Loading judgment…
No AI summary yet for this case.
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2021
PRESENT
THE HON’BLE MRS. JUSTICE S. SUJATHA AND
THE HON’BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.No.5917/2018 (MV) c/w M.F.A.No.7264/2018 (MV)
IN M.F.A.No.5917/2018
BETWEEN:
THE FUTURE GENERAL INDIA INSURANCE COMPANY LIMITED NO.18/1, OLD NO.125/A 3RD FLOOR, ASHOKA PILLER ROAD 1ST BLOCK, JAYANAGAR BENGALURU - 560 082.
...APPELLANT
[BY SRI. O. MAHESH, ADVOCATE (VIDEO CONFERENCE)]
AND:
SRI. DINABANDHU SAHU AGED ABOUT 62 YEARS S/O. BHIKARI SAHU
SMT. KAMALA SAHU AGED ABOUT 52 YEARS W/O. DINABANDHU SAHU
BOTH ARE R/AT GHANTESWAR BIRIADIA POST BHARAD DISTRICT PASADENA, ORISSA - 756 129.
M/S. BAGAIRATHI TRAVEL SOLUTIONS PRIVATE LIMITED No.115, OUTER RING ROAD VIJAYA BANK COLONY DODDABANASADI BENGALURU - 560 043. ...RESPONDENTS
(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR C/R2 R1 AND R3 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.05.2018 PASSED IN MVC NO.1015/2016, ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, MEMBER, MACT-III, (SCCH-19), BENGALURU, AWARDING COMPENSATION OF RS.55,76,900/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN M.F.A.No.7264/2018
BETWEEN:
SRI. DINABANDHU SAHU AGED ABOUT 62 YEARS S/O. BHIKARI SAHU
SMT. KAMALA SAHU AGED ABOUT 52 YEARS W/O. DINABANDHU SAHU
BOTH ARE R/AT GHANTESWAR BIRIADIA POST BHARAD DISTRICT PASADENA ORISSA - 756 129.
...APPELLANTS
[BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE (VIDEO CONFERENCE)]
AND:
M/S. BAGAIRATHI TRAVEL SOLUTIONS PRIVATE LIMITED No.115, OUTER RING ROAD VIJAYA BANK COLONY DODDABANASWADI BENGALURU - 560 043.
FUTURE GENERALLI INDIA INSURANCE COMPANY LIMITED NO.18/1, OLD NO.125/A 3RD FLOOR, ASHOKA PILLAR ROAD 1ST BLOCK, JAYANAGAR BENGALURU - 560 082.
REPRESENTED BY ITS MANAGER ...RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR C/R2 R1 AND R3 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.05.2018 PASSED IN MVC NO.1015/2016, ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, MEMBER, MACT-III, (SCCH-19), BENGALURU, AWARDING COMPENSATION OF RS.55,76,900/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:
J U D G M E N T
Challenging the impugned judgment and award dated 22.05.2018 passed in MVC No.1015/2016 by the XV Addl. Judge, & MACT Mayo hall Unit, Bengaluru (SCCH-19), (hereinafter
4 referred to as ‘Tribunal’ for short) insurer and claimants are in appeal.
MFA No.5917/2018 is filed by insurer for setting aside judgment and award passed by the Tribunal; whereas MFA No.7264/2018 is filed by claimants seeking for enhancement of compensation.
Brief facts of the case are that on 13.01.2016, at about 10.15 p.m. Karthik Chandra Sahu was proceeding on motorcycle bearing registration No.KA-03/JB-5828, from Vydehi Hospital road towards Nallurahalli, at that time bus bearing registration No.KA-51/A-5751 driven by its driver in rash and negligent manner, dashed against motorcycle. The left rear wheel of the bus ran over Karthik. He died on the way to hospital. As on date of accident, Karthik was 29 years of age, working as software engineer in Business Services India Pvt. Ltd., earning Rs.8,65,638/- per annum. Alleging loss of dependency due to his untimely death, claimants filed claim petition under Section 166 of the M.V. Act, against owner and insurer of the bus claiming compensation of Rs.2,00,00,000/-.
5 4. On service of summons, respondent No.1 - owner denied claim petition averments and stated that vehicle was insured with respondent No.1 and that driver of the bus had valid and effective driving licence. Respondent No.2- insurer opposed the claim petition on the ground of negligence as well as liability. It was contended that accident occurred on account of negligence of deceased himself and in addition, it was contended that there was violation of terms and conditions of the policy. Therefore, sought for dismissal of claim petition.
Based on pleadings, tribunal framed following issues: 1) Whether petitioners prove that, on 13.01.2016 at about 10.15 p.m., when the deceased was riding in his motor cycle bearing Registration No.KA-03/JB-5828 proceeding on Nallurahalli Main Road from Vydehi Hospital road towards Nallurahalli on the extreme left side when reached near Anjaneya Temple, the driver of the Bus bearing Registration No.KA-51/A-5751 drove the same in a rash and negligent manner endangering human life without following any traffic rules came at a high speed and dashed against motor cycle of the deceased as a result the deceased fell down and sustained grievous injuries?
6 2) Whether the Petitioners prove that they are the legal heirs of deceased Kartik Chandra Sahu?
3) Whether the Petitioner is entitled for compensation? If so, how much and from whom?
4) What award/order?
In support of the claim petition, claimant no.1 examined as P.W.1. An official of the employer of deceased was also examined as P.W.2. Exs.P.1 to P.39 were marked. Respondents examined four witnesses as RWs.1 to RW4 and got marked Exs.1 to R.4.
On consideration, tribunal answered issue nos. 1 and 2 in affirmative; issue no.3 partly in affirmative and issue no.4 by allowing claim petition in part awarding compensation of Rs.55,76,900/- with interest at 9% against respondents No.1 and 2.
Aggrieved by the award, insurer has filed MFA No.5917/2018 on negligence, liability and quantum; while claimants have filed MFA No.7264/2018 seeking enhancement of compensation.
7 9. Shri O. Mahesh, learned counsel for appellant/insurer submitted that accident occurred on 13.01.2016, but complaint was filed on 14.01.2016. Ex.P.6 - Motor Vehicle Inspector’s report reveals damages caused to right side of motorcycle. It is claimants case that both vehicles were moving in same direction, therefore damages to right side of motorcycle indicate that Karthik (deceased) attempted to overtake the bus from its left side. It was further contended that Ex.P.4 - spot sketch does not ear signature and the vehicles were not at the accident spot when it was drawn. It was further contended that driver of the insured vehicle was acquitted in criminal case, due to non- appearance of complainant. Relying upon decision of the Hon’ble Supreme Court in the case of Machindranath Kernath Kasar Vs. D.S. Mylarappa & Ors., reported in (2008) 13 SCC 198, it was submitted that driver of offending vehicle, who was a necessary party was not arrayed by claimants and therefore, award was unsustainable. It was further contended that permit granted to insured vehicle did not authorise it, but prohibit it to ply within limits of BBMP, but, accident occurred within limits of BBMP.
8 In order to overcome the same, claimants got the permit tampered in collusion with officials of the RTO. The correction carried out was on 29.05.2017; whereas accident occurred on 13.01.2016. The official, who made corrections was examined as RW.4. He admitted that correction was without
any endorsement of higher officials. In view of the above, there was violation of permit conditions absolving liability of insurer.
On quantum of compensation, it was submitted that appointment letter of deceased - Ex.P.33 indicates “performance Linked Bonus Plan’ upto 10% of annual gross salary. Therefore, addition of 40% towards future prospects was unjustified. It was further submitted that as per Rule (3)(a) and (b) of Karnataka Motor Vehicles Rules, 1989, claimants would be entitled to interest only from date of production of documents i.e., medical certificate or post-mortem report or death certificate and FIR in respect of accident and not from the date of claim petition. It was further contended that award of rate of interest at 9% p.a. was excessive. On the above grounds, learned counsel sought for allowing insurer’s appeal and dismissal of claimants appeal.
9 11. On the other hand, Shri. K.T. Gurudev Prasad, learned counsel for claimants submitted that Ex.P.13 - spot mahazar mentions both vehicles were available at the accident spot at the time of drawing of mahazar as well as spot sketch. Ex.P.4 - Spot sketch shows that deceased Karthik was moving on left side of road and driver of offending bus moved from centre of the road towards left and thereby dashed against motorcycle of deceased causing accident. Hence, finding of tribunal regarding negligence does not call for interference. Insofar as alteration of permit conditions, RW.4 - First Division Assistant working at RTO office, who made corrections, deposed that corrections were made after noting error committed while stipulating geographical area. Permit was issued for plying the vehicle within Bengaluru Urban District, but due to inadvertence the word ’excluding BBMP limits’ were added. As entire area of Bengaluru Urban District falls within limits of BBMP, the exclusion column would render the permit nugatory. Upon noticing the same, it was corrected. As the accident spot was within limit, contention of insurer regarding permit violation was superfluous.
10 On quantum of compensation, it was submitted that tribunal erred in not considering gross income of deceased. Enhancement was also sought under conventional heads.
From the above submission, occurrence of the accident, leading to death of Karthik is not in dispute. Issuance of insurance policy and its validity as on date of accident is also not in dispute. While insurer is challenging award on negligence, liability as well as quantum, claimants are seeking for enhancement of compensation while sustaining award insofar as negligence and liability. Therefore, the points that arise for our consideration in this appeal are viz.,: i) Whether the finding of the Tribunal on issues No.1 and 2 are justified? ii) Whether the assessment of compensation by the tribunal calls for modification as sought for? iii) Whether the interest granted by the tribunal at 9% per annum is justified?
Point No.1: In order to establish that accident occurred on account of rash and negligent driving of driver of the bus, claimants have produced FIR, complaint, spot mahazar, spot sketch, inquest panchanama, Motor Vehicle Inspector’s
11 report, post - mortem report and charge sheet marked as Exs.P1 to P.8 respectively. Though, it is sought to be contended by insurer that damages noted on right side of motorcycle indicate that motorcyclist attempted to overtake the bus from left side. Ex.P.3 - spot mahazar indeed indicates presence of vehicle at the accident spot and contents of Ex.P.4 - sketch of accident spot indicate that offending bus moved from center of road towards left side. While deceased was riding his motorcycle on the left side of road, in that process came in contact with motorcycle of deceased, which was going on left side of road. Therefore, there is no substance in the insurer’s challenge. Further there is no attempt by insurer to examine driver of the bus to establish that there was no negligence on the part of driver. It has been held by the Hon’ble Supreme Court in the case of Anitha Sharma & Others Vs. New India Assurance Company Limited and Another, strict rules of evidence do not apply to motor vehicle accident cases and that standard of proof would be preponderance of probabilities. As the police investigation records impute negligence against driver of bus, evidence on record was sufficient for the finding given by the
12 tribunal. Said finding cannot be said to be either capricious or perverse and hence does not call for interference. Insofar as correction made to Ex.R.14 - permit having been explained by RW.4 - official of road transport authority and deceased, in any case, being third party, challenge to the award on the ground of violation of permit conditions would not hold good as against third party. Thus, there is no ground to interfere with award of tribunal. Point no.1 is answered in the affirmative.
Point No.2: This is a claim for loss of dependency. In order to establish earning capacity, claimants have produced marks card of the deceased for having passed SSLC, PUC and Bachelors Decree in Computer Science as per Ex.P.15, P.26 and P.21 respectively. They have also produced copy of appointment letter as per Ex.P.22 and salary slips along with bank statement copies as per Ex.P.23 to P.27 respectively. In support of the same, they have also examined PW.2 on behalf of the employer. PW.2 corroborated claimants evidence that deceased Karthik was working as a Senior Software Engineer and was being paid salary of Rs.68,416/-p.,m. as on December 2015 and he was also getting additional amounts towards bonus benefits. Though,
13 witness has been cross-examined, nothing was elicited to cast serious doubt about occupation and income of deceased. Accident occurred on 13.01.2016, the Salary certificate - Ex.P.25 for the month of December 2015 indicates gross salary of deceased at Rs.68,416/- and deduction of a sum of Rs.1,128/- towards income tax and Rs.200/- towards professional tax. However, if monthly income of deceased was Rs.68,416/-, annual income would be Rs.8,20,992/-. For the year 2015-2016 Rs.2,50,000/- was exempted income. Tax at Rs.10% on the income in excess of Rs.2,50,000/- upto to Rs.5,00,000/- was applicable and thereafter at 20% on the remainder. Total Gross Income Rs.8,20,992/- Total Income not exceeding `2,50,000/- Nil
Total Income exceeding `2,50,000/- but not exceeding `5,00,000/- 10% of the amount exceeding `2,50,000/- `25,000/- Total Income exceeding `5,00,000/- but not exceeding `10,00,000/- 20% of the amount exceeding `5,00,000/- `64,198/- Total Tax `89,198/ `89,198/ `89,198/ `89,198/-
In addition, a sum of Rs.2,400/- has to be deducted towards professional tax. Thus, income for the purpose of calculation of ‘loss of dependency’ would be Rs.8,20,992 - 89,198 = Rs.7,29,394/- after deducting income tax and professional tax.
The deceased was a bachelor, aged about 29 years and in private service. Claimants are parents. As per the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. -v- Pranay Sethi and Others, reported in AIR 2017 SC 5157, multiplier applicable would be ‘17’ and future prospects at 40% has to be added and ½ has to be deducted towards personal expenses. Thus, loss of dependency would be Rs.7,29,394 + 40% - ½ X 17=Rs.86,79,788/-. As per the decision of the Hon’ble Supreme Court in United India Insurance Company Limited Vs. Satinder Kaur & Others, reported in AIR 2020 SC 3076, claimants would be entitled to Rs.40,000/- each towards parental consortium and Rs.15,000/- towards funeral expenses and towards Rs.15,000/- loss of estate. As more than three years have lapsed since rendering of decision in Pranay Sethi’s case (supra), 10% has to be added towards award under conventional heads i.e., 1,10,000/-(80,000 + 30,000/-) + 10% = Rs.1,21,000/-. Therefore, total re-assessed compensation is as follows:
Loss of dependency Rs.86,79,788/- 2. Conventional heads Rs.1,21,000/- Total Rs.88,00,788/-
15 Accordingly, point no.2 is answered in the affirmative as above. Claimants are entitled to a total reassessed compensation of Rs.88,00,788/- as against Rs.55,76,900/- awarded by the tribunal. 15. Point No.3: The tribunal has awarded interest at the rate of 9% p.a. on the compensation. No special or specific reasons are assigned. In fact, rate of interest on term deposits has come down and this Court has been consistently awarding interest at the rate of 6% p.a. in motor accident cases. Hence, award of interest at 9% per annum cannot sustained. It is reduced to 6% per annum. Point No.3 is answered accordingly.
Hence, the following: ORDER i) MFA No.5917/2018 filed by the insurer is allowed in part insofar as the rate of interest is concerned.
ii) The rate of interest awarded by the Tribunal at 9% per annum on the determined compensation amount is modified and reduced
16 to 6% per annum from the date of petition till its realization.
iii) MFA No.7264/2018 filed by the claimants is allowed in part.
iv) The total compensation awarded by the Tribunal is modified and enhanced to Rs.88,00,788/- (Rupees Eighty Eight Lakhs Seven Hundred and Eighty Eight only) as against Rs.55,76,900/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.
v) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
vi) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
17 vii) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
viii) Draw modified award accordingly.
ix) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.
Sd/- JUDGE
Sd/- JUDGE
Psg*