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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER 2020
PRESENT
THE HON’BLE MR.JUSTICE ALOK ARADHE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD MFA NO.543 OF 2017(MV)
BETWEEN:
The New India Assurance Co. Ltd., Vellore Branch, Officers Line, CSI building, Vellore-632 001.
Through its Regional Office, The New India Assurance Co. Ltd., Mahalakshmi Chambers, M.G. Road, Bengaluru-560 001. Rep. by its Manager, Mr.A.R.Lakshminarayan.
…. Appellant (By Sri.Lakshminarasaiah, Adv. for Sri. B.C.Seetharama Rao, Adv.)
AND
Sri. T.G.Hegde,
Aged about 67 years,
S/o B.A.Hegde.
2 2. Smt. Vinoda G.Hegde,
Aged about 63 years,
W/o Sri. T.G.Hegde.
Both are resident of “PRAJWAL”
LIC Colony Road,
Moodanidamboor Village,
Kadbettu, Udupi-576101,
Udupi District.
Sri. K.Velmurugan, Major,
S/o Kandasamy,
Resident of Main Bazaar,
Anaicut Post, Vellore,
T.K.District, Tamilnadu-632001.
(Owner of Mini Bus No.TN-23/N-0417).
Sri. V. Manoharan,
Aged about 41 years,
S/o Mr. Velu,
Resident of Beemanathapuram Village,
Kalanipakkam,
Pallikonda, Vellore-632001.
(Driver of Mini Bus No.TN-23/N-0417)
Sri. M.Vasudeva Adiga, Major,
S/o Sri. Krishna Adiga,
Occ: Senior Manager,
Syndicate Bank,
R/at MF/47/5, I Floor,
Syndicate Bank Quarters,
Nandini Layout, Bangalore-560 096.
(Owner of Car No.KA-19/Z-1547).
Royal Sundaram Alliance Insurance Co.,
Sundaram Towers,
46, Whites Road, Royapettah,
Chennai-600014.
(Insurer of Car No.KA.19/Z-1547).
…Respondents (By Sri. O.Mahesh Adv. for R6: Sri.Chandrashekar, Adv. for R1 & R2: R3 & R4 are served, Notice to R5 is held sufficient v/o dated:29.03.2019)
This MFA is filed under section 173(1) of MV Act against the judgment and award dated:09.09.2016 passed in MVC No.1221/2009 on the file of the Additional Senior Civil Judge and Additional MACT, Udupi, awarding compensation of Rs.1,06,80,160/- with interest @ 6% p.a. from the date of petition till the date of realization.
This MFA coming on for admission, through video conference, this day, H.T. Narendra Prasad J., delivered the following:
JUDGMENT This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the insurance company being aggrieved by the judgment dated 09.09.2016 passed by the Motor Accident Claims Tribunal.
Facts giving rise to the filing of the appeal briefly stated are that on 01.05.2009 at about 9.30 a.m. deceased Prajwaldeep Hegde was traveling from Bangalore to Pondicherry along with his friends in a car bearing registration No.KA-19/Z-1547. When the car reached Kingine Amman Temple next to Pallikonda in Ambur towards Vellore a mini bus bearing registration No.TN-23/N-0417 which was being driven by its driver in a rash and negligent manner, without giving any signal suddenly took U turn and the car driver dashed on the right hind portion of the mini bus, resulting in the accident. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries at the hospital.
The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 27 years at the time of accident and was
5 employed in CISCO, a reputed software company and was earning Rs.7,70,000/- p.a. The claimants claimed compensation to the tune of Rs.1,41,00,000/- along with interest.
On service of summons, the respondent Nos.2, 4 and 5 have appeared and filed written statement in which the averments made in the petition were denied. It was pleaded by respondent No.4 that the driver of the mini bus is responsible for the accident. It was further pleaded that the car was duly insured. It was pleaded by respondent No.2 that the driver of the car is responsible for the accident. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. It was pleaded by the respondent No.5 that there is no negligence on the part of the driver of the car. Hence, they sought for dismissal of the petition. The
6 respondent Nos.1 and 3 did not appear inspite of service of notice and were placed ex-parte.
On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 – mother of the deceased as PW-1, friend of the deceased as PW- 2, employer of the deceased as PW-3 and father of the deceased as PW-4 and got exhibited 17 documents namely Ex.P1 to Ex.P17. On behalf of respondents, one private investigator from the insurance company was examined as RW-1, driver of the mini bus was examined as RW-2 and the officer of the insurance company was examined as RW-3 and got exhibited documents namely Ex.R1 to Ex.R8(a). The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the mini bus by its
7 driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.1,06,80,160/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal has been filed by the insurance company.
The learned counsel for the insurance company has raised the following contentions: Firstly, the accident has occurred due to the rash and negligent driving of the driver of the car, but the Tribunal has wrongly held that the accident has occurred due to the rash and negligent driving of the mini bus. The Tribunal has erred in appreciating the defence evidence of the driver of the mini bus and spot mahazar. Even as per the IMV report at Ex.P2 the car is damaged. It is very clear that the driver of the car was riding the car at a high speed and dashed the mini bus from behind.
8 Secondly, the Tribunal while assessing the income of the deceased for the purpose of calculation of ‘loss of dependency’ has not deducted income tax and professional tax.
Thirdly, as per the law laid down by the Hon’ble Supreme Court in the case of ‘NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards ‘future prospects’ should be the warrant where the deceased was below the age of 40 years, but contrary to the aforesaid judgment the Tribunal has erred in considering addition of 50% towards future prospects.
Hence, the learned counsel appearing for the insurance company prays for allowing the appeal.
9 7. On the other hand, learned counsel appearing for the respondent No.6 submits that the Tribunal on the basis of the evidence of the parties and the documents produced has rightly given a finding that the accident has occurred due to the rash and negligent driving of the driver of the mini bus.
The learned counsel appearing for the claimants submits that on the basis of the evidence of the parties and the documents produced by the claimants the Tribunal has granted a just and reasonable compensation. Hence, they sought for dismissal of the appeal.
We have considered the submissions made by the learned counsel for the parties and have perused the records.
10 10. It is not in dispute that deceased died in the accident that occurred between the car and the mini bus. On going through the spot mahazar as per Ex.R6, we find that it is a junction and the driver of the bus, before taking U turn would have observed the car coming and as the driver of the bus was very near to the junction he could have stopped the bus to avoid the accident. Even the police have filed FIR against the driver of the mini bus and after investigation charge sheet has been filed against the driver of the mini bus. On going through the evidence of the parties and the documents produced, it is very clear that the accident has occurred due to the rash and negligent driving of the driver of the bus. Even the respondents before the Tribunal have not elicited any adverse information in the cross-examination of PW-1, RW-2, RW-3 and PW-2. All these documents and the evidence discloses that the accident has occurred due
11 to the rash and negligent driving of the driver of the mini bus. Therefore, the Tribunal has rightly held that the driver of the mini bus is negligent and responsible for the occurrence of the accident.
In respect of quantum of compensation is concerned, the income of the deceased taken by the Tribunal at Rs.69,053/- per month is not in dispute. But the income has to be taken after deducting income tax and professional tax. Accordingly, if Rs.200/- per month is deducted towards professional tax, the monthly income comes to Rs.68,853/- and annual income comes to Rs.8,26,236/-, out of which income tax has to be deducted at 10% and the annual income comes to Rs.7,43,613/-.To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the annual income comes to
12 Rs.10,41,058/-, out of which, since the deceased was a bachelor, we deem it appropriate to deduct 50% towards personal expenses and therefore, the annual income comes to Rs.5,20,529/-. The deceased was aged about 27 years at the time of the accident and multiplier applicable to his age group is ‘17’. The claimants are entitled to Rs.88,48,993/- (Rs.5,20,529*17) on account of ‘loss of dependency’. In view of the law laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM’ 2018 ACJ 2782, claimants who are parents of the deceased are entitled for compensation of Rs.40,000/- each under the head ‘loss of filial consortium’ . In addition, the claimants are entitled to Rs.15,000/- on account of ‘loss of estate’ and Rs.15,000/- on account of ‘funeral expenses’.
13 12. Thus, the claimants are entitled to the following compensation:
Compensation under different Heads
Amount in (Rs.) Loss of dependency 88,48,993 Funeral expenses 15,000 Loss of estate 15,000 Loss of Filial consortium 80,000 Total 89,58,993
The claimants are entitled to a total compensation of Rs.89,58,993/-. The appellant Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
14 The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, the appeal is allowed-in-part.
Sd/- JUDGE
Sd/- JUDGE
Cm/-