Partly allowed

New India Assurance Co. Ltd. v. Sri Shivam K

Karnataka HC8 Jan 2021MFA/917/2015

Case brief

AI extract

What is this about?

The Karnataka High Court allowed the claimants' appeal against the MACT's compensation award in a motor accident case. The High Court increased the deceased's notional income from Rs. 5,000 to Rs. 8,000 based on bank records, corrected the loss of future prospects percentage from 50% to 40%, and added headnotes for loss of consortium, resulting in enhanced compensation of Rs. 19,23,600.

What did the court decide?

Impugned judgment and award set aside and compensation re-determined at Rs. 19,23,600, payable with interest at 6% p.a.

New India Assurance Co. Ltd. Vs Sri Shivam K — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF JANUARY, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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M.F.A. NO.917 OF 2015 (MV-D)

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C/W

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M.F.A. NO.2087 OF 2015 (MV-D)

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IN MFA NO.917/2015:

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BETWEEN:

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NEW INDIA ASSURANCE CO. LTD., MOTOR THIRD PARTY CLAIMS HUB, NO.9/2, MAHALAKSHMI CHAMBERS, M.G.ROAD, BANGALORE. REPRESENTED BY ITS MANAGER.

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… APPELLANT

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(BY SRI. R. JAI PRAKASH, ADVOCATE)

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AND:

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SRI. SHIVAM.K., S/O KUMARASWAMY, AGED MAJOR, R/AT NO.114, KANAPATTY, MARANPATTY KRISHNAGIRI DISTRICT, TAMILNADU.

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SRI. CHANDRAMOHAN S/O RAMAKRISHNA AGED ABOUT 54 YEARS

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SMT. C. LATHA W/O R.CHANDRAMOHAN, AGED ABOUT 44 YEARS

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SMT. BHARATHI W/O LATE HARSHAVARDHAN, AGED ABOUT 22 YEARS

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KUM. NIHARIKA.H., D/O LATE HARSHAVARDHAN, AGED ABOUT 3 YEARS

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2^ND & 3^RD RESPONDENTS ARE PARENTS 5^TH RESPONDENT ARE DAUGHTERS OF HARSHAVARDHAN, 5^TH RESPONDENT IS MINOR REPRESENTED BY 4^TH RESPONDENT

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ALL ARE RESIDING AT NO.3, 159, KUDISEGANAPALLI, NO.3, THORAPALLI AGRAHARAM, ONNAVALAPADI POST, HOSUR-635109.

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… RESPONDENTS

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(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR RESPONDENT NOs.2 TO 5; SERVICE OF NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH VIDE COURT ORDER DATED 14.03.2017)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED: 30.08.2014 PASSED IN MVC NO.5452/2013 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT AND XLI ACMM, BANGALORE, AWARDING COMPENSATION OF RS.13,52,500/WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO.2087/2015:

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BETWEEN:

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SRI. CHANDRAMOHAN S/O RAMAKRISHNA, AGED ABOUT 54 YEARS, RESIDING AT NO.310, 33^RD MAIN ROAD, J.P.NAGAR VI PHASE, BANGALORE-560078.

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SMT. C. LATHA W/O R.CHANDRAMOHAN, AGED ABOUT 44 YEARS

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SMT. BHARATHI W/O LATE HARSHA VARDHAN, AGED ABOUT 22 YEARS

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KUM. NEEHARIKA.H., D/O LATE HARSHA VARDHAN, AGED ABOUT 13 YEARS SINCE MINOR REPRESENTED BY HER MOTHER AS NATURAL GUARDIAN, SMT. BHARATHI.

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APPELLANTS 2 TO 4 ARE R/AT NO.3-159, KUDISAGANAPALLI, WARD-3, THORAPALLI, AGRAHARAM, ONNALAVADI POST, HOSUR-635109.

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… APPELLANTS

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(BY SRI. GURUDEV PRASAD K.T., ADVOCATE)

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AND:

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THE NEW INDIA ASSURANCE CO. LTD., MOTOR THIRD PARTY CLAIMS HUB, NO.9/2, MAHALAXMI CHAMBERS, M.G.ROAD,

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BANGALORE-560001. BY ITS DIVISIONAL MANAGER.

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SRI. SIVAM.K., S/O KUMARASWAMY, MAJOR, NO.114, KANAPATTY, MARANPATTY, KRISHNAGIRI DISTRICT, TAMILNADU-635109.

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… RESPONDENTS

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(BY SRI. K.SURYANARAYANA RAO, ADVOCATE FOR RESPONDENT NO.1; SERVICE OF NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH VIDE COURT ORDER DATED 31.07.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED: 30.08.2014 PASSED IN MVC NO.5452/2013 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT AND XLI ACMM, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No. 917/2015 is filed by the insurer challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal, Bangalore (henceforth referred as Tribunal) in terms of the Judgment and Award dated 30.08.2014 in MVC No. 5452/2013.

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MFA No.2087/2015 is filed by the claimants

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seeking enhancement of the compensation awarded in MVC No.5452/2013 by the Motor Accident Claims Tribunal, Bangalore in terms of the Judgment and Award dated 30.08.2014.

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Though these appeals are listed for admission,

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they are taken up for final disposal with the consent of the learned counsel for the parties.

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For the sake of brevity and convenience, the

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parties shall henceforth be referred to as they were referred before the Tribunal.

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The claim petition discloses that the claimants are the legal representatives of Mr.C. Harshavardhan. It is stated that on 25.06.2013, said Mr.C.Harshavardhan was riding a motor cycle bearing registration No.TN-70-C-3568. He reached Attibele town at 07.15 p.m. and when he reached Attibele border Arch on National Highway No.7, a heavy goods vehicle bearing registration

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No. TN-24-H-8256 (henceforth referred to as the offending lorry) was steered from the opposite direction in a rash and negligent manner and dashed against the motor cycle. As a result, said Mr.C.Harshavardhan and another person who was riding pillion fell on the road. The said Mr.C.Harshavardhan died at the spot while the pillion rider sustained severe head injuries. The claimants contended that the accident was due to the rash and negligent driving by the driver of the offending lorry. The claimant No.1 lodged a complaint against the driver of the offending lorry and the jurisdictional police registered Crime No.183/2013 for the offence punishable under Sections 279, 304(A) and 338 of IPC. The claimants contended that the deceased was aged 26 years old and was doing business in bricks under the name RCM Brick Works and was earning a sum of Rs.1,50,000/- per month. The claimants contended that due to the death of the deceased, they were deprived of the financial and emotional support provided by the deceased. The claimants therefore filed a claim petition claiming compensation of a sum of Rs.3,50,00,000/-

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(Rupees Three crores Fifty lakhs only) against the owner and insurer of the offending lorry.

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The insurer contested the claim petition and contended that it was the deceased who was negligent and who was responsible for the accident. It was alleged that the deceased was not riding the motor bike but was riding pillion and the pillion rider who was injured in the accident was the one who was riding it but he did not possess a driving license. Therefore, the claimants had swapped the name of the deceased as the person who was riding the motor cycle at the time of the accident. They also contended that the claim made by the claimants were exorbitant and excessive.

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With these contentions, the claim petition was

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set down for trial. The claimant No.1 was examined as PW-1 and he marked Ex.P1 to P11. The insurer did not chose to lead any evidence and did not mark any documents.

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The Tribunal noticed that a complaint was registered against the driver of the offending lorry. It also noticed from Ex.P3-Motor Vehicle Accident report, Ex.P4-Spot Panchanama, Ex.P5-sketch of scene of the accident and the charge sheet at Ex.P8 and held that the driver of the offending lorry was negligent and was responsible for the accident.

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In so far as the claim for compensation is concerned, the Tribunal noticed that the claimant had not produced any material proof to show that the deceased was beneficially employed and that he had any source of income. The Tribunal though noticed Ex.P11- the bank passbook of the deceased which contained various financial transactions, but yet the Tribunal did not consider it fit to accept the said document as proof of income. The Tribunal also noticed the deposition of PW-1, where he contended that he and the deceased were looking after the business. Therefore, the Tribunal held that in the absence of any proof regarding the nature of the payment made to the

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deceased, it could not be held that the deceased was earning a sum of Rs.1,50,000/- per month. In that view of the matter, the Tribunal considered the notional income of the deceased at a sum of Rs.5,000/- per month. It awarded the loss of future prospects at the rate of 50% of the income of the deceased and thus the Tribunal awarded the following compensation:

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Heads under which compensation awarded	Amount in Rupees
Towardspain and agony	20,000-00
Towards Medical expenses	44,138-00
Towards loss of income	15,000-00
Towards loss of amenities	10,000-00
TOTAL	89,138-00

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Feeling aggrieved by the Quantum of

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compensation awarded by the Tribunal, the insurer and the claimants are in appeal.

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We have heard the learned counsel for the parties and we have perused the records of the Tribunal as well as its Judgment and award.

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The insurer contended that the Tribunal

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committed an error in considering the loss of future prospects at 50% while the Apex Court in the case of National Insurance Company Limited V/s Pranay Sethi reported in (2017) 16 Supreme Court Cases 680 had held that the claimants are entitled to loss of future prospects at 40% as the deceased was self employed. Learned counsel for the insurer also contended that the Tribunal committed an error in holding that the driver of the offending lorry was negligent and responsible for the accident.

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13. Per contra , learned counsel for the claimants

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contended that the insurer and the owner did not lead any evidence before the Tribunal. They also did not examine the driver of the offending lorry. They also pointed out from the documents available on record, that the driver of the offending lorry was responsible for the accident and that since a claim for compensation under the Motor Vehicles Act, 1988 must be considered on pre-ponderence

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of probabilities and not proof beyond reasonable doubt, the learned counsel contended that the driver of the offending lorry was responsible for the accident. The claimants contended that the Tribunal committed an error in considering the notional income at the rate of Rs.5,000/-. The learned counsel invited our attention to Ex.P11 which is the bank passbook of the deceased which indicated that several payments were received by him in his account. The learned counsel submitted that this document was obtained from a genuine source and therefore ought to have been considered as sufficient proof of the income of the deceased. He further contended that the Tribunal failed to award compensation towards loss of filial love and affection as well as the loss of parental consortium and thus claimed that this Court may award suitable compensation as declared by the Apex Court in Magma General Insurance Company Limited V/s Nanu Ramu Alias Chuhru Ram and others reported in (2018) 18 Supreme Court Cases 130 and United India Insurance Company Limited Vs.

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Satinder Kaur @ Satwinder Kaur and others reported in AIR 2020 SC 3076.

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As rightly contended by the learned counsel for the claimants, the insurer and the owner of the offending lorry had not examined the driver of the offending lorry to establish that he was not negligent. Thus, the only evidence available on record is the testimony of PW1 and the documentary evidence which are prepared by the police after investigation and in the usual course of their official duties. These documents indicate that the driver of the offending lorry was charge sheeted for the offence punishable under Sections 279, 304(A) and 338 of IPC. Therefore, it has to be held that the driver of the offending lorry was responsible for the accident and was negligent.

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Insofar as the claim for compensation is concerned, as rightly contended by the learned counsel for the claimants, the account at Axis Bank as per Ex.P11 was opened in the name of Harshavardhana as GPA holder of RCM Brickworks. Ex.P11 indicates that the deceased had

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received the payments from Utsav Foundation, Skyline Consortium, ZN Microset, etc. It also shows that the deceased was transacting lot of cash in his account. Under the circumstances, it is quite probable that the claimant had some business venture which could possibly be a business of bricks. Therefore, the Tribunal ought to have considered the notional income of the claimant at not less than Rs.8,000/- per month as per guidelines issued by Karnataka State Legal Services Authority. It is also noticed that the deceased had raised a loan from Sundaram Finance and was paying monthly installments of more than Rs.14,000/- per month. Hence, the income of the deceased must have been not less than Rs.8,000/- per month. In that view of the matter, the Tribunal committed an error in considering the notional income of the deceased at a sum of Rs.5,000/- per month but must have considered at a sum of Rs.8,000/- per month. In addition, the Tribunal committed an error in considering the loss of future prospects of the deceased at 50% of his income in view of the law declared in National Insurance

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Company Limited V/s Pranay Sethi reported in (2017)

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16 Supreme Court Cases 680 , that in respect of self employed individual, loss of future prospects should be calculated at 40%. The claimant Nos.1 and 2 were also

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entitled to loss of filial consortium and claimant No.4 was entitled to loss of parental consortium In that view of the matter, the impugned Judgment and Award passed by the Tribunal is liable to be set aside and the compensation be re-determined as follows:-

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Heads under which compensation awarded	Amount in Rupees
Loss of dependency at	17,13,600-00
Rs.11,200/- per month along with
loss of future prospects at 40% after deducting 1/4^th towards
personal living expenses of the deceased x 12 x 17
Loss of consortium to the claimant No.3	40,000-00
Loss of love and affection to claimant Nos.1 and 2 at Rs.40,000/- each	80,000-00
Loss of parental love and affection to claimant No.4	40,000-00
Loss of estate	25,000-00
Funeral and other obsequies and other charges	25,000-00
TOTAL	19,23,600-00

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In view of the above, the appeal filed by the insurer is dismissed and the appeal filed by the claimants is allowed in part and the compensation to which the claimants are entitled is re-determined at a sum of Rs.19,23,600/- which is payable by the insurer to the claimants at the rate of 6% per annum from the date of claim petition till the date of realization.

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The compensation amount as re-determined by this Court shall be deposited by the insurer within one month from the date of receipt of certified copy of this order.

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The amount in deposit by the insurer shall be transmitted to the Tribunal for necessary orders.

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Sd/JUDGE

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Sd/JUDGE

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mbb

New India Assurance Co. Ltd. v. Sri Shivam K

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Sri Shivam K

Case brief

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What did the court decide?

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