Partly allowed

The Oriental Insurance Co.Ltd., v. Smt Bharathi N

Karnataka HC17 Nov 2020MFA/1883/2020

Case brief

AI extract

What is this about?

The High Court, in two Motor Accident Cases pending together, assailed the manner in which the tribunal had determined the monthly income of the deceased. The Court held the insurer's defense correct and the claimant's argument for income tax returns lacking corroboration, determining a lower monthly income instead and reducing the total compensation accordingly.

What did the court decide?

Total compensation reduced to Rs.27,58,000/- with interest at 6% p.a. from date of petition; Claimant's appeal dismissed; Insurer's appeal allowed in part.

The Oriental Insurance Co.Ltd., Vs Smt Bharathi N — Insurance | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 17^TH DAY OF NOVEMBER, 2020

¶3

PRESENT

¶4

THE HON’BLE MRS.JUSTICE S.SUJATHA

¶5

AND

¶6

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶7

M.F.A.No.2712/2020 c/w M.F.A.No.1883/2020 (MV)

¶8

IN M.F.A.No.2712/2020:

¶9

BETWEEN :

¶10

SMT.BHARATHI N., W/O LATE NAGESWAR RAO AGED 61 YEARS, R/O NO.75, SHIVA NILAYA, 10^TH MAIN, 5^TH CROSS, JNANAJYOTHI NAGAR, MALLATHA HALLI, BANGALORE-560 056 ...APPELLANT

¶11

(BY SRI A.MUTHURAJU & SRI S.KASINAGALINGAM, ADVS.)

¶12

AND :

¶13

1 . D.NAVEEN S/O V.DHANKSHNAMOORTHY MAJOR, VDM BUS SERVICES, SLSBS NO.14, BALAJI ROAD, 1^ST KRISHNA NAGAR BANGALORE ROAD, MULLIPALAYAM, VELLORE-632001, TAMIL NADU.

¶14

V.KRISHNAMOORTHY, S/O B.VENKATAKRISHNAN, MAJOR, DRIVER, 1-88, PILLAIYAR KOIL STREET, KEEZHABOOTHERI VILLAGE, KUNNAPAKKAM POST, TINDIVANAM-604101, TAMILNADU.

¶15

¶16

THE ORIENTAL INSURANCE CO. LTD., OLD NO.29/B, NEW NO.238, JUMBUBALA COMLPLEX, 1^ST FLOOR, VELLORE-632004, TAMIL NADU.

¶17

SUDHAKAR M., S/O MADHIVANAN K., AGED ABOUT 41 YEARS, R/O No.1/133, ESWARAN KOIL STREET, MUGALIVAKKAM, PORUR, CHENNAI-600116, TAMILNADU.

¶18

UNITED INDIA INSURANCE CO. LTD., F-1, EKAMBARA NAICKAR COMPLEX, No.20, ARCOT ROAD, PORUR,

¶19

KANCHIPURAM-600116, TAMILNADU. …RESPONDENTS

¶20

(BY SMT.HARINI SHIVANANDA, ADV. FOR R-3; SRI P.B.RAJU, ADV. FOR R-5;

¶21

VIDE COURT ORDER DATED 17.11.2020 NOTICE TO R-1, R-2 & R-4 ARE DISPENSED WITH.)

¶22

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2019 PASSED IN MVC No.4116/2016 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶23

IN M.F.A.No.1883/2020:

¶24

BETWEEN :

¶25

THE ORIENTAL INSURANCE CO. LTD.,

¶26

OLD NO.29/B, NEW NO.238, JUMBUBALA COMLPLEX, 1^ST FLOOR, VELLORE-632004 NOW REP. BY ITS MANAGER REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD, BANGALORE-560025. ...APPELLANT

¶27

(BY SMT.HARINI SHIVANANDA, ADV.)

¶28

¶29

AND :

¶30

SMT.BHARATHI N., W/O LATE NAGESWAR RAO, MAJOR, R/O NO.75, SHIVA NILAYA, 10^TH MAIN, 5^TH CROSS, JNANAJYOTHI NAGAR, MALLATHA HALLI, BANGALORE-560 056

¶31

2 . D.NAVEEN S/O V.DHANKSHNAMOORTHY MAJOR, VDM BUS SERVICES, SLSBS NO.14, BALAJI ROAD, 1^ST KRISHNA NAGAR BANGALORE ROAD, MULLIPALAYAM, VELLORE-632001

¶32

V.KRISHNAMOORTHY, S/O B.VENKATAKRISHNAN, MAJOR, DRIVER, 1-88, PILLAIYAR KOIL STREET, KEEZHABOOTHERI VILLAGE, KUNNAPAKKAM POST, TINDIVANAM-604101.

¶33

SUDHAKAR M., S/O MADHIVANAN K., AGED ABOUT 41 YEARS, R/O No.1/133, ESWARAN KOIL STREET, MUGALIVAKKAM, PORUR, CHENNAI-600116.

¶34

UNITED INDIA INSURANCE COMPANY LTD., F-1, EKAMBARA NAICKAR COMPLEX, No.20, ARCOT ROAD, PORUR, KANCHIPURAM-600116 …RESPONDENTS

¶35

(BY SRI A.MUTHURAJU & SRI S.KASINAGALINGAM, ADVS. FOR R-1;

¶36

VIDE COURT ORDER DATED 17.11.2020 NOTICE TO R-2 TO R-5 ARE DISPENSED WITH.)

¶37

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2019 PASSED IN MVC No.4116/2016 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND ACMM AND MEMBER, ADDITIONAL MACT, BENGALURU (SCCH-7), AWARDING COMPENSATION OF Rs.33,90,000/- WITH FUTURE

¶38

¶39

INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF ENTIRE AMOUNT.

¶40

THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

¶41

J U D G M E N T

¶42

Both the claimant as well as the Insurance

¶43

Company are in appeal challenging the judgment and award dated 31.10.2019 in MVC No.4116/2016 on the file of the IX Additional Small Causes and Additional MACT, Bangalore (SCCH-7) ['Tribunal' for short].

¶44

The claimant preferred petition under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short] claiming compensation for the death of N.Jagadish in the road traffic accident which occurred on 19.01.2016.

¶45

It was averred in the claim petition that on

¶46

19.01.2016 at about 5.45 a.m., when the deceased along with his two friends was traveling from Chennai to Bengaluru in his another friend’s Hyundai Accent Silver

¶47

¶48

colour Car bearing registration No.TN-04-AE-9063, met with the road traffic accident owing to the rash and negligent driving of the driver of VDM Bus bearing registration No.TN-51-F-7836 [offending vehicle] when the driver of the said car reached near Vallar bus stop on the Chennai-Bengaluru highway at Vellore, Tamilnadu. It was averred that the bus while over taking the car from the left side without indication dashed against the left side portion of the car. Due to which the car was hooked on to the offending vehicle and was dragged out of control. On the driver of the car applying the brake both the front tyres of the car were burst and the left side of the car was impacted with damages. As a result, N.Jagadish – the occupant of the car sustained grievous head injuries. He was shifted to CMC hospital. He succumbed to the injuries while taking treatment in the ICU of the said hospital.

¶49

It was contended that the deceased was working as a Public Relation Officer for the Tamil

¶50

¶51

leading Cine artist Sri.M.S.Vijay alias Atharva and was drawing a gross salary of Rs.50,000/- per month. He was contributing the entire income to maintain the family and due to his untimely death, the claimant who was entirely dependent on the deceased has put hardship. It was stated that the claimant has spent Rs.2,00,000/- towards medical expenses. On this set of facts and grounds, compensation was sought.

¶52

In response to the summons issued by the

¶53

Tribunal, the insurer as well as owner of the offending vehicle appeared and contested the claim. The other respondents were placed exparte since there was no representation on their behalf despite due service of notice.

¶54

The insurer has set up a defence that the petition is not maintainable either in law or in facts. The petition is bad for non-joinder of necessary parties. The driver of the offending vehicle did not possess valid and

¶55

- 7 -

¶56

effective driving licence to drive the private bus at the time of the accident and did not possess the valid fitness certificate and valid permit and thereby the insured had violated the terms and conditions of the policy. It was further contended that the offending vehicle was falsely implicated to make wrongful gain. The compensation claimed is on the higher side.

¶57

Respondent No.4 has contended that he is

¶58

the registered owner of the Hyundai Accent Car and his car was insured with United India Insurance Company. It was contended that N.Jagadish approached him to lend his car to travel to Bengaluru to visit his ailing mother, to which he gave his concern as a friend. Yashwant was driving the car and N.Jagadish sat next to the driver and started their journey. In the morning hours of 19.01.2016, he received a phone call from Yashwant that they had met with an accident due to the rash and negligent driving of the driver of the offending

¶59

¶60

vehicle. Then, he rushed to Vellore. He arranged to take his damaged car to Chennai for repair, after visiting the jurisdictional police station where his car was kept.

¶61

On the basis of the pleadings, the Tribunal

¶62

formulated the issues and answered as per the reasons recorded in the impugned judgment awarding total compensation of Rs.33,90,000/- with interest @ 6% p.a., from the date of petition till its realization, fastening the liability on the insurer.

¶63

Being aggrieved, both the insurer as well as the claimant have preferred appeals, challenging the quantum of compensation awarded by the Tribunal, the insurer claiming it to be excessive and the claimants asserting the same as inadequate.

¶64

Learned counsel for the insurer contended

¶65

that the Tribunal erred in determining the monthly income of the deceased at Rs.25,000/-. The deceased

¶66

- 9 -

¶67

was not an income tax assessee and further no material

¶68

evidence was placed to substantiate the factum of income. The compensation thus awarded by the Tribunal assessing the monthly income of the deceased at Rs.25,000/is arbitrary and unjustifiable. Accordingly, seeks for reduction of the compensation awarded.

¶69

Learned counsel for the claimant submitted

¶70

that the deceased was earning monthly income of Rs.50,000/- working as Public Relation Officer for an established Cine actor and the same was duly established by Ex.P13 – the salary certificate coupled with the evidence of PW4. Ex.P28 is the statement of income tax for the assessment year 2016-17 of PW4, the employer of the victim, which reflects the salaries paid to the employees. The Tribunal failed to consider Ex.P28

¶71

in the right perspective. The Tribunal ought to have taken the monthly income of the deceased at

¶72

10 -

¶73

Rs.50,000/-. At the fag end of the proceedings i.e., at the stage of the arguments, the respondent No.2 has filed I.A for cross-examination of PW1. PW1 has admitted that her son used to give Rs.20,000/- by cash to her every month. The loss of dependency reckoned by the Tribunal with Rs.25,000/- per month as notional income is capricious and perverse and the same warrants interference by this Court. Accordingly, he seeks for enhancement of compensation.

¶74

Having heard the learned counsel appearing for the parties and perused the material on record, the only controversy involved in these appeals is inasmuch as the monthly income of the deceased determined by the Tribunal at Rs.25,000/- whether is justifiable?.

¶75

Reverting to the arguments advanced by the learned counsel on this aspect, we have examined the original records. Ex.P28 – the income tax return filed by PW4 relating to the assessment year 2016-17

¶76

11 -

¶77

accompanied by the statement would disclose about the particulars of the expenses under various heads of accounts and the salary paid to Mr.Jagadeesh as Rs.5,00,000/-. Admittedly, this return was filed on 06.10.2016 subsequent to the date of the accident. Hence, we are not inclined to accept the same in the absence of any other corroborative material evidence like bank statements, income tax return filed by the deceased etc. Ex.P13, the letter of Atharva [Film Actor] certifies that the deceased was working under him as a Public Relation Officer on a monthly salary of Rs.50,000/as compensation. This compensation cannot be considered to determine the regular monthly income of the deceased since such job of Public Relation Officer with the Cine actor could be seasonal and no regular pattern of work is established by any other corroborative evidence.

¶78

12 -

¶79

Having regard to the qualification of the

¶80

deceased i.e., B.Com., graduate working with the Cine

¶81

actor, we deem it appropriate to re-determine the monthly income at Rs.20,000/considering the

¶82

testimony of PW1 in this regard. In terms of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) , 40% requires to be added towards future prospects. Applying the multiplier of 16, deducting 50% towards personal and living expenses of the deceased since he was a bachelor, loss of dependency would work out to Rs.26,88,000/[28000 x 12 x 16 x 1/2].

¶83

In terms of the dictum of the Hon'ble Apex Court in Pranay Sethi, supra and New India

¶84

Assurance Company Limited vs. Somwati and Others reported in 2020 SCC ONLINE SC 720 , the claimant would be entitled to compensation of

¶85

13 -

¶86

Rs.40,000/towards loss of filial consortium;

¶87

Rs.15,000/- towards loss of estate and Rs.15,000/towards funeral expenses.

¶88

For the reasons aforesaid, the total

¶89

compensation awarded by the Tribunal is re-assessed as under:

¶90

Sl.No.	Particulars	Amount[in Rs.]
1.	Loss ofdependency	26,88,000/-
2.	Loss of filialconsortium	40,000/-
3.	Loss of Estate	15,000/-
4.	Towards Funeral and transportationexpenses	^15,000/-
	Total	27,58,000/-

¶91

Thus, the claimant shall be entitled to total compensation of Rs.27,58,000/- with interest @ 6% p.a., from the date of the claim petition till the date of realization.

¶92

Hence, the following:

¶93

14 -

¶94

ORDER

¶95

i] MFA No.2712/2020 filed by the claimant stands dismissed and MFA No.1883/2020 filed by the insurer is allowed in part.

¶96

ii] The total compensation awarded by the Tribunal is modified and reduced to Rs.27,58,000/- as against Rs.33,90,000/which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.

¶97

iii] The insurance company shall deposit the reassessed total compensation determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

¶98