Karnataka High Court
Smt. Anjana W/O Late Satish Kulkarni And ... vs Nisha Shankarlal Bhagat & Anr on 5 December, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 05TH DAY OF DECEMBER-2018
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE P.G.M.PATIL
MFA NO.201777/2014 (MV)
BETWEEN:
1. SMT. ANJANA
W/O LATE SATISH KULKARNI,
AGE: 40 YEARS, OCC: HOUSEHOLD,
2. TANUJA
D/O LATE SATISH KULKARNI,
AGE: 18 YEARS, OCC: STUDENT,
3. MAMTA
D/O LATE SATISH KULKARNI,
AGE: 15 YEARS, OCC: STUDENT,
4. AKSHATA
D/O LATE SATISH KULKARNI,
AGE: 12 YEARS, OCC: STUDENT,
PETITIONER NOS.3 AND 4
ARE MINORS U/G OF THEIR
MOTHER ANJANA, PETITIONER NO.1
ALL R/O CHIPLUM DIST.
RATNAGIRI (M.S.) NOW
R/O 11-169/18, SRI RAMA NILAYA,
RAGHAVENDRA COLONY,
BRAHAMPUR, GULBARGA.
2
... APPELLANTS
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. NISHA SHANKARLAL BHAGAT,
AGE: MAJOR, OCC: BUSINESS,
R/O SAMILTON GREEN, 159/A4, BOSE ROAD,
REGENT PART, KOLKATA, WEST BENGAL-524333.
2. THE NATIONAL INSURANCE COMPANY LTD.
BILGUNDI COMPLEX, STATION ROAD,
GULBARGA-585103.
THROUGH ITS DIVISIONAL MANAGER.
... RESPONDENTS
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR
R2;
NOTICE TO R1 IS DISPENSED WITH V/O DATED
20.01.2016)
THIS MISC. FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT,
PRAYING TO ALLOW THIS APPEAL AND ENHANCE
THE COMPENSATION TO RS.18,47,400/- (EXCLUDING
THE AMOUNT AWARDED BY THE TRIBUNAL) ALONG
WITH INTEREST BY MODIFYING THE JUDGMENT AND
AWARD OF THE IIIRD ADDL. SENIOR CIVIL JUDGE
AND M.A.C.T. GULBARGA DATED 26.08.2014 IN MVC
NO.86 OF 2012, IN THE INTEREST OF JUSTICE AND
EQUITY.
3
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, ARAVIND KUMAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though appeal is listed for orders, taking into consideration that records of the Tribunal has been secured and accident is of the year 2011 and on account of consent given by the learned advocates appearing for the parties, it is taken up for final disposal.
2. Since there is no dispute with regard to the accident in question, issuance of policy to the offending vehicle by the second respondent and its validity there of as on the date of accident i.e. 29.06.2011 and liability of the insurer to indemnify the insured, those aspects are not delved upon in this appeal as it would be repetition of facts.
3. The wife and children of deceased Sri.Satish Kulkarni filed a claim petition under Section 166 of Motor Vehicles Act, 1988, seeking compensation of 4 Rs.28,00,000/- contending interalia that on 29.06.2011 at about 6.30 p.m., deceased had stopped his motorcycle bearing MH-12/CQ-9340 on the left side of the road to attend mobile call and while he was talking on the mobile standing on the extreme end of the road, a Tanker bearing Reg.No.MH-08/H-0811 driven in a rash and negligent manner dashed against the deceased, as a result of which he sustained grievous injuries and succumbed to the injuries at the spot. Before the Tribunal, insurer appeared and filed its statement of objections and denied the averments made in the claim petition except to the extent expressly admitted thereunder. Tribunal after considering the pleadings and evaluating the evidence, by judgment and award dated 26.08.2014 allowed the claim petition in part awarding a total compensation of Rs.9,52,600/- with interest at 6% per annum from the date of claim petition till realization under the following heads:
i) Loss of Dependency : Rs.9,12,600/-
ii) Loss of consortium : Rs. 10,000/-
iii) Transportation of dead 5 Body and funeral expenses : Rs. 10,000/-
iv) Loss of love and affection : Rs. 10,000/-
v) Loss of estate : Rs. 10,000/-
------------------
Total : Rs.9,52,600/-
Not being satisfied with the quantum of compensation awarded by the Tribunal, claimants are in appeal.
4. We have heard Sri. Harshavardhan R. Malipatil, learned counsel appearing for appellants and Smt. Sangeeta Bhadrashetty, learned counsel appearing for insurer-respondent No.2. Notice to respondent No.1 was dispensed with vide order dated 20.01.2016.
5. It is the contention of Mr. Harshavardhan R. Malipatil that Tribunal committed a serious error in not considering the documentary evidence placed by the claimants in general and in particular Ex.P-9 and Ex.P- 10 i.e., appointment letter and salary certificate of the deceased, which would clearly establish the actual income of the deceased and thereby Tribunal committed an error in construing the income at Rs.6,000/-per 6 month though his income was Rs.16,500/- per month. Hence, he prays for modifying the judgment and award passed by the Tribunal and prays for awarding compensation under the head 'loss of dependency' by considering the income of the deceased at Rs.16,500/- per month. He would also submit that compensation awarded under other heads is absolutely on lower side and prays for enhancement.
6. Per contra, Smt. Sangeeta Bhadrashetty, appearing for respondent-insurer would contend that compensation awarded by the Tribunal is just and reasonable and as such, she prays for dismissal of the appeal.
7. Having heard the learned advocates appearing for the parties and after bestowing our careful consideration to the rival contentions raised at the bar, we are of the considered view that following points would arise for our consideration. 7
(i) Whether Tribunal was just and correct in arriving at income of the deceased at Rs.6,000/- per month? If not, what was the actual income, which has to be construed as loss of income to the dependants of the deceased?
(ii) What order?
8. As could be seen from the judgment and award passed by the Tribunal, it has construed the income of the deceased at Rs.6,000/- per month and to arrive at this conclusion, Tribunal has referred to the salary certificate produced by the claimants, which is at Ex.P-10. However, the conveyance, reimbursement, sales incentives etc., as reflected in Ex.P-10 has been ignored or in other words, it has not been considered for the purposes of salary of the deceased. This finding recorded by the Tribunal according to us is erroneous for the simple reason that, appointment letter issued by the employer of the deceased, which is at Ex.P-9, would clearly indicate that salary component agreed to be paid 8 by the employer of the deceased was to the following effect:
[1] Basic Salary Rs.6,000/- per month. [2] Travelling allowance Rs.3,500/- per month. [3] Sales Incentive @ Re.1/- per ltr. on sales to the min of Rs.4,000/- per month. [4] Diwali Bonus - One month basic salary every year.
9. PW2 - the author of Ex.P-9, who is the Director of the company where deceased was working, had been examined and he has clearly stated he has issued Ex.P-10-salary certificate. He has also reiterated the contents of Exs.P-9 and Ex.P-10. Nothing is elicited in his cross-examination to discredit the testimony of said witnesses. It is no doubt true, Smt. Sangeeta Bhadrashetty would be justified in contending that by Ex.P-10 actual salary drawn by the deceased is not discernable on account of corroborating documents not having been produced by claimants like salary register or audited accounts of the company. However, the fact remains that as per Ex.P-9-appointment letter the 9 minimum salary agreed to be paid by the employer of the deceased was constituting the components of salary of Rs.6,000/- per month, travelling allowances of Rs.3,500/- per month and minimum sales incentive of Rs.4,000/- per month apart from one month basic salary as Diwali Bonus. Thus, it can be safely concluded from the contents of Ex.P-9 that deceased was drawing a minimum of Rs.14,000/-, which is also inclusive of Bonus of Rs.6,000/- per annum i.e. Rs.500/- per month. Thus, the actual income of the deceased, which was drawn as per Exs.P-9 and Ex.P-10 was Rs.14,000/- per month. Accordingly, compensation requires to be determined or computed.
10. Deceased was aged 48 years as per the PM report Ex.P-5. Hence, appropriate multiplier which requires to be adopted as per SARLA VARMA's case in the age group of 46 to 50 is, 13. Accordingly, we are adopting the multiplier of 13.
11. Since deceased was taking care of four persons i.e. wife and three children and was also 10 spending on himself, the deductions required to be adopted would be 1/4th of his total income. Thus, 1/4th is to be deducted from the Gross salary of the deceased. Mr. Harshavardhan R. Malipatil, would be justified in contending that since the deceased was on a fixed salary, he would be entitled for loss of future prospects as held by the Hon'ble Apex Court in the case of HEM RAJ vs ORIENTAL INSURANCE CO. LTD. AND OTHERS, reported in 2018 ACJ 5, whereunder it has been held that there cannot be any distinction where there is a positive evidence of income and where minimum income is determined on guess work. It has been held by the Apex Court as:
"13. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40 per cent to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50 per cent while the High Court has deleted the same." 11
12. In the instant case, there is not only positive evidence available on record as per Exs.P-9 and Ex.P-10 establishing actual income of the deceased, which we have also accepted namely, deceased was earning an income of Rs.14,000/- per month, but also the contents of the same has been held as proved by the claimants by examining PW2. Hence, claimants would be entitled to seek for loss of future prospects, which requires to be determined at 25% as held by the Apex Court in NATIONAL INSURANCE COMPANY LTD. V/S PRANAY SETHI AND OTHERS reported in 2017 Vol. 16 SCC 680, since the age of the deceased was 48 years as per PM report Ex.P-5.
13. In the light of aforestated discussion, we are of the considered view that Tribunal has erred in considering the income of the deceased at Rs.14,000/- per month. In the light of aforestated discussion, we are of the considered view that compensation awarded by the Tribunal requires to be modified and in substitution to the award passed by the Tribunal, 12 following compensation requires to be awarded and it is accordingly awarded.
Sl.
Particulars Amount No. 1 LOSS OF DEPENDENCY:
(a) income of deceased - Rs.14,000/- p.m. ADD: 25% towards future prospects - Rs. 3,500/-
Rs.17,500/-
(b) Less: living expenses 1/4th of Rs.17,500/- - Rs. 4,375/-
(a) - (b) = Rs.13,125/-
Rs.13,125 x 12 months x multiplier of 13 = Rs.20,47,500/-
4 Loss of estate Rs. 15,000/-
5 Loss of consortium Rs. 40,000/-
6 Towards funeral expenses Rs. 15,000/-
TOTAL Rs.21,17,500/-
14. In the result, we proceed to pass the following:
ORDER
(i) Appeal is hereby allowed in part.
(ii) Judgment and award passed by the Tribunal in MVC No.86/2012 dated 26.08.2014 is hereby modified and in substitution to the award passed by the Tribunal a total compensation of Rs.21,17,500/- is 13 hereby awarded, which will carry interest @ 7% p.a. from the date of petition till date of payment or deposit, whichever is earlier.
(iii) Apportionment and order for deposit as ordered by the Tribunal will hold good for compensation awarded herein above.
(iv) Insurer to deposit the amount before the jurisdictional Tribunal excluding the amount already deposited, if any, expeditiously and at any rate within four weeks from the date of receipt of certified copy of this order.
SD/-
JUDGE SD/-
JUDGE SMP