Karnataka High Court
United India Insurance Co Ltd vs Smt D Shamala on 2 January, 2014
Bench: N.K.Patil, Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JANUARY, 2014
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
M.F.A.NO. 10656 OF 2008 (MV)
C/W. M.F.A.NO. 6063 OF 2008 (MV)
M.F.A.NO. 10656 OF 2008 (MV)
Between:
United India Insurance Co., Ltd.,
St. Mark's Road, Bangalore,
By Regional Office,
United India Insurance Co., Ltd.,
Shankarnarayana Building,
M.G. Road, Bangalore-1.
... Appellant
(By Shri. O. Mahesh, Advocate)
And:
1. Smt. D. Shamala,
W/o. Late N.S. Nageshwara Rao,
Aged 39 years.
2. N. Akash,
S/o. Late N.S. Nageshwara Rao,
Aged about 11 years,
Minor, rep. by M/G I Respondent.
2
Both R/at. No.1134, 10th Cross,
3rd Stage, Chord Road,
Bangalore-10.
3. Smt. Bhagyalaxmi,
W/o. Jagadeesh Reddy,
Major,
No.38, Subbanna Palya,
3rd Cross, Banasawadi,
Bangalore-33.
Since deceased by Court Officer
Appointed by Tribunal,
Sri. K.S. Venkatesh, Advocate,
Bangalore-9.
4. Smt. Ezhimath,
Major,
W/o. Not Disclosed,
R/at. No.1/89, Near MEB Office,
Haradi District, Puttur,
Salem, Tamil Nadu.
5. New India Assurance Co., Ltd.,
Branch Office, No.7,
Ramalinga Madalaiah Street,
Googal Salem, Tamil Nadu.
... Respondents
(By Shri. A. Niranjan Kumar, Advocate for R1 & R2;
Shri. A.K. Bhat, Advocate for R5;
Notice to R3 dispensed with v/o. dated 21/11/2008;
Notice to R4 dispensed with v/o. dated 21/08/2009)
****
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 01/01/2008 passed in MVC
No.7109/2005 on the file of the VII Additional Judge,
Member, Motor Accident Claims Tribunal, Bangalore,
awarding a compensation of `37,06,776/- with interest at
6% p.a. from the date of petition till deposit.
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M.F.A.NO. 6063 OF 2008 (MV)
Between:
1. Smt. D. Shamala,
W/o. Late N.S. Nagesh Rao,
Aged about 39 years.
2. N. Akash,
S/o. Late N.S. Nagesh Rao,
Aged about 12 years,
Since minor rep. by natural
Guardian and mother Smt. D. Shamala,
The first appellant herein.
Both R/at. 1134, 10th Cross,
I Block, III Stage, Adarsha Layout,
West of Chord Road,
Bangalore-79.
... Appellants
(By Shri. A. Niranjan Kumar,
for M/s. Niranjan Kumar & Associates)
And:
1. Bhagyalakshmi.J,
W/o. Jagadeesh Reddy,
Aged major,
No.32, Subbanna Palya, Indira Street,
3rd Cross, Banaswadi,
Bangalore-33.
(Since deceased and rep. by administrator)
2. United India Insurance Company Ltd.,
Branch Office,
Code No.072401, 48/2,
St. Marks Road Civil Station,
Bangalore-1.
Insurance Company of Tata Indica
Car No.KA-03/B- 3744.
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3. Smt. Ezhimathi,
Aged 45 years,
1/89, Near KGB Office,
Puttur Dist: Salem,
Tamil Nadu-636 013,
Owner of the tanker
KA 21-5293.
4. The New India Assurance Company Ltd.,
No.7, Ramling Madalaya Street,
Gugal, Salem-636 006,
Insurance Company of the Tanker
No. KA-21/5293.
5. A. Sarfuddin,
S/o. Anifa,
Aged about 51 years,
VRB nidu Street,
Vadikarai, Periyakalu Post,
Theni District Tamilnadu,
Driver of Tanker KA 21/5293.
... Respondents
(By Shri. O. Mahesh, Advocate for R2;
Shri. A.K. Bhat, Advocate for R4;
Notice to R3 dispensed with v/o. dated 09/04/2009;
R5 served)
****
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 01/01/2008 passed in MVC
No.7109/2005 on the file of the VII Additional Judge,
Member, Motor Accident Claims Tribunal, Bangalore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
These MFAs coming on for Hearing, this day,
N.K. PATIL. J., delivered the following:
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JUDGMENT
These two appeals respectively by the Insurer and the Claimants are directed against the same judgment and award dated 1st January 2008, passed in MVC No.7109/2005, by the VII Additional Judge, Member, Motor Accident Claims Tribunal, Bangalore, (for short, 'Tribunal' ).
2. While the Insurer has filed the appeal on the ground that, the Tribunal is not justified in fixing the contributory negligence in the ratio of 50:50; the claimants have filed the appeal, seeking enhancement of compensation on the ground that the compensation of `37,06,776/- awarded by Tribunal is on the lower side and the impugned judgment and award passed by Tribunal is liable to be modified.
3. The facts of the case as stated in the claim petition are that, at about 6-00 A.M., on the ill-fated day, i.e. on 19-12-2004, when the deceased N.S. Nagesh 6 Rao was travelling in the Tata Indica Car bearing Registration No.KA-03/B-3744, he met with an accident on account of rash and negligent driving by the driver of the said Car while the said Car was moving on NH-7, near 361st Milestone, when it dashed against the Tanker bearing Registration No.KA-21/5293. Due to the impact, the deceased N.S. Nagesh Rao sustained grievous injuries and succumbed to the said injuries on the spot.
4. The claimants herein are none other than the wife and minor son of deceased N.S. Nagesh Rao in the road traffic accident. It is the case of the claimants that, deceased was the only earning member in the family and on account of his death, the family is in total financial distress and are left with no social and moral support as the minor son of deceased is also mentally challenged and therefore, they have to be compensated reasonably, as the wife has to run the family single handedly and look after the minor child all alone. 7
5. On account of the death of the deceased N.S. Nagesh Rao in the road traffic accident, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of `1,41,00,000/- against the owners and Insurers of both the offending vehicles and the same was numbered as M.V.C.No.7109/2005. The said claim petition had come up for consideration before the Tribunal on 1st January, 2008. 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 compensation of a sum of `37,06,776/-, with 6% interest per annum, fixing negligence on the part of the driver of the Indica Car and also the driver of the Tanker in the ratio of 50:50, from the date of petition till the date of deposit. Being aggrieved by the contributory negligence fixed on the part of the driver of the Car bearing Registration No.KA-03/B-3744, at 50%, on the ground that it is on the higher side, the Insurer is in appeal before this Court, seeking to re-fix reasonable 8 percentage of negligence on the part of the drivers of both the vehicles or at least in the ratio of 40:60, i.e. 40% on the part of the driver of the Car and 60% on the part of the driver of the Tanker, to meet the ends of justice; whereas the claimants are also in appeal before this Court, seeking enhancement of compensation, on the ground that the compensation awarded by Tribunal is on the lower side and further the claimants are entitled to additional 30% towards future prospects as per the decision of the Apex Court in Santosh Devi's case (AIR 2012 SCW 2892).
6. We have heard Shri. O. Mahesh, learned counsel appearing for Insurer and Shri. A. Niranjan Kumar, learned counsel appearing for claimants, gone through the grounds urged in the memorandum of appeals filed by Insurer as also claimants carefully and perused the impugned judgment and award passed by Tribunal, including the original records placed before us.
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7. Shri. O. Mahesh, learned counsel appearing for United India Insurance Company Limited vehemently submits that, the Tribunal committed grave error and material irregularity, resulting in serious miscarriage of justice, in fixing contributory negligence in the ratio of 50:50, on the part of the driver of Car and 50% on the part of the driver of Tanker, when in fact, the driver of the Lorry contributed more to the occurrence of accident and also considering the fact that the Car is a light vehicle when compared to Tanker, which is a heavy vehicle. Therefore, he submitted that reasonable negligence may be fixed on the drivers of both Car and Tanker or at least in the ratio of 40:60, i.e. 40% on the part of the driver of Car and 60% on the part of the driver of the Tanker, by setting aside the negligence fixed by the Tribunal in the ratio of 50:50 on the part of the drivers of both the Car and Tanker and modifying the impugned judgment and award passed by Tribunal.
Further, he submitted that the quantum of compensation awarded by Tribunal towards loss of 10 dependency is on the higher side and the same is disproportionate to the source of income of the deceased and hence, the impugned judgment and award passed by Tribunal requires modification both regard quantum of compensation and also negligence.
8. As against this, Shri.A.K. Bhat, learned counsel appearing for New India Assurance Company Limited also vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file has specifically recorded a finding of fact while answering issue No.1, at internal page Nos.6 to 8 of its judgment, holding that the accident has occurred on account of rash and negligent driving by the drivers of both the Car and the Tanker and accordingly, fixed negligence at 50% each on the drivers of both vehicles. The reasoning given by Tribunal for arriving at the said conclusion is just and proper and the impugned judgment and award does not call for any interference regarding fixing negligence. To substantiate the said submission, he has taken us 11 through the judgment and other relevant material and pointed that the in fact, the charge sheet has been filed by the police authorities on the driver of the Car, after thorough investigation and not against the driver of the Tanker. But the Tribunal, has after critical evaluation of each and every aspect of the matter, has fixed negligence on the part of the driver of Tanker also at 50%. In fact, considering the fact that the charge sheet is filed against the driver of the Car, more percentage of negligence ought to have been fixed on the driver of the Car. Further, in reply to the submission of the learned counsel for United India Insurance Company Limited that Tanker is a heavy vehicle when compared to Car and therefore higher negligence ought to have been fixed on the driver of the said Tanker, he vehemently submitted that just because Tanker is a heavy vehicle, it does not mean that higher percentage of negligence should have been fixed ignoring the fact that the charge sheet has been filed against the driver of the Car, after due investigation by the police authorities and the said 12 submission of the learned counsel for United India Insurance Company is baseless.
However, having regard to the totality of the case on hand and other relevant aspects of the matter, he fairly submitted that the negligence fixed by Tribunal at 50% each on the drivers of both vehicles is just and proper and does not call for interference.
9. Whereas, learned counsel appearing for claimants vehemently submitted that, the Tribunal, grossly erred in not awarding reasonable compensation towards loss of dependency, for the reason that it has not added 30% of the income towards future prospects of the deceased, as per the decision of the Apex Court in Sarla Verma's Case (2009 ACJ 1298), as the deceased N. S. Nagesh Rao was aged about 41 years and working as a Deputy General Manager in a Tractor Company and had bright prospects, drawing salary of `51,000/- per month, as per salary certificate at Ex.P6 and Income Tax Returns at Ex.P8. Therefore, he submitted that 30% of the income may be added and reasonable 13 enhancement may be made towards loss of dependency, adopting proper multiplier and deducting 1/3rd towards the personal expenses of the deceased.
Further, he vehemently submitted that the Tribunal further erred in not awarding reasonable compensation towards conventional heads such as loss of consortium, loss of estate, loss of love and affection and transportation of dead body and funeral expenses when in fact, as per the decision of the Hon'ble Apex Court in Sarla Verma's case (supra), the claimants are entitled to higher compensation under the said heads. Therefore, he vehemently submitted that reasonable enhancement may be made by modifying the impugned judgment and award passed by Tribunal.
10. After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in these two appeals are:
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I] Whether the Tribunal is justified in fixing the contributory negligence in the ratio of 50:50 on the part of the drivers of both Car and Tanker?
II] Whether the quantum of
compensation awarded by Tribunal is
just and reasonable?
Re-Point I] : Occurrence of accident and the
resultant death of the deceased N.S. Nagesh Rao in the road traffic accident that occurred between the two vehicles, i.e. Car and Tanker are not in dispute. It is also not in dispute that the claimants are none other than the wife and a minor child.
11. After critical evaluation of the oral and documentary evidence available on file, it is seen, as rightly pointed out by the learned counsel appearing for New India Assurance Company Limited that, the Tribunal, after careful evaluation of the oral and documentary evidence available on file, has framed the first issue for consideration and answered the same at 15 page Nos. 6 to 8 of its judgment, holding that the drivers of both the vehicles contributed to the occurrence of accident and observed that the charge sheet is filed against the driver of the Car and after going through the sketch and other documentary evidence, fixed the contributory negligence in the ratio of 50:50 on the part of the driver of Car and also on the part of the driver of the Tanker. The said reasoning given by Tribunal is just and proper and it does not call for interference, for the reason that it is not in dispute that the charge sheet has been filed against the driver of the Car and not against the driver of the Tanker, by the police authorities after thorough investigation. In fact, even though the charge sheet is filed against the driver of the Car, considering the fact that the Tanker is a heavy vehicle when compared to Car and taking into consideration the other aspects of the matter, has fixed the negligence on the driver of the Tanker at 50%. Therefore, we hold that the reasoning given by the Tribunal for fixing 50% contributory negligence each on 16 the drivers of both the vehicles is just and proper and does not warrant interference and we accordingly, confirm the same and answer point No.1] in the 'affirmative'.
Re-Point II] : So far as quantum of compensation awarded by Tribunal is concerned, occurrence of accident and the resultant death of deceased N.S. Nagesh Rao in the said accident are not in dispute. It is also not in dispute that the deceased N.S. Nagesh Rao was aged about 41 years as on the date of accident and working as a Deputy General Manager in a Tractor Company, drawing gross salary of `51,000/- per month as per Ex.P6 salary certificate. Further, it is not disputed that the claimants have produced Ex.P8, income tax returns.
12. After microscopic evaluation of the original records available on file, including the salary certificate at Ex.P6 and income tax returns (two in number) at Ex.P8 series, learned counsel appearing for both the parties submitted that the average annual income of the 17 deceased would come to `4,04,447/-, after deducting income tax. The same is accepted. Out of this, if professional tax of a sum of `2,400/- is deducted, the net annual income comes to `4,02,047/-. Out of this, since the deceased was married and the dependents are two, 1/3rd is to be deducted towards the personal and living expenses of the deceased as per Sarla Verma's case (supra). Accordingly, if 1/3rd (i.e. `1,34,015/-) is deducted from it, the net income comes of `2,68,032/-. Further, as the deceased was aged about 41 years at the time of accident, the appropriate multiplier applicable is '14', in view of the aforesaid judgment. Thus, the compensation towards loss of dependency would work out to `37,52,448/- (i.e. `2,68,032/- x '14') as against `36,81,776/- awarded by Tribunal.
13. Further, so far as compensation awarded towards conventional heads, i.e. loss of consortium, loss of estate, loss of love and affection and transportation of dead body and funeral expenses is concerned, we are of the considered view that a sum of `25,000/- awarded 18 under the conventional heads is on the lower side and as per the decision of the Apex Court in Sarla Verma's case (supra), we award a sum of `50,000/- under the conventional heads. Thus the total compensation works out to `38,02,448/- as against `37,06,776/- awarded by Tribunal. Thus there would be enhancement of compensation by a sum of `95,672/- with 6% interest per annum from the date of petition till the date of realization.
14. As per the contributory negligence fixed by the Tribunal and confirmed by this Court as above, in the ratio of 50:50, the United India Insurance Company Limited and New India Assurance Company Limited are directed to deposit the enhanced compensation with interest in the ratio of 50:50.
15. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurer is dismissed as devoid of merits and the appeal filed by claimants is allowed in part.
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The impugned judgment and award dated 1st January 2008, passed in MVC No.7109/2005, by the VII Additional Judge, Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified, only in so far as it relates to quantum of compensation awarded by Tribunal;;
The contributory negligence fixed on the drivers of both the Car and Tanker in the ratio of 50:50 is hereby confirmed;
The total compensation awarded by Tribunal is modified, awarding compensation of `38,02,448/- as against `37,06,776/- awarded by Tribunal. Thus, there would be enhancement of compensation by a sum of `95,672/- with 6% interest per annum from the date of petition till the date of realization.
In view of the contributory negligence fixed by the Tribunal and confirmed by this Court as above, in the ratio of 50:50, the 20 United India Insurance Company Limited and New India Assurance Company Limited are directed to deposit the enhanced compensation with interest in the ratio of 50:50, within a period of three weeks from the date of receipt of a copy of this judgment;.
Out of the enhanced compensation of `95,672/-, 50% with proportionate interest shall be invested in Fixed Deposit, in the name of the first claimant - wife of deceased N.S. Nagesh Rao, in any Nationalized/Scheduled Bank, for a period of ten years, renewable for another ten years, with liberty reserved to her to withdraw the interest periodically;
Remaining 50% with proportionate interest shall be released in favour of the first claimant, immediately on deposit by the Insurers;
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The statutory amount in deposit by the Insurer in M.F.A.No.10656/2008 is directed to be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*