Partly allowed

Smt Anuradha v. Sri Manjunath R

Karnataka HC25 Nov 2020MFA/6805/2018

Case brief

AI extract

What is this about?

High Court disposed of cross appeals against a Motor Tribunal award. It rejected the insurer's negligence plea for lack of evidence but enhanced compensation from 42.35 lakhs to 52.90 lakhs by recalculating dependency loss based on verified gross salary and five dependants.

What did the court decide?

Compensation enhanced to Rs. 52,90,103/- with 6% interest; liability finding and quantum methodology modified.

Smt Anuradha Vs Sri Manjunath R — 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 NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA NO.6015 OF 2018 (MV-D) C/W MFA NO.6805 OF 2018 (MV-D)

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IN MFA NO.6015 OF 2018

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BETWEEN:

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THE CLAIM MANAGER ROYAL SUNDARAM ALLIANCE GENERAL INSURANCE COMPANY LIMITED BRIGADE ROAD, NEXT TO BRIGADE TOWER, BENGALURU-560 025 BY ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD., SUBRAMANIAM BUILDING, II FLOOR NO.1, CLUB HOUSE ROAD, ANNSASALAI CHENNAI-600 002 BY ITS MANAGER

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....APPELLANT

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(BY SRI. O.MAHESH, ADVOCATE)

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AND:

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SMT ANURADHA

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AGE 43 YEARS, W/O LATE CHANDRAMURTHY H M

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KUM LAVANYA H C AGE 18 YEARS, D/O LATE CHANDRAMURTHY H M

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MASTER MOHANRAJ H C MINOR AGED ABOUT 17 YEARS S/O LATE CHANDRAMURTHY H M

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SRI MUNIGANGAIAH AGE 76 YEARS, S/O DODDAMUNIYAPPA

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SMT GANGAMMA AGED 66 YEARS, W/O MUNIGANGAIAH

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SINCE THE 3^RD RESPONDENT IS MINIOR REPRESETNED BY M/G 1^ST RESPONDENT SMT. ANURADHA

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ALL ARE RESIDING AT HARTHI VILLAGE AT POST KASABA HOBLI MAGADI TALUK, RAMANAGR DIST-571 511

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SRI MANJUNATH R MAJOR S/O LATE RANGEGOWDA C M NO.1338, 10^TH MAIN 6^TH CROSS, SRINIVASANAGAR BSK 1^ST STAGE, BENGALURU-560 050

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….RESPONDENTS

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(SRI. SHRIPAD V SHASTRI., ADVOCATE FOR R-1 TO R-5; NOTICE TO R-6 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.05.2018 PASSED IN MVC NO.2226/2017, ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM, MEMBER, MACT, (SCCH-5), BENGALURU, AWARDING COMPENSATION OF RS.42,35,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO.6805 OF 2018

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BETWEEN:

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SMT ANURADHA W/O LATE CHANDRAMURTHY H M AGED ABOUT 43 YEARS.

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KUM LAVANYA H C

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D/O LATE CHANDRAMURTHY H M AGED ABOUT 18 YEARS

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LATE A MINOR NOW ATTEND MAJORITY

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MASTER MOHANRAJ H C S/O LATE CHANDRAMURTHY H M AGED ABOUT 17 YEARS

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SRI MUNIGANGAIAH S/O DODDAMUNIYAPPA AGED ABOUT 76 YEARS

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SMT GANGAMMA W/O MUNIGANGAIHA AGED ABOUT 66 YEARS.

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SINCE 3^RD PETITIONER IS A MINOR REPRESENTED BY MOTHER/NATURAL GUARDIAN 1^ST PETITIONER SMT ANURADHA ON BEHALF AND BEHALF OF THE MINOR PETITIONER ALSO.

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THE PETITIONERS ARE RESIDING AT HARTHI VILLAGE AT POST KASABA HOBLI MAGADI TALUK RAMANAGARA DISTRICT

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....APPELLANTS

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(BY SRI.SHRIPAD V SHASTRI, ADVOCATE)

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AND:

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SRI MANJUNATH R S/O LATE RANGEGOWDA C M NO.1138, 10^TH MAIN 6^TH CROSS, SRINIVASANAGAR, BSK 1^ST STAGE BANGALORE-560050

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THE MANAGER ROYAL SUNDARAM ALLIANCE GEN INS CO. LTD BRIGADE ROAD NEXT TO BRIGADE TOWERS BANGALORE-25

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….RESPONDENTS

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(SRI. O.MAHESH, ADVOCATE FOR R-2; NOTICE TO R-1 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.05.2018 PASSED IN MVC NO.2226/2017, ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM, MEMBER, MACT, (SCCH-5), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are directed against the impugned

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common judgment and award dated 4.5.2018 passed in MVC.Nos.2226/2017 c/w MVC.No.2228/2017 by the VIII Additional Small Causes Judge and XXXIII ACMM, Member-MACT, Bengaluru. The Insurance company has preferred the appeal in

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MFA.No.6015/2018(MVC.No.2226/2017) questioning

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the negligence as well as the quantum whereas the

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claimants have preferred appeal in MFA.No.6805/2018 seeking enhancement.

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The facts leading to the case are as under:

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It is the case of the claimants that husband of

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first claimant was a teacher in Government Middle

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School, Harthi Village and Post, Kasaba Hobli, Magadi Taluk, Ramanagara District and was drawing salary of Rs.40,000/- per month. It is contended that on 4.4.2017 at about 6.15 p.m. the husband of first claimant was proceeding on a motor bike bearing Regn.No.KA-52-Q-1538 from Kudur towards Harti and when he reached near Kudluru Cross, the driver of the offending car bearing No.KA-05-MM-7982 came in a rash and negligent manner and dashed against the motor bike. On account of the collision, the husband of the first claimant sustained grievous injuries and succumbed to the injuries while he was being shifted to the hospital. The claimants further contended that

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the deceased was hardly aged 47 years at the time of the accident. The claimants further contended that the deceased is survived by a widow and two minor children and also old aged parents. The claimants accordingly filed the claim petition claiming compensation of Rs.1,00,00,000/-.

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The second respondent-Insurance Company on receipt of notice contested the proceedings by filing the written statement. The Insurance Company specifically contended that the driver of the car did not possess valid and effective driving licence at the time of the accident. Further, admitted the issuance of the policy and contended that the liability if any to pay compensation would be subject to the terms and conditions of the policy.

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The first respondent also contested the proceedings by filing objections. The owner of the offending car specifically contended that it is the rider

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of the bike who was negligent and was responsible for the accident. Further contention was taken that if the Tribunal were to arrive at a conclusion that the claimants are entitled to compensation, the second respondent being the insurer is liable to indemnify the first respondent and accordingly, pay the compensation to the claimants.

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Based on the pleadings, the Tribunal framed the following issues:

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"1. Whether Petitioner prove that, deceased Sri. Chandramurthy H.M, S/o. Munigangaiah, aged 47 years was riding a Motor Cycle bearing Reg.No.KA-52-Q-1538 on 04.04.2017 at about 6.15 p.m. while he was proceeding from Kudur towards Harti, when he reached near Kudluru Cross, on NH-75 Road, Magadi Taluk, at that time, a driver to the Car bearing Reg.No.KA-05MM-7982 driven in a rash and negligent manner and dashed against the Motor Cycle, as a result of which he fell down and sustained fatal injuries and died, as mentioned in claim petition?

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2. Whether Petitioners are entitled for compensation as prayed in the petition? If so, from which Respondent?

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3. What Order or Award?"

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The claimants in support of their contentions,

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examined the widow of the deceased as P.W.1 and examined one independent witness as P.W.2. In support of their ocular evidence, the claimants produced documentary evidence at Exs.P1 to 32. The respondents having taken a specific contention that the rider of the bike was negligent and was also responsible for causing the accident have not at all chosen to produce either ocular or documentary evidence.

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The Tribunal having assessed the evidence on record has answered Issue No.1 in the affirmative holding that the death of the husband of the first claimant was due to rash and negligent driving of the driver of the offending car.

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While determining the compensation, the

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Tribunal has assessed the income of the deceased at Rs.27,600/-. and by deducting 10% towards income tax and Rs.2,400/- towards professional tax, the annual income of the deceased is assessed at Rs.3,20,680/-. By adding 30% towards future prospects and by deducting 1/4^th towards personal expenses and by applying the multiplier of 13, the Tribunal has awarded a sum of Rs.40,65,000/- under the head of loss of dependency and under conventional heads, the Tribunal has awarded Rs.1,70,000/-. In all, the Tribunal has awarded a sum of Rs.42,35,000/- with interest at the rate of 6% per annum from the date of claim petition till its realisation. Being aggrieved by the same, both the Insurance Company as well as the claimants have preferred these appeals.

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The learned counsel appearing for the Insurance Company in MFANo.6015/2018 would vehemently argue and contend that the issue of negligence is not at all dealt properly by the Tribunal. The grievance of the appellant is that the oral as well as the documentary evidence placed on record is not considered in proper perspective.

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On quantum, he would submit to this Court that the Tribunal erred in awarding Rs.40,65,000/towards total loss of dependency. He would submit to this Court that since the family of the deceased is receiving pension of Rs.11,400/- and further the widow of the deceased is admittedly a teacher, the compensation awarded under the head of loss of dependency is on the higher side and on this count he would submit that the quantum needs to be redetermined by this Court.

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Per contra, learned counsel for the

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claimants repelling the arguments of the counsel for the Insurance Company would submit that the income assessed by the Tribunal is contrary to the clinching evidence on record and also ocular evidence of P.W.2 employer of the deceased. The Tribunal ought to have taken into consideration the gross salary of the deceased which was at Rs.35,491/-.

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We have heard the learned counsel for the Insurance Company and the claimants. We have perused the records of the Tribunal and meticulously examined the oral and documentary evidence on record.

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6. Regarding Negligence:

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In regard to negligence, the owner of the

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offending car as well as the insurance company have specifically contended that it is the rider of the bike

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who was negligent and was responsible. Having raised such a plea in the written statement, the owner of the offending car as well as the insurance company have not chosen to lead any rebuttal evidence in that regard. The claimants to corroborate and substantiate their case have produced copy of FIR(Ex.P1) charge sheet(Ex.P2) and mahazar (Ex.P3). The ocular evidence of claimants is corroborated by the documentary evidence as per Exs.p1 The Tribunal in the absence of rebuttal evidence has adopted a holistic view and has come to the conclusion that it is the driver of the offending car who was negligent and accordingly recorded finding on Issue No.1. The Insurance Company having not adduced any rebuttal evidence cannot again agitate the question of negligence before this Court and such a contention cannot be entertained in the appeal when there is no rebuttal evidence adduced by the Insurance Company.

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Accordingly, the grounds urged are negatived by this Court.

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7. Regarding quantum:

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The learned counsel for the Insurance company would contend that split multiplier has to be adopted in the present case. However, the said contention cannot be accepted in view of the fact that the deceased was aged 48 years and had 12 years of service.

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On perusal of Ex.P9, the gross salary of the deceased is shown as Rs.35,491/- for the month of March. The Tribunal while assessing the income has not considered Ex.P9 which is the pay slip issued by the State Government for the month of March 2017. In that view of the matter, we are of the view that the income assessed by the Tribunal at Rs.27,600/- is not proper. While assessing the income, the Tribunal was required to take into consideration the gross salary,

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which is not done in the present case on hand. Hence, by taking note of Ex.P9, we would assess the income of the deceased at Rs.35,491/-. After deducting Rs.200/- towards professional tax, the monthly income is assessed at Rs.35,291/-. The annual income is assessed at Rs.4,23,492/-. For the assessment year 2015-16, income upto Rs.2,50,000/is exempted from Income Tax. The amount in excess of Rs.2,50,000/works out to Rs.4,23,492Rs.2,50,000/-= Rs.1,73,492/-. On the remaining amount, 10% slab is applicable which works out to Rs.1,73,492x10/100= Rs.17,349/-. After deducting the same, the income is assessed at Rs.4,06,143/- per annum. Admittedly, the deceased was aged about 48 years. Hence, we would add 30% towards future

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prospects, which works out to Rs.4,06,143x30/100=Rs.1,12,842/-. Thus, the

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income of the deceased would be Rs.5,18,985/- per

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annum. Having regard to the number of dependants i.e. five, we are of the view that 1/4^th has to be deducted towards personal expenses and having regard to the age of the deceased i.e. 48 years, multiplier applicable is 13. Thus, the loss of dependency works out to Rs.5,18,985x13x1/4=Rs.50,60,103/-. Under conventional heads, the claimants are entitled to Rs.2,30,000/- i.e.Rs.40,000/- each to claimants 2 and 3 towards parental consortium, Rs.40,000/- each to claimants 4 and 5 towards filial consortium and Rs.40,000/- to the first claimant towards spousal consortium and Rs.30,000/- towards loss of estate and funeral expenses. Hence, the total compensation re-determined by this Court comes to Rs. 52,90,103/to which the claimants are held entitled with interest at the rate of 6% per annum from the date of claim petition till its realisation.

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Hence, the following:

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ORDER

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i] The appeal is partly allowed. ii] The total compensation awarded by the Tribunal is modified and enhanced to Rs.52,90,103/- as against Rs.42,35,000/-

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which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii] The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact.

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iv] 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.

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vi] The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vii] All the appeals stand disposed of in terms of above.

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viii] Draw modified award accordingly.

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ix] The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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*alb/-.

Smt Anuradha v. Sri Manjunath R

Case brief

What is this about?

What did the court decide?

Smt Anuradha v. Sri Manjunath R

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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