Partly allowed

Sri.B.Vishwanath Kiran v. United India Insurance Co. Ltd.

Karnataka HC25 Sept 2020MFA/4690/2016

Case brief

AI extract

What is this about?

Fatal motor accident claims concerned an owner-driver, his wife and daughter. The court upheld the driver's sole negligence but directed payment under personal accident coverage if unpaid. It enhanced compensation for the other deaths, applying split income and loss-of-estate methods. The claimant's appeals were partly allowed; the insurer's appeal was disposed of.

What did the court decide?

Enhanced compensation for the mother's and sister's deaths with 6% interest; payment under the owner's personal accident coverage with interest if unpaid.

Sri.B.Vishwanath Kiran Vs United India Insurance Co. Ltd. — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER 2020

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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M.F.A.NO.4690 OF 2016 (MV-D),

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C/W M.F.A.NO.4598 OF 2016 (MV-D), M.F.A.NO.4691 OF 2016 (MV-D), M.F.A.NO.4692 OF 2016 (MV-D),

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IN M.F.A.NO.4690 OF 2016 (MV-D),

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BETWEEN:

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SRI.B.VISHWANATH KIRAN, S/O T.R.BHASKAR, AGED ABOUT 21 YEARS, RESIDING AT NO.1628/1629, 6^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BANGALORE-560010.

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...APPELLANT

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(BY SRI. GURUDEV PRASAD K T, ADVOCATE) (THROUGH VIDEO CONFERENCE)

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AND:

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UNITED INDIA INSURANCE CO. LTD, NO.89/1, SAMPIGE ROAD, 11^TH CROSS, MALLESWARAM, BANGALORE-560 003. BY ITS MANAGER

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SRI.T.R.BHASKAR MAJOR, SINCE DECEASED BY HIS LEGAL REPRESENTATIVE SRI.T.S.RAMACHANDRAN, S/O SELVARAJ MUDALIAR, RESIDING AT NO.1628/1, 6^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BANGALORE-560010.

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NEW INDIA ASSURANCE CO.LTD, REGIONAL OFFICE, MISSION ROAD, BANGALORE-560 001. BY ITS MANAGER

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4 .SRI.M.CHANDRASHEKAR, MAJOR, S/O B.RUKMAIAH, KAMANGERI VILLAGE, MADIKERI POST, MADIKERI TALUK, MADIKERI- 571 201. …RESPONDENTS

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(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE ALONG WITH SRI. A.M. VENKATESH, ADVOCATE FOR R1; BY SRI. KISHORE KUMAR REDDY, ADVOCATE FOR R3; BY SRI. N. JAGADISH BALIGA, ADVOCATE FOR R4; V/O DATED 07/08/2019 TAKING STEPS TO BRING LRs OF R2 DOES NOT ARISE)

¶21

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.04.2016 PASSED IN MVC NO. 3232/2014 ON THE FILE OF THE 21^ST ADDITIONAL SMALL CAUSES JUDGE, 19^TH ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.4598 OF 2016 (MV-D),

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BETWEEN:

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M/S. UNITED INDIA INSURANCE COMPANY LIMITED, NO.89/1, SAMPIGE ROAD, 11^TH CROSS, MALLESHWARAM, BENGALURU-560003, NOW REP. BY ITS REGIONAL OFFICE, 6^TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BENGALURU-560001, REP.BY ITS MANAGER. …APPELLANT

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(BY SRI.B.C.SHIVANNE GOWDA, ADVOCATE ALONG WITH SRI. A.M.VENKATESH, ADVOCATE)

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AND:

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SRI.B.VISHWANATH KIRAN, S/O. T.R. BHASKAR, AGED ABOUT 21 YEARS, R/AT NO.1628/1629, 8^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BENGALURU – 560010.

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SRI T. R. BHASKAR, SINCE DEAD BY HIS LR SRI T.S. RAMACHANDRAN, S/O. SELVARAJ MUDALIAR, R/AT NO. 1628/1, 6^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BENGALURU-560010. (OWNER OF CAR BEARING NO. KA-04/Z-6760)

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3 . NEW INDIA ASSURANCE COMPANY LIMITED, MISSION ROAD, BENGALURU-560 001. (INSURER OF CAR BEARING NO.KA-12/A-3898)

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SRI. M. CHANDRASHEKAR S/O B. RUKMAIAH, KAMANGERI VILLAGE, MADIKERI POST,MADIKERI TALUK, MADIKERI-571201. (OWNER OF CAR BEARING NO.KA-21/A-3898). …RESPONDENTS

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(BY SRI.K.T. GURUDEV PRASAD, ADVOCATE FOR R1) (THROUGH VIDEO CONFERENCE) (BY SRI. A.R. LAKSHMINARAYANA, ADVOCATE FOR R3) (BY SRI. N. JAGADISH BALIGA, ADVOCATE FOR R4 V/O DATED 25/09/2020 TAKING STEPS TO BRING LRs OF R2 WOULD NOT ARIVE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.04.2016 PASSED IN MVC NO.3233/2014 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSE JUDGE & XIX ACMM, MEMBER, MACT, BANGALORE, AWARDING COMPENSTION OF RS.28,91,800/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.

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IN M.F.A.NO.4691 OF 2016 (MV-D),

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BETWEEN:

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SRI.B.VISHWANATH KIRAN S/O T.R.BHASKAR, AGED ABOUT 21 YEARS, RESIDING AT NO.1628/1629, 6^TH MAIN,‘E’ BLOCK, RAJAJINAGAR II STAGE, BANGALORE-560010. ...APPELLANT

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(BY SRI. GURUDEV PRASAD K T,ADVOCATE) (THROUGH VIDEO CONFERENCE)

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AND:

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UNITED INDIA INSURANCE CO. LTD, NO.89/1, SAMPIGE ROAD, 11^TH CROSS, MALLESWARAM, BANGALORE-560 003, BY ITS MANAGER

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2 . SRI.T.R.BHASKAR, MAJOR, SINCE DECEASED BY HIS LEGAL REPRESENTATIVE SRI.T.S.RAMACHANDRAN, S/O SELVARAJ MUDALIAR RESIDING AT NO.1628/1, 6^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BANGALORE-560010.

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NEW INDIA ASSURANCE CO.LTD, REGIONAL OFFICE, MISSION ROAD, BANGALORE-560 001 BY ITS MANAGER.

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SRI.M.CHANDRASHEKAR, MAJOR, S/O B.RUKMAIAH, KARNANGERI VILLAGE, MADIKERI POST, MADIKERI TALUK MADIKERI- 571201. ….RESPONDENTS

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(BY SRI. A.R. LAKSMI NARAYANA, ADVOCATE FOR R3; BY SRI. N. JAGADISH BALIGA, ADVOCATE FOR R4; BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE A/W SRI. A.M. VENKATESH, ADVOCATE FOR R1; V/O DATED 07/08/2019 TAKING STEPS TO BRING LRs OF R2 DOES NOT ARISE.)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.o4.2016 PASSED IN MVC NO.3233/2014 ON THE FILE OF THE 21^ST ADDITIONAL SMALL

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CAUSES JUDGE, 19^TH ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.4692 OF 2016 (MV-D), BETWEEN;

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SRI.B.VISHWANATH KIRAN S/O T.R.BHASKAR, AGED ABOUT 21 YEARS, RESIDING AT NO.1628/1629, 6^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BANGALORE-560010.

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...APPELLANT

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(BY SRI. GURUDEV PRASAD K T, ADVOCATE) (THROUGH VIDEO CONFERENCE)

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AND:

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UNITED INDIA INSURANCE CO. LTD, NO.89/1, SAMPIGE ROAD, 11^TH CROSS, MALLESWARAM, BANGALORE-560 003, BY ITS MANAGER

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SRI.T.R.BHASKAR, MAJOR, SINCE DECEASED BY HIS LEGAL REPRESENTATIVE SRI.T.S.RAMACHANDRAN, S/O SELVARAJ MUDALIAR RESIDING AT NO.1628/1, 6^TH MAIN, ‘E’ BLOCK, RAJAJINAGAR II STAGE, BANGALORE-560010.

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NEW INDIA ASSURANCE CO.LTD, REGIONAL OFFICE, MISSION ROAD, BANGALORE-560 001. BY ITS MANAGER

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4 .SRI.M.CHANDRASHEKAR, MAJOR, S/O B.RUKMAIAH, KARNANGERI VILLAGE, MADIKERI POST, MADIKERI TALUK, MADIKERI- 571 201. …RESPONDENTS

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(BY SRI.B.C. SHIVANNE GOWDA, ADVOCATE A/W SRI. A. M. VENKATESH FOR R1; BY SRI A.R. LAKSHMI NARAYANA, ADVOCATE FOR R3; BY SRI. N. JAGADISH BALIGA, ADVOCATE FOR R4; V/O DATED 07/08/2019 TAKING STEPS TO BRING LRs OF R2 DOES NOT ARISE)

¶60

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.04.2016 PASSED IN MVC NO.3234/2014 ON THE FILE OF THE 21^ST ADDITIONAL SMALL CAUSES JUDGE, 19^TH ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, RAVI V. HOSMANI J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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These Miscellaneous First Appeals arise from the common judgment dated 01.04.2016 passed by the XXI Addl. Small Causes Judge and Addl. Motor Accident Claims Tribunal, (hereinafter referred to as ‘Tribunal’, for short) Bengaluru, in MVC No.3232/2014, MVC No.3233/2014 and MVC No.3234/2014 respectively.

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For sake of convenience, parties shall be referred to in terms of their status before the Tribunal.

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We have heard learned counsel for the

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respective parties.

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M.F.A.No.4690/2016 is filed by claimant being

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aggrieved by the dismissal of the claim petition in MVC No.3232/2014, while M.F.A.No.4691/2016 is filed by claimant seeking for enhancement of compensation. M.F.A.No.4598/2016 is filed by insurance company challenging judgment and award passed in MVC No.3233/2014. MFA No.4692/2016 is filed by claimant seeking for enhancement of compensation in MVC No.3234/2014.

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Facts in brief according to the claimant are that on 16.09.2013, at about 1.00 p.m., T.R. Bhaskar was driving his car bearing registration No.KA-04-Z-6760 from Mysuru to Bengaluru. He was accompanied by his wife

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Smt. K. Shanthi and daughter B. Rajeshwari Divya. Near Basavanapura, Ramanagara District, it collided with another car bearing registration No.KA-12-A-3898 coming from the opposite direction in a rash and negligent manner. As a result, T.R.Bhaskar and Rajeshwari Divya B., died on the spot, while K. Shanthi, died during treatment, on 29.09.2013,at BGS Global Hospital, Kengeri. B. Vishwanath Kiran, son of deceased Bhaskar T.R. and K. Shanthi; and brother of Rajeshwari Divya B., filed separate claim petitions under Section 166 of the Motor Vehicles Act, 1989 seeking compensation on account of their death.

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In response to notice issued by the Tribunal, respondent no.2did not appear and was placed ex parte.

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However, respondent no.1 - United India Insurance Company, insurer of car bearing No.KA-04-Z6760 and respondents No.3 and 4 – the insurer and owner

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of other car bearing No.KA-12-A-3898, appeared and filed separate written statements.

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Respondent No.1 contended that the claim petition was not maintainable as it was filed showing father of insured as representing the deceased even though claimant himself was class –I heir of the insured. Even Section 158(6) of the M.V. Act was not complied. The insured was not holding a valid and effective driving licence at the time of accident and that the accident occurred due to the negligence of driver of other car bearing No.KA-12-A-3898.

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Respondent No.3-insurer of car bearing No.KA-12-A3898 also contended that claim petition was not maintainable and it is not liable to pay any compensation. Respondent No.4 adopted the written statement and sought for dismissal of claim petition.

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On the basis of the rival pleadings, Tribunal framed the following issues for its consideration:

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In MVC No.3232 of 2014:

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i) Whether the petitioner proves that on 16.09.2014 at 1.00 p.m., on Bengaluru Mysore Road, Near Basavanapura Ramanagara Taluk, death of T.R.Bhaskara in the accident was due to the rash and negligent driving by the driver of the car bearing registration No.KA-04-Z-6760?

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ii) Whether the petitioners are entitled for compensation? If so, how much and from whom?

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iii) What order?

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In MVC No.3233 of 2014:

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Whether the petitioner proves that on 16.09.2014 at 1:00 p.m., on Bengaluru – Mysore Road, near Basavanapura, Ramanagara Taluk the death of Smt. K Shanthi in the accident was due to the rash and negligent driving by the driver of the car bearing registration No.KA-04-Z6760?

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Whether the petitioners are entitled for compensation? If so, how much and from whom?

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What order?

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In MVC No.3234 of 2014

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Whether the petitioner proves that on 16.09.2014 at 1:00 p.m., on Bengaluru – Mysore Road, near Basavanapura, Ramanagara Taluk the death of Kum. Rajeshwari Divya B in the accident was due to the rash and negligent driving by the driver of the car bearing registration No.KA-04-Z-6760?

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Whether the petitioners are entitled for compensation? If so, how much and from whom?

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What order?

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In support of his case, claimant got examined himself as P.W.1. Two more witnesses were examined as PWs. 2 and 3. Exhibits P.1 to P.22 were marked in common in all three cases. On behalf of respondents, Administrative Officer of United India Insurance Company was examined as R.W.1. Owner of car bearing No.KA-12-A/3898 was examined as R.W.2 and Assistant Manager of New India Assurance Company were examined as R.W.3 in all the three cases. Exhibits R1 to R.11 were marked.

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On the basis of evidence on record, the Tribunal

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answered issue no.1 in the affirmative in all the three cases; Issue no.2 in negative in MVC No.3232/2014, Issue no.2 partly in the affirmative in MVC No.3232/2014 & MVC No.3233/2014. Issue No.3 as per final order i.e., in MVC No.3233/2014 and MVC No.3234/2014, awarded compensation of Rs.28,91,800/and Rs.65,000/respectively with interest at the rate of 6% per annum, holding that respondents no.1 and 2 are jointly and severally liable to pay compensation. But

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MVC.No.3232/2014 was dismissed with cost.

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IN M.F.A.NO.4690/2016:

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Learned counsel for claimant submitted that the Tribunal committed a grave error in holding that driver of car bearing No.KA-04/Z-6760 was solely responsible for causing accident. Referring to Ex.P.3 - spot sketch, it was submitted that the median near the accident spot was

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almost level to the road and driver of other car failed to apply brakes and avoid collision. Consequently, some portion of contributory negligence was required to be assigned on the said driver and dismissal of claim petition was not justified.

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It was contended that T.R.Bhaskar, who was driving the car was earning more than Rs.25,000/-per month by doing plywood business in the name and style of M/s Dolphin Enterprises at Vijayanagar Bengaluru. He was an income tax assessee. The claimant being sole survivor and hence, sought for determination and for award of compensation.

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On the other hand, learned counsel for insurer submitted that the accident in question was a head-on collision and that it occurred when deceased Bhaskar crossed the median and was on the road meant for the traffic from the opposite direction. The road being a

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Highway, no fault could be attributed to the driver of other car for failure to avoid the accident when the deceased suddenly crossed over the median. It was also contended that the deceased was the insured himself and was solely negligent in causing accident, hence the Tribunal rightly dismissed the claim petition.

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Having heard learned counsel for the respective parties, it is seen that claim petition filed claiming compensation for death of T.R.Bhaskar, owner-cum-driver of car bearing No.KA-04/Z-6760 is dismissed on the ground that he was negligent and responsible for the accident. As claimant is challenging the award on negligence and seeking for determination and award of compensation, following points arise for consideration:

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i) Whether the Tribunal was justified in holding that the accident in question occurred due to the rash and negligent driving by the driver of the car bearing No.KA-04/Z-6760? Also whether the driver of car bearing No.KA-12-A-3898

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also contributed to the accident? If so, to what extent?

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ii) What is the amount of compensation to which he is entitled?

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Reg. Point No.1 :

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The Tribunal while answering issue No.1 (on negligence) has referred to the FIR, complaint, spot mahazar, spot sketch, IMV report and charge sheet etc., and also oral evidence of claimant and respondents. It is noted that the police after investigation filed abated charge sheet against driver of car bearing No.KA-04/Z-6760 namely T.R.Bhaskar. From Ex.P.3, it is seen that accident occurred on B.M.Road. The width of the road is 22 ft. on each side of the median. The deceased was traveling from Mysuru to Bengaluru in car bearing No.KA-04/Z-6760, whereas, car bearing KA-12-A/3898 was proceeding from Bengaluru towards Mysuru on the other side of the road. The deceased crossed the median and accident spot was near the middle of the opposite road. There is absolutely no

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explanation for the deceased crossing over to the opposite road. Under the circumstances, by applying the principle of res ipsalocitur [Pushpabai Purushotham Udeshi Vs., Ranjith Zinning and Pressing Company reported in 1977(2) SCC 745], it is held that the accident in question occurred on account of sole negligence of driver of car bearing No.KA-04/Z-6760, therefore, finding of Tribunal on negligence is fully justified.

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In view of the aforesaid discussion, we hold that the Tribunal was justified in holding that driver of car bearing No.KA–04-Z/6760 namely, T.R.Bhaskar, was solely negligent in causing the accident. Hence, point no.1 is answered against claimant/appellant.

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Ex.P.17 is the Insurance policy in respect of car bearing No.KA–04-Z/6760. It is a package policy and additional premium of Rs.100/- was paid to cover risk of owner/driver to an extent of Rs.2.00 lakhs . Accident

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occurred on 16.09.2013 and seven years have lapsed since. As there is no evidence regarding the said sum having been paid or offered to the claimant, we find it is appropriate to direct the insurer to pay the same if not already paid. For sake of clarity, it is held that claimant is not entitled for any compensation in this case due to finding regarding negligence on the driver of the said car.

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MFA No.4691/2016 C/w MFA No.4598/2016:

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Learned counsel for claimant submitted that Tribunal committed gross error in taking net income of deceased for purpose of calculating loss of dependency which is contrary to law laid down in National Insurance Company Limited vs. Pranay Sethi and Others, reported in AIR 2017 SC 5157 , in which it is held that gross income after deducting income tax and professional tax was required to be taken. As no compensation is awarded towards ‘loss of estate’, he sought for appropriate

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award and also prayed for enhancement of compensation awarded under other heads.

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On the other hand, learned counsel for insurer contended that deceased was in a pensionable service and had two years of remaining service. As multiplier applicable is higher than number of years of remaining service, compensation has to be determined by applying "split income method". Deceased would be entitled to 50% of her income, as pension post-retirement. Learned counsel relied upon the decision in Union Of India Vs. K S Lakshmi Kumar reported in 2001 ACJ, 134. As the compensation awarded was required to be reduced in the insurer’s appeal, learned counsel opposed the claimant’s appeal.

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In view of the above contentions, following points arise for our consideration:

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i) Whether claimant is entitled for enhancement of compensation?

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ii) Whether compensation awarded by tribunal is required to be reduced in insurer’s appeal by applying split income method?

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iii) What order?

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Reg.Points no.1 and 2:

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MVC No.3233/2014 was filed by claimant - B. Vishwanatha Kiran claiming compensation on account of death of his mother, K Shanthi. In the absence of proof of her age, Tribunal considered her age as 58 years by referring to Ex.P.8-Post mortem report. As per Ex.P.10Salary certificate, deceased was working as a Senior Accounts Assistant in Indian Academy of Science. But Tribunal considered her net income as Rs.45,348/-per month as per Ex.P.10, thereafter adding 15% towards future prospects and deducting 1/3 towards personal expenses and applying multiplier of ‘9’ , calculated a sum of Rs.29,26,800/-. From the said sum, Tribunal deducted Rs.1,50,000/- received under Group Insurance. Thereafter

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it added Rs.1.00 lakh towards ‘loss of love and affection’ and Rs.15,000/- towards ‘funeral expenses’ i.e., a total of Rs.28,91,800/-. We find that method of calculation of compensation by the Tribunal is erroneous on several counts:

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Firstly, as per Ex.P.10, during August 2013, (which is one month preceding the date of accident), gross income of deceased K Shanti was Rs.66,228/-ie., Rs.7,94,736/- per annum. As per submission of learned counsel for insurer, a sum of Rs.2,400/- towards professional tax and 10% towards Income tax are required to be deducted.

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Rs.7,94,736 – Rs.2,400/- = Rs.7,92,336/-. Rs.7,92,336 – 10% = Rs.7,13,102.04/-

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rounded off to Rs.7,13,103/-.

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The deceased was in permanent employment and was 58 years of age on the date of the accident. Hence as per decision of Hon’ble Supreme Court in Pranay Sethi , (supra), future prospects at 15% is required to be added.

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The proper multiplier would be ‘9’. The deceased had two more years of service after which she would be receiving pension. The Tribunal has recorded a finding that claimant admittedly was receiving family pension. Hence, we feel that there is sufficient reason to apply the split income method evolved in Union of India Vs. Lakshmi Kumar’s (supra). Applying the principles, compensation towards loss of dependency is calculated as under:

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For remaining years of service:

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Rs.7,13,103 + 15%(future prospects) X 12 X 2 = Rs.10,93,424/-. Pensionable period, 50% of compensation towards loss of dependency ie.,

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Rs.7,13,103 + 15%(future prospects) X 12 X7 =Rs.38,26,984/-

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Rs.38,26,984 – 50% = Rs.19,13,492/ -.

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Thus, total loss of dependency = Rs.10,93,424/+ Rs.19,13,492/- Total Rs.30,06,914/-.

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Further, as per decision of Hon’ble Supreme Court

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in Magma General Insurance Company Limited Vs.

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Nanu Ram @ Chuhru Ram and Others, reported (2018)18 SCC 130, claimant would be entitled for Rs.40,000/- towards ‘loss of filial consortium’ and a further sum of Rs.15,000/- towards ‘loss of estate’ and

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Rs.15,000/- towards ‘funeral expenses’. Thus, the total

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compensation to be awarded to would be Rs.30,76,914/ -.

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Loss of dependency	Rs.30,06,914
Loss of filial consortium	Rs.40,000
Loss of estate	Rs.15,000
Funeral expenses	Rs.15,000
Total	Rs.30,76,914

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MFA NO.4692/2016:

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Learned counsel for claimant submitted that Tribunal has considered income of the deceased B. Rajeshwari Divya, who is claimant’s sister at Rs.8,07,598.81 per annum, which is grossly lower than monthly income mentioned in her pay slips at Ex.P.20 and P.21. The Tribunal has awarded total compensation of Rs.65,000/- only ie., Rs.50,000/- towards ‘loss of love and

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affection’ and Rs.15,000/- towards ‘funeral expenses’ and has not awarded any compensation under the other heads, even though claimant was unmarried and studying on the date of accident and deceased was unmarried.

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On the other hand, learned counsel for insurer opposed any enhancement on the ground that claimant was already a major and deceased was his sister. It was settled law that a brother cannot be dependent. As such, he is not entitled for any compensation other than for 'loss of love and affection' and 'funeral expenses', 'loss of estate' etc., and contended that compensation awarded by Tribunal was adequate.

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In view of above contentions, following points arise for consideration:

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i) Whether claimant is entitled for enhancement of compensation?

ii) What order?

Reg.Point No.1:

Though, claimant is indeed, brother of the deceased and would not be entitled for compensation towards loss of dependency, but methodology for calculating compensation towards ‘loss of estate’ in such circumstances, is slightly different as per law laid down in A. Manavalagan Vs. A.

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Krishna Murthy , reported in 2004 (5) KLJ 321 .The claimant-brother would be entitled to 15% of compensation towards conventional dependency. The Division Bench of this Court has summarized the principles in para 19 and 20. Sub para (v) of para 20 relevant for purpose of this case is extracted as under:

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“(v) If the deceased was a bachelor and the claimants are two non-dependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a ‘family’ the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs.1350/- per month), the annual savings would be Rs.16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs.2,10,600/- per annum.”

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In this case, there is no specific evidence regarding quantum of personal expenses of deceased sister. Therefore, we are inclined to consider savings of deceased at 15% of the income as per the above decision and proceed to determine the compensation.

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As per the Post Mortem Report at Ex.P.12, Tribunal has determined age of deceased B.Rajeshwari Divya, on date of accident, as 29 years. Ex.P.20 is the salary certificate of deceased, wherein gross monthly income for August 2013 is indicated @ Rs.1,99,819.49/-. Rs.31,547/- is shown as deduction towards income tax (IT) and Rs.200/- towards professional tax(PT). Even as per Ex.P.21, gross salary of deceased for 16 working days in October 2013 was Rs.1,68,988.10/-.PW-2 the representative of the deceased’s employer has given evidence with regard to Ex.P.20 & P.21. For sake of

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convenience, income of deceased as per Ex.P.20 is taken for calculating the compensation.

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The deceased was aged about 29 years and was

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permanent employee of Philips India Limited. As per Pranay Sethi (supra), multiplier applicable would be ‘ 17’

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and 40% towards ‘future prospects’ is to be added:

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Rs.1,99,819/- - Rs.31,547/-(IT)– Rs.200/- (PT)

¶174

= Rs.16,80,072/Rs.1,68,072 + 40% = Rs.02,35,300/Rs.2,35,300 X 12 X 17 = Rs.4,80,01,200/-

¶175

Thus, compensation to be awarded to claimant would be 15% of Rs.4,80,01,200/- = Rs.72,00,180/- towards ‘loss of estate’.

¶176

In addition, claimant would also be entitled to compensation of Rs.40,000/- towards loss of ‘sibling consortium’ and a further sum of Rs.15,000/- towards ‘funeral expenses ’ . Thus, claimant would be entitled for a total compensation of Rs.72,55,090 /-.

¶177

In view of our findings above, we pass the following:

¶178

¶179

ORDER

¶180

In MFA No.4690/2016 point nos.1 and 2 are answered against claimant, he is held not entitled to any compensation in this appeal.

¶181

But, on perusal of Ex.P.17 being insurance policy, we note that there was a personal accident coverage to the owner and driver to an extent of Rs.2.00 lakhs. Although we have held that he was solely negligent in causing the accident and also being insured his legal representative is not entitled to any compensation. Nevertheless, we hold that his legal representative is entitled to receive directly an amount of Rs.2.00 lakhs. But, it is not known as to whether the said amount has been paid to the appellant-claimant or not. If the said amount has not yet been disbursed to the appellant-claimant, the claim petition i.e., MVC No.3232/2014 shall be construed to be a claim made for payment of compensation on the basis of the personal accident coverage. In addition, if the said amount has not

¶182

¶183

yet been disbursed, the appellant-claimant is at liberty to submit one more claim form for seeking the said amount. If a claim has been made and not at honoured then interest at the rate of 6% per annum shall be paid to the claimant from the date of filing of MVC No.3232/2014 till date of payment. The reason for awarding interest to the appellant-claimant is because we find that it was the duty of the insurer to have paid the said amount, having an obligation to do so under the terms of the contract, more so, when the claim petition was filed by the appellantclaimant as early as in the year 2004.

¶184

The compensation is reassessed to Rs.30,76,914/-, which carries interest at the rate of 6% per annum from the date of the petition till realization. In MFA No.4691/2016 connected with MFA No.4598/2016: In view of our finding point nos.1 & 2 are answered partly in affirmative. The insurer succeeds only insofar as application of split income method, but there is enhancement of compensation

¶185

¶186

on other grounds. Hence, MFA No.4691/2016 is allowed in part; while MFA No.4598/2016 is disposed of in the aforesaid terms. In MFA No.4692/2016 : In view of our findings above, point for consideration is answered in favour of the claimant and he is entitled for reassessed compensation of Rs.72,55,180/- as follows:

¶187

Loss of estate	Rs.72,00,180
Loss of Sibling	Rs.40,000
consortium
Funeral expenses	Rs.15,000
Total	Rs.72,55,180

¶188

MFA No.4692/2016 is allowed in part, compensation

¶189

is reassessed @ Rs.72,55,180 /- with interest at the rate of 6% per annum from the date of the claim petition till realization.

¶190

Thus, the total compensation awarded in MFA No.4691/2016 and MFA No.4692/2016 is Rs.67,32,004/- . 85% of the said compensation shall be deposited in any Nationalised bank or Post Office deposit for an initial period of 10 years. Appellant-claimant shall be entitled to draw

¶191

¶192

periodical interest on the said deposit. Balance compensation shall be released to him after due identification.

¶193

In case the insurance company is liable to pay the compensation under the head personal accident coverage in MFA No.4690/2016 , the said sum of Rs.2,00,000/- shall be paid to the appellant with interest at the rate of 6% per annum from the date of the claim petition till realization, if not already paid.

¶194

In the result, appeals filed by the claimant are allowed in part and disposed of in the aforesaid terms.

¶195

The appeal filed by the Insurance company in MFA No.4598/2016 is accordingly disposed of.

¶196

The amount in deposit to be transmitted to the concerned Tribunal.

¶197

The Insurance company shall deposit balance compensation to the appellant-claimant within a period of

¶198

¶199

four weeks from the date of receipt of a copy of this judgment.

¶200

Parties to bear their respective costs.

¶201

Registry to transmit the original records to the

concerned Tribunal.

Sd/-

JUDGE

Sd/JUDGE

Psg* CT:TAB

BVNJ & RVHJ:	MFA No.4690/2016 C/w
30.09.2020	MFA No.4598/2016
(Through Video Conference)	MFA No.4691/2016
	MFA No.4692/2016

¶208

ORDER ON ‘FOR BEING SPOKEN TO’

¶209

After disposal of the appeals by judgment dated 25.09.2020, learned counsel for the Insurance Company filed a memo for listing of the matters “For being spoken to”.

¶210

¶211

We have heard learned counsel for the appellant in MFA No.4598/2016 – Insurer and learned counsel for the claimants.

¶212

The contention of appellant’s counsel is two fold. Firstly, that the oral evidence on the income of the deceased, Rajeshwari, ought to have been taken into consideration rather than documentary evidence. Secondly, that the tax component on future prospects also has to be deducted, if so, the amount of compensation awarded would be reduced.

¶213

Learned counsel for claimants objected to the said contentions.

¶214

We have perused the pleadings and evidence on record and having regard to Exs.P20 and P21, which are the documentary evidence let in by claimants and in support of which PW.3 was also examined. The income of the deceased sister of the claimant has been assessed.

¶215

¶216

It is needless to observe that the documentary evidence would prevail over oral evidence. Secondly, after deduction of the tax component from the income, on the net income, the amount towards future prospects has been added. Therefore, while adding the future prospects since it is the net income, which is taken into consideration, the tax component is also deducted from the net income. Therefore, we do not find any reason to modify the judgment passed in M.F.A. No.4690/2016 and connected appeals.

¶217

Sd/JUDGE

¶218

Sd/JUDGE

¶219

sma

Sri.B.Vishwanath Kiran v. United India Insurance Co. Ltd.

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Sri.B.Vishwanath Kiran v. United India Insurance Co. Ltd.

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