Partly allowed

Smt Shilpa Sreenath v. v Rajendran

Karnataka HC4 Jan 2021MFA.CROB/19/2015

Case brief

AI extract

What is this about?

High Court dismissed the insurer's appeal against the Motor Accident Claims Tribunal's award while allowing the claimant's cross-objection to enhance compensation. The Court held the insurance company liable and recalculated dependency loss based on corrected net income, adding future prospects and loss of consortium awards.

What did the court decide?

Appeal by Insurance Company rejected; Cross objection allowed in part. Compensation enhanced to Rs.61,40,880/- with interest at 6% p.a. by Tribunal.

Smt Shilpa Sreenath Vs v Rajendran — Banking and Recovery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^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 V. SRISHANANDA

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M. F. A. No.7677/2014 (MV-D) C/W M. F. A. CROB. No.19/2015

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IN MFA No.7677/2014:

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BETWEEN :

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THE REGIONAL MANAGER, CHOLA MS. GENERAL INSURANCE COMPANY LIMITED, REGIONAL OFFICER AT NO.135/5, 15^TH CROSS, 3^RD PHASE, J.P NAGAR, BENGALURU – 560 078

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BY THE CLAIMS MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, UNIT NO.04, NINTH FLOOR (LEVEL-06) “GOLDEN HEIGHTS” COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR, 4^TH ‘M’ BLOCK, BENGALURU – 560 010. (BY SRI. O. MAHESH, ADV.)

...APPELLANT

AND :

SHILPA SREENATH, AGED ABOUT 33 YEARS, W/O. LATE P.V. SREENATH

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P.S. AKANKSHA, MINOR, AGED ABOUT 13 YEARS, S/O. LATE P.V. SREENATH

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P.S. ARNAV, MINOR, AGED ABOUT 6 YEARS, S/O. LATE P.V. SREENATH

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RESPONDENTS 2 AND 3 ARE MINORS, BY M/G RESPONDENT NO.1, ALL R/AT DOOR NO.343, N.G.E.F. LAYOUT, 2^ND CROSS, 4^TH MAIN, 2^ND STAGE, MALLATHAHALLI, BENGALURU – 560 056.

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V. RAJENDRAN, AGE 42 YEARS, S/O. VALLAISWAMY, R/AT OLD NO.11, NEW NO.37, L.G.V. NAGAR, INAMKARUR, KARUR L.N. SUNDARAM B.O. TAMILNADU – 639 002.

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THE MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION, REGIONAL OFFICE AT SUBASH NAGAR, GANDHINAGAR, NEAR KSRTC BUS STAND,

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BENGALURU – 560 009. …RESPONDENTS

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(BY SRI. N.M. PRUTHVIRAJ, ADV FOR R1 TO R3 (R1 REPRESENTED FOR R2 AND R3 MINORS); R4 SERVED)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.09.2014 PASSED IN MVC NO.2328/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND MEMBER MACT, BANGALORE, AWARDING COMPENSATION OF RS,59,32,200/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA CROB. No.19/2015:

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BETWEEN :

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SMT. SHILPA SREENATH, W/O. LATE P.V. SREENATH, AGED ABOUT 32 YEARS,

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P.S. AKANKSHA, D/O. LATE P.V. SREENATH, AGED ABOUT 12 YEARS,

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P.S. ARNAV, S/O. LATE P.V. SREENATH, AGED ABOUT 05 YEARS,

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SINCE RESP/CROSS OBJECTOR NO.2 AND 3 ARE MINORS BOTH ARE REP. BY NATURAL GUARDIAN MOTHER – RESP/CROSS OBJECTOR NO.1 ALL ARE R/AT NO.343, NGEF LAYOUT, 2^ND CROSS, 4^TH MAIN, 2^ND STAGE, MALLATHALLI, BENGALURU – 560056. ...CROSS OBJECTORS

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AND :

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V. RAJENDRAN, S/O. VALLISWAMY, AGED 43 YEARS, R/AT OLD NO.11, NEW NO.37, L.G.V. NAGAR, INAMKARUR, KARUR L.N. SUNDARAM B.O. TAMIL NADU – 639 002.

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CHOLA M.S. GENERAL INSURANCE CO.LTD., REGIONAL OFF AT: NO.135/5, 15^TH CROSS, 3^RD PHASE, J.P. NAGAR, BENGALURU – 560 078.

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THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION, REGIONAL OFF AT SUBASH NAGAR, GANDHINAGAR, NEAR KSRTC BUS STAND, BENGALURU – 560 009 …RESPONDENTS

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THIS M.F.A. CROB IN MFA.NO.7677/2014 FILED U/O 41 RULE 22 CPC, AGAINST THE JUDGMENT AND AWARD DATED 23.09.2014 PASSED IN MVC NO.2328/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE, MEMBER MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.A AND M.F.A.CROB. COMING ON FOR ORDER, THIS DAY, V. SRISHANANDA J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is preferred by the Insurance Company challenging the validity of the judgment and award dated

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23.09.2014 passed in MVC No.2328/2012 on the file of the Addl. MACT, Bengaluru (SCCH-15). In the same appeal, cross objection in MFA Crob No.19/2015 is filed by the claimants seeking enhancement of the compensation by challenging the validity in regard to the quantum of compensation.

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The brief facts which are necessary for disposal

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of the appeal are as under:

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A claim petition came to be filed by the claimants under Section 166 of the I.M.V. Act contending that on 03.09.2011 Sri. P.V. Sreenath was proceeding in a car bearing registration No.TN-47 U-7587 as an inmate on Coimbatore – Trichy Road, when the car reached near Pongalur E.B. Power House office at about 01.45 P.M., a bus bearing registration No.TN-33 N-2706 came from opposite direction in a rash and negligent manner and dashed against the car whereby the inmates of the car suffered severe injuries. Injured inmates were shifted to the Government hospital, Palladam, whereas

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Sri.P.V.Sreenath succumbed to the injuries on the way to the hospital. It is further contended that the accident has occurred only on account of rash and negligent driving of the driver of the TNSTC bus and therefore, the claimants being the dependents of Sri. P.V. Sreenath, having lost their breadwinner, sought for awarding suitable compensation.

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In response to the notice issued, the 1^st respondent who is the owner of the car remained ex-parte . 2^nd respondent who is the insurer of the car and 3^rd respondent appeared before the Tribunal and filed their objection statement denying the claim petition averments in toto and sought for dismissal of the claim petition. Based on the rival contentions, Tribunal raised the following issues:

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1) Whether the petitioners prove that deceased P V Sreenath has died in the motor vehicle accident that occurred on 03-09-2011 at about 1.45 p.m. near Pongalur E B office, Coimbatore – 2, Trichy road, NH-67, within the jurisdiction of Avinashi Palayam Police Station

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on account of rash and negligent driving of bus bearing Registration No.TN-33-N-2706 by its driver as alleged?

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2) Whether the petitioners are entitled to the compensation? If so, what is the quantum and from whom?

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3) What order?

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In order to prove the claim, wife of the deceased Smt. Shilpa Sreenath is examined as PW1 and another witness by name Sri. K. Venu Gopal as PW2. Claimants relied on 19 documents which were exhibited and marked as Ex.P1 to Ex.P19. On behalf of respondents, officer of the Insurance Company by name Sri. G. Suresh, is examined as RW1 and Sri.S.Balasubramaniam, is examined as RW2 and the Investigating OfficerSri.P.Murugeshan is examined as RW3.

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Respondents relied on 10 documents which

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were exhibited and marked as Ex.R1 to Ex.R10.

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On cumulative consideration of the oral and documentary evidence on record, the Tribunal allowed the

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claim petition in part and awarded a sum of

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Rs.59,32,200/- as compensation at the ratio of 40:30:30 together with interest at 6% p.a. from the date of the petition till the realization from 2^nd respondent. It is that judgment which is under challenge in this appeal by the insurer of the car and seeking enhancement of the compensation by the claimants.

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Learned counsel for the appellant vehemently contended that the Tribunal grossly erred in fastening liability on the Insurance Company ignoring the contributory negligence of the driver of the bus. He further argued that the Tribunal did not properly appreciate the evidence of RW2 especially ignoring the improvement made by the driver of the offending bus in the evidence. He further contended that the photographs produced by the driver of the bus is not properly appreciated by the Tribunal while fastening the liability on the appellant-Insurance Company. On the quantum of compensation also, learned counsel for appellant

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contended that a sum of Rs.10,00,000/- should have been deducted from the compensation as the same has been received by the claimants as the ‘service benefits’ and thus, sought for allowing the appeal.

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Per contra, learned counsel for the

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claimants/cross-objectors objects while supporting the findings recorded by the Tribunal in respect of the negligence on the part of the driver of the offending car and fastening the liability on the Insurance Company, contended that the compensation granted by the Tribunal is on the lower side and sought for suitable enhancement of the compensation. He further contended that the Tribunal grossly erred in computing the monthly income at Rs.38,717/- by improper deductions made out of the gross salary which is against the settled principles of law and thus, sought to award suitable enhancement of the compensation.

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In view of the rival contentions, following points would arise for consideration:

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(i) Whether the finding recorded by the Tribunal that the Insurance Company of the car is liable to pay the adjudged compensation is erroneous?

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(ii) Whether the quantum of compensation as ordered by the Tribunal is just compensation?

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The answer to the above points is in the negative for the following:

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REASONS

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11. Regarding point No.1:-

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In the case on hand, the accidental death of Sri.P.V.Sreenath involving car bearing car bearing registration No.TN-47 U-7587 is not disputed.

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Admittedly, Tribunal has taken into consideration, police investigation papers while attributing the negligence to the driver of the car. The police investigation papers comprising of the translation copies of the FIR, spot sketch, IMV report, and the charge sheet which is marked at Ex.P7, clearly establishes that it is the

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driver of the car who proceeded on a high speed which resulted in the accident in question. The said aspect of the matter is dealt in detail in the impugned judgment in para Nos.26 and 27. There is no material on record which would contradict the reasoning recorded by the Tribunal that it is not the driver of the car who is responsible for the accident in question. As such, even after re-appreciation of the entire material on record, we are unable to accept the contentions urged on behalf of the Insurance Company that the Tribunal has wrongly concluded that the accident has occurred on account of the sole negligence of the driver of the car. No other material is placed on record to show that there was a contributory negligence on the part of the driver of the bus bearing registration No.TN-33 N- 2706 for the accident. In view of the aforesaid discussion, point No.1 is accordingly answered.

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Regarding point No.2:-

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Insofar as the quantum of compensation is concerned, admittedly the deceased was a salaried employee. Three pay slips are marked together as Ex.P16

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indicates that the gross salary of the deceased was Rs.44,785.15/-. Tribunal in the impugned judgment in para 32 has discussed about the income of the deceased and deducted a sum of Rs.2,874/- towards P.F. and Rs.200/- towards Professional Tax and Rs.1,794/- towards Income Tax and Rs.1,200/- towards GIS and thereafter arrived at income of Rs.38,717/-.

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It is settled principle of law that it is only the Income Tax and Professional Tax that would be deducted from the gross salary. Thus, the monthly income of the deceased is to be re-computed by deducting sum of Rs.1,794/- towards Income Tax and Rs.200/- towards Professional Tax. In all Rs.1,994/-. Thus, monthly income would be Rs.42,791/-. The deceased being aged 41 years, would be entitled to 25% addition as per the decision of the Hon’ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others (2017) 16 SCC 680 towards ‘future prospects’. Having regard to the number of dependents, 1/3^rd is to be deducted towards personal expenditure. Claimant Nos.2 and 3 being minor children of

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the deceased, they are entitled for a sum of Rs.40,000/each towards ‘loss of consortium’ as per Magma General Insurance Company Limited vs. Nanu Ram & Others (2018) 18 SCC 130 and United India Insurance Co. Ltd.,

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Vs. Satinder Kaur (2020) SCC Online SC 410 and Rs.40,000/- towards conventional heads and Rs.30,000/towards shifting of dead body and funeral expenses.

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Accordingly, as against Rs.59,32,200/- claimants

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are entitled to following sums:

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1	Loss of dependency (Rs.35,660/- x 12 x 14)	59,90,880
2	Conventional Head	70,000
3	Loss of filial affection for claimant Nos.2 and 3	80,000
	Total	61,40,880

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Insofar as the contention of the learned counsel for

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the appellant-Insurance Company that Rs.10,00,000/given as service benefits by the employer of the deceased is to be deducted out of the compensation is concerned, it is settled principle of law that ‘service benefits’ are not to be deducted out of the compensation amount.

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Accordingly, the point No.2 is answered and

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following order is passed:

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ORDER

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Appeal filed by the Insurance

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Company is rejected.

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Cross objection filed by the claimants is allowed in part. In modification of the judgment and award of the Tribunal, the claimants are entitled to a sum of Rs.61,40,880/- along with interest at the rate of 6% p.a., from the date of petition till realization as against a sum of Rs.59,32,200/- awarded by the Tribunal.

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The apportionment and disbursement to be done as per the impugned judgment and award passed by the Tribunal.

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Amount in deposit is ordered to be transmitted to the Tribunal.

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Insurance Company is directed to deposit/pay the compensation within six

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weeks from the date of receipt of this order.

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Sd/JUDGE

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