IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.8705 OF 2013 (MV-D) BETWEEN:
1. SMT. PONMOZHI, W/O. LATE C. KASHINATHAN, AGED ABOUT 49 YEARS, 2. SRI K. AMARNATH, S/O. LATE C. KASHINATHAN, AGED ABOUT 32 YEARS, 3. SMT. MALARVIZHI, D/O. C. KASHINATHAN, W/O. KIRAN RICHARD, AGED ABOUT 29 YEARS, ALL ARE RESIDING AT, NO.36, J.V. SHETTY ROAD, RAMASWAMY PALYA, KAMMANAHALLI MAIN ROAD, BANGALORE – 33.
... APPELLANTS (BY SRI N. GOPALA KRISHNA, ADVOCATE) AND:
1. SRI A. SRINIVASAN, S/O. N.P. ARTHANARI, MAJOR IN AGE, RESIDING AT NO.603/B, MANGALA LAYOUT, URLNADI, PUTTUR – 574 261.
DAKSHINA KANNADA DISTRICT.
2. THE RELIANCE GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.28, 5TH FLOOR, EAST WING, M.G. ROAD, BANGALORE – 01. BY ITS MANAGER.
(BY SRI D. VIJAYA KUMAR, ADVOCAE FOR R2;
... RESPONDENTS R1-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 17/06/2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 05/01/2013 PASSED IN MVC NO.4010 OF 2011 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE & XLI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the appellants-claimants assailing the judgment and award dated 05/01/2013 passed in MVC No.4010/2011 by the Motor Accident Claims Tribunal, Bengaluru (SCCH-17) (hereinafter referred to as ‘Tribunal’, for the sake of brevity).
3. We have heard the arguments of Sri N. Gopal Krishna, learned counsel for the appellants as well as Sri D. Vijaya Kumar, learned counsel for respondent No.2.
4. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
5. The claimants have filed the claim petition under Section 166 of Motor Vehicles Act (hereinafter referred to as ‘the Act’) for claiming compensation of Rs.50,00,000/-, inter alia, contending that on 05/02/2011 at about 7.45 a.m., the husband of claimant No.1 namely, C.Kasinathan along with others was proceeding in Maruthi Alto Car bearing Registration No.KA-03/MK-9056 towards Madanpalle from Bengaluru. The car was driven by C.Kasinathan in a slow and cautious manner and when they reached near Sunnakal gate on Bengaluru – Kadappa road, at that time, a cement mixer lorry bearing registration No.KA-21/A-3448 came from opposite direction driven by its driver at a high speed in a rash and negligent manner went to wrong side of the road and dashed to the car. Due to the impact, the occupants of the car including C.Kasinathan sustained grievous injuries and he succumbed to the injuries on the way to R.L.Jalappa hospital.
6. The claimants further contended that prior to the accident, the deceased-C.Kasinathan was hale and healthy and he was working as Joint Supervisor at B.E.M.L and was earning Rs.31,000/- per month. Due to untimely death of the deceased, the claimants have been put to mental shock, agony and untold misery and they lost the livelihood. They further contended that the deceased was an ex-serviceman who had retired from the service of Indian Army and due to the death of the deceased, they lost their dependency. Hence, they claimed compensation.
7. Pursuant to the notice issued by the Tribunal, respondent No.1-owner of the lorry remained absent and was placed ex parte.
8. Respondent No.2-insurer appeared through its counsel and filed statement of objections by denying the averments made in the claim petitions as false and further denied the issuance of insurance policy and also rash and negligent driving of the lorry by its driver. It is further contended that the accident had occurred purely due to the negligence of the deceased himself and further contended that the owner and the insurer of the car were also necessary parties to the petition and further denying the age, occupation and earnings of the deceased as false prayed for dismissing the claim petition.
9. Based upon the rival pleadings, the Tribunal framed the following issues:
i) Whether the petitioners prove that on 05.02.2011 at 7.45 a.m. when the deceased kasinathan was driving the Maruthi Alto Car on Bangalore-Kadapa road, near Sunnakal Gate, at that time, the Cement Mixer lorry bearing reg.No.KA-21-A-3448 came at high speed in a rash and negligent manner and dashed against the deceased Maruthi Alto car, as a result of which, he died as alleged?
ii) Whether the petitioner is entitled for compensation? If so, what amount and from whom they are entitled to?
iii) What order?
10. To substantiate their contentions, claimant No.1 examined herself as PW.1 and got marked 12 documents. In support of the claims in MVC No.4011/2011, the remaining witnesses and the documents were marked by other claimants. After considering the evidence on record, the Tribunal answered issued Nos.1 and 2 in the affirmative and awarded compensation of Rs.10,55,340/- on the following heads:
Heads Towards loss of dependency Towards loss of consortium Towards loss of love and affection Towards funeral and transportation expenses Compensation awarded by the Tribunal Rs.10,10,340/-
Rs.10,000/- Rs.20,000/- Rs.10,000/-
Towards loss of estate Rs.5,000/-
Total Rs.10,55,340/-
11. Assailing the judgment and award passed by the Tribunal, the claimants have preferred this appeal for enhancing the compensation.
12. Learned counsel for the appellants contended that the deceased-Kasinathan was an Ex-serviceman and he worked as a Joint Supervisor at B.E.M.L and was earning Rs.31,000/- per month. To prove the salary income, the claimants have examined PW-4-Assistant Personnel Officer of BEML and got marked Ex.P23-salary particulars of the deceased. According to learned counsel, in spite of producing the same, the Tribunal committed an error in considering the income of the deceased at Rs.18,710/- per month which is only a basic salary.
13. Learned counsel also contended that the Tribunal has not awarded any compensation towards future prospects of the deceased as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017)16 SCC 680 (Pranay Sethi) as the amount awarded under the conventional heads are also very meager. Hence, he prayed for enhancing the compensation.
14. Per contra, learned counsel for the respondent No.2- insurer supported the judgment and award passed by the Tribunal and contended that the Tribunal considered the salary of the deceased as per Ex.P23 and further contended that the age of the deceased was 58 years and within two years, he would have retired from service. Therefore, the Tribunal ought to have considered split multiplier while calculating loss of dependency. The counsel also contended that the judgment and award passed by the Tribunal do not call for any interference by this Court. Hence, prayed for dismissing the appeal.
15. Upon hearing the arguments of learned counsel for both the parties and on perusal of records, the points that arise for our consideration are:
i) Whether, the Tribunal was justified in awarding compensation of Rs.10,55,340/-?
ii) Whether the appellants are entitled for enhancement of compensation?
iii) What order?
16. The claimants have established before the Tribunal the factum of accident which occurred on 05/02/2011 at about 7.45 a.m., when the deceased-Kasinathan along with others while proceeding in a Maruthi Alto Car bearing registration No.KA-03/MK-9056 in a slow and cautious manner and when they reached near Sunnakal gate on Bengaluru – Kadappa road, at that time, a cement mixer lorry bearing registration No.KA-21/A-3448 came from the opposite direction driven by its driver at a high speed and in a rash and negligent manner went to the wrong side of the road and dashed against the car, due to which Kasinathan and others sustained injuries and Kasinathan died on the way to R.L.Jalappa hospital.
17. The findings of the Tribunal on issue No.1 regarding negligence resulting in the death of Kasinathan is based upon the oral as well as documentary evidence produced by the claimants. The insurer also not chosen to file any appeal against the said findings. Therefore, we do not find any error committed by the Tribunal in respect of the finding on rash, negligence act and liability on the part of the driver of the lorry in question.
18. The only controversy is in respect of the quantum of compensation awarded by the Tribunal. The claimants have stated that the deceased-Kasinathan was working as a Joint Supervisor at B.E.M.L, Bengaluru and earning Rs.31,000/- per month other than the pension as an Ex- serviceman. However, there is no document produced by the claimants to show that the deceased was an Ex- serviceman. However, the claimants have got examined PW.4-A.J.Ravi, the Assistant Personnel Officer, BEML, Ministry of Defence, Government of India and through him Ex.P23-service record has been marked. Ex.P22 is the salary detail of the deceased-Kasinathan. As per Ex.P22- salary certificate, the gross salary of the deceased was Rs.38,465/-. However, the Lunch allowance of Rs.1,500/-, Transport allowance of Rs.950/-, FPI-Rs.210/- and Indirect incentive of Rs.642/- are deductable. However, if the said amount is deducted, then the net salary would be Rs.35,163/-. Out of which Rs.200/- is deductable towards professional tax (PT) which comes to Rs.34,963/-. 10% of the income should be deductable towards income tax. 10% is Rs.3,496/- out of Rs.34,963/- which is deducted, then the net salary would be Rs.31,467/-. Learned counsel for the appellants contended that as per the judgment of the Hon’ble Apex Court in the case of Pranay Sethi (supra), future prospects of 15% shall have to be added to the net income. But as per the evidence on record, the deceased was aged about 58 years and remaining service would be just one year and he has already reached the cadre of Supervisor. As per Ex.P23- service record, the deceased was Electrician till 01/12/2009. Then he has been promoted only on 01/12/2009 onwards and the accident occurred in the year 2011 and hence there are no chances of further promotion in near future i.e., within a year before attaining the age of 60 years or the age of superannuation.
19. By looking to the facts and circumstances of the case, we do not think it necessary to consider the future prospects of the deceased. Therefore, the split multiplier formula as suggested by learned counsel for the insurer is also not applied in the instant case.
20. There are three claimants in the petition and as per the judgment of the Hon’ble Apex Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation Limited and Another reported in (2009) 6 SCC 121 (Sarla Verma), 1/3rd of the income shall be deducted towards personal expenditures. If 1/3rd of Rs.31,467/- is deducted, it comes to Rs.10,489/-. If net income of Rs.9,440/- is added to Rs.10,489/-, it comes to Rs.20,978/-. The proper multiplier applicable for the age group between 56 and 60 is 9, it comes to Rs.22,65,624/-. This would be the loss of dependency as against Rs.10,10,340/- awarded by the Tribunal.
21. As per the judgment of Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others reported in 2018 ACJ 2782 (SC) (Magma General Insurance) the claimant No.1 being the wife is entitled to Rs.40,000/- towards loss of spousal consortium, both children of the deceased are entitled to Rs.30,000/- each towards loss of parental consortium. In all, the claimants are entitled for Rs.1,00,000/- on the head of loss of consortium. Further, they are entitled to Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral and transportation expenses. In all, the claimants are entitled to Rs.23,95,624/-.
22. The re-assessed compensation is as under:
Heads Towards loss of dependency Compensation awarded by this Court 22,65,624/-
Total 23,95,624/-
23. The same shall carry interest at the rate of 6% p.a. instead of 8% p.a., as awarded by the Tribunal. The respondent – insurance company shall deposit the re-assessed compensation with interest at the rate of 6% p.a. before the Tribunal within a period of four weeks from the date of receipt of certified copy of this judgment.
The appeal is allowed in part in the aforesaid terms.
The compensation amount shall be apportioned among claimant Nos.1 to 3 in the ratio of 80:10:10.
75% of the compensation amount apportioned to the widow of the deceased (first appellant herein) shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification. The compensation awarded to the second and third appellants shall be released to them after due identification.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE GBB