Karnataka High Court
The United India Insurance Co Ltd vs Smt N Umachandra on 27 August, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF AUGUST, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
M.F.A. NO.6559/2008 (MV)
C/W
M.F.A. NO.8943/2008 (MV)
M.F.A. NO.6559/2008 (MV)
BETWEEN:
THE UNITED INDIA INSURANCE CO. LTD.,
NO.19-19/1, SOUTH END ROAD,
BASAVANAGUDI, BANGALORE-560 004.
NOW REP. BY ITS MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.25,
SHANKARNARAYANA BUILDING,
M.G.ROAD, BANGALORE-25. ... APPELLANT
(BY SMT : HARINI SHIVANANDA- ADV.)
AND:
1. SMT N UMACHANDRA
W/O.LATE.H.CHANDRA
AGED ABOUT 28 YEARS,
2. KUM C PRATHIKSHA
D/O.LATE.H.CHANDRA
AGED ABOUT 08 YEARS,
3. KUM NIROSHA
D/O.LATE.H.CHANDRA
2
AGED ABOUT 05 YEARS,
APPELLANTS 2 & 3 ARE MINORS
REP.BY 1ST APPELLANT,
AS MOTHER & NATURAL GUARDIAN,
ALL ARE R/AT NO.91, C.L. LAYOUT,
D.R.C.POST, HOSUR MAIN ROAD,
BANGALORE - 560 029
4. N K SATHYA SAINATH
FATHER'S NAME NOT KNOWN, AGE:MAJOR,
R/AT.NO.15, SREE SAI KRISHNA
NILAYAM, 20TH CROSS,
LAKSHMIPURAM, ULSOOR,
BANGALORE. ... RESPONDENTS
(BY SRI.N GOPALKRISHNA- ADV, FOR R1 TO R3,
APPEAL AGAINST R-4 DISMISSED V/O DTD:2.7.10)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 29.11.2007 PASSED
IN MVC NO. 1884/2006 ON THE FILE OF THE III ADDL.
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
METROPOLITAN AREA, BANGALORE, (SCCH.NO.18),
AWARDING A COMPENSATION OF RS. 9,25,000/- WITH
INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
REALISATION.
M.F.A. NO.8943/2008 (MV)
BETWEEN:
1. SMT N UMACHANDRA
W/O.LATE.H.CHANDRA
AGED ABOUT 26 YEARS,
2. KUM. C PRATHIKSHA
D/O.LATE.H.CHANDRA
AGED ABOUT 08 YEARS,
3. KUM. NIROSHA
D/O.LATE.H.CHANDRA
AGED ABOUT 05 YEARS,
2ND & 3RD MINOR APPELLANTS
3
ARE REP.BY THEIR,
NATURAL GUARDIAN/MOTHER,
THE 1ST APPELLANT HEREIN
ALL ARE R/AT NO.91, C.L. LAYOUT,
D.R.C.POST, HOSUR MAIN ROAD,
BANGALORE - 560 029 ... APPELLANTS
(BY SRI. N GOPALKRISHNA - ADV.)
AND:
1. SRI N K SATHYA SAINATHA
FATHER'S NAME NOT KNOWN,
MAJOR BY AGE,
R/AT NO.15, SREE SAI KRISHNA
NILAYAM, 20TH CROSS, LAKHSMIPURAM
ULSOOR, BANGALORE - 560 008
2. THE UNITED INDIA INSURANCE CO. LTD.,
NO.19-19/1, SOUTH END ROAD
BASAVANAGUDI
BANGALORE - 560 004
REP BY ITS MANAGER. ... RESPONDENTS
(BY SMT : HARINI SHIVANAND - ADV. FOR R2,
R-1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 29.11.2007 PASSED
IN MVC NO. 1884/2006 ON THE FILE OF THE III ADDL.
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
METROPOLITAN AREA, BANGALORE, (SCCH.NO.18),
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, N. KUMAR J., DELIVERED THE FOLLOWING:-
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JUDGMENT
MFA 6559/08 is preferred by the Insurance Company challenging the finding of the Tribunal regarding negligence and also quantum whereas, MFA 8943/08 is filed by the claimants seeking enhancement of compensation in the very same case. Therefore, both the appeals are taken up for consideration together and disposed of by this common order.
2. For the purpose of convenience the parties in this appeal would be referred to as they are arrayed in the claim petition before the tribunal.
3. The petitioners/claimants are the wife and children of the deceased H.Chandra. According to them, the deceased was aged 36 years and was working as Quality Auditor in MICO Bosch Company, Audigodi, Bangalore. He was drawing a salary of `30,000/- p.m. He had bright future prospects of getting time bound promotions and increments. He would have retired as Senior Manager at the age of superannuation at which 5 time of retirement his salary would have been `1,50,000/-p.m. On 8.2.2006 the deceased was proceeding on his motor cycle-Suzuki Samurai bearing Regn.No.KA-03/R- 5356, along with his two friends as pillion riders, from Chokkondalli to Bangalore. At about 10.00 p.m., when he was near Yeshwanthapura Forest on Malur- Bangalore road, a Hero Puch Moped bearing Regn.No.KA-03-H2812 came from the opposite direction ridden by its rider at a high speed in a rash and negligent manner and dashed against the motor cycle which was being ridden by the deceased Chandra. It was a head-on-collision. On account of the impact, both the riders fell down and they died at the spot. The accident took place on account of the rash and negligent riding of the Hero Puch vehicle by its rider. They arrayed the owner of the Hero Puch moped as first respondent and the insurer of the same as second respondent. Accordingly, they filed claim petition 6 claiming compensation in a sum of `50,00,000/- from the respondents.
After service of notice, the first respondent remained absent. Hence, he was placed exparte. The insurance company which had insured the Hero Puch vehicle contested the claim of the petitioners. They admitted the Hero Puch Moped having been insured with them and they having issued a valid policy which was in force as on the date of the accident. They specifically contended that the police documents i.e. the FIR and charge sheet discloses that the accident has occurred due to the rash and negligent riding of the motor cycle by the deceased and not due to the rash and negligent riding of the Hero Puch vehicle insured with them. They also contended that the rider of the Hero Puch did not possess valid licence to drive the same. They also denied the age, occupation and income of the deceased and contended that as the accident has not taken place due to rash and negligent riding of the Hero Puch by its rider, they are not liable to pay any 7 compensation and accordingly, sought for dismissal of the petition.
On the basis of the above said pleadings the Tribunal framed the following issues :-
" 1. Whether the petitioners prove that H.Chandra had succumbed to death due to M.V. Accident that was taken place on 08.02.2006 at about 10.00 p.m., near Yeshwathapura Forest on Bangalore - Malur road, due to user of Hero Puch Moped bearing No.KA/03/H/2812, being ridden by its rider in an actionable negligence?
2. Whether the petitioners are entitled for the compensation amount as prayed for? If so, against whom?
3. What order? "
The claimants to substantiate their claim examined the first claimant Smt. Umachandra, wife of the deceased, as PW1. They also examined an eye- witness by name Manjuresh as PW2. They produced 15 documents which are marked as exhibits P1 to P15. 8
On behalf of the respondents an official of the insurance company was examined as RW1. Insurance policy was produced and marked as Ex.R1.
The tribunal on consideration of the oral and documentary evidence on record held that the accident in question has taken place on account of the negligence of the riders of the motor cycle and Hero Puch Moped. Accordingly, it held both riders have contributed to the accident and apportioned the negligence at the ratio of 50% on each of them. Further, looking to the evidence and the documents placed on record, particularly the last drawn pay slip which reflected that the deceased was drawing a sum of `20,427.94p and taking into consideration that if he had continued in service, he would have drawn salary of `1,00,000/- on reaching the age of superannuation, after giving deduction towards income tax and profession tax, took the monthly income of the deceased at `15,000/-, deducted one-third towards his personal expenses, applied the multiplier of 15, taking his age as 9 33 years and awarded a sum of `18,00,000/- as compensation under the head 'loss of dependency'. It also awarded a sum of `50,000/- under conventional heads. However, the Tribunal deducted 50% out of said compensation amount towards contributory negligence of the deceased and awarded a sum of `9,25,000/- as compensation payable to the claimants. It further saddled the liability of payment of compensation on the respondents jointly and severally.
4. The Insurance Company being aggrieved of the finding regarding contributory negligence and quantum of compensation have preferred MFA 6559/08. The claimants have preferred MFA 8943/08 being aggrieved by the inadequacy of compensation awarded to them.
5. We have heard the learned counsel for the parties.
6. The learned counsel for the Insurance Company assailing the impugned judgment and award contended the material on record reveals the pillion rider of the 10 motor cycle has lodged a complaint with the jurisdictional police alleging that the deceased, rider of the motor cycle, is the cause for the accident. All the police papers placed on record disclose that the accident has occurred due to the fault of the deceased-Chandra. In those circumstances, the finding recorded by the Tribunal that the deceased Chandra contributed to the accident to the extent of 50% and the rider of the moped contributed to the remaining 50% is contrary to the material on record and therefore, requires to be set aside. She further contended the Tribunal without any basis has taken the income of the deceased at `15,000/- p.m. and on that basis it has awarded higher compensation to the claimants and therefore, the compensation deserves to be reduced. Hence, a case for interference is made out.
7. Per contra, the learned counsel for the claimants submitted it is clear from the salary slip pertaining to the deceased, he was drawing a salary of `27,427.94. The income tax returns filed also shows 11 that he had an income of `2,86,304/- per annum. Even after giving deduction to the payment of income tax as well as the profession tax his income would be not less than `24,000/- per month. That apart he was aged 33 years. In view of the judgment of the Apex court in Sarla Verma (2009 ACJ 1298), he was entitled for addition of 50% of the amount drawn on the date of his death towards future prospects. In that view of the matter the Tribunal committed a serious error in taking his income only at `15,000/- and awarding compensation. Therefore, he submits a case for enhancement is made out.
8. In the light of the aforesaid facts, rival contentions, the evidence and the documents on record the points that arise for our consideration are :-
1) Whether the finding of the Tribunal that the accident has occurred on account of the contributory negligence of riders of both vehicles at the ratio of 50% calls for any interference?
2) Whether the compensation awarded to the claimants is excessive as contended by the Insurance Company 12 OR is inadequate and deserves to be enhanced as contended by the claimants?
Point No.1 :
9. It is the case of the claimants that the accident took place on account of the negligence of the rider of the Hero Puch vehicle. In support of their case they have examined PW2 and have also produced police records. A perusal of the FIR produced reveals the pillion rider of the motor cycle has lodged a complaint with the jurisdictional police alleging that the accident took place on account of the rider of the motor cycle. The police on the basis of the said complaint have registered a case against the deceased Chandra. The police papers placed on record speak for themselves. The sketch which is a part of the police records produced in the case reveals that the accident has taken place in the centre of the road. It is the case of head-on-collision. It is also supported by the recitals in the spot mahazar and also by the evidence of PW2 examined in the case.
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When the accident has taken place at the centre of the road involving the two vehicles and as both the riders died at the spot, the finding recorded by the Tribunal that the accident has taken place on account of the negligence of the riders of both the vehicles is well founded. Merely because the complaint is filed by the pillion rider of the motor cycle against the deceased and a case was registered only against him and no case is registered against the rider of the Hero Puch, will in no way come to the aid of the insurance company to hold that the accident has taken place solely on account of the deceased Chandra. Having regard to the recitals in the spot panchanama and the sketch produced along with the police papers, applying the principles of Res ipsa loquitur it would clearly go to show that the accident in question has taken place on account of the negligence of the riders of both the vehicles who have died in the accident. In that view of the matter the finding recorded by the Tribunal in respect of the negligence being based on legal evidence, we do not see any infirmity in the said finding to interfere with the 14 same. Accordingly, the finding of the Tribunal that the accident in question has taken place on account of the negligence of the riders of both the vehicles at the ratio 50% is affirmed.
Point No.2 :
10. Insofar as the quantum of compensation is concerned, it is not in dispute that the deceased was working as a Self-setting operator in BOSCH Motor Industries Co.Ltd., Adugodi, Bangalore. Ex.P10 is the pay slip for the month of May, 2005 which shows his gross earnings as `20,427.94p. A sum of `768/- and a sum of `200/- is deducted towards income tax and professional tax respectively. That apart Ex.P15 which is issued by his employer shows the split up figures of the salary he was drawing. It is shown as follows:-
1. All Inclusive Wages 5502.00
2. Personal Pay 3593.25
3. Variable Dearness Allowance 417.60
4. Conveyance Allowance 3750.00
5. House Rent Allowance 650.00
6. Additional House Rent Allowance 2953.79
7. Medical Reimbursement 986.67 15
8. Education Subsidy 1400.00
9. Washing Allowance 450.00
10. Incentive (as applicable) 4099.73
11. Attendance Bonus 30.00 Total 23833.04 The split figures show that the said amount will not be constant. It depends upon the work turned out by the employee and it is also dependent on market conditions. In these days it is not unusual having regard to the recession the salaries are drastically reduced which has become the order of the day. At the same time, we cannot lose sight of the fact if the industry is doing well and that if the deceased was a good worker he had ample future prospects. In Sarla Verma's case the Apex Court has held between the age group upto 40, the courts can take upto 50% as future prospects. Taking into consideration all these aspects, we are of the view the Tribunal taking the salary of the deceased only at `15,000/- is certainly on the lower side and we adopt `20,000/- as the loss of income p.m. after taking into consideration the future 16 prospects. The annual loss of income would be `2,40,000/- (`20,000 x 12) Out of the said amount one-
third (1/3rd of `2,40,000=`80,000/-) is to be deducted towards personal expenses, by deducting the same it comes to `1,60,000/-. The multiplier applied by the tribunal as 15 is correct and we also adopt the same. Therefore, the compensation payable under the head of loss of dependency would be `24,00,000/-. A sum of `50,000/- has been rightly awarded towards conventional heads. Therefore, the total compensation comes to `24,50,000/-. If we deduct 50% towards contributory negligence, the amount of compensation due and payable to the claimants would be `12,25,000/- as against `9,25,000/- awarded by the Tribunal.
Thus, the claimants in all would be entitled to a sum of `3,00,000/- as additional compensation in addition to what has been awarded by the tribunal.
10. In that view of the matter we pass the following :-
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ORDER
1. MFA 6559/08 is dismissed; MFA 8943/08 is partly allowed;
2. The appellants/claimants are awarded an additional compensation of `3,00,000/- with interest at 6% p.a. from the date of the petition till realisation;
3. The appellants in MFA 6559/08 shall deposit the entire enhanced compensation with interest before the Tribunal within 8 weeks from the date of receipt of copy of the judgment and award.
4. The enhanced compensation shall be apportioned among the claimants in the manner done by the Tribunal and deposited in fixed deposit for five years permitting the first appellant-wife of the deceased to withdraw the said interest periodically.
The amount in deposit made by the Insurance Company before this Court is ordered to be transmitted 18 forthwith to the concerned Tribunal for disbursement to the claimants.
Parties to bear their own costs.
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