IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. No.7835/2016 C/W M.F.A. No.568/2017 (MV-D) M.F.A. No.7835/2016 BETWEEN:
1. MOHAMMED AMANULLAH S/O. MOHAMMED ZAHIRUDDIN, AGED ABOUT 67 YEARS, 2. SYEDA SHAMS JAHAN HUSSINY W/O. MOHAMMED AMANULLAH, AGED ABOUT 59 YEARS, 3. AYESHA SIDDIQUA D/O. MOHAMMED AMANULLAH, AGED ABOUT 23 YEARS, ALL ARE RESIDING AT NO.370, 6TH MAIN, 2ND CROSS, NEAR WIPRO PARK, 1ST BLOCK, KORAMANGALA, BANGALORE – 560 034. ... APPELLANTS (BY SRI SREENIVASAIAH A., ADVOCATE) AND:
1. SATYANARAYANA .K S/O. KAMESHWARA SARMA, NO.1-2-11, GANGELUVARI VEEDI, F2, SRIDURGA NILAYAM, KAKINADA, ANDHRA PRADESH – 533 001.
2. THE MANAGER, NATIONAL INSURANCE CO. LTD., R.O.NO.144, 2ND FLOOR, SHUBHARAM COMPLEX, M.G. ROAD, BANGALORE – 560 001. ... RESPONDENTS (BY SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R-2;
V/O. DATED 16/04/2019 – NOTICE TO R-1 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.08.2016 PASSED IN MVC.NO.4375/2015 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, (SCCH-1) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. No.568/2017 BETWEEN:
REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M.G. ROAD, BANGALORE – 560 001. ... APPELLANT (BY SRI A.N. KRISHNA SWAMY, ADVOCATE) AND:
1. MOHAMMED AMANULLAH S/O. MOHAMMED ZAHIRUDDIN, AGED ABOUT 68 YEARS, 2. SMT. SYEDA SHAMS JAHAN HUSSINY W/O. MOHAMMED AMANULLAH, NOW AGED ABOUT 60 YEARS, 3. AYESHA SIDDIQUA D/O. MOHAMMED AMANULLAH, NOW AGED ABOUT 24 YEARS, ALL ARE R/AT #370, 6TH MAIN, II CROSS, NEAR WIPRO PARK, I BLOCK, KORAMANGALA, BANGALORE – 560 034.
4. SATYANARAYANA .K KAMESWARA SARMA, MAJOR, #1-2-11, GANGELUVARI VEEDI, F2, SRIDURGA NILAYAM, KAKINADA, ANDHRA PRADESH – 533 001. ... RESPONDENTS (BY SRI A. SREENIVASAIAH, ADVOCATE FOR C/R-1 TO R-3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.08.2016 PASSED IN MVC NO.4375/2015 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, AWARDING COMPENSATION OF Rs.87,97,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed to consider I.A.No.1/16 filed by the claimants, seeking condonation of delay of two days in filing the appeal on condoning the same, with the consent of learned counsel on both sides, they are heard finally.
2. MFA.No.7835/2016 is filed by the claimants seeking enhancement of compensation, while MFA.No.568/2017 is filed by the insurance company seeking reduction in the quantum of compensation awarded by the Prl. Judge, Motor Accident Claims Tribunal at Bengaluru (hereinafter referred to as “the Tribunal” for the sake of brevity) by judgment and awarded dated 05/08/2016, in MVC.No.4375/2015.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. Parents and sister of Dr. Mohammed Sheeb Zaki filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) seeking compensation on the death of Dr.Mohammed Sheeb Zaki in a road traffic accident that occurred on 23/09/2015 at about 12.40 p.m. when the deceased Dr.Mohammed Sheeb Zaki was riding motorcycle bearing No.KA-01/HM-0148 from Forum Mall towards Adugodi junction and when he reached veterinary hospital on the way to Hosur Lashkar Road. At that time, the driver of a car bearing No.AP-05/DA-0568 drove the same in a rash and negligent manner and dashed against the motorcycle of deceased Dr.Mohammed Sheeb Zaki from behind. As a result, the rider of the motorcycle fell down and sustained grievous injuries. Immediately he was shifted to St.John’s Hospital, but he succumbed to the injuries on the same day. Contending that Dr.Mohammed Sheeb Zaki was hale and healthy and was the only bread-earner of the family and that the parents and an unmarried sister were depending upon the deceased, they preferred the claim petition seeking compensation on account of the death of Dr.Mohammed Sheeb Zaki. It is also contended that the deceased was a graduate in medicine and had a bright future and was working as doctor in Mahaveer Jain Hospital, Vasanthanagar, earning Rs.60,000/- per month and apart from that he was doing part-time work as doctor and earning Rs.50,000/- per month. That the deceased was highly ambitious and wanted to start a nursing home of his own. But on account of untimely death of the sole bread earner of the family, the claimants were left with lurch and they were in agony and penury. Hence, the claimants have sought compensation by alleging negligence on the driver of the car bearing No.AP-05/DA- 0568.
5. In response to the notice issued by the Tribunal, respondent No.1/owner of the car filed his written statement denying the petition averments and contended that compensation of Rs.3.00 crore sought by the claimants was exorbitant and excessive. Hence, he sought dismissal of the claim petition.
6. Respondent No.2/insurer also filed its written statement denying the material averments made in the claim petition and contended that any liability to be fastened on the insurance company would be subject to the terms and conditions of the policy. The insurance company also sought dismissal of the claim petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
(i) Whether the petitioners prove that the deceased succumbed to injuries in a motor vehicle accident that occurred on 23/09/2015 at about 12.40 p.m. near veterinary hospital, opposite BMTC bus stop, Hosur Lashkar Road, Bangalore, within the jurisdiction of Adugodi Police Station on account of rash and negligent driving of the Santro Car bearing registration No.AP- 05/DA-0568 by its driver?
(ii) Whether the petitioners are entitled for compensation? If so, how much and from whom?
(iii) What order?
8. In order to substantiate their case, the mother of the deceased got examined herself as PW.1 and another witness by name Satish was examined as PW.2. The claimants have produced thirty documents, which were marked as Exs.P-1 to P-30, but the respondents did not let-in any evidence in the matter.
9. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and awarded compensation of Rs.87,97,000/- with interest at the rate of 9% per annum from the date of claim petition till realization and directions were issued for apportionment and for deposit of the award of compensation.
10. Being aggrieved by the compensation awarded by the Tribunal, the insurance company has preferred MFA.No.568/2017, while MFA.No.7835/2016 has been filed by the claimants seeking enhancement of compensation.
11. We have heard learned counsel for the appellant/insurer and learned counsel for the claimants and perused the material on record.
12. Learned counsel for the appellant/insurer has contended that the Tribunal has assessed the income of the deceased exorbitantly. That though he was working in Mahaveer Jain Hospital, the net income had to be assessed after deducting professional tax and income tax, but the same has not been followed in the instant case. He further submitted that adding 50% of the said income of the deceased is exorbitant and it should have been only 40%. He next submitted that the award of compensation of Rs.87,97,000/- with interest at the rate of 9% per annum is also exorbitant. Therefore, the appeal filed by the insurance company may be allowed and the compensation awarded by the Tribunal to be scaled down.
13. Per contra, learned counsel for the claimants submitted that the award of compensation by the Tribunal is meager and that the claimants are entitled to additional compensation as the Tribunal has considered only the income that was earned by the deceased from Mahaveer Jain Hospital and the additional income that he earned from his service as doctor has not been added. On the said aspect, he submitted that there is no merit in the appeal filed by the insurance company and therefore, the appeal filed by the insurance company may be dismissed and the claimants’ appeal may be allowed by enhancing the compensation.
14. On hearing learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether compensation of Rs.87,97,000/- with interest at the rate of 9% per annum awarded by the Tribunal would call for interference?
(ii) What order?
15. The fact that Dr.Mohammed Sheeb Zaki died in an accident that occurred 23/09/2015 at about 12.40 p.m. is not a controversy with regard to the aspect of negligence in the matter. The Tribunal has fastened the negligence solely on the driver of the car bearing No.AP- 05-DA-0568. But the controversy is with regard to compensation awarded by the Tribunal. The Tribunal has awarded a total sum of Rs.87,97,000/- with interest at the
16. The first contention of learned counsel for the insurance company is that the Tribunal has not deducted in the manner in which the income tax and the professional tax have to be deducted from the income of the deceased, which is Rs.60,000/-, which is not correct. That the same had to be deducted after adding 40% of the said income towards future prospects. If the same is adhered to, in this appeal, then if Rs.60,000/- is taken as the income of the deceased, Rs.24,000/- would be the 40% of the said income which has to be added towards future prospects. We find that there is substance in the contention of appellant/insurance company that only 40% has to be added towards future prospects. If the same is added to the total gross income, it would come to Rs.84,000/-. We think it correct that while adding 40% towards future prospects, there must be addition to the net income or actual salary minus tax. There must be deduction of professional tax and income tax in the said 40% also. We rely on paragraph Nos.59.3 and 59.4 of National Insurance Company vs. Pranay Sethi & others [(2017)16 SCC 680] (Pranay Sethi) which are extracted as under:
“59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
On a reading of the same, it is noted that only 40% has to be added towards established income. The expression “established income” has been qualified to be the net income or income minus tax component. In the circumstances, it cannot be understood as gross income. Hence, we add 40% to the net income i.e., Rs.60,000/- minus Rs.200/- towards professional tax and Rs.6,000/- towards income tax, which comes to Rs.53,800/-. 40% of Rs.53,800/- is Rs.21,520/- and the same being added to net income of Rs.53,800/- would come to Rs.75,320/- 50% of the same has to be deducted towards personal expenses of the deceased. Thus, the total income is Rs.37,660/-, which would have to be annualised and the appropriate multiplier 17 has to be added. Thus, the total compensation on the head of loss of dependency is Rs.76,82,640/-.
9. In addition, a sum of Rs.30,000/- is awarded to each of the parents of the deceased towards loss of filial compensation and further a sum of Rs.30,000/- is awarded towards loss of love and affection to the sister of the deceased. In addition, a sum of Rs.15,000/- each is awarded towards loss of estate and funeral expenses. The aforesaid amounts on conventional heads are as per recent dicta of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram [2018 ACJ 2782] and Pranay Sethi referred to above. A sum of Rs.68,000/- is awarded by the Tribunal towards medical expenses. Hence, the total compensation would now be Rs.78,70,640/- instead of Rs.87,97,000/-. The re- assessed compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization instead of 9% awarded by the Tribunal.
17. In the circumstances, the appeal filed by the insurance company (MFA.No.568/2017) is allowed in part, while the appeal filed by the claimants (MFA.No.7835/2016) is dismissed.
The amount in deposit be transmitted to the concerned Tribunal.
Out of re-assessed compensation, 10% with proportionate interest shall be awarded to the claimant/sister of the deceased. The balance 90% shall be equally apportioned among the parents of the deceased.
Out of compensation awarded to the mother of the deceased, 75% shall be deposited in any nationalized bank or post office for an initial period of ten years and she shall be entitled to draw periodical interest on the said amount. The balance compensation shall be released to her.
50% of the compensation awarded to the father of the deceased shall be deposited in any nationalized bank or post office for an initial period of ten years. He shall be entitled to draw periodical interest on the said amount. The balance compensation shall be released to him.
50% of the compensation awarded to the sister of the deceased shall be deposited in any nationalized bank or post office for an initial period of five years. She shall be entitled to draw periodical interest on the said amount. The balance compensation amount shall be released to her.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE S*