IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL No.10362/2011 C/W MISCELLANEOUS FIRST APPEAL No.10508/2011 (MV) MFA No.10362/2011 BETWEEN:
NATIONAL INSURANCE CO. LTD., I FLOOR, # 1576, VISHWESHWARAIAH ROAD MANDYA, NOW REPRESENTED BY REGIONAL MANAGER NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M G ROAD BANGALORE-560 001.
... APPELLANT (BY SRI: A N KRISHNASWAMY, ADV) AND:
1. SMT.SHIVALINGAMMA W/O S PUTTASWAMYGOWDA NOW AGED ABOUT 61 YEARS.
2. S P VEDAVATHI D/O LATE S PUTTASWAMYGOWDA NOW AGED ABOUT 31 YEARS.
3. S P NAGENDRA S/O S PUTTASWAMYGOWDA NOW AGED ABOUT 36 YEARS.
ALL R/A # 361, 10TH MAIN, II CROSS III STAGE, I BLOCK, BASAVESHWARANAGAR BANGALORE-560 079.
4. M S MANVANTH S/O SURESH BABU, MAJOR R/A HOMBALE, 1ST CROSS OPP: SYNDICATE BANK ASHOKNAGAR, MANDYA DISTRICT, MANDYA-571401.
… RESPONDENTS (BY SMT:P ARCHANAMURTHY, ADV FOR R1 TO R3, R4 – SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.06.2011 PASSED IN MVC NO.564/2010 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.3,35,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
MFA NO.10508/2011 BETWEEN:
1. SMT.SHIVALINGAMMA W/O LATE S PUTTASWAMYGOWDA AGED ABOUT 61 YEARS.
2. S P VEDAVATI D/O S PUTTASWAMYGOWDA AGED ABOUT 31 YEARS.
3. S P NAGENDRA S/O S PUTTASWAMYGOWDA AGED ABOUT 36 YEARS.
ALL ARE R/O NO.361, 10TH MAIN 2ND CROSS, 3RD STAGE, 1ST BLOCK BASAVESHWARANAGAR, BANGALORE-79.
... APPELLANTS (BY SMT:P ARCHANA MURTHY, ADV FOR SRI: DORAI BABU, ADVS) AND:
1. M S MANVANTH S/O SURESH BABU AGE MAJOR, R/O HOMBALE 1ST CROSS, OPP. SYNDICATE BANK ASHOKANAGAR, MANDYA DISTRICT MANDYA – 571401.
2. NATIONAL INS. CO. LTD., 1ST FLOOR, NO.1576 VISHWESHWARAIAH ROAD POST BOX NO.54 MANDYA – 571 401. ... RESPONDENTS (BY SRI: E I SANMATHI, ADV FOR R2, R1 – NOTICE DISPENSED WITH VIDE COURT ORDER DATED 17.06.16) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.06.2011 PASSED IN MVC NO.564/2010 ON THE FILE OF THE XIX ADDL. SCJ & MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE (SCCH-17), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
COMMON JUDGMENT MFA No.10362/2011 is filed by the Insurer of Mahindra Scorpio bearing registration No.KA-11/MB- 5588 challenging the judgment and award passed by the Tribunal on the ground of negligence, liability and quantum, whereas MFA No.10508/2011 is filed by the claimants seeking for enhancement of compensation.
2. As these appeals have arisen out of a common judgment and award of the Tribunal, with the consent of both the learned counsel appearing for the parties, they were heard together and disposed of finally by this common judgment. Perused the judgment and award passed by the Tribunal.
3. As there is no dispute regarding death of S P Jagadish in a road traffic accident occurred on 28.10.2009, the points that arise for my consideration in these appeals are:
1) Whether the findings of the Tribunal on negligence in holding that death of S. P. Jagadish was on account of injuries sustained by him in a road traffic accident occurred on 28.10.2009 due to rash and negligent driving of the driver of Mahindra Scorpio is sustainable in law and was justified in fastening the liability on the insurer of Mahindra Scorpio vehicle?
2) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for either reduction or enhancement?”
4. Sri A N Krishnaswamy and Sri E I Sanmathi, learned counsel appearing for the insurer of Mahindra Scorpio jointly submit that though the driver of the said vehicle was driving the vehicle on the left side of Bengaluru – Mysuru Road slowly and carefully by observing traffic Rules, the accident occurred due to rash and negligent riding of TVS Suzuki Samurai by the deceased himself. Learned counsel submits that perusal of the spot sketch would support the contention of the insurer. The Tribunal without considering the same has committed an error in holding that the accident occurred due to rash and negligent driving of the driver of Mahindra Scorpio. Regarding quantum, learned counsel submit that the compensation which has already been awarded by the Tribunal is just and reasonable and there is no scope for enhancement. Therefore, they sought for allowing the appeal preferred by the Insurer of Mahindra Scorpio by dismissing the appeal filed by the claimants.
5. Smt.P Archana Murthy for Sri.S Dorai Babu and Associates, learned counsel appearing for the claimants submits that the police after investigating the complaint have filed charge sheet against the driver of Mahindra Scorpio and it is corroborated by the oral evidence of PW2 – an eye witness to the accident. The Tribunal considering the oral and documentary evidence on record was justified in holding that the accident had occurred due to rash and negligent driving of the driver of Mahindra Scorpio. Therefore, she submits that there is no illegality or irregularity in the judgment and award passed by the Tribunal on negligence and liability. Regarding quantum, Smt.P Archanamurthy submits that the deceased was working as SDC at Janatha Co- operative Bank, Basaveshwaranagar Branch, Bengaluru and was getting the salary of Rs.17,600/- p.m. Though he was dismissed by the Management of the said Bank on false ground of misappropriation, however, in the dispute raised by him, the Registrar of Co-operative Societies had allowed his dispute and directed the Bank to re-instate him into service and in fact, an order of re- instatement was also passed by the Bank. The appeal filed by the Bank challenging the order of re- instatement passed by the Registrar of Co-operative Society was pending before the Karnataka Appellate Tribunal. During the pendency of the said appeal, the S.P. Jagadish died in the instant road traffic accident.
The Tribunal without considering the same has committed an error in not taking the income of the deceased as mentioned in his salary certificate as Rs.17,600/- p.m. Therefore, she prays for allowing the appeal preferred by the claimants and dismissing the appeal preferred by the Insurer.
6. By way of reply, learned Counsel for the Insurer jointly submit that the bank challenged the order passed by the Registrar of Co-operative Society, wherein the bank was directed to re-instate the deceased into service by preferring an appeal before the Karnataka Appellate Tribunal and the appeal was pending for consideration. At that time, the S. P. Jagadish died in a road traffic accident, thereby, they submitted that the salary shown in the salary certificate cannot be taken as the income of deceased.
7. As per the police records, when Mahindra Scorpio vehicle was proceeding from Bengaluru towards Mysuru on Bengaluru-Mysuru road, the accident occurred at Sankalagere within the jurisdiction of Channapatna Rural Police Station. The deceased who was proceeding in a two wheeler entered Bengaluru- Mysuru road from Sankalagere gate. The sketch produced at Ex.P3 would show that Mahindra Scorpio was proceeding on the left side of the road. Rider or driver of any vehicle before entering main road from cross road is expected to slow down their vehicle and after observing movements of vehicles passing on main road should slowly enter the main road. If deceased had slowly entered Bengaluru – Mysuru main road from Sankalagere Cross, he could have avoided the accident. At the same time, riders of the vehicle proceeding on main roads are expected to reduce the speed of their vehicles at places where cross roads join main roads. The accident had occurred at the junction of Sankalagere gate and Bengaluru-Mysuru main road. Therefore, it has to be held that the accident had occurred due to contributory negligence of both deceased in riding his two wheeler as well as the driver of Mahindra Scorpio. However, considering the size of the vehicles involved in the accident and the fact that charge sheet is filed against the driver of Mahindra Scorpio, the evidence of PW2, who is one of the eye witnesses to the accident, I am of the view that the negligence contributed by the driver of Mahindra Scorpio is heavy and more comparing to that of the deceased which should be at the rate of 75% and 25% respectively. Hence, the finding of the Tribunal on negligence is modified holding that the accident had occurred due to contributory negligence of 25% on the part of deceased in riding his two wheeler and 75% on the part of driver of Mahindra Scorpio.
8. Regarding quantum, the claimants in support of their contention that the deceased by working as SDC at Janata Co-operative Bank, Basaveshwaranagar, Bengaluru was getting monthly salary of Rs.30,000/- have examined the brother of deceased as PW1, an eye witness to the accident as PW2 and the Manager of Janata Co-operative Bank under whom the deceased was working as SDC as PW3 and have also produced the salary certificate of one Nanda Kumar who joined for service with Janata Co- operative Bank along with the deceased, the certified copy of judgment passed by the Joint Registrar of Co- operative Societies, wherein the order of termination passed by the Management of Janatha Co-operative Bank Ltd. terminating the service of deceased was set aside and the bank was directed to re-instate the deceased into service, the pay slip of Nanda Kumar, the employee of Janata Co-operative Bank at Ex.P13 and confirmation letter pertaining to deceased at ExP15.
9. Perusal of the judgment passed by the Joint Registrar of Co-operative Society would show that while deceased was working as SDC at Janata Co-operative Bank, his services came to be terminated on the ground of misappropriation, the said order was set aside and bank was directed to re-instate the deceased into service. The pay slip produced at Ex.P13 pertaining to Nanda Kumar would show that he was getting the salary of Rs.17,600/-. It is not in dispute that Nanda Kumar and deceased had joined for service with the Janatha Co-operative Bank at the same time. Ex.P15 would show that the service of deceased was confirmed.
10. It is the submission of learned Counsel appearing for the claimants as well as the Insurer of Mahindra Scorpio that when the matter was pending in an appeal before the Karnataka Appellate Tribunal, deceased - S.P.Jagadish died in the instant road accident. The Tribunal though had accepted the salary shown in Ex.P13, but committed an error in not taking the salary as shown in the salary certificate.
11. It is held by this Court and by the Hon’ble Supreme Court in number of cases that amount payable towards income tax and professional tax are only liable to be excluded from the salary of deceased while determining the compensation towards loss of dependency. Perusal of Ex.P13 would show that a sum of Rs.200/- was deducted towards professional tax. The annual income of deceased being Rs.2,11,200/- as per Ex.P13, no amount is liable to be deducted towards income tax. Therefore, the Tribunal by deducting Rs.200/- from the salary of the deceased towards professional tax should have taken the monthly income of the deceased at Rs.17,400/-. Considering the facts that the Management of Janata Co-operative Society, Basaveshwaranagar, Bengaluru, aggrieved by the order passed by the Joint Registrar of Co-operative Societies, allowing the dispute raised by the deceased and directing the management to reinstate him into service had challenged the same by preferring an appeal before the Karnataka Appellate Tribunal and during the pendency of the said appeal, deceased died in the instant road traffic accident, it is not a fit case to add 50% of the salary of deceased to his income towards future prospects as rightly contended by the learned Counsel for the insurer. Since he died as bachelor, 50% of his salary is to be deducted towards his personal expenses and remaining 50% is to be taken as his contribution towards family. So loss of dependency works out to (17,400 x 12 X 15 x 50/100) = Rs.15,66,000/- and it is awarded.
12. A sum of Rs.15,000/- is awarded towards loss of estate and Rs.15,000/- is awarded towards transportation of dead body and funeral expenses.
13. Thus, the claimants are entitled for the following compensation:-
body and funeral expenses TOTAL 15,96,000/-
LESS: Compensation awarded by 3,35,000/-
the Tribunal BALANCE 12,61,000/-
14. In view of my findings on negligence, 25% has to be deducted from the compensation of Rs.15,96,000/- and claimants are entitled for 75% of Rs.15,96,000/- amounting to Rs.11,97,000/-.
15. Accordingly, the appeals are allowed-in- part. The judgment and award dated 25.06.2011 in MVC No.564/2010 passed by the XIX Additional Small Causes Judge and MACT, Bengaluru, stands modified both on liability as well as quantum. The claimants are entitled for total compensation of Rs.11,97,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation as against Rs.3,35,000/- awarded by the Tribunal.
16. The Insurance Company is directed to deposit the compensation amount together with interest within two months from the date of receipt of a copy of this judgment, after deducting the amount, if any, already paid or deposited. From the compensation of Rs.11,97,000/-, a sum of Rs.5,00,000/- with proportionate interest shall be invested in the name of claimant No.1 and Rs.1,50,000/- each with proportionate interest shall be invested in the names of others in fixed deposit in any Nationalised Bank/Scheduled Bank/Post Office for a period of three years with a right of option to withdraw interest periodically. The remaining amount shall be released in favour of all the claimants in equal proportion immediately after deposit.
17. The Tribunal while releasing the remaining amount is also directed to issue the fixed deposit slips, so as to enable the claimants to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount on maturity without insisting for any further order from the Tribunal. Release of compensation and issuance of FD slip shall be done on the same day to avoid inconvenience to the claimants. The amount deposited by the Insurer in MFA No.10362/2011 is ordered to be transmitted to the Tribunal for disbursement in favour of the claimants in terms indicated herein above.
No order as to costs.
Bkm &*bgn/-
Sd/- JUDGE