IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.5934/2014 (MV) C/W MISCELLANEOUS FIRST APPEAL No.4832/2014 IN M.F.A.No.5934/2014 BETWEEN:
The Legal Manager, Reliance General Insurance Co. Ltd., Regional Office, 5th Floor, Centenary Building, No.28, M.G.Road, Bangalore – 560 001.
...Appellant (By Sri. Pradeep B., Advocate) AND:
1. Smt.S.Pathimabee, W/o late Shakir Basha, Now Aged about 42 years, R/at No.2-212, R.S.Rangapuram, Betancharla Mandal, Karnool District.
2. M/s.Brggruen Radio Taxi Pvt. Ltd., Flat No.102, 1st Floor, Arya one Apartments H.No.14-8, 303/48/13/102, Behind Pizza Hut, P.G.Road, Begumpet, Hyderabad – 500 016. Andra Pradesh.
Also at: Flat No.3, 2nd Floor, Anglo Indian Block, Palm Grove Road, Austin Town, Bangalore – 560 047.
…Respondents (By Sri. D.Manmohan, Advocate for R1; R2 –Notice dispensed with vide order dated 05.10.2016) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 19.04.2014 passed in MVC No.3924/2012 on the file of the Member, MACT & XX ASCJ, Bangalore, awarding compensation of Rs.9,78,400/- with interest @ 6% p.a. from the date of petition till realization.
IN M.F.A.No.4832/2014 BETWEEN:
Smt.S.Pathimabee, W/o late Shakir Basha, Now Aged about 42 years, R/at No.2-121, R.S.Rangapuram, Betancharla Mandal, Karnool District.
(By Sri. Manmohan D., Advocate) ...Appellant AND:
1. M/s.Berggruen Radio Taxi Pvt. Ltd., Represented by its Managing Director, Flat No.102, 1st Floor, Arya One Apartments H.No.14-8, 303/48/13/102, Behind Pizza Hut, P.G.Road, Begumpet, Hyderabad – 560 016. Andra Pradesh.
Also at: Flat No.3, 2nd Floor, Anglo Indian Block, Palm Grove Road, Austin Town, Bangalore – 560 047.
2. Reliance General Insurance Co. Ltd., 5th Floor, Centenary Building, M.G.Road, Bangalore – 560 001.
By its Manager.
….Respondents (By Sri. B.Pradeep, Advocate for R2) R1 –Notice dispensed with vide order dated 30.06.2016) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 19.04.2014 passed in MVC No.3924/2012 on the file of the XX Additional Small Causes Judge & Member, MACT, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Miscellaneous First Appeals coming on for Admission, this day, the Court delivered the following:
J U D G M E N T Both, Insurer and claimant, are in appeal being aggrieved by the judgment and award dated 19.04.2014 passed in MVC No.39/2012 on the file of XX Additional Small Causes Judge, Bengaluru under Section 173(1) of the Motor Vehicles Act.
2. Claim petition was filed under Section 166 of Motor Vehicles Act, claiming compensation for the death of S. Farook Basha @ Fakoor Basha in a motor vehicle accident. It is stated that when the deceased was riding the bicycle on Old Airport Road, an Indigo Car bearing Reg.No.KA-03-D-9114 driven by its driver in a rash and negligent manner dashed to the deceased bicycle from behind. Due to which the deceased fell down and sustained grievous injuries. Immediately, he was shifted to Manipal Hospital, Bengaluru and later was shifted to LIVE 100 Hospital for further treatment. Subsequently, he succumbed to injuries on 14.06.2012. It is stated that the deceased was a Bachelor, aged about 24 years. He was working as Supervisor in Securitas Walsons Services Ltd. He was earning a salary of Rs.11,429/-
p.m. (Rupees Eleven Thousand Four Hundred and Four Twenty Nine Only).
3. On issuance of notice respondent No.1 remained absent. Respondent No.2-Insurer appeared through his counsel and filed written statement and denied the claim petition averments. Further the Insurer stated that accident occurred due to negligent driving of the deceased himself. Deceased was riding bicycle on the extreme right side of the road and there is no negligence on the part of the driver of the car. The compensation claimed is excess and exorbitant.
4. In support of her case, claimant examined herself as PW1 and also examined PW2 apart from marking documents Ex.P1 to P24.
5. Tribunal, on appreciating the material on record, awarded a total compensation of Rs.12,50,340/- (Rupees Twelve Lakh Fifty Thousand Three Hundred and Forty Only) with interest at the rate of 6% p.a. from the date of petition till its realization, on the following heads:
SI.No. Heads Amount in (Rs.)
6. While awarding the above compensation Tribunal assessed the monthly income of the deceased as Rs.10,406/- (Rupees Ten Thousand Four Hundred and Six Only) and adopted multiplier 15 taking the age of the younger parent. Further, the Tribunal deducted a sum of Rs.2,25,000/- (Rupees Two Lakhs Twenty Five Thousand Only) towards income tax and held that the claimant would be entitled to a sum of Rs.9,78,340/-
(Rupees Nine Lakh Seventy Eight Thousand Three Hundred and Forty Only).
7. The insurer has preferred MFA No.5934/2014 on the ground that the Tribunal awarded excess compensation, whereas the claimant is in appeal MFA No.4832/2014 praying for enhancement of compensation.
8. Heard the learned counsel for the appellant/claimant and the learned counsel for respondent -Insurer and perused the lower Court records.
9. Learned counsel for the insurer would submit that income of the deceased assessed by the Tribunal as Rs.10,406/- is on the higher side. He submits that claimant has placed on record Ex.P11 salary certificate wherein it includes washing allowance, over time wages, transport allowance etc., which the claimant would not be entitled. Thus, he prays for reduction in the monthly income assessed by the Tribunal.
10. Per contra, learned counsel for the claimant would submit that the quantum of compensation awarded by the Tribunal is on lower side. Tribunal, taking the age of the mother of the deceased as 45, adopted the multiplier of 15. Further, he submits that as the deceased was a Bachelor and aged 24 years, Tribunal ought to have taken the age of the deceased for applying correct multiplier. It is his further submission that Tribunal erred in not awarding compensation on the head ‘future prospects’. Relying upon the decision of Hon’ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in AIR 2017 SC 5157, he submits that the claimant would be entitled to add 40% of the assessed income towards future prospects. Thus he prays for enhancement of compensation awarded by the Tribunal.
11. Further he submits that Tribunal has no jurisdiction to deduct the income tax of Rs.2,25,000/- (Rupees Two Lakh Twenty Five Thousand Only). It is his submission that the Tribunal without assigning any reason has deducted Rs.2,25,000/- towards income tax.
12. Having heard the learned counsel for the parties and on perusal of the material on record the following points would arise for consideration.
‘A) Whether the income assessed by the Tribunal at Rs.10,406/- is appropriate and correct?
B) Whether the Tribunal is justified in adopting multiplier by taking the age of the younger parent?
C) Whether the claimant would be entitled for compensation on the head future prospects, at 40% of the assessed income;
D) Whether the claimant would be entitled for enhanced compensation?’ 13. The answer would be in the ‘affirmative’ for the points C and D, whereas it would be in the ‘Negative’ for the points A and B for the following reasons:
The accident occurred on 13.06.2012 involving bicycle and Car bearing Reg.No.KA-03-D-9114 and the accidental death of one Farook Basha @ Fakoor Basha, is not in dispute in these appeals. Insurer is before this Court on the ground of awarding excess compensation, whereas the appeal of the claimant is for enhancement of the compensation. The Tribunal assessed the income of the deceased at Rs.10,406/- taking note of Ex.P11- Salary Certificate placed on record by the claimant. Claimant has examined-PW2, Senior Manager of the employer of the deceased, who states that the deceased was working as Supervisor in Sucuritas-Walsons Services Pvt., Ltd., Bengaluru.
15. He also placed on record Salary Slips, Register of Wages and Appointment Order of the deceased which are marked as Exs.P15, 19 and 20. Ex.P11 –Salary Certificate indicates that the deceased was receiving Rs.1,039/- towards Overtime, Washing Allowance of Rs.250/-., TA of Rs.800/-. The Tribunal, out of gross salary of Rs.11,429/-, after deducting Rs.1,023/- towards PF, ESI and Professional Tax arrived at Rs.10,406/- as monthly income of the deceased. The said income arrived at by the Tribunal is not proper. Income of the deceased will have to be determined after deducting Professional Tax of Rs.150/- and Overtime Allowance Rs.1,039/- which would be Rs.10,240/-. The overtime allowance is to be deducted from the pay package, since one would get overtime allowance, whenever one works over time. The Professional Tax is liable to be deducted as the same is a statutory amount. But other allowances received by the deceased are part of pay package. The Tribunal ought not to have deducted the amount towards PF & ESI contributed by the deceased employee. Thus, the income of the deceased is determined as Rs.10,240/- (Rupees Ten Thousand Two Hundred and Forty Only) after deducting the amount towards Overtime Allowance and Professional Tax.
16. The Tribunal has taken the multiplier of 15 taking the age of younger parent. Learned counsel for the Insurer submitted that the Tribunal ought to have taken the multiplier 14 instead of 15 taking the age of the younger parent. The Hon’ble Apex Court has made it clear that while applying the multiplier, the age of the deceased has to be taken and not the age of the younger parent. In the instant case, the deceased was aged 24 years. Appropriate multiplier would be 18. Further taking the age of the deceased the claimants would be entitled for adding 40% of the assessed income towards future prospects, in view of the decision held in National Insurance Company Vs. Pranay Sethi quoted supra. Since the deceased was bachelor the Tribunal has rightly deducted 50% of the income towards his personal expenses. The monthly income of the deceased would be Rs.7,168/-.
17. The Tribunal committed grave error in deducting a sum of Rs.2,25,000/-. (Rupees Two Lakh Twenty Five Thousand Only) towards income tax and has not assigned any reasons for deducting the said amount. The Tribunal has no jurisdiction to deduct tax at source. It is for the claimant to remit income tax, if it attracts income tax.
Thus, the claimant would be entitled for the following modified compensation.
18. Thus, the claimant would be entitled for a compensation of Rs.15,91,288/- (Rupees Fifteen Lakh Ninety One Thousand Two Hundred and Eighty Eight Only) with interest at the rate of 6% p.a. from the date of filing the petition till realization as against Rs.12,50,340/- awarded by the Tribunal.
Judgment and award is modified to the above extent. The deposit would be in the proportion as ordered by the Tribunal. Amount in deposit by the Insurer be transmitted to the concerned Tribunal. Both the appeals are allowed in part.
Sd/- JUDGE BVK