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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2021
PRESENT
THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON’BLE MR. JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.532/2019 (MV-D)
BETWEEN:
1 . SMT JAVERIA BANU W/O LATE A ALAVUDDEN, AGED ABOUT 38 YEARS,
2 . SAHIL A J S/O LATE A ALAVUDDEN, AGED ABOUT 12 YEARS,
3 . ABDUL GANI P S/O LATE PEER MOHAMMAD, AGED ABOUT 74 YEARS,
4 . SMT MUMTAJ W/O ABDUL GANI P , AGED ABOUT 64 YEARS,
APPELLANT NO. 2 BEING MINOR, REP BY HIS MOTHER & NATURAL GUARDIAN SMT JAVERIA BANU, 1ST APPELLANT
ALL ARE R/AT:NO.233, 8TH CROSS, FAISAL VIHAR, ANNASANDRAPALYA, HAL POST, BENGALURU-560 017.
...APPELLANTS
(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)
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AND:
1 . M/S LAKSHMI CARGO MOVERS NO.610/4, 2ND FLOOR, 2ND CROSS, OPP.SWIMMING POOL, MAHALAKSHMI LAYOUT, BENGALURU-560 086.
PRESENTLY RESIDING AT B 158, I FLOOR, YESHWANTHAPURA 2ND STAGE, INDUSTRIAL SUBURB, OPP. KANTEERAVA STUDIO, BENGALURU-560 002.
2 . UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD., NO.7/3, 2ND FLOOR, ABOVE BARCLAYS FINANCE, OPP. 100 FEET ROAD, OLD MADRAS ROAD, INDIRNAGAR, BANGALORE-560 038. ... RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2; V/O DT.19.7.2021 SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT THROUGH PAPER PUBLICATION)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO DIRECT THE SECOND RESPONDENT INSURANCE COMPANY TO PAY THE COMPENSATION AND ENHANCE THE COMPENSATION FROM RS.90,68,025/- TO RS.10,00,00,000/- AS PER AWARD DATED 26.04.2017 IN M.V.C. NO.3937/2015 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, (SCCH-13) BANGALORE, WITH COST AND INTEREST, IN THE INTEREST OF JUSTICE.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THROUGH VIDEO CONFERENCING/PHYSICAL HEARING THIS DAY, KRISHNA BHAT J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is at the instance of the claimants calling in question the correctness of the Award passed in MVC No.3937/2015 dated 26.04.2017 by learned II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.
Brief facts are, one Alavudden is the husband of claimant No.1 and father of claimant Nos.2 and 3 and son of claimant No.4. On 16.08.2015, at about 8.30 p.m., deceased was walking on the side of Suranjandas Road near HAL Hospital, Bengaluru and at that time, a Tata Ace vehicle bearing registration No.KA-02-AC-3560 driven by its driver in high speed and in a rash and negligent manner, all of a sudden came from his back side and dashed against him. On account of the same, deceased Alavudden suffered serious head and bodily injuries and he was shifted to various hospitals and finally on 21.08.2015, while he was undergoing treatment in Manipal Hospital, Bengaluru, he passed away.
Before the Claims Tribunal respondent Nos.1 and 2 entered appearance. But only respondent No.2- Insurance Company filed its written statement. It took up a contention
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that the driver of the offending vehicle was not holding valid and effective driving licence at the time of the accident.
During the trial, claimant No.1 examined herself as P.W.1 and one eye witness was examined as P.W.2 and the DGM of the company in which deceased was working as P.W.3. Exs.P1 to P55 were marked for the claimants. Respondents examined RW1 and RW2 and Ex.R1 was marked.
Learned Tribunal upon hearing the learned counsel on both sides and evidence let in and the documents produced, has allowed the claim petition in part awarding a compensation of Rs.90,68,025/- with interest at 6% p.a. from the date of claim petition till the date of deposit. However, liability to pay compensation was fastened on the owner of the offending Tata Ace vehicle.
Learned counsel for the appellants / claimants strenuously contended before us that even though deceased was a highly qualified person and employed as a senior functionary in a company and his income was established by producing the salary certificate Ex.P37 and also the income tax documents particularly Exs.P43 and P44, learned Tribunal
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has assessed the loss of dependency on the lower side and accordingly loss of dependency assessed by it is highly unjust and therefore it is required to be suitably enhanced. He also submitted that when the negligence of the driver of the offending vehicle is established, learned Tribunal was in error in exonerating the Insurance Company from the liability to pay the compensation merely on the ground that the driver of the offending vehicle was not holding valid and effective driving licence and the same is opposed to the law laid down by the Hon'ble Supreme Court in Shamanna and Another Vs. Divisional Manager, Oriental Insurance Company Limited and Others reported in (2018) 9 SCC 650. He therefore submitted that the appeal is entitled to be allowed and compensation enhanced suitably.
Learned counsel for the respondents per contra contended that the Award passed by the learned Tribunal is just and fair and therefore the same is not liable to be enhanced. It was also contended that learned Tribunal was right and justified in exonerating the Insurance Company from the liability to pay the compensation in view of the fact that the driver of the offending vehicle was not possessing valid
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and effective driving licence and accordingly the appeal is liable to be dismissed.
We have given our anxious consideration to the submissions made by learned counsel on both sides and perused the material on record.
The fact that at the relevant time the deceased was walking by the side of the road and at that time the offending vehicle had hit him from behind and on account of the injury suffered by him he died on 21.08.2015 is not in dispute. The driver of the offending vehicle was charge- sheeted under Ex.P9, inter alia, for the offences punishable under Section 3(1) read with Section 181 of MV Act which showed that the driver was not possessing valid and effective driving licence at the time of the accident. However, merely on account of the said reason learned Tribunal should not have totally exonerated the Insurance Company from the liability to pay the compensation and the said finding is opposed to the law laid down by the Hon'ble Supreme Court in a series of decisions more particularly in Shamanna's case (supra). Hence, as held by the Hon'ble Supreme Court, the
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Insurance Company which is respondent No.2 in this appeal is liable to pay the compensation in the first instance along with interest and thereafter recover the same from respondent No.1 herein in the same proceedings.
The appellants / claimants are seeking enhancement of compensation on the ground that in spite of producing voluminous documents and examining P.W.3 who is the Deputy General Manager of the company in which the deceased was employed, learned Tribunal has taken a lower annual income of Rs.5,29,365/- while computing the loss of dependency. We have carefully perused the evidence of P.W.3 by name R. Dhananjaya who was the Deputy General Manager - HR & ADMIN at Indus League, a division of Future Lifestyle Fashions Limited, Bengaluru, wherein deceased Alavudden was working as Senior Manager - Logistics at the time of his death. Among the documents produced by him in support of his evidence are, Form No.16 filed under Exs.P43 and P44 and also Ex.P37 salary certificate. P.W.3 has stated that Future Life Style Fashions Limited had altogether 300 employees working. He has also stated that at the time of his death the annual salary of the deceased was Rs.13,61,986/-.
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Ex.P37 is the salary certificate dated 13.04.2016. It shows that the last drawn net salary for the month of July, 2015 was Rs.64,485/- which was after deduction of Provident Fund, Income Tax and Professional Tax. Exs.P43 and P44 disclose that in the last two years before his death, he was drawing, after deduction under the provisions of income tax and professional tax, a gross income of Rs.6,50,000/- p.a. Even if the income shown in Ex.P37 is taken, it is evident that deceased was earning more than Rs.6,50,000/- p.a. after deducting income tax, professional tax and also provident fund contribution. Therefore, we are of the view that learned Tribunal was not correct in assessing the annual income of the deceased at Rs.5,29,365/- for the purpose of computing loss of dependency. From the documents produced which is supported by the evidence of a senior functionary of the employer company of the deceased - P.W.3, we deem it just to fix the annual income of the deceased at Rs.6,50,000/- for the purpose of computing loss of dependency. Ex.P13 is the SSLC certificate of the deceased which shows that he was born on 27.05.1977. Therefore he was aged 38 years at the time of his death. Therefore the multiplier that is applicable is
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15 as observed in Smt. Sarla Verma Vs. Delhi Transport corporation reported in 2009 ACJ 1298. As per the law laid down in National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, 40% of the established income is required to be added towards loss of future prospects. Since the claimant has left behind four dependents, 1/4th of his income is required to be deducted towards personal expenses. Accordingly the loss of dependency which is inclusive of loss of future prospects is required to be recomputed as follows:
Rs.6,50,000/- + 40% - 1/4 x 15 i.e.
Rs.6,50,000/- + Rs.2,60,000/- = Rs.9,10,000/-
Rs.9,10,000/- - Rs.2,27,500/- = Rs.6,82,500/-
Rs.6,82,500/- x 15 = Rs.1,02,37,500/-
A sum of Rs.1,60,000/- (40000 x 4) is required to be awarded under the head of loss of consortium. Another sum of Rs.30,000/- is required to be awarded towards loss to estate and funeral expenses. Thus, appellants are entitled to be awarded compensation as follows:
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Head Amount (in Rupees) loss of dependency (inclusive of future prospects) 1,02,37,500/- Add Loss of consortium 1,60,000/- Add Loss to estate and funeral expenses 30,000/- Total 1,04,27,500/-
In so far as the liability of Insurance Company is concerned, the only ground on which the claim petition as against the Insurance Company was rejected by the learned Tribunal was that the driver of the offending tipper vehicle was not having valid and effective driving licence and, therefore, there was breach of the terms of the policy. The evidence produced before the learned Tribunal clearly showed that the driver of the offending tipper lorry was issued with a valid driving licence to drive heavy goods vehicle to ply his tipper lorry but it had lapsed long prior to the date of accident. In that view of the matter Insurance Company cannot be totally relieved from the responsibility of paying the compensation. Principle of "pay and recover" is required to be adopted as per various decisions of the Hon'ble Supreme Court. Accordingly, we hold that respondent No.2 in the claim petition i.e. Insurance Company is liable to deposit the
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compensation amount in the first instance along with interest and thereafter recover the same from respondent No.1 therein in the same proceedings.
Learned counsel for the Insurance Company contended that a sum of Rs.3,00,000/- was paid by the employer of the deceased under the provision of accidental death insurance and therefore the same is liable to be deducted from the compensation awarded by the Tribunal. In this regard, it is relevant to note the decision of the Hon’ble supreme Court in the case of Sebastiani Lakra & Ors. Vs. National Insurance Company Ltd. & Anr. (2019) 17 SCC 465. “12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle
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accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.”
In view of the above, the prayer for deduction of Rs.3,00,000/- from the total awardable compensation amount is rejected. 14. In the result, we pass the following: ORDER
The appeal is allowed in part.
The claimants in MVC No.3937/2015 are held entitled to modified compensation of Rs.1,04,27,500/- as against Rs.90,68,025/- awarded by the Tribunal. The compensation amount shall carry interest at 6% per annum from the date of claim petition till the date of deposit before the Tribunal. The liability to pay the compensation amount is fastened on the 2nd respondent in the claim petition i.e. Insurance Company which is also the 2nd respondent in this appeal.
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Accordingly, Insurance Company shall in the first instance deposit the compensation amount of Rs.1,04,27,500/- along with interest thereon at 6% per annum within a period of eight weeks from the date of receipt of a copy of this Judgment and recover the same from respondent No.1 in the same proceedings.
The Judgment in MVC No. 3937/2015 dated 26.04.2017 passed by the learned II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru stands modified to the above extent. The other terms with regard to apportionment, investment of compensation amount etc. remain unaltered.
Learned Tribunal to draw the modified Award.
Registry to send a copy of this Judgment along with Trial Court records to the Court of learned II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru, forthwith.
Sd/-
JUDGE
Sd/- JUDGE sac*