Karnataka High Court
National Insurance Co.Ltd vs Smt. Sowmya G on 20 January, 2021
Bench: Alok Aradhe, Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.6942 OF 2017 (MV-D)
BETWEEN:
NATIONAL INSURANCE CO.LTD.,
MANDYA BRANCH OFFICE,
V.V. ROAD, MANDYA,
NOW REPRESENTED BY ITS
REGIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
SUBHARAM COMPLEX ,
144, M.G. ROAD,
BANGALORE-560001.
...APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT. SOWMYA G
W/O LATE GOVINDAPRASAD N.V.,
NOW AGED ABOUT 33 YEARS
2. PRANAMYA
D/O LATE GOVINDAPRASAD N.V.
NOW AGED ABOUT 9 YEARS
2
SINCE MINOR REPRESENTED BY HER
NATURAL GUARDIAN/MOTHER
THE 1ST RESPONDENT HEREIN
3. PRANATHI
D/O LATE GOVINDAPRASAD N.V.
NOW AGED ABOUT 9 YEARS
SINCE MINOR REPRESENTED BY HER
NATURAL GUARDIAN/MOTHER
THE 1ST RESPONDENT HEREIN
4. SMT. N. SARASWATHI
W/O N. VENKAPPAYYA,
NOW AGED ABOUT 64 YEARS
5. N. VENKAPPAYYA
S/O BHEEMAYYA,
NOW AGED ABOUT 73 YEARS
R/A NOOJI HOUSE,
KABAKA POST & VILLAGE,
PUTTUR TALUK,
D.K.-574154.
6. SHASHIKUMAR NAYAK
S/O PAPPANNA NAYAK,
DIRVER CUM RC OWNER,
R/O NO.31, 452, GUTHAL COLONY,
5TH CROSS, MARUTHI NAGARA,
MANDYA TALUK,
MANDYA DISTRICT-571401.
...RESPONDENTS
(NOTICE ON RESPONDENT NOS.1, 4 AND 5 ARE SERVED BUT
UNREPRESENTED;
RESPONDENT NOs.2 AND 3 ARE MINORS REPRESENTED BY
RESPONDENT NO.1;
SRI. DINESH KUMAR K. RAO, ADVOCATE FOR RESPONDENT
NO.6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
3
THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN
MVC NO.1811/2012 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC AND MEMBER, MACT, PUTTUR, D.K. AN
AWARDING A COMPENSATION OF RS.97,95,000/- WITH
INTEREST THEREON AT THE RATE OF 7% P.A. FROM THE DATE
OF PETITION, TILL ITS REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under section 173(1) of the Motor Vehicles Act, 1988 is filed by the Insurer challenging the quantum of compensation as well as the liability saddled on it to pay the compensation awarded by the Additional Senior Civil Judge And Member, MACT, Puttur, Dakshina Kannda (henceforth referred to as Tribunal) in MVC.No.1811/2012.
2. Though this appeal is listed for admission, it is taken up for final disposal with the consent of the learned counsel for the parties.
3. The claim petition discloses that the claimants are the legal representatives and dependents of a person named Mr. Govinda Prasad. It is stated that on 15.10.2012 4 Mr. Govinda Prasad was riding a motorcycle bearing registration No.KA-21H-8894 towards Putturu from Mani. When he reached Kuvethila in Kabakka Village, the rider of another motor cycle bearing registration No.KA-05HL-2192 (henceforth referred to as offending vehicle) rode from the opposite direction in a rash and negligent manner which dashed against the motorcycle ridden by Mr. Govinda Prasad. As a result, he fell down and sustained grievous injuries and died at the spot. The claimants claimed that the deceased was 35 years old and was employed as a Associate Professor at Srinivas Institute Technology and was drawing a monthly salary of Rs.58,338/-. The claimants claimed that the deceased was pursuing PhD in Computer Science at Bharatiar University, Coimbatore and stated that he would have been promoted as a Professor after completion of this PhD. The claimants therefore filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.1,00,00,000/- from the owner and insurer of the offending vehicle. 5
4. It is stated that on a complaint lodged at Puttur Traffic Police Station Cr.No.223/2012 was registered against the rider of the offending vehicle for offences punishable under Section 279 and 304(A) of IPC.
5. The rider of the offending vehicle contested the claim petition by filing his written statement wherein he contended that the accident occurred due to the negligence on the part of the deceased.
6. The insurer of the offending vehicle denied the averments of the claim petition but claimed that the accident occurred due to the negligence on the part of the deceased.
7. Based on these rival contentions, the claim petition was set down for trial. The claimant No.1 was examined as PW.1 and she examined three other witnesses as PWs.2 to 4 and they marked documents as Exs.P1 to P41. The insurer examined one of its officers as RW.1. It also examined RW.2 who had lodged the 6 complaint. It also examined RW.3 who was one of the witnesses in C.C.No.1148/2013 and marked documents as Exs.R1 to R3.
8. The Tribunal noticed the complaint lodged against the rider of the offending vehicle and that a charge sheet was filed against him which indicted him of an offence punishable under Section 279 read with Section 304(A) of IPC. It also noticed the evidence of PW.4 who was an eyewitness and who deposed before the Tribunal that the accident occurred due to the negligent riding by the rider of the offending vehicle. It also noticed from Exs.P4 and P5, which are the spot mahazar and sketch, which indicated that the width of the road at the place of the accident was 18 feet wide and that the accident occurred on the extreme left side. It therefore held that the rider of the offending vehicle who approached from the opposite direction went on to the opposite lane and dashed against the motor cycle ridden by the deceased. Though the insurer examined RWs.2 and 3 who are the 7 complainant and witness who had deposed in C.C.No.1148/2013, their evidence was not credible about the negligence on the part of the deceased. The tribunal held that claims under the Motor Vehicles Act, 1988 have to be determined based on the preponderance of probabilities as held by the Hon'ble Apex Court in the case of Bimala Devi and others Vs. Himachal Road Transport Corporation and others 2009 (13) SCC
530. The Tribunal held that the claimants had proved the actionable negligence on the part of the rider of the offending vehicle and that the insurer had not established any contributory negligence on the part of the deceased.
9. The Tribunal considered the documents of the deceased as per Ex.P22 (Pan Card), Ex.P26 (SSLC Marks Card) and Ex.P33 (Service Record of the deceased) where his date of birth was declared as 02.08.1975 and thus, held that the age of the deceased was 37 years at the time of the accident. It also noticed the evidence of PWs.2 and 3 who deposed that the deceased was employed as 8 Associate Professor in the department of Computer Science and Engineer at Srinivasa Institute of Technology and was drawing a monthly salary of Rs.58,338/-. Ex.P10 is the Salary Certificate which indicated that the salary drawn by the deceased as on 15.10.2012 was Rs.58,338/-. It also noticed Exs.P19 and 20 which indicated the gross income of the deceased for the assessment year 2011-12 at a sum of Rs.6,10,548/- and after deducting the income tax of Rs.35,133/-, the Tribunal determined the actual monthly income of the deceased at a sum of Rs.47,951/-. The Tribunal held that the deceased had a bright future in his service as he was pursuing his PhD and that he would have drawn a salary of more than Rs.1,00,000/- per month. Since the deceased was aged less than 40 years, the Tribunal accepted 50% of his salary as the 'loss of future prospects' and awarded the following compensation:
(i) Salary per month after deducting Rs.47,951/-
tax Rs.47,951/- +
(ii) After adding 50% of the salary as Rs.23,975/- = future prospects Rs.71,926/-
(iii) After deducting 1/4th towards living Rs.71,926-Rs.17,982/-
and personal expenses = Rs.53,944/-
9
Loss of dependency Rs.53,944X12X15 =
1.
Rs.97,09,920/-
2. Loss of consortium Rs.25,000/-
3. Loss of love and affection Rs.20,000/-
4. Loss of estate Rs.20,000/-
5. Funeral Expenses Rs.20,000/-
Total Rs.97,94,920/-
Rounded off Rs.97,95,000/-
10. The Tribunal fastened the liability to pay the compensation on the insurer of the offending vehicle along with the interest of 7% p.a. from the date of claim petition till the date of realization.
11. Feeling aggrieved by the liability imposed on it to pay the compensation as well as the quantum of compensation, the insurer of the offending vehicle has field the present appeal.
12. The learned counsel for the insurer submitted that the Tribunal ought to have considered that the accident was due to a head on collision between two motorcycles and therefore, the Tribunal ought to have 10 fixed negligence on the riders of both the vehicles. He also contended that the Tribunal must not have factored 50% of the income as 'loss of future prospects' as the deceased was employed in a private establishment. The learned counsel also contended that the Tribunal ought not to have awarded interest @ 7% p.a. and in this regard learned counsel relied on the judgment of Division Bench of this Court in MFA Nos.4444/2018 and 4659/2018.
13. Per contra, learned counsel for the claimants contended that the Tribunal must have accepted the income of the deceased at a sum of Rs. 58,338/- since the claimants had examined PW.3 who was the author of Ex.P10 (Salary certificate of the deceased). He also contended that the deceased was a permanent employee at Srinivasa Institue of Technology and therefore, the Tribunal was justified in considering the 'loss of future prospects' at 50%. The learned counsel also brought to our notice Ex.P20 which was the income tax returns of the deceased for the period 01.04.2011 to 31.03.2012 and 11 that his gross salary was a sum of Rs.6,12,948/- of which deductions were availed under Section 80C and 80CCC of Income Tax Act. Therefore, learned counsel contended that the income of the deceased must be a gross total income minus the income tax of Rs.34,110/- paid. Learned counsel therefore contended that the Tribunal ought to have treated the monthly income of the deceased at Rs.48,036/- instead of Rs.47,951/-. Therefore, he submitted that the impugned judgment and award of the Tribunal be not disturbed.
14. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties. We have also perused the records of the tribunal as well as its judgment and award. The Supreme Court of India in the case of Pranay Sethi had held that in respect of permanent employees who die in road accidents, the Tribunal should factor 50% of the income of the deceased as 'loss of future prospects'. However, the Apex Court did not prescribe such permanent employees should be under 12 the Government or under any private establishment. In the case on hand, the deceased was 37 years old and was employed on permanent basis at Srinivas Institute of Technology. Ex.P12 is the service record of the deceased. The deceased had completed his M.Tech and was due to take up the PhD from Bharatiar University which is evident from Ex.P16. PWs.2 and 3 have stated before the Tribunal that the deceased was a permanent employee and this is not disputed by the insurer of the offending vehicle. Even otherwise, going by the educational record of the deceased, it is apparent that the appointment of the deceased was not on part time or temporary basis. Consequently, the judgment and award of the Tribunal accepting 50% of the income of the deceased as 'loss of future prospects' cannot be found fault with.
15. Insofar as the rate of interest awarded by the Tribunal at 7% p.a., it is relevant to note that interest is awarded to set of the loss of the value of the Rupee due to inflation. It is noted that the Division Bench of this Court in 13 MFA.Nos.4444/2018 and 4659/2018 had considered the applicability of Section 34 of the Code Of Civil Procedure and restricted the grant of interest @ 6% p.a. However what needs to be considered is that the case before the Tribunal was a claim for compensation and not for recovery of a debt or contractual damages. The Supreme Court of India in the case of Puttamma Vs. K.L.Narayan Reddy reported in AIR 2014 SC 706 held, that it is for the Tribunals and Courts to decide the rate of interest after taking into consideration of rate of interest allowed by the Supreme Court in similar cases and other factors such as inflation, change in economy, policy adopted by the RBI from time to time and the period since when the case is pending.
16. If the rates of interest on fixed deposit offered by nationalized banks during the year 2017 when the impugned judgment and award passed was 7% p.a., then, we do not find any illegality in the judgment and award of 14 the Tribunal granting interest at the rate of 7% p.a. from the date of claim petition till the date of realization.
17. Hence, there is no merit in this appeal and thus, the same is dismissed. Any amount in deposit shall be transferred to the tribunal for necessary orders.
Sd/-
JUDGE Sd/-
JUDGE NR/-