BIGTEC INNOVATIONS PRIVATE LIMITED

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 26TH DAY OF FEBRUARY 2020

PRESENT

THE HON’BLE MR. JUSTICE ALOK ARADHE

AND

THE HON’BLE MR. JUSTICE RAVI V.HOSMANI

M.F.A. NO.2392/2014 C/W M.F.A. CROB. NO.22/2016 (MV)

M.F.A. NO.2392/2014

BETWEEN:

M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD NO.89, SVR COMPLEX II FLOOR, MADIVALA HOSUR ROAD BANGALORE-68.

.. APPELLANT (By Sri. B.C. SHIVANNE GOWDA, ADV.,)

AND:

SMT. PUSHPA W/O LATE DEENADAYALAN S AGED ABOUT 50 YEARS.

MR. KIRAN D S/O LATE DEENADAYALAN S AGED ABOUT 26 YEARS.

MASTER ARJUN D

S/O LATE DEENADAYALAN S AGED ABOUT 20 YEARS.

THIRD RESPONDENT MINOR AND REPRESENTED BY HIS MOTHER AND 1ST RESPONDENT ALL ARE R/A NO.219, 21ST BLOCK CPWD QUARTERS, KORAMANGALA BANGALORE-560034.

GOVINDAPPA B V S/O VENKATARAMANAPPA MAJOR R/O BETTANAHALLI VILLAGE HEGGANAHALLI POST DEVANAHALLI TALUK-562110 BANGALORE RURAL DISTRICT. ... RESPONDENTS (By Sri. VASANTH V. FERNANDES, ADV., FOR R1 TO R3 (ABSENT) Sri. P. MAHESHA, ADV., FOR R4 (ABSENT)) - - -

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2013 PASSED IN MVC NO.1259/2011 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.28,01,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

M.F.A. CROB. NO.22/2016

BETWEEN:

SMT. PUSHPA AGED ABOUT 50 YEARS.

MR. KIRAN KUMAR D AGED ABOUT 27 YEARS.

MASTER ARJUN D AGED ABOUT 21 YEARS.

CROSS OBJECTOR NO.1 IS THE WIFE NOS.2 & 3 ARE THE SONS OF LATE DEENADAYALAN .S FORMERLY R/AT NO.219, 21ST BLOCK CPWD QUARTERS, KORAMANGALA BANGALORE-560002 AND PRESENTLY R/AT NO.569 III CROSS, BHUVANESHWARI NAGAR MANORAYANA PALYA, R.T.NAGAR POST BANGALORE-560032. ... CROSS OBJECTORS (By Sri. VASANTH V. FERNANDES, ADV., (ABSENT))

AND:

M/S ICICI LOMBARD GENERAL INSURANCE CO.,LTD., REPTD. BY ITS MANAGER/AUTHORIZED OFFICER S.V.R.COMPLEX, MADIWALA BENGALURU-560 006 INSURER OF THE OFFENDED VEHICLE.

MR. GOVINDAPPA B.V. S/O VENKATARAMANAPPA, MAJOR R/O BETTANAHALLI VILLAGE HEGGANAHALLI POST DEVANAHALLI TALUK BANGALORE DISTRICT-5621110. ... RESPONDENTS (By Sri. B.C. SHIVANNE GOWDA, ADV., FOR R1 Sri. P. MAHESHA, ADV., FOR R2 (ABSENT) - - -

THIS M.F.A. CROB IN MFA NO.2392/2014 IS FILED UNDER ORDER 41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 16.11.2013 PASSED IN MVC NO.1259/2011 ON THE FILE OF THE MEMBER, MACT, 20TH ADDITIONAL SMALL CAUSE JUDGE, BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS M.F.A. COMING ON FOR HEARING AND M.F.A. CROB. COMING ON FOR ORDERS, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

JUDGMENT

MFA No.2392/2014 has been filed by ICICI Lombard General Insurance Co. Ltd. whereas MFA.Crob No.22/2016 has been filed by the claimants seeking enhancement of compensation against the judgment dated 16.11.2013 passed by the Motor Accident Claims Tribunal. Since the appeal and the cross objection arise out of the same accident, they were heard together and are being decided by this common judgment.

Facts giving rise to the filing of the appeal as well as the cross-objection briefly stated are that on 01.10.2010 deceased Deenadayalan S was returning from his office to his house at Koramangala via Cubbon Park on his TVS Moped bearing registration No.KA-04 EC-4186 and when the deceased reached the High Court junction at about 4.45 p.m. a Tata Sumo bearing registration No.KA-01 AC-33 which was being driven by its driver in a rash and negligent manner, dashed against the TVS moped of the deceased from behind. As

a result of the aforesaid accident, the deceased sustained grievous injuries. He was immediately shifted to hospital and eventually succumbed to the injuries. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was employed as a Senior Accountant in the office of the Accountant General and was getting gross salary of `24,983/- p.m. It was further pleaded that at the time of accident, he was aged 51 years. It was also averred that the accident took place on account of rash and negligent driving of the offending vehicle by its driver. In response to the notice, the respondent Nos.1 and 2 entered appearance and filed written statement. The respondent No.1 denied the averments made in the petition. However, it was admitted that the respondent No.1 Insurance Company had issued a policy of insurance in respect of the offending vehicle. However, it was further pleaded that the liability of the Insurance Company, if any, is subject to terms and conditions of

the policy. It was also denied that the accident took place due to rash and negligent driving of the Tata Sumo by its driver. The age, avocation and income of the deceased was also denied. The respondent No.2, in the written statement, inter alia, denied that the accident took place on account of the rash and negligent driving of the offending vehicle by its driver. It was further pleaded that the driver was holding a valid driving licence at the time of accident and the vehicle in question was insured with the respondent No.1 and in case any compensation has to be granted, the respondent No.1 is liable to pay the same.

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 the widow as PW-1 and two other witnesses namely Anil Kumar and R.Anand as PW-2 and PW-3 and got exhibited documents namely Ex.P1 to Ex.P20. The respondents examined the driver of the

Tata Sumo namely Govindappa and produced 4 documents which were marked as Ex.R1 to Ex.R4. The owner of the vehicle was also examined. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the Tata Sumo by its 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 `28,01,600/- along with interest at the rate of 6% p.a. In the aforesaid factual background, this appeal and cross objection have been filed.

Learned counsel for the Insurance Company has assailed the award only on the ground of compensation. While inviting the attention of this Court to paragraph 28 of the judgment, it is submitted that the Tribunal grossly erred in taking the prospective income of the deceased which he would have earned and grossly erred in quantifying the same at 45,326/-. It is further

submitted that the deceased, at the time of accident was drawing a salary of `24,983/- and the Tribunal ought to have deducted the amount of professional tax and amount of income tax from the salary payable to the deceased and ought to have calculated compensation accordingly.

On the other hand, learned counsel for the claimants submitted that the compensation awarded by the Claims Tribunal is on the lower side and seeks for enhancing the same.

We have considered the submissions made by the learned counsel for the parties and have perused the record. The only issue which arises for consideration is with regard to quantum of compensation. Admittedly, the deceased was employed as a Senior Accountant in the office of the Accountant General. From perusal of Ex.P12 to Ex.P20, it is evident that at the time of accident, the income of the deceased would be

`24,983/- and the deceased used to pay `9,632/- as income tax and `2,400/- as professional tax. After deduction of the aforesaid amount from the annual income of the deceased, the monthly income of the deceased comes to `23,980/-. In view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, to the aforesaid amount, 15% has to be added on account of future prospects. Thus, the monthly income comes to `27,577/-. Taking into account the number of dependants, we deem it appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly dependency comes to `18,384/-. Taking into account the age of the deceased, multiplier of 11 has to be adopted. The claimants are entitled to `24,26,688/- on account of loss of dependency. In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM’

2018 ACJ 2782, since the number of dependants is 3, they shall be entitled to `40,000/- each on account of loss of consortium and loss of love and affection, which comes to `1,20,000/-. In addition, they shall be entitled to `30,000/- on account of loss of estate and funeral expenses. Thus, the claimants are entitled to a total compensation of `25,76,688/-. 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. The amount in deposit is transmitted to the Tribunal for disbursement to the claimants. Accordingly, the appeal and the cross-objection are disposed of.

Sd/- JUDGE

Sd/- JUDGE RV