IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. No.5239/2019 (MV) BETWEEN:
THE MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD., E-8, EPIP INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN – 302 022.
REPRESENTED BY THE MANAGER, M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, 259/31, 1ST STAGE, 10TH CROSS, WILSON GARDEN, BENGALURU – 27.
NOW REPRESENTED BY THE MANAGER, M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., NO.5/4, 3RD FLOOR, S.V.ARCADE, BILAKAHALLI MAIN ROAD, OFF B.G. ROAD, IIM POST, BENGALURU – 560 076. ...APPELLANT (BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE) AND:
1. SRI. RAJU .P.S S/O. SHIVALINGAPPA, NOW AGED ABOUT 47 YEARS, 2. SMT. JAYANTHI W/O. RAJU, NOW AGED ABOUT 44 YEARS, BOTH ARE R/O. PASHUPATHI VILLAGE, SALIGRAMA HOBLI, K.R. NAGAR TALUK, MYSORE DISTRICT, PRESENT R/O. THERANYA VILLAGE, HALEKOTE HOBLI, HOLENARASINPURA TALUK.
3. SRI. MOHAMMED RAFI, S/O. ABDUL ROUGH, ROAD NO.5.499, MUSLIM BLOCK, K.R. NAGAR TALUK, MYSURU DISTRICT. ... RESPONDENTS ***** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.02.2019 PASSED IN MVC NO.2107/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, HOLENARASIPURA, AWARDING COMPENSATION OF RS.30,73,760/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T The insurance company has preferred this appeal being aggrieved by the quantum of compensation awarded by the Senior Civil Judge and Motor Accident Claims Tribunal at Holenarasipura (hereinafter referred to as “the Tribunal” for the sake of convenience), by judgment and award dated 28/02/2019, in MVC.No.2107/2017.
2. It is the case of the respondent/claimants that they are the parents of Avinash who died in a road traffic accident that occurred on 02/10/2017. According to him, on the said date at 4.30 p.m., when Avinash was proceeding on motorcycle bearing No.KA-09/EH-9984 near Alagowdanahalli village, at that time, the driver of the Eicher goods vehicle bearing registration No.KL-09/P-6721 drove the same in a rash and negligent manner with high speed endangering human life and dashed to the motorcycle of Avinash. As a result of the impact, Avinash fell down and the wheel of the vehicle ran over him and he died on the spot. Contending that the deceased was hale and healthy and was working as a site engineer in Asian Fab Tec Ltd., and was earning Rs.50,000/- per month and he was also having agricultural income and he was the only earning member in the family. The respondent/petitioners filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.50.00 lakh with interest at 8% per annum from the date of claim petition till realisation.They further contended that on the demise of Avinash they were in great hardship, mental agony and penury and therefore, they prayed for compensation.
3. In response to the claim petition, the owner of the vehicle contended that the claim petition was not maintainable and it is liable to be dismissed. He further denied the averments made in the claim petition and sought for dismissal of the same. He further contended that if any compensation had to be paid, then it would be paid by the insurance company.
4. The insurance company also appeared through its advocate and filed its written statement denying the material averments of the claim petition and contended that the compensation claimed was highly excessive, speculative, whimsical and fanciful. It was contended that the satisfaction of the award, if any, would be subject to the terms and conditions of the insurance policy. The insurance company also sought for dismissal of the claim petition.
5. On the basis of the aforesaid rival pleadings, the Tribunal framed the following issues for its consideration:
(i) Whether the petitioners prove that the deceased Avinash sustained severe injuries and died in an accident, which was occurred on 02/10/2017 at about 4.30 p.m., near Alagowdanahalli village, on Hassan – Mysore road, due to the rash and negligent driving of Eicher Goods vehicle bearing Reg.No.KL- 09 P-6721, by its driver?
(ii) Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
(iii) What order or Award?
6. In order to substantiate their case, claimants examined two witnesses and produced fourteen documents, which were marked as Exs.P-1 to P-14 and two other documents were marked as Exs.C-1 and C-2 through the Commissioner PW.2 in his evidence. The respondents including the insurance company did not adduce any evidence in the matter. On the basis of the evidence in the matter, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and awarded compensation of Rs.30,73,760/- with interest at the rate of 9% p.a. from the date of claim petition till realisation.
7. Being aggrieved by the quantum of compensation awarded by the Tribunal, the insurance company has preferred this appeal.
8. We have heard Sri H.N.Keshava Prashanth, learned counsel for the appellant/insurer and perused the material on record. Firstly, he contended that the award of compensation on the head of loss of dependency to the tune of Rs.29,93,760/- is exorbitant. He submitted that Ex.P-10 is the pay slip for the month of September 2017 and the accident occurred on 02/10/2017. In the said pay slip, it is shown that the deceased Avinash was earning a monthly salary of Rs.20,000/-. That the Tribunal has deducted only Rs.200/- per month towards professional tax and his actual or net salary has not been taken into consideration. That apart from deducting the professional tax, the rest of the salary has been considered for the purpose of determining compensation on the head of loss of dependency. Learned counsel for the appellant contended that the Tribunal has not deducted any amount towards income tax from the gross amount and it has only deducted professional tax. He submitted that Ex.P-10 also indicates that Rs.2,000/- was paid towards conveyance allowance and Rs.2,000/- was paid towards other heads. Therefore, the Tribunal could not have considered Rs.19,800/- as the salary inasmuch as it had to be after deducting the aforesaid amounts. He further submitted that 40% of the established salary has been added towards future prospects, whereas, the appellant was not in a permanent job. He submitted that the award of compensation towards loss of love and affection is also exorbitant. Further, he contended that the award of 9% interest per annum is also on the higher side. Normally, this Court as well as the Tribunal would award interest only at 6% per annum on the compensation. He contended that this appeal would call for interference at the hands of this Court and therefore, notice could be ordered on the application seeking condonation of delay and also on the main appeal.
9. Having heard learned counsel for the appellant/insurer and on perusal of the material on record, it is noted that the respondent/claimants have established the fact that Avinash died in a road traffic accident, which occurred on 02/10/2017 at about 4.30 p.m. when he was knocked down by the driver of the Eicher goods vehicle, which was driven by its driver in a rash and negligent manner and as a result, he died on the spot. The Tribunal has awarded compensation of Rs.30,73,760/- with interest at the rate of 9% p.a. on the following heads:
1 Loss of dependency 13860x12x18 Rs.29,93,760 2 Loss of love and affection to petitioners Rs. 50,000 3 Loss of estate Rs. 15,000 4 Funeral, obsequies expenses & transportation of dead body Rs. 15,000 TOTAL Rs.30,73,760 10. The first contention raised on behalf of the insurance company is with regard to determination of compensation on the head of loss of dependency. The grievance of the appellant ventilated through its counsel is that the monthly income of the deceased could not have been taken at Rs.19,800/- being the net income and it had to be even less. That the amount being paid towards conveyance charges and Rs.2,000/- on other heads could not have been taken into consideration. Ex.P-10 is the salary slip and the same shows that he was earning Rs.20,000/- towards salary in support of which PW.2 was examined, who is none other than the H.R. Assistant. His evidence shows that Avinash was working in M/s.Asian Fab Tec Ltd., since August 2017 and if he had worked for another three months, he would have become a permanent employee and all other suggestions put to PW.2 has been denied by him. Ex.P-10 has been considered by the Tribunal to note that the salary for the month of September 2017 was Rs.20,000/-. Out of the gross salary of Rs.20,000/-, a sum of Rs.200/- has been deducted towards professional tax. The Tribunal has not found it fit or justified to deduct any other amount as per the salary slip. The appellant has also not been able to establish any reason as to why any other amount had to be deducted from Rs.20,000/-. In the circumstances, we find that the Tribunal was justified in considering Rs.19,800/- as the basis for computing the compensation on the head of loss of dependency. We find that the gross salary of the deceased was Rs.20,000/- and we do not think that on that amount any income tax was payable as the accident occurred on 02/10/2017.
11. The Tribunal has rightly awarded 40% of the established salary towards future prospects as Avinash was aged 24 years on the date of the accident and PW.2 has stated that in another three months he would have become a permanent employee. It is also noted from the evidence of PW.2 that in two months’ time, the deceased would have become permanent employee, but unfortunately the untimely death occurred. Probably if the deceased had survived, he would have made a permanent employee and his salary would have escalated. Moreover, Avinash was a bachelor. Therefore, on adding the future prospects to the net salary of Rs.19,800/- i.e., 40% of the established salary being Rs.7,920/-, which would come to Rs.27,720/-, 50% has been deducted towards the personal expenses of the deceased. Consequently, the balance amount of Rs.13,860/- per month has been annualised and has been multiplied by appropriate multiplier 18. Thus, the total compensation on the head of loss of dependency would be Rs.29,93,760/-, which we find is rightly awarded by the Tribunal and do not think that it is exorbitant or excessive.
12. Further, in terms of the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Seti [(2017)16 SCC 680] (Pranay Seti), compensation would have to be awarded towards loss of consortium. The expression “loss of consortium” has been explained by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru [2018 ACJ 2782] (Magma General Insurance Company Ltd.) Hon’ble Supreme Court has held that Rs.40,000/- could be awarded towards loss of consortium and in Magma General Insurance Company Ltd., it has been held that compensation must be awarded to both parents towards loss of filial love and affection or loss of love and affection. This Court normally awards Rs.30,000/- to each of the parents, but the Tribunal has awarded Rs.50,000/- in total, whereas in our view, it has to be Rs.60,000/- in toto. Therefore, on that score, the appellant/insurer cannot be prejudiced at all. Further, a sum of Rs.15,000/- has been awarded towards loss of estate and Rs.15,000/- towards funeral expenses in accordance with the latest dictum in the case of Pranay Seti.
13. As far as award of interest at the rate of 9% per annum is concerned, we think that the same would not call for any interference since the amount awarded under the head loss of filial love and affection is Rs.50,000/- only, whereas we have stated that it ought to have awarded at least Rs.60,000/-. In the circumstances, we do not think it is necessary to interfere with the award of interest at the rate of 9% per annum. In fact, if the appellant/insurer satisfies the award at the earliest, then it would save payment of interest on the compensation amount at the rate of 9% per annum In the circumstances, we do not find it a fit case to entertain and admit this appeal as we do not find any merit in the appeal. Hence, the appeal is dismissed.
In view of dismissal of the appeal, the applications also stand dismissed.
Sd/- JUDGE Sd/- JUDGE S*