Karnataka High Court
Smt Swetha T N vs United India Insurance Company Ltd on 12 March, 2024
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MFA No. 1325/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.1325/2020 (MV-D)
BETWEEN:
1. SMT SWETHA T N
W/O LATE DR. VITTAL KUMAR
AGED ABOUT 33 YEARS
2. KUMARI BHAVANA V
D/O LATE DR. VITTAL KUMAR
AGED ABOUT 7 YEARS,
(APPELLANT NO.2 BEING THE MINOR
REPRESENTED BY HER MOTHER
SMT. SWETHA T.N.
AS NATURAL GUARDIAN)
APPELLANTS ARE R/AT NO.1098,
7TH MAIN, 10TH CROSS, HMT LAYOUT,
7TH BLOCK, VIDYARANYAPURA,
Digitally signed
by PRABHU BENGALURU - 560 097 ... APPELLANTS
KUMARA
NAIKA
Location: High
Court of
Karnataka (BY SRI.SUNIL S RAO, ADVOCATE)
AND:
1. UNITED INDIA INSURANCE COMPANY LTD.
REPRESENTED BY ITS MANAGER
HAVING ITS OFFICE NO.L:143/144,
CKN CHAMBERS, 1ST FLOOR, I A MAIN ROAD,
SESHADRIPURAM, BENGALURU-560020
2. SRI. VIJAY BENZER R
S/O LATE RICHARD BENSER CD
AGED MAJOR
R/AT FLAT NO.303, 3RD FLOOR,
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MFA No. 1325/2020
MOTHERS PERENNIAL HOMES
2ND CROSS, 3RD A MAIN, BALAJI LAYOUT,
VIDYARANYAPURA, BENGALURU-560097
3. SRI.GOPALA
S/O THIMMAIAH
AGED ABOUT 71 YEARS
4. SMT.LAKSHMAMMA
W/O GOPALA
AGED ABOUT 77 YEARS
RESPONDENT NOS.3 AND 4 ARE
R/AT NO.87, 1ST CROSS
VENKATESWAMAPPA LAYOUT
HIDELU, VIDYARANYAPURA POST
BENGALURU - 560097 ... RESPONDENTS
(BY SRI.S.KRISHNA KISHORE, ADVOCATE FOR R1;
SRI.K.V.GIRISH, ADVOCATE FOR R3;
NOTICE TO R2 IS DISPENSED WITH V/C/O DTD:28.03.2022)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 23.02.2019 PASSED IN MVC NO. 4316/2017 ON
THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV
A.C.M.M., MEMBER, M.A.C.T., BENGALURU (SCCH-20), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT & ORDER ON IA NO.1/2023
Heard.
2. "Whether the compensation awarded to the
appellants by the Tribunal under the impugned award in MVC
No.4316/2017 on the file of V Addl. Small Causes Judge and
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XXIV ACMM, Member, MACT, Bengaluru is just one ?" is the
question involved in this case.
3. The appellants were claimant Nos.1 and 2,
respondent Nos.3 and 4 were claimant Nos.3 and 4 and
respondent Nos.1 and 2 were respondent Nos.1 and 2 in MVC
No.4316/2017 before the Tribunal. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the Tribunal.
4. Claimant Nos.1 and 2 are the wife and minor
daughter and claimant Nos.3 and 4 are the parents of Dr.Vittal
Kumar. On 08.04.2017 at 3.15 p.m. when Dr.Vittal Kumar was
travelling on his motor cycle bearing No.KA-02-ER-7840 along
with his wife/claimant No.1 as pillion rider near Adishwara
showroom, Vidyaranyapura Main Road, Bengaluru car bearing
registration No.KA-50-M-9028 hit the motor cycle. Both
Dr.Vittal Kumar and claimant No.1 suffered grievous injuries in
the accident. Dr.Vittal Kumar succumbed to the injuries when
he was being shifted to the hospital. At the time of the
accident respondent No.2 was the driver/RC owner and
respondent No.1 was the Insurer of the car.
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5. On the complaint of Suresh a relative of the victims,
Hebbal Traffic Police registered FIR as per Ex.P1 against
respondent No.2 in Crime No.174/2017 for the offences
punishable under Section 279, 338 and 304(A) of IPC and
under Section 134(A) and (B) and Section 187 of the Motor
Vehicles Act, 1988. On investigation respondent No.2 was
charge sheeted as per Ex.P8 for the aforesaid offences. The
claimants filed MVC No.4316/2017 against respondent Nos.1
and 2 claiming that Dr.Vittal Kumar was working as Research
Scientist - II in Advinus Therapeutics Pvt. Ltd getting salary of
Rs.1,26,875/-, that they were all dependant on him, due to his
death they have suffered both pecuniary and emotional
damages and thus they claimed compensation of Rs.3 crores
from the respondents.
6. Respondent Nos.1 and 2 contested the petition
denying actionable negligence on the part of respondent No.2,
age, occupation and income of the deceased and their liability
to pay the compensation. They contended that the victim
himself was rash and negligent and was responsible for the
accident. Claimant No.1 in addition to MVC No.4316/2017 filed
MVC No.4317/2017 claiming compensation for the injuries
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suffered by her. The Tribunal consolidated both the cases and
recorded the common evidence in both the cases. On behalf of
the claimants PWs.1 to 4 were examined and Exs.P1 to P39
were marked. Respondents did not lead any evidence. The
coverage of the Insurance under the policy issued by
respondent No.1 was not in dispute.
7. The Tribunal on recording the evidence and on
hearing the parties by the impugned judgment and award held
that the accident and consequential death of Dr.Vittal Kumar
and injuries to claimant No.1 occurred due to actionable
negligence on the part of respondent No.2. The Tribunal based
on Ex.P28, the Aadhar Card of the deceased considered his age
as 41 years. Though the claimants examined PW.3
H.R.Manager of the employer of the deceased to the effect that
the deceased was drawing salary of Rs.12,93,138/- p.a. The
Tribunal disbelieved those documents, assessed the income of
the deceased at Rs.9,000/- per month added 25% by way of
future prospects deducted 1/4th from the same for the personal
expenses of the deceased applied 14 multiplier and awarded
Rs.14,17,416/- on the head of loss of dependency.
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8. The Tribunal in all awarded compensation of
Rs.14,87,416/-, which was rounded off to Rs.14,88,000/- with
interest at 9% p.a. from the date of petition till realisation, on
different heads as per the table below:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of Dependency 14,17,416/-
2. Loss of Estate 15,000/-
3. Loss of consortium 40,000/-
4. Towards Funeral and 15,000/-
obsequies ceremonies
Total 14,87,416/-
9. The claimants challenged the award on the ground
of inadequacy of the compensation. Before this Court claimants
filed IA No.1/2023 under Order XLI Rule 27 CPC for production
of additional evidence. They seek permission to produce the
following documents:
Sl.No List of documents
1. Annual Tax Statements in form 26AS of the year 2015-16
2. Annual Tax Statements in form 26AS of the year 2016-17
3. Annual Tax Statements in form 26AS of the year 2017-18
4. Last known IT returns filed for the Assessment years 2016-18
in form No.16
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10. Sri Sunil S Rao, learned counsel for the
appellants/claimants reiterating the grounds of appeal submits
that the Tribunal committed error in rejecting the evidence of
PW.3 regarding employment, income of the deceased on flimsy
ground. He further submits that the compensation awarded on
the other heads is also contrary to the settled principles of law.
He submits the document produced by the appellant are
authenticated copies and considering the same the
compensation shall be enhanced.
11. Per contra Sri S.Krishna Kishore, learned counsel for
respondent No.1/Insurer justifies the award on the ground that
the claimants neither produced the bank statements nor any
other tangible document. However, he did not dispute
genuineness of form No.26AS and form No.16 submitted prior
to the death of the victim.
ANALYSIS
12. The respondents have not challenged the findings of
the Tribunal regarding actionable negligence on the part of the
second respondent, the relationship of the claimants with the
deceased and his age. They did not even dispute his
qualification. PW.3/H.R.Manager of the employer of the
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deceased deposed that the deceased joined their establishment
as associate Research Scientist and he was drawing only salary
of Rs.12,93,138/- p.a. He produced the appointment
letter/Ex.P21, 4 pay slips and increment letters as per Exs.P23
and P24 and attendance register extract/Ex.P25. In his cross
examination the respondents did not dispute the employment of
the deceased with the said organisation viz., Advinus
Therapeutics Pvt. Ltd. The only question put to the said
witness was that they have filed form No.16 in respect of
income tax of the petitioner and they had given accident benefit
to the victim's family etc. He denied the suggestion that
Exs.P21 to 25 are the created documents. As per the
suggestion of respondent No.1 itself the employee was issued
with form No.16 for the purpose of income tax. Therefore, the
documents produced under IA No.1/2023 can be taken on
record. Their evaluation is the next aspect.
13. Out of the documents produced, form No.16 issued
on 13.05.2016 was before the death of the victim. Admittedly
Dr.Vittal Kumar died on 08.04.2017 form No.16 dated
13.05.2016 was issued one year prior to his death. At that time
neither the employer nor the deceased had foreseen the
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accident or the claim petition. Therefore, the said document
can be safely relied on. As per the said document, the net
income of the deceased was Rs.9,90,113/- p.a. after deduction
of the income tax at source.
14. As per the judgment of the Hon'ble Supreme Court
in National Insurance Company Limited vs. Pranay Sethi1,
for the age and employment of the deceased, 30% of the
income has to be super added by way of future prospects which
comes to (9,90,113 X30/100) Rs.2,97,034/- p.a. Therefore, his
annual income comes to (9,90,113+2,97,034) Rs.12,87,147/-.
As the deceased had 4 dependants as per the judgment of the
Hon'ble Supreme Court in Sarla Varma v. Delhi Transport
Corporation2 one-fourth has to be deducted for his personal
expenses and 14 multiplier has to be applied. Therefore, the
compensation payable on the head of loss of dependency
comes to (12,87,147X3/4 = 9,65,360.25X14) Rs.1,35,15,043.5
rounded off to Rs.1,35,15,044/-.
15. As per the judgment of the Hon'ble Supreme Court
in Pranay Sethi's case referred to supra and Magma General
1
AIR 2017 SC 5157
2
AIR 2009 SC 3104
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Insurance Company Ltd. v. Nanu Ram3 case, each of the
claimants are entitled to compensation of Rs.40,000/- on the
head of consortium and (15,000 + 15,000) on conventional
heads of loss of estate and funeral expenses with escalation of
10%. Therefore, the compensation payable on the head of loss
of consortium comes to Rs.1,76,000/- (44000 X 4) and the
compensation payable on the conventional heads comes to
(Rs.16,500 + 16,500) Rs.33,000/-. Therefore just
compensation payable is as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of Dependency 1,35,15,044/-
2. Loss of Estate 16,500/-
3. Loss of consortium 1,76,000/-
4. Towards Funeral and 16,500/-
obsequies ceremonies
Total 1,37,24,044/-
Less awarded by the 14,88,000/-
Tribunal
Enhanced compensation 1,22,36,044/-
Respondent No.1 being the Insurer shall indemnify the said
damages. Hence the following:
3
2018 (18) SCC 130
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ORDER
i) IA No.1/2023 filed under Order 41 Rule 27 of CPC is allowed.
ii) The appeal is partly allowed. The impugned judgment and award is modified as follows:
a) The appellants/claimants are entitled to enhanced compensation of Rs.1,22,36,044/- over and above the compensation granted under the impugned award.
b) The enhanced amount shall carry interest at 6% p.a. from the date of petition till its realization.
c) Respondent No.1/Insurer shall deposit the aforesaid amount before the Tribunal within four weeks from the date of receipt of copy of this order.
d) The order of the Tribunal with regard the apportionment and investment is maintained.
e) The Registry shall transmit the trial Court records to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE akc List No.: 1 Sl No.: 47