SMT.SHANTAWWA W/O CHANDRAGOUDA PATIL vs. THE ASSISTANT COMMISSIONER

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 28TH DAY OF FEBRUARY 2020

PRESENT

THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

AND

THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR

M.F.A.NO.22060/2011 (MV); M.F.A.NO.22061/2011 (MV) & MFA CROSS OBJECTION NO.100006/2016 IN M.F.A.NO.22060/2011 (MV) IN M.F.A.NO.22060/2011 (MV) BETWEEN :

UNITED INDIA INSURANCE CO. LTD.,

REPRESENTED BY ITS MANAGER,

HAVING BRANCH OFFICE AT RAMDEV GALLI, BELGAUM, HEREIN REPRESENTED BY UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, MARUTI GALLI, BELGAUM, BY ITS AUTHORISED SIGNATORY … APPELALNT (BY SRI RAVINDRA R. MANE, ADVOCATE)

AND :

W/O LATE DR. VIJAYAKUMAR

DESHPANDE, AGE: 34 YEARS,

OCC: HOUSEHOLD,

R/O 705, 7TH FLOOR,

‘AMAR SAMRUDDHI’,

NEAR AKASHAWANI,

HADAPSAR, PUNE-411 028

D/O LATE DR. VIJAYAKUMAR

DESHPANDE, AGE: 9 YEARS,

OCC: STUDENT, R/O –DO-

D/O LATE DR. VIJAYAKUMAR

DESHPANDE, AGE: 5 YEARS,

OCC: STUDENT, R/O –DO-

RESPONDENT NOS.2 & 3 BEING MINORS

THEY ARE REPRESENTED BY THEIR NATURAL

GUARDIAN MOTHER RESPONDENT NO.1

SINCE DECEASED REP. BY R1 TO R3.

SINCE DECEASED REP. BY R1 TO R3.

S/O GAFFOOR, AGE: MAJOR,

OCC: BUSINESS,

R/O NO.35/15, 3RD MAIN ROAD,

NEW EXTENSION,

MADAVALAM HOSUR ROAD,

BANGALORE – 560 055

THROUGH ITS SIGNATORY RAJESH BAGGA,S/O AMARNATH BAGGA, GENERAL MANAGER,

FINANCE AND COMPANY SECRETARY,

VIMA NAGAR, NAGAR ROAD,

HAVING ITS OFFICE AT PUNE AT

91, SAKORE NAGAR, VIMAN NAGAR,

PUNE – 411 001. … RESPONDENTS (BY SRI VITTHAL S. TELI, ADVOCATE FOR R1-R3) *** THIS APPEAL IS FILED UNDER 173(1) OF MOTOR VEHICLES ACT, 1988 AGAISNT THE JUDGMENT AND AWARD DATED 29.11.2010 PASSED IN MVC NO.1999/2007 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, AWARDING COMPENSATION OF R.17,10,400/- WITH INTEREST @ 6% PA FROM THE DATE OF PETITION TILL REALISATION. IN M.F.A.NO.22061/2011 (MV) BETWEEN :

UNITED INDIA INSURANCE CO. LTD.,

REPRESENTED BY ITS MANAGER,

HAVING BRANCH OFFICE AT RAMDEV GALLI, BELGAUM, HEREIN REPRESENTED BY UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, TATA INDICA GALLI, BELGAUM, BY ITS AUTHORISED SIGNATORY … APPELALNT (BY SRI RAVINDRA R. MANE, ADVOCATE)

AND :

S/O RAGUVEER SARASWAL, AGE: 32 YEARS,OCC: DRIVER,

R/O QUARTERS NO.6/10,

EKTA VIHAR, NDA,

KHADAKWASLA, PUNE-411 023

S/O GAFFOOR, AGE: MAJOR,

OCC: BUSINESS,

R/O NO.35/15, 3RD MAIN ROAD,

NEW EXTENSION,

MADAVALAM HOSUR ROAD,

BANGALORE – 560 055 … RESPONDENTS (BY SRI VITTHAL S. TELI & MS. REBECCA SOLOMON ADVOCATE FOR R1) *** THIS APPEAL IS FILED UNDER 173(1) OF MOTOR VEHICLES ACT, 1988 AGAISNT THE JUDGMENT AND AWARD DATED 29.11.2010 PASSED IN MVC NO.2000/2007 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, AWARDING COMPENSATION OF R.67,464/- WITH INTEREST @ 6% PA FROM THE DATE OF PETITION TILL REALISATION.

IN MFA CROSS OBJECTION NO.100006/2016 IN M.F.A.NO.22060/2011 (MV)

BETWEEN :

W/O LATE DR. VIJAYAKUMAR

DESHPANDE, AGE: 39 YEARS,

OCC: HOUSEHOLD,

D/O LATE DR. VIJAYAKUMAR DESHPANDE,

5 AGE: ABOUT 14 YEARS,

OCC: STUDENT,

D/O LATE DR. VIJAYAKUMAR

DESHPANDE, AGE: ABOUT 11 YEARS,

OCC: STUDENT,

CROSS OBJECTORS NO.1 TO 3 ARE

R/O 705, 7TH FLOOR,‘AMAR SAMRUDDHI’,

NEAR AKASHAWANI,

HADAPSAR, PUNE-411 028

CROSS OBJECTOR NOS.2 & 3

MINOR R/BY MOTHER

CROSS OBJECTOR NO.1

SINCE DECEASED REP. BY

CROSS OBJECTOR NOS.1 TO 3 … CROSS OBJECTORS (BY SRI VITTHAL S. TELI & MS. REBECCA SOLOMON ADVOCATE FOR CROSS OBJECTORS)

AND :

REPRESENTED BY ITS MANAGER,

HAVING BRANCH OFFICE AT RAMDEV GALLI, BELAGAVI.

S/O GAFFOOR, AGE: MAJOR,

OCC: BUSINESS,

R/O NO.35/15, 3RD MAIN ROAD,

NEW EXTENSION,

MADAVALAM HOSUR ROAD,

BANGALORE – 560 055

REPRESENTED BY ITS MANAGER,

HAVING BRANCH OFFICE AT RAMDEV GALLI, BELAGAVI,

DIVISIONAL OFFICE, TILAK ROAD, PUNE-30.

THROUGH ITS SIGNATORY RAJESH BAGGA,

S/O AMARNATH BAGGA, GENERAL MANAGER,

FINANCE AND COMPANY SECRETARY,

VIMA NAGAR, NAGAR ROAD,

HAVING ITS OFFICE AT PUNE AT

91, SAKORE NAGAR, VIMAN NAGAR,

PUNE – 411 014. … RESPONDENTS (BY SRI RAVINDRA R. MANE, ADVOCATE FOR R1 & R3) *** THIS MFA CROB IN MFA NO.22060/2011 IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAISNT THE JUDGMENT AND AWARD DATED 29.11.2010 PASSED IN MVC NO.1999/2007 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE MFAs. AND MFA CROB ARE HEARD, RESERVED AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP SINGH YERUR, J., DELIVERED THE FOLLOWING:

7 JUDGMENT Miscellaneous First Appeal No.22060 of 2011 & MFA No. 22061/2011 are filed by the Insurer and the MFA Cross Objection No.100006/2016 in MFA No.22060/2011 is filed by the claimants, against the judgment and award dated 29.11.2010 in MVC No.1999/2007 & 2000/2007 passed by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Belgaum, (in short ‘the Tribunal’). 2. The brief facts of the case are: That on 30.12.2005 when one Vijayakumar Deshpande was traveling in TATA Indica Car bearing Registration No. MH-16 R-2684 from Hubli to Pune, and when the said car reached Kittur, a truck bearing Registration No. AP-02 T-0781, came in a rash and negligent manner endangering

8 the human life from the opposite side and dashed against the TATA Indica Car. Due to the said impact the said Vijayakumar Deshpande, sustained fatal injuries and died on the spot and the driver of the TATA Indica Car – Vijayakumar, sustained grievous injuries. He was initially shifted to Civil Hospital and later to Pune Hospital. The jurisdictional police registered a case. 3. The wife, children and parents of deceased Vijayakumar Deshpande, contending that the deceased was hale and healthy, aged 32 years as on the date of accident and a Veterinary Doctor by profession and working for M/s Japfa Comfeed Company Limited, drawing salary of Rs.38,800/- per month. The deceased was very loving and affectionate towards the parents, wife and children. Due to untimely death the wife and children suffered mental agony. They contend

9 that the deceased was the only bread earning member in the family, they lost their livelihood. Hence, they filed a claim petition before the Tribunal under Section 166 of the Motor Vehicle Act, 1988 claiming a total compensation in a sum of Rs.50,00,000/- (Rupees fifty Lakhs only) on account of death of deceased Vijayakumar Deshpande against the respondents. 4. So also, the driver of the TATA Indica Car – Vijayakumar contend that he was aged about 30 years as on the date of accident and a driver by profession and was driving TATA India Car, which met with an accident, in which deceased Vijayakumar Deshpande was traveling. He was appointed as a Driver in M/s Japfa Comfeed India Limited and his salary was Rs.12,000/- per month. He suffered fracture of right hand, injury on head and right leg. He was

10 inpatient for several days and to heal up the fractured injuries he was fixed with plates and screws. He contend that he suffered physical disability of 25% as stated by the Doctor as per Ex.P31. He contends that he has incurred heavy medical expenses. Hence, he has filed a claim petition before the Tribunal under Section 166 of the Motor Vehicle Act, 1988 claiming a total compensation in a sum of Rs.5,00,000/- (Rupees five Lakhs only) against the respondents. 5. On issuance of notice, the respondents entered appearance and contested the matter by filing their objections denying the age, occupation and income of the deceased person. They have also denied the income and other medical expenses of the Driver, who sustained injuries. They have also denied that there is no negligence and stated that the compensation

11 claimed is excessive and abnormal. They sought for dismissal of the claim petition. 6. In view of the fact that both the claim petitions arise out of the same accident the Tribunal clubbed both the claim petitions. In support of their case the claimants examined in all four witnesses as PW1 to 4 and got marked 42 documents marked as Ex.P1 to P42.

The respondents have not examined any witness on their behalf, but got marked the Insurance Policy at Ex.R1. 7. The Tribunal on careful consideration of the material on record came to a conclusion that the police have investigated the case and laid a charge sheet by holding that, the accident occurred due to the rash and negligent driving of the driver of the offending Car, and the same

12 belongs to the respondent – M/s Japfa Comfeed India Limited and therefore the claimants are entitled to be awarded compensation. 8. The Tribunal taking the income of the deceased at Rs.8,700/- per month and adopting the multiplier of 16, considering the age of the deceased and awarded a sum of Rs.16,70,400/- to the claimants under the head, loss of dependency. The Tribunal further awarded a sum of Rs.10,000/- each towards the loss of love and affection, loss of consortium, funeral expenses and loss of estate. In all, the Tribunal awarded a sum of Rs.17,10,400/- to the claimants in MVC No.1999/2007 with interest at the rate of 6% p.a. from the date of filing of the petition till its realization directing the respondent No.2 & 4 – Insurance Company to indemnify the same.

13 9. The Tribunal in MVC No.2000/2007 taking the income of the injured – claimant at Rs.3,000/- per month and adopting the multiplier of 17 considering the age of the injured claimant and awarded a sum of Rs.73,440/- under the head loss of future income. The Tribunal further awarded a sum of Rs.15,000/- towards medical expenses, Rs.9,000/- towards loss of earning during treatment and Rs.15,000/- towards injury, pain and agony. In all, the Tribunal awarded a sum of Rs.1,12,440/-. Out of which the Tribunal deducted 40% towards contributory negligence and awarded 60% of the said amount in a sum of Rs.67,464/-, with interest at the rate of 6% p.a. from the date of filing of the petition till its realization directing the respondent No.2 – Insurance Company to indemnify the same.

14 10. Aggrieved by the compensation awarded by the Tribunal in a sum of Rs.17,10,400/- and Rs. 67,464/- with interest at the rate of 6% pa from the date of petition till the actual realization of the award amount by the respondents, the respondent – Insurance Company filed MFA No.22060/2011 and MFA No.22061/2011 before this Court. 11. Aggrieved by the quantum of compensation awarded by the Tribunal in a sum of Rs.17,10,400/-, the claimants in MVC No.1999/2007, have preferred MFA Cross Objections No.100006/2016 in MFA No.22050/2011, seeking enhancement of the compensation awarded by the Tribunal due to the death of deceased Vijayakumar Deshpande.

15 12. It is also relevant to note here that the parents of the deceased, who were claimants before the Tribunal, died leaving behind the wife and daughters of the deceased as their legal representatives during the pendency of the appeals. 13. We have heard the learned counsel for the appellants and the learned counsel for the respondents. 14. The learned counsel for the appellant – Insurance Company strenuously contended that, the compensation awarded by the Tribunal is excessive considering the income of the injured claimant - Vijayakumar and the deceased – Dr. Vijayakumar Deshpande. He contends that the Tribunal has further erred in fastening the liability to indemnify the same on the Insurance Company.

16 The learned counsel for the appellant – Insurance Company would contend that though the driver of the car was alone charge sheeted for causing accident in question, the driver of the truck was no way responsible and that it was solely on the negligence on the part of the driver of the car, which caused death of deceased. Therefore, the entire liability to indemnify the entire compensation ought to have been fixed as against the driver of the car when the apportionment of negligence is in the ratio of 40:60 between the driver of the car and the truck. 15. The learned counsel for the appellant – Insurance Company further contended that, under Section 147 of the MV Act, in Insurance Company is not required to cover the risk of an employee of the owner of the vehicle and not covered under WC Act to carry in a private car. As such

17 occupant of a private car cannot be stated to be a third party. It is also contended that occupants of a private car under package policy, would not be covered if they are carried for hire or reward and therefore, the occupants would not be employees of the insured. Therefore, fastening of liability on the appellant – Insurance Company is erroneous and illegal. It is further contended that at the most the Insurance Company is liable to indemnify the injured to an extent of Rs.75,000/- and not to the full extent as held by the Tribunal. It is further contended by the learned counsel for the appellant – Insurance Company that, the Tribunal has committed grave error in rejecting the defense of the appellant with regard to collection of premium of Rs.188/- for covering five unnamed passengers in a sum of Rs.75,000/- per person.

18 Therefore, he sought for allowing the appeals filed by the appellant – Insurance Company. 16. Per contra, the learned counsel for the respondents – claimants, who are none other than Cross Objectors – claimants in MFA Cross Objection No.100006/2016 in MFA No.22060/2011, strenuously contend that the truck bearing Registration No.AP-02 T-0781, came from the opposite direction in a rash and negligent manner so as to endanger human life and dashed against the car and due to the impact the deceased – Vijayakumar Deshpande, who was an inmate of the Car, died on the spot. Further, the learned counsel contended that the Tribunal has partly allowed their claim petition, which is illegal and perverse. It is further contended that the wife of the deceased has lost her husband and his care, children have lost their father and his

19 love and affection, so also the parents have lost their son. It is further contended that the deceased was a Veterinary Doctor by profession, employed in M/s Japfa Comfeed India Limited and he was getting salary of Rs.38,800/- as gross salary and even if Rs.200/- was deducted towards his Professional Tax, the Tribunal ought to have calculated his salary at Rs.38,600/-. It is further contended that, they got examined PW3 before the Tribunal, who is none other than the employee of the said Company and produced several documents in support of the employment and salary drawn by the deceased, but, the same was not taken into consideration by the Tribunal while awarding just compensation. Therefore, he contends that, the Tribunal has erred considering the salary certificate and income tax records furnished by them pertaining to the deceased. It

20 is further contended that the Tribunal has awarded a meager compensation and not awarded requisite interest towards the same. Therefore, he sought for modification of the said order of the Tribunal and for enhancement of the same, claiming interest at the rate of 18% per annum.

21 to the claimants. Thus, the learned counsel prays to dismiss the appeals filed by the appellant – Insurance Company. 18. We have heard the submissions of the learned counsel for appellant – Insurance Company, the learned counsel for respondents as well as the learned counsel for Cross Objectors – claimants. Carefully perused the records. 19. It is seen that, there is no dispute with regard to the fact that the deceased – Vijayakumar Deshpande was employed with M/s Japfa Comfeed India Limited on regular employment. The dispute is with regard to the income of the deceased at that relevant point of time. No doubt, the Cross Objectors – claimants have produced the appointment letter, salary slip and the Form No.16, which are marked as exhibits

22 before the Tribunal. On careful analysis of Ex.P12, it is noticed that for the period from 01.01.2005 till 31.12.2005, the salary details are shown as Rs.2,38,470/-. On a break up, salary of the deceased comes to Rs.26,476/- per month. Therefore, on adding 40% as future prospects would come to Rs.37,094/-, which can be taken as salary of the deceased for calculation of the loss of dependency. The age of the deceased being 34 years at the time of the accident the proper multiplier is 16. Thus, the Cross Objectors – claimants would be entitled to a sum of Rs.71,22,048/- (Rs.37,094/- X 12 X 16) towards loss of dependency. The Cross Objectors – claimants being more than four persons on deduction of 1/4th towards personal expenses, the compensation to be awarded would come to Rs.17,80,512/-. Therefore, the Cross Objectors –

23 claimants are entitled to a sum of Rs.17,80,512/- towards loss of dependency as against a sum of Rs.16,70,400/- awarded by the Tribunal. 20. With regard to the loss of consortium, loss of estate and loss of love and affection and personal expenses, the Tribunal has awarded a sum of Rs.10,000/- each, which could not be appropriate in view of the judgment of the Hon’ble Supreme Court in the case of National Insurance Company v. Pranay Sethi and another reported in AIR 2017 SC 5157, where the Apex Court has held that the loss of consortium would be Rs.40,000/-, loss of estate would be at Rs.15,000/- and funeral expenses would be Rs.15,000/-. Further, in the said judgment there is a provision made for enhancement at the rate of 10% at the span of

24 three years. Therefore, applying the same ratio in the present case, the accident is of the year 2005 and hence 10% will have to be added towards the conventional head at Rs.70,000/-. Therefore, the amount awardable under conventional head would be Rs.70,000/- plus Rs.7,000/-, which is Rs.77,000/-. 21. Thus, the Cross Objectors – claimants are entitled to a sum of Rs.17,80,512/- towards loss of dependency and Rs.77,000/- towards conventional heads. In all, the Cross Objectors – claimants are entitled to Rs.18,57,512/- as against a sum of Rs.17,10,400/- awarded by the Tribunal. 22. With regard to the contentions and the award of the compensation by the Tribunal and apportionment of negligence with regard to the

25 driver of the truck and the car, wherein the Tribunal has apportioned 40% negligence on the part of the driver of the car and 60% negligence on the part of the driver of the truck. We do not find any reasons to interfere with the same. 23. Further, the learned counsel for the appellant – Insurance Company contended that 100% negligence has to be attributed towards the driver of the car, may not be acceptable in view of the fact that the truck being the bigger vehicle and it is trite law that bigger vehicle would be attributed with the higher responsibility while driving the vehicle, so also, in the present case the negligence attributed by the Tribunal is correct. We do not find fault with the same. Therefore, the contention of the learned counsel for the appellant – Insurance Company that 100% negligence ought to have been attributed towards

26 the driver of the car, is not acceptable and the same is rejected. 24. In view of the above, in our opinion, the award of Tribunal requires interference and hence, the said judgment is modified. The appeals filed by the appellant – Insurance Company is liable to be rejected and the Cross Objection filed by the Cross Objectors – claimants deserves to be allowed. With the above said observations, we proceed to pass the following order. ORDER a. The appeals in MFA No.22060/2011 and MFA No.22061/2011 are hereby dismissed. b. The MFA Cross Objection No.100006/ 2016 in MFA No.22060/2011 is partly allowed.

27 c. The claimants are entitled to the enhanced compensation in a sum of Rs.18,57,512/- as against Rs.17,10,400/- awarded by the Tribunal along with interest at the rate of 6% p.a., from the date of petition till the date of realization. d. Entire compensation amount with interest has to be paid by the respondent - Insurance Company, including any deposit already made, within six weeks from the date of this order. e. If the Insurance Company has deposited any amount before this Court, the same shall be transmitted to the Tribunal concerned.

28 f. On deposit of the said enhanced compensation amount, the wife of the deceased shall be entitled to 50% of the total compensation amount. The other two claimants, who are minor daughters shall be entitled to 25% each of the total compensation; g. Out of the aforesaid apportionment the entire 25% each to the minor children shall be kept in a fixed deposit in any nationalised bank till they attain the age of majority. With regard to wife of the deceased, 30% of her share shall be kept in a fixed deposit in any nationalised bank for a period of five years, which is renewable for another term of five years and the balance amount shall be released in her favour;

29 h. We do not want to disturb the other conditions imposed by the Tribunal.

Sd/- JUDGE

Sd/- JUDGE VK