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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2021
PRESENT
THE HON’BLE MR.JUSTICE ALOK ARADHE
AND
THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.2946 OF 2016 (MV-D) C/W M.F.A. CROB NO.12 OF 2017 (MV-D)
IN MFA NO.2946/2016:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, MAHALAKSHMI CHAMBERS, M.G. ROAD, BENGALURU-560001. REP. BY ITS MANAGER MR. A.R. LAKSHMINARAYAN ...APPELLANT
(BY SRI. ANUP SEETHARAMA RAO, ADVOCATE FOR SRI. SEETHA RAMA RAO B.C., ADVOCATE )
AND:
SMT. P.VIJAYALAKSHMI AGED ABOUT 51 YEARS, W/O. D. SHRINIVASA REDDY,
2 2. MRS. D.S. SWETHA AGED ABOUT 40 YEARS, D/O. D. SHRINIVASA REDDY,
SRI. D.S. ABHIJITH AGED ABOUT 36 YEARS, S/O. D. SHRINIVASA REDDY,
ALL ARE RESIDENTS "SRINIVASA NILAYA" PRASHANTANAGAR, DEVARAYAPATNA, TUMKUR.
SRI. K.C. VENKATALAKSHMAMMA AGED ABOUT 55 YEARS, W/O. LATE D. SRINIVASA REDDY,
SMT. D.S. DHARMASHRI AGED ABOUT 17 YEARS, D/O. LATE D. SRINIVASA REDDY, SINCE MINOR, REP. BY HER MOTHER THE 4TH RESPONDENT HEREIN
NO.4 & 5 RESIDENTS OF "SREEVARU KRUPA" I MAIN, 8TH ‘A’ CROSS, HANUMANTHAPURA EXTENSION, TUMKUR.
SRI. VENUGOPAL REDDY MAJOR, S/O KONDURU NARAYANA REDDY, NO.120/2C/3, OPP: AGRICULTURAL MARKET, HINDUPUR, ANANTHAPUR DISTRICT (AP)
SMT. VARSHA RAJESH JOBANPUTRA MAJOR, W/O. SRI. RAJESH JOBANPUTRA, NO.4, ATHINI APARTMENT, PATEL & PADA,
3 DHANU ROAD, DHANU, THANA DISTRICT-401602.
THE BRANCH MANAGER UNITED INDIA INSURANCE CO., LTD., ‘KRISHNA KUNJ’, II FLOOR, BHAWAD BANCET, BARODA, DAHANU-401602. …RESPONDENTS
(BY SMT. NALINA, ADVOCATE FOR SRI. S.K. VENKATA REDDY, ADVOCATE FOR RESPONDENT NOS.1 TO 5; SRI. N.BYRE GOWDA, ADVOCATE FOR RESPONDENT NO.6 (NOC); SRI. A.N.KRISHNASWAMY, ADVOCATE FOR RESPONDENT NO.8; SERVICE OF NOTICE TO RESPONDENT NO.7 IS DISPENSED WITH VIDE COURT ORDER DATED 17.11.2017)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 21.12.2015 PASSED IN MVC NO.507/2003 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, TUMKUR, AWARDING COMPENSATION OF RS.39,55,500/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA CROB. NO.12/2017:
BETWEEN:
P. VIJAYALAKSHMI W/O. D. SHRINIVASA REDDY, AGED ABOUT 52 YEARS
D.S. SWETHA D/O. D. SHRINIVASA REDDY, AGED ABOUT 41 YEARS
D.S. ABHIJITH S/O. D.SHRINIVASA REDDY, AGED ABOUT 37 YEARS
4 CROSS-OBJECTORS 1 TO 3 ARE R/AT "SRINIVASA NILAYA", PRASHANTANAGAR, DEVERAYAPATNA, TUMAKURU-572 103.
K.C. VENKATALAKSHMAMMA W/O. LATE D. SRIVIASA REDDY, AGED ABOUT 56 YEARS
D.S. DHARMASHRI D/O. LATE. D. SRINIVASA REDDY, AGED ABOUT 17 YEARS, CROSS-OBJECTOR NO.5 IS MINOR, REPT. BY NATURAL GUARDIAN & MOTHER 4TH CROSS-OBJECTOR
CROSS OBJECTORS 4 & 5 ARE R/AT "SREEVARU KRUPA" 1ST MAIN, 8TH ‘A’ CROSS, HANUMANTHAPURA EXTENSION, TUMAKURU-572103. ...CROSS OBJECTORS
(BY SMT. NALINA, ADVOCATE FOR SRI. S.K. VENKATA REDDY, ADVOCATE)
AND:
THE BRANCH MANAGER NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, MAHALAKSHMI CHAMBERS, M.G. ROAD, BANGALORE-560001. REPT. BY ITS MANAGER MR. A.R. LAKSHMINARAYANA
VENUGOPAL REDDY S/O. KONDURU NARAYANA REDDY, AGE: MAJOR, R/O NO.120/2C/3,
5 OPP: AGRICULTURAL MARKET, HINDUPUR, ANANTHAPUR DISTRICT-515 201. STATE OF ANDHRA PRADESH
SMT. VARSHA RAJESH JOBANPUTRA W/O RAJESH JOBANPUTRA, AGE: MAJOR, R/AT NO.4, ATHINI APARTMENT, PATEL AND PADA, DHANU ROAD, DHANU, THANA DISTRICT-401 602 STATE OF MAHARASHTRA.
THE BRANCH MANAGER M/S. UNITED INDIA INSURANCE CO. LTD., KRISHNA KUNJ, 2ND FLOOR, BAWAD BANCENT, BARODA, DAHANU-401602 STATE OF MAHARASHTRA. …RESPONDENTS
(VIDE COURT ORDER DATED 23.12.2020, SRI. B.C.SEETHARAMA RAO, ADVOCATE FOR RESPONDENT NO.1)
THIS MFA CROB. IN MFA No.2946/2016 IS FILED UNDER ORDER 41 RULE 22 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND AWARD DATED 21.12.2015 PASSED IN MVC NO.507/2003 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL ALONG WITH MFA CROB. COMING ON FOR ADMISSION THIS DAY, NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
6 JUDGMENT
Though this appeal and cross-objection are listed for admission, as records are received from the Additional Motor Accident Claims Tribunal, the same are taken up for final disposal with the consent of the learned counsel for the parties.
MFA No.2946/2016 is filed by the appellant – insurer challenging the quantum of compensation awarded by the VI Additional District Judge and Additional Motor Accident Claims Tribunal, Tumakuru, (hereinafter referred to as ‘the Tribunal’) in MVC No.507/2003. MFA.Crob.No.12/2017 is filed by claimants seeking enhancement of compensation awarded by the Tribunal.
The appellant in MFA No.2946/2016 and its Branch Manager, who is arrayed as respondent No.1 in MFA.Crob No.12/2017 will henceforth be referred to as the ‘insurer’ of a scorpio car involved in the accident. Respondent Nos.1 to 5 in MFA No.2946/2016, who are cross-objectors in MFA.Crob. No.12/2017, will henceforth
7 be referred to as ‘claimants’. Respondent No.6 in MFA No.2946/2016, who is respondent No.2 in MFA.Crob No.12/2017 will henceforth be referred to as the ‘owner’ of the scorpio car involved in the accident.
The claim petition discloses that claimants are the legal representatives of Sri D. Srinivasa Reddy. It is stated that on 23.11.2002, the said Srinivasa Reddy along with Mr. Venugopala Reddy (respondent No.6 in MFA No.2946/2016) went to Mumbai to purchase a scorpio DLX car (henceforth referred to as ‘car’) for the latter from Mumbai. They took delivery of the car and were returning from Mumbai on 28.11.2002. At about 2:00 a.m., when they were near Engineering college on P.B. Road, Ranebennur, the driver of the said scorpio vehicle drove it in a rash and negligent manner and dashed against an oncoming goods tempo bearing registration No.MH-04-AG- 1339 (henceforth referred to as ‘tempo’). As a result of the impact, the said D. Srinivasa Reddy suffered injuries and died at the spot. Based on the complaint of the driver
8 of the offending vehicle, a case in Crime No.87/2002 was registered against the driver of the car for the offences punishable under sections 279, 338 and 304A of the Indian Penal Code. The claimants contended that the deceased was a contractor with Public Works Department (PWD) and possessed a Class-II contract licence, which was later upgraded to Class-I. They claimed that the deceased had filed his income tax returns for the year 2000-2001 and declared his annual income at Rs.4,49,148/- and for the assessment year 2001-02, he had declared an annual income of Rs.3,14,902/-. The claimants claimed that they were dependent on the deceased and hence, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) claiming compensation of Rs.75,00,000/- from the owner and insurer of the two vehicles i.e., car and tempo involved in the accident.
The owner of the car filed his written statement admitting that the deceased was a class-I PWD contractor. He also admitted that the deceased died in the
9 accident. He claimed that the car was insured by the insurer while the tempo was insured by the respondent No.8 in MFA No.2946/2016. Therefore, he contended that the respective insurer of car and tempo involved in the accident were liable to pay the compensation that may be determined by the Tribunal.
The insurer objected and contended that it was the driver of the tempo who was negligent and responsible for the accident. It also contended that it collected premium towards the personal accident cover in respect of a passenger and had limited its liability to an extent of Rs.20,000/- per head. Therefore, the appellant claimed that its liability was limited only to the extent of Rs.20,000/-.
Respondent No.8 in MFA No.2946/2016, who is insurer of tempo, also filed its objections contending that the driver of the car was negligent and that the same was evident from the abated charge sheet filed against the driver of the car. It also claimed that the driver of the
10 tempo did not possess a licence as on the date of the accident.
The claimant No.1 was examined as PW.1 and she examined a witness as PW.2 and marked documents as Exs.P1 to P37. Respondent No.8 in MFA No.2946/2016 examined its senior Assistant as RW.1. The insurer of car examined its senior assistant as RW.2 and owner of car was examined as RW.3 and they marked documents Exs.R1 to R4.
Based on the evidence adduced and the documents produced by the parties, the Tribunal held that the accident was due to the rash and negligent driving of the driver of the car and not the driver of the tempo and hence, held that both the owner and insurer of the car were liable to indemnify the claimants.
In so far as the quantum of compensation payable to the claimants is concerned, the Tribunal assessed the income of the deceased based on Ex.P14,
11 which was the order of assessment issued by Assistant Commissioner of Commercial Taxes, I circle, Tumakuru as well as the income tax returns for the year 2001-02 as per Ex.P19 and Ex.P20 and held that the income of the deceased could be assessed at Rs.25,000/- per month. Since the claimant was 43 years old and had bright chance of prospering in his career, the Tribunal factored 30% towards his future prospects and hence, held the notional income of the deceased at Rs.3,90,000/- per annum and after deducting income tax (Rs.19,000/-), it held that the annual income of the deceased was Rs.3,71,000/-. The Tribunal deducted 1/4th of the income of the deceased towards his personal expenses and awarded the following compensation:
Heads under which compensation awarded Amount (in Rupees) Love and affection 30,000/- Funeral and other expenses 10,000/- Loss of consortium 10,000/- Loss of estate 10,000/- Loss of dependency 38,95,500/- Total 39,55,500/-
12 11. In so far as the liability to pay the compensation is concerned, the Tribunal directed the owner and insurer of the car to pay the compensation determined by it.
Feeling aggrieved by the quantum of compensation awarded by the Tribunal and the liability to pay the entire compensation, the insurer of the car has filed this appeal.
The claimants have filed cross-objection for enhancement of the compensation awarded by the Tribunal.
We have heard the learned counsel for the insurer of the car as well as the claimants and we have perused the records of the Tribunal and its judgment and award.
The learned counsel for the insurer – appellant in MFA No.2946/2016 contended that the Tribunal ought not to have considered the income of the deceased at
13 Rs.25,000/- per month without there being any fresh evidence, as the Tribunal had earlier considered the income of the deceased at Rs.20,000/-. It also claimed that the Tribunal ought not to have considered the loss of future prospects at 30% of the actual income of the deceased as the deceased had a variable income from his contract work.
Per contra, the learned counsel for claimants contended that the Tribunal ought to have considered the income of the deceased at more than Rs.25,000/- per month as the deceased was a Class I contractor registered with the Public Works Department and had executed several construction contracts. They also contended that as per the judgment of the Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in 2018 (18) SCC 130 and in the case of United India Insurance Co. Ltd. vs Satinder Kaur @ Satwinder Kaur and others reported in 2020 SCC OnLine SC 410, they were entitled to loss of
14 consortium and loss of parental love and affection, which was not awarded by the Tribunal. Thus they prayed that, having regard to the benevolent objective of Section 166 of the Act, to exercise jurisdiction under Order XLI Rule 33 of the Civil Procedure Code to award the compensation for loss of consortium to the claimant Nos.1 and 4 and loss of parental consortium to claimant Nos.2, 3 and 5.
It is evident from the statement of the owner of car that it was the driver of the car who was negligent and responsible for the accident. The driver of the tempo who was driving the vehicle from the opposite direction had lodged a complaint against the driver of the car. Therefore, there is evidence on record to indicate that the driver of the car was responsible for the accident and the Tribunal was thoroughly justified in fastening the liability to pay the compensation on the appellant herein.
It is seen from the assessment orders at Exs.P16 and P18 as well as the income tax returns as per Exs.P19 and P20 that the deceased had a stable income
15 from his civil construction business. Ex.P10 is the licence of the deceased issued by the Chief Engineer, PWD. Ex.P18 indicates that the deceased had a turn over of Rs.56,14,355/- during the assessment year 01.04.2000 to 31.03.2001. Ex.P19 indicates the income of a sum of Rs.4,49,148/- from business and income tax of Rs.1,13,192/- was paid during the assessment year 2001- 02. For the assessment year 2002-03, his income from business came down to Rs.3,14,902/- and income from other sources was a sum of Rs.40,697/- and after payment of income tax of Rs.67,299/-, the annual income of the deceased was a sum of Rs.2,88,300/-. Hence the Tribunal was justified in accepting the monthly income of the deceased at a sum of Rs.25,000/-. The Tribunal had rightly held that the deceased had a fair chance of prospering in his career. However, in view of the Judgment of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in 2017 (16) SCC 680 had held that the loss of future prospects in respect of a person aged between 40 to 50 years should be
16 assessed at 25% and in the present case, has awarded 30%. But it is relevant to note that the deceased had left behind five dependants and in view of the law laid down by the Apex Court in the case of United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and others reported in 2020 SCC OnLine SC 410, the claimants were entitled to loss of consortium and loss of parental consortium, which was not awarded by the Tribunal. Hence, even assuming that the loss of future prospects had to be calculated at 25% of the actual income of the deceased, as loss of consortium and loss of parental consortium was not awarded by the Tribunal to claimants, in order to offset the same, the impugned Judgment and award is left undisturbed.
Hence the appeal, MFA No.2946/2016, filed by the insurer and the Cross objection, MFA.Crob. No.12/2017, filed by the claimants are dismissed.
17 20. The amount in deposit, if any, shall be transmitted to the Tribunal for disbursement to the claimants.
Sd/- JUDGE
Sd/- JUDGE
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