Karnataka High Court
Smt Chandraprabha Hiremath vs Papanna S/O Late Bhairappa on 2 July, 2014
Bench: N.K.Patil, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY, 2014,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
M.F.A.NO. 11999 OF 2011 (MV)
C/W. M.F.A.NO.12074 OF 2011 (MV)
M.F.A.NO. 11999 OF 2011 (MV)
Between:
Smt. Chandraprabha Hiremath,
W/o. Late Raveendra Hiremath,
Aged about 55 years,
R/o. No.789, 80 Feet Road,
Opposite Bank of Baroda,
Rajajinagar, Bangalore-10.
... Appellant
(By Shri. Harish Kumar.M.S, Advocate)
And:
1. Papanna S/o. Late Bhairappa,
Aged Major,
C/o. Ramesh,
No.32, Kannur Village & Post,
Bangalore East.
2. Ramesh S/o. Shrirangan,
R/o. No.32, Kannur Village & Post,
Bangalore East.
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3. ICICI Lombard Motor Insurance,
Branch Office, No.228/15,
Rajalakshmi Arcade,
Near Nagarjuna, II Block,
Jayanagar, Bangalore-11.
4. Smt. Suma Hiremath,
W/o. Late Naveen Hiremath,
Aged about 30 years,
R/o. No.2344, 9th Main,
II Stage, 'E' Block,
Rajajinagar, Bangalore-10.
... Respondents
(By Shri. D. Manjunath, for MM Law Chambers, for R3;
Shri. D.P. Mahesh, Advocate for R4;
Notice to R1 & R2 dispensed with v/o. dated 18/03/2014)
******
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 08/06/2011 passed in MVC
No.9454/2008 on the file of the XXVI Additional Small
Causes Judge, Motor Accident Claims Tribunal, Bangalore,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
M.F.A.NO. 12074 OF 2011 (MV)
Between:
ICICI Lombard Motor Insurance,
Branch off. No.228/15, Rajalakshmi Arcade,
Near Nagarjuna, 2nd Block,
Jayanagar, Bangalore-11.
In this appeal Represented by
ICICI Lombard General Insurance
Company Limited,
No.89, 2nd Floor, SVR Complex,
3
Madiwala, Hossur Main Road,
Bangalore-68.
... Appellant
(By Shri. D. Manjunath, Advocate)
And:
1. Smt. Suma Hiremath,
W/o. Late Naveen Hiremath,
Aged about 30 years,
R/o. No.2344, 9th Main,
2nd Stage, 'E' Block,
Bangalore-10.
2. Papanna,
S/o. Late Byrappa,
Major,
Driver of Tipper Lorry
Bearing Reg. No.KA 05/B 4911,
C/o. Ramesh, No.32,
Kannur Village & Post,
Bangalore East.
3. Ramesh,
S/o. Sri. Rangan,
Owner of Tipper Lorry
Bearing Reg. No.KA 05/B-4911,
No.32, Kannur Village & Post,
Bangalore East.
4. Smt. Chandraprabha Hiremath,
W/o. Late Ravindra Hiremath,
Aged about 55 years,
No.789, 80 Feet Road,
Opp. Bank of Baroda,
Rajajinagar, Bangalore-10.
... Respondents
(By Shri. D.P. Mahesh, Advocate for R1;
Shri. Nandish Patil, Advocate for R4;
Notice to R2 & R3 dispensed with v/o. dated 26/06/2014)
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This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 08/06/2011 passed in MVC
No.9454/2008 on the file of the XXVI Additional Small
Causes Judge, Motor Accident Claims Tribunal, Bangalore,
awarding a compensation of `55,19,000/- with interest at
6% p.a. from the date of petition till deposit.
These MFAs coming on for Admission, this day,
N.K. PATIL. J., delivered the following:
JUDGMENT
Though these two appeals are posted for Admission, with the consent of the learned counsel appearing for both the parties, the same are taken up for final disposal.
2. These two appeals respectively by the mother of deceased and Insurer are directed against the same judgment and award dated 8th June 2011, passed in MVC No.9454/2008, by the XXVI Additional Small Causes Judge, Motor Accident Claims Tribunal, Bangalore, (for short, 'Tribunal'), awarding compensation of `55,19,000/- in favour of the claimant/wife and mother of deceased, as against her claim for `92,00,560/-.
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3. While the mother of deceased has filed the appeal seeking enhancement of compensation, on the ground that the compensation awarded is inadequate and on the lower side; the Insurer has filed the appeal, seeking reduction of compensation, on the ground that the compensation awarded is excessive and on the higher side. Thus, both the mother of deceased and Insurer felt necessitated to file these two appeals to modify the impugned judgment and award passed by Tribunal.
4. The facts in brief are that, the claimant in claim petition is the wife and fourth respondent before the Tribunal is the mother of deceased. The mother of deceased /fourth respondent before the Tribunal, has come up in appeal, seeking enhancement of compensation and also to apportion the compensation awarded by Tribunal in equal proportion among the wife and mother of deceased. Earlier, the claimant/wife of deceased had filed the claim petition under Section 166 6 of the Motor Vehicles Act, contending that at about 10:25 A.M., on 26-03-2008, when the deceased Raveendra Hiremath was proceeding in his Honda Activa bearing Registration No.KA-02/EBN-7817, on Whitefield road from West to East, near Bharuka Steel Factory, he met with an accident on account of rash and negligent driving by the driver of Tipper Lorry bearing Registration No.KA-05/B-4911. Due to the impact, the left wheel of the Tipper Lorry passed on his head and the deceased sustained severe head injuries and died on the way to the Vydehi Hospital.
5. It is the case of the mother of the deceased that, the deceased was aged about 32 years and working as a Software Engineer for Perot System, Bengaluru and earning a sum of `61,033-53 per month and hale and healthy prior to the accident. On account of the untimely death of the deceased in the road traffic accident, the mother of the deceased has lost the love and affection, social and financial security and she is 7 also deprived of moral support and therefore, she has to be compensated reasonably.
6. On account of the death of the deceased, the wife of the deceased filed the claim petition before the Tribunal, seeking compensation against the Insurer and others, impleading the mother of the deceased as fourth respondent. The said claim petition had come up for consideration before the Tribunal on 8th June, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `55,19,000/- under different heads, with 6% interest per annum, from the date of petition till the date of payment and apportioned the same in favour of the claimant/wife of deceased at `36,19,000/- and in favour of the mother of deceased at `19,00,000/-. Being dissatisfied with the quantum of compensation awarded by the Tribunal and also the apportionment ordered by Tribunal, the mother of the deceased is in appeal, seeking enhancement of 8 compensation and to apportion higher percentage on her behalf; and being aggrieved by the quantum of compensation awarded, the Insurer is in appeal, seeking reduction of compensation, on the ground that income assessed by Tribunal is disproportionate to the source of income of the deceased and the compensation awarded towards loss of dependency and also conventional heads is on the higher side.
7. We have gone through the grounds urged in the memorandum of appeal filed by both the claimant and the Insurer and also the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for claimant and Insurer.
8. The submission of the learned counsel appearing for claimant, Shri. Harish Kumar M.S., is that, the Tribunal has grossly erred in not accepting the income of the deceased in spite of the credible documentary evidence produced by the claimant in 9 support of the same. To substantiate the same, he submitted that the deceased was aged about 32 years, B.E. Graduate, working as Software Engineer at Perot System India Limited, Bangalore, earning a sum of `61,033-53 per month and having bright future and also received number of appreciation Certificates including several awards such as 'Best Worker' 'Exceptional performer' 'Best of breed', 'Diamond E1 Bonus Award' etc. To substantiate the qualification, the claimant has produced Engineering Degree Certificate at Ex.P25, issued by the Karnatak University, Dharwad, wherein the deceased has secured First Class with distinction. To substantiate the income, the claimant has produced income tax computation statement for the period of March 2008 at Ex.P12 and also Ex.P11, the income tax returns for the assessment year 2008-09, wherein his gross annual income is shown as `6,39,265-60 and the total tax payable is shown as `1,35,920/-.
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Further, he vehemently submitted that, in view of the judgment of the Hon'ble Apex Court in Santhosh Devi's case (AIR 2012 SCW 2892), 30% of his income may be added to the income of the deceased towards future prospects while calculating the compensation payable towards loss of dependency and deducting 1/3rd towards the personal and living expenses of the deceased and adopting multiplier of '16', as the deceased was aged about 32 years, and reasonable compensation be awarded towards loss of dependency on account of the death of the deceased in the road traffic accident on account of accidental injuries sustained.
He also submitted that compensation awarded by Tribunal towards conventional heads is also on the lower side and liable to be enhanced reasonably, by modifying the impugned judgment and award passed by Tribunal.
9. As against this, learned counsel appearing for Insurer, Shri. D. Manjunath submitted that, the 11 Tribunal has erred in awarding higher compensation towards the conventional heads as the accident has occurred on 26-03-2008. Further, he submitted that the claimants are only wife and mother of deceased and a sum of `70,000/- awarded under the head, loss of love and affection is on the higher side and liable to be reduced.
Further, he submitted that the income assessed by Tribunal is on the higher side, for the reason that the claimant has not examined the employer and therefore, reasonable reduction may be made towards loss of dependency also and the impugned judgment and award passed by Tribunal be modified accordingly.
10. Per contra, learned counsel appearing for the wife of the deceased/claimant/fourth respondent herein, submitted that he would adopt the submission made by the learned counsel appearing for the mother of deceased that the quantum of compensation awarded 12 by Tribunal towards loss of dependency is on the lower side and liable to be enhanced reasonably.
11. After hearing learned counsel for all the three parties, after careful perusal of the judgment and award passed by the Tribunal and after going through the original records available on file, the only point that arise for our consideration in these two appeals is, "Whether the quantum of compensation awarded by Tribunal is just and reasonable"
After perusal of the entire material available on file, it can be seen that, occurrence of accident and the resultant death of the deceased Raveendra Hiremath is not in dispute. It is also not in dispute that the claimants are none other than the wife and mother of deceased. But, mother, aged about 52 years, at the time of accident, has come up in appeal, seeking enhancement of compensation and also to apportion 13 higher compensation in her favour in the award passed by Tribunal.
12. It is further not in dispute that the deceased was aged about 32 years and working as Software Engineer, drawing salary of `61,033.53 per month. Per annum, it works out to `7,32,402/-.
13. Further, after microscopic evaluation of the entire material available on file including the original records placed before, it is not in dispute that the deceased was a B.E. graduate with High First Class and had a bright future. He was employed as a Software Engineer at Perot System, Bengaluru and paid salary of `61,033-53. During his lifetime and his tenure in the said Company, he received many awards such as Best Worker, Best of Breed, Exceptional Performer, etc and had been even sent to abroad number of times. But, on account of the accidental injuries, he succumbed to the same and on account of his untimely and unnatural 14 death, the wife has lost her life partner and the mother has lost the love and affection, social, financial and also moral security in life.
14. Therefore, having regard to the fact that the deceased was getting a fixed salary and had a bright prospect, we deem it fit to add 30% towards future prospects of the deceased. As stated earlier, the annual income of the deceased was `7,32,402/. If we add 30% (i.e. `2,19,720/-) to the income of the deceased towards future prospects, the total income works out to `9,52,122/- per annum. The admissible deductions are only professional tax and income tax. Accordingly, if income tax and professional tax of `2,79,916/- is deducted from `9,52,122/-, the net income comes to `6,72,206/- per annum. Out of this, since the claimants are two in number, we deduct 1/3rd (i.e. `2,24,068/-) towards the personal expenses of the deceased. Accordingly, if 1/3rd (i.e. `2,24,068/-) is deducted from `6,72,206/- towards his personal 15 expenses, the net income would be `4,48,138/- per annum. As the deceased was aged about 32 years, the proper multiplier applicable is '16' as per the decision of the Hon'ble Apex Court Sarla Verma's case (2009 ACJ 1298) (supra) as rightly adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to `71,70,208/- (i.e. `4,48,138/- x'16') as against `53,69,000/- awarded by Tribunal.
15. However, so far as compensation awarded towards conventional heads is concerned, it is seen that, the Tribunal is justified in awarding a sum of `10,000/- towards loss of consortium, `50,000/- towards loss of estate, `70,000/- towards loss of love and affection; and `20,000/- towards transportation and funeral expenses as per the decision of the Apex Court and this Court in host of judgments.
16. Thus, the total compensation would work out to `73,20,208/- as against `55,19,000/- awarded by 16 Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. The enhancement of compensation would be `18,01,208/- with 6% interest per annum.
17. Further, so far as the specific ground taken by the learned counsel appearing for mother of the deceased in M.F.A.No.11999/2011 that the compensation awarded by Tribunal may be apportioned in equal proportion among the wife and mother of deceased is concerned, having regard to the facts and circumstances of the case, we do not propose to interfere in the apportionment ordered by Tribunal. However, to compensate the same, we are apportioning the enhanced compensation of `18,01,208/- in equal proportion among the wife and mother of the deceased, inasmuch as we have awarded `9,01,208/- in favour of mother of deceased and `9,00,000/- in favour of wife of deceased.
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18. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurer is dismissed as being devoid of merit and the appeal filed by claimant is allowed in part. The impugned judgment and award dated 8th June 2011, passed in MVC No.9454/2008, by the XXVI Additional Small Causes Judge, Motor Accident Claims Tribunal, Bangalore, is hereby modified, awarding a sum of `18,01,208/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal.
The Insurer is directed to deposit the enhanced compensation of `18,01,208/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment.
Out of the enhanced compensation of `18,01,208/-, a sum of `9,01,208/- is apportioned in favour of the mother of deceased - Smt. Chandraprabha Hiremath 18 and `9,00,000/- is apportioned in favour of the wife of deceased - Smt. Suma Hiremath.
Out of the sum of `9,01,208/- apportioned in favour of the mother of deceased, a sum of `8,00,000/- with
proportionate interest shall be deposited in the name of the mother of deceased, in Fixed Deposit, in any scheduled/ Nationalized Bank, for a period of ten years, renewable for another five years, with liberty reserved to her to withdraw the periodical interest.
Remaining sum of `1,01,208/- with proportionate interest shall be released in favour of the mother of deceased, immediately on deposit by the Insurer.
Out of the sum of `9,00,000/-
apportioned in favour of the wife of deceased, a sum of `8,00,000/- with proportionate interest shall be deposited in the name of the wife of deceased, in Fixed Deposit, in any 19 scheduled/ Nationalized Bank, for a period of ten years, renewable for another ten years, with liberty reserved to her to withdraw the periodical interest.
Remaining sum of `1,00,000/- with proportionate interest shall be released in favour of the wife of deceased, immediately on deposit by the Insurer.
The statutory amount in deposit by the Insurer in the appeal filed by it, i.e. M.F.A.No.12074/2011 is directed to be transmitted to the jurisdictional Tribunal, forthwith, for disbursement.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*