS
RESIDING AT
GUBBI TOWN
NOW R/AT JYOTHINAGARA
SIRA TOWN-572137.
RESIDING AT
JAYANAGARA VILLAGE
DODDERI HOBLI
MADHUGIRI TALUK
NOW ALL THE APPELLANTS ARE
2 MFA NO.99/2018
R/A JYOTHINAGAR
SIRA TOWN
TUMKUR DISTRICT-572137
...APPELLANTS
(BY SRI. SHANTHARAJ K., ADVOCATE)
AND
1 . D MADDANNA KUNTAPPA
S/O DAGANNAPPA @ GANGAPPA
AGED ABOUT 52 YEARS,
R/A NO.1-64, DINNEHATTI VILLAGE
MANDALA HALLI POST
GUNDIBANDE MANDAL
MADAKASIRA TALUK
ANANTHAPURA DISTRICT
ANDRA PRADESH.
2 . NATIONAL INSURANCE COMPANY LTD
REPRESENTED BY ITS MANAGER
KASTURI MANSION
M G ROAD
BEHIND KRISHNA TALKIES
ABOVE CORPORATION BANK
TUMKUR-572101.
... RESPONDENTS
(BY SRI.B A RAMAKRISHNA, ADVOCATE FOR R2,
R1-NOTICE DISPENSED WITH V/O DATED:14/03/2018)
THIS MFA FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:19.10.2017
PASSED IN MVC NO.497/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE, & ADDITIONAL MACT, SIRA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
3 MFA NO.99/2018
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellants-claimants, challenging the judgment and award dated 19.10.2017, passed in M.V.C. No.497/2016, on the file of the Senior Civil Judge and Additional & M.A.C.T., at Sira, (hereinafter referred to as 'the Tribunal' for brevity) for seeking enhancement of the compensation.
Brief facts:
2. On 25.04.2016 at about 4.00 p.m., when the son of the claimant Nos.1 and 2 by name Rohith G, was proceeding on his Suzuki Motorcycle bearing registration No.KA.06.EU.9683 from Madhugiri to Sira and at that time, the driver of Mahindra Bolero 4 MFA NO.99/2018 bearing registration No.AP.02.AH.1092 came on the above said Madhugiri-Sira road from Sira to Madhugiri direction in a rash and negligent manner and dashed to the above said motor cycle of G. Rohith and then dashed to another Bajaj motor cycle bearing registration No.KA.06.EG.3106 and as a result of it, the above said G.Rohith sustained grievous injuries and died on the spot.
3. Hence, a claim petition was filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation for the death of the deceased. In pursuance of the Notice issued to the respondent Nos.1 and 2, the first respondent appeared through counsel but not filed any written statement. However, the second respondent -
insurance company appeared through counsel and filed the statement of objections denying the averments made in the claim petition. 5 MFA NO.99/2018
4. To substantiate the contentions of the appellants-claimants, PW-1 and PW-2 were examined and got marked the documents at Exhibits-P1 to P9. The respondent no.2 / insurance company neither examined any witnesses nor got marked any documents in support.
5. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.16,80,800/-, along with interest at 9% per annum from the date of petition till the date of deposit. The Tribunal held respondent No.2 therein, liable to pay the compensation.
6. Heard arguments of the learned counsel for the appellants-claimants and the learned counsel for respondent No.2 - insurance company and perused the materials on record.
6 MFA NO.99/2018
7. The learned counsel for the appellants submitted that the quantum of compensation awarded under various heads is on lesser side. Therefore, seeks for enhancement of the compensation.
8. On the other hand, the learned counsel appearing for the second respondent - insurance company submits that the Tribunal is justified in passing the impugned judgment and award and there is no ground for enhancement. That the compensation amount as awarded by the Tribunal is sufficient and adequate.
9. The compensation awarded by the Tribunal is as follows:
Loss of Dependency : Rs. 15,70,800/- Loss of Love and Filial Affection : Rs. 1,00,000/- Funeral Expenses & Transportation : Rs. 10,000/-
TOTAL : Rs. 16,80,800/-7 MFA NO.99/2018
10. In the present case, the deceased was working as a Electrical Maintenance Supervisor under L.M. Wind Power Company and it was claimed that the deceased was earning an income of Rs.30,000/- per month by doing work in the company under permanent basis and was also doing agricultural work and was earning Rs.30,000/- per month. The deceased was aged 28 years old. The Tribunal held the income was Rs.10,266/- excluding overtime and other allowances by deducting half income towards living and personal expenses and by adding 50% of actual salary and accordingly granted Rs.15,70,800/-
under the head of 'loss of dependency'.
11. The learned counsel for the appellants - claimants submitted that the Exhibit-P9, is the salary slip of the company. The deceased was receiving a gross salary of Rs.12,972/- per month. But the Tribunal had without any reason had lessened the monthly income to Rs.10,266/-. Therefore, learned 8 MFA NO.99/2018 counsel prays to hold Rs.12,972/- and granted compensation accordingly.
12. On the other hand, the learned counsel for the insurance company submitted that Exhibit-P9 is only salary slip produced for the month of March-2016 and the author of the document is not examined. Therefore, Exhibit-P9 cannot be considered, but the notional income as recognized by the Karnataka State Legal Services Committee as per chart at Rs.9,500/- per month has to be taken.
13. Even though the author or any of the official for which company the deceased was working is not examined, but the claimant being father has produced Exhibit-P9 salary slip. The profession of the deceased is not disputed by the respondent, but the only disputed fact is that the salary of the deceased was not proved by examining either author or any of the employee of the company. Claim proceedings 9 MFA NO.99/2018 arising out of Motor Vehicle Act, 1988 and Employees Compensation Act 1923 are beneficiary legislations and strict rules or evidence is not applicable. In these types of proceedings the entire case is to be considered on its preponderance of probabilities. There are no contrary evidence produced by the respondents that the deceased was not working as Electrical Maintenance Supervisor in the L.M. Wind Power Company. Therefore, the examination of the author of Exhibit-P9 or any of the company official is mere rule of evidence in proof of salary slip at Exhibit- P9, but non examination of employer or official to company is not ground to suspect the salary slip in the circumstances of case.
14. As stated above, it is not a criminal proceeding so as to apply strict rules of evidence to prove Exhibit-P9 or it is not a original suit wherein the original content of the document has to be proved, but in the absence of contrary evidence to disbelieve 10 MFA NO.99/2018 Exhibit-P9, Salary Slip apart from non-examination of the author of Exhibit-P9, salary slip the contents stated in the salary slip can be accepted.
15. It is stated in Exhibit-P9 that the deceased had joined the company on 13.05.2015 and was receiving gross salary of Rs.12,972/-. There are no deductions towards Income tax or Professional Tax in the salary. Deductions are made towards ESI, Cafeteria Deduction and PF-Employee Compensation in a sum of Rs.1,454/-. However, the said deductions are part of the salary except Income tax or Professional Tax. Deductions. Therefore, it is nothing but earning of the deceased on his life time. The Hon'ble Apex Court in the judgment of SEBASTIANI LAKRA & ORS vs. NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER, reported in AIR 2018 SC 5034, was pleased to observe at para-12 as follows:
11 MFA NO.99/2018
"12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to 'just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death." 12 MFA NO.99/2018
16. So far as the deduction is concerned, the above cited case is applicable. Therefore, the total gross salary is to be considered as income of the deceased. For proving agricultural income or agricultural work, there is no proof. Therefore, the total gross salary of Rs.12,972/- is to be taken into consideration. Other parameters adopted by the Tribunal is correct so far as the assessment of compensation under the heads 'loss of dependency' is concerned. As per the principle of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, 50% of his monthly income is added towards 'Loss Of Future Prospects In Life', i.e., Rs.6,486/- (Rs.12,972/- x 50%). Therefore, the monthly income of the deceased is taken at Rs.19,458/- (Rs.12,972 + Rs.6,486/-). The deceased was a bachelor. Therefore, 50% of deceased income is deducted towards personal expenses and 13 MFA NO.99/2018 the contribution to the family is taken as Rs.9,729/- per month. The age of the claimant at the time of the accident was 28 years, therefore the appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104, is '17'. Therefore, the compensation under the head 'Loss Of Dependency along with Loss of Future Prospects in Life' is recalculated and quantified as follows:
Rs.12,972 + 6,486 (50%) x 50% x 17 x 12 = Rs.19,84,716/-
Accordingly awarded a sum of Rs.19,84,716/-, towards 'Loss Of Dependency Along With Future Prospects'.
17. An typographical error is committed in the order of the Tribunal in stating that a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) instead of 14 MFA NO.99/2018 Rs.1,00,000/- awarded under the head 'Loss of Love & Filial Affection'. However, a sum of Rs.1,00,000/- towards the said head is on a lower side. Therefore, as per the principles laid down by the Hon'ble Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others reported in 2018 ACJ 2782, the legal dependants are awarded a sum of Rs.40,000/- each under the head, 'Loss of Consortium'. Hence, a sum of Rs.1,60,000/- (Rs.40,000 x 4 members) under the head 'Loss of Consortium'.
18. The compensation awarded by the Tribunal under the head 'Funeral Expenses and Transportation' at Rs.10,000/- is on lesser side and the same is enhanced to a sum of Rs.15,000/-.
19. In modification of the award of the Tribunal, the appellants-claimants are entitled to the following compensation:
15 MFA NO.99/2018
Loss of Dependency along with : Rs. 19,84,716/- Loss of Future Prospects (Rs.12,972 + 6,486 (50%) x 50% x 17 x 12 ) Loss of Love and Filial Affection : Rs. 1,60,000/-
(Rs.40,000 x 4) Funeral Expenses & Transportation : Rs. 15,000/-
TOTAL : Rs. 21,59,716/-
20. The appellants-claimants are entitled for compensation of Rs.21,59,716/- as against Rs.16,80,000/-. The appellants - claimants are entitled for an additional compensation of Rs.4,78,916/- (Rupees Four Lakh Seventy Eight Thousand Nine Hundred and Sixteen Only), along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The insurer is directed to deposit the amount of total compensation within eight weeks from the date of receipt of the certified copy of this judgment.
Accordingly, the appeal is allowed in part.
16 MFA NO.99/2018
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award dated
19.10.2017, passed in M.V.C.
No.497/2016, on the file of the Senior Civil Judge and Additional & M.A.C.T., at Sira is modified to an extent that the appellants - claimants are entitled for an additional compensation of appellants - claimants are entitled for an additional compensation of Rs.4,78,916/- (Rupees Four Lakh Seventy Eight Thousand Nine Hundred and Sixteen Only), along with interest at 6% per annum from the date of filing of the petition till realization.
iii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
17 MFA NO.99/2018iv. Draw award accordingly.
v. Costs made easy.
Sd/-
JUDGE
JJ