Partly allowed

The Branch Manager M/S Shriram General Insurance Company Ltd. v. Sri Santhosh Kumar Mishra

Karnataka HC28 Oct 2022MFA/7258/2022

Case brief

AI extract

What is this about?

This appeal challenges compensation awarded for a fatal motor accident. The High Court set aside the lower court's quantum, reducing the award from Rs.82,64,600 to Rs.77,24,000 by applying a 40% future prospects factor instead of 50%, while upholding the finding of liability.

What did the court decide?

The appealed judgment and award dated 14.06.2022 modified by reducing compensation from Rs.82,64,600 to Rs.77,24,000; other conditions remain unaltered.

The Branch Manager M/S Shriram General Insurance… — Motor Accident Claims | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 28^TH DAY OF OCTOBER, 2022

¶3

PRESENT

¶4

THE HON'BLE MR. JUSTICE K.SOMASHEKHAR

¶5

AND

¶6

THE HON’BLE MR. JUSTICE C.M.JOSHI

¶7

M.F.A.No.7258/2022 (MV-D)

¶8

BETWEEN:

¶9

THE BRANCH MANAGER M/S SHRIRAM GENERAL INSURANCE COMPANY LIMITED NO.5/4 3RD FLOOR, S.V. ARCADE DEVARACHIKKANAHALLI ROAD BANNERUGHATTA MAIN ROAD IIMB POST BANGALORE REP. BY ITS ASSISTANT MANAGER.

¶10

...APPELLANT

¶11

(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)

¶12

AND:

¶13

SRI SANTHOSH KUMAR MISHRA S/O LATE SIYARAM AGED ABOUT 56 YEARS

¶14

SMT. ALKA DEVI W/O SANTHOSH KUMAR MISHRA AGED ABOUT 51 YEARS

¶15

¶16

ABHISHEK MISHRA S/O SANTHOSH KUMAR MISHRA, AGED ABOUT 26YEARS ALL ARE R/AT NO.45-A GOVINDAPURI THATIPUR, R.K. PURI GWALIOR, MADHYA PRADESH 474 011.

¶17

SRI KAMARAJ H.N. @ KAMARAYA S/O NINGAPPA AGED ABOUT 51 YEARS NO.101, 6TH CROSS, ITPL MAIN ROAD NEAR CMRIT COLLEGE KUNDALAHALLI BANGALORE 560 037.

¶18

…RESPONDENTS

¶19

(BY SRI K.T. GURUDEV PRASAD, ADVOCATE FOR R1 TO 3 NOTICE TO R4 DISPENSED WITH V/O DATED 28-10-2022)

¶20

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.06.2022 PASSED IN MVC NO.2104/2020 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES AND XXIII ACMM AND MEMBER MACT, MAYOHALL UNIT BENGALURU CITY SCCH-19, PARTLY ALLOWING THE CLAIM PETITION FOR COMPESNATION AND SEEKING TO SET ASIDE THE SAME.

¶21

THIS M.F.A. COMING ON FOR ORDERS, THIS DAY C.M.JOSHI J. , DELIVERED THE FOLLOWING:

¶22

¶23

JUDGMENT

¶24

By consent of both the counsel, the matter is taken

¶25

up for final disposal though it is listed for Orders.

¶26

Being aggrieved by the judgment and award dated 14.06.2022 passed in MVC No.2104/2020 by the learned XV Additional Small causes Judge, Court of Small Causes and XXIII ACMM and MACT, Mayohall Unit Bengaluru City, SCCH-19, whereby the petition filed by the petitioners came to be allowed in part awarding compensation of Rs.82,64,600/- with interest at 6% P.A. and directing the Insurance Company to deposit the same with liberty to recover the same from the owner of the offending vehicle, the Insurance Company has filed this appeal.

¶27

The parties are referred to as per their

¶28

nomenclature before the Tribunal for the sake of convenience.

¶29

The brief facts of the case are as below:

¶30

¶31

It is the case of the petitioners that on 13-3-2020 at about 10-35 p.m., when their son namely, Ashutosh Mishra was riding a motor cycle bearing Reg.No.KA.03.KC.3523 on ITPL main road and when he reached near Udupi Park Hotel, the driver of one JCB Hitachi bearing Reg.No.KA.53/MF-9948 drove the same in a rash and negligent manner and dashed against the motor cycle of the deceased. Due to which, their son sustained grievous injuries and died on the spot. Immediately, body of the deceased was shifted to Vydehi Hospital, for postmortem and thereafter, they shifted the same to their native place and performed last rites by spending more than Rs.3,50,000/-.

¶32

It is further stated that, prior to the accident, deceased was hale and healthy, aged about 26 years, working as Staff Consultant, IT Engineer at Oracle Financial Services Software Ltd., Bangalore and earning Rs.6,72,278/- per annum and contributing the same to his family. It is also contended that deceased was the only

¶33

¶34

bread winner in the family and due to his untimely death, they have suffered lot both mentally and financially. It is also stated that jurisdictional police have registered a case in Crime No.22/2020 against the driver of JCB Hitachi bearing Reg.No.KA.53.MF.9948 for the offences punishable under Sections 279, 304(A) IPC. The petitioners being the parents and brother of the deceased, filed a claim petition under Section 166 of M.V. Act claiming compensation of Rs.1,50,00,000/- contending that 1st respondent being the RC owner and 2nd respondent being the Insurer of the offending vehicle are jointly and severally liable to pay the compensation.

¶35

On receipt of summons from the Tribunal, respondent Nos. 1 and 2 appeared through their counsel. Respondent No.1 has not filed any written statement and respondent No.2 has filed its written statement.

¶36

Respondent No.2- Insurance company has denied

¶37

the case of the petitioners, however, admitted the issuance of policy in favour of respondent No.1 in respect

¶38

¶39

of JCB Hitachi bearing Reg.No.KA.53.MF.9948 and restricted its liability to the terms and conditions of the policy. It is also contended that driver of the offending vehicle did not possess valid and effective DL as on the date of the accident and as such, there is a violation of terms and conditions of the policy. Further, it has denied the involvement of the offending vehicle in the accident and specifically contended that the accident was occurred due to sole negligence on the part of the deceased only and therefore, the petition is bad for non joinder and mis joinder of necessary parties. Further, it has denied the rest of the contentions of the petitioners regarding, age, income, occupation and relationship of the deceased and the amount spent towards funeral and other ceremony and that the compensation claimed is highly excessive and exorbitant. Hence, prayed to dismiss the petition.

¶40

On the basis of the pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration. In order to prove their case, petitioners

¶41

¶42

examined two witnesses as PWs 1 and 2, got marked 30 documents as Exs.P1 to P30 and on the other hand, respondents examined three witnesses as RWs 1 to 3 and got marked 5 documents as Exs.R1 to R5.

¶43

The Tribunal, after hearing the arguments of both sides and considering the oral and documentary evidence available on file, taking the income of the deceased at Rs.53,000/- per month, adding 50% towards future prospects, deducting 50% towards personal expenses and applying multiplier 17 to the age of the deceased, awarded Rs.81,09,000/- towards loss of dependency and also awarded compensation under other heads as below:

¶44

Loss of dependency	Rs.81,09,000/-
Filial Consortium	Rs. 1,20,000/-
Transportation of dead body	Rs. 5,600/-
Towards funeral and obsequies ceremonies	Rs. 15,000/-
Loss of estate	Rs. 15,000/-
Total	Rs.82,64,600/-

¶45

Thereafter, the Tribunal proceeded to allow the petition in part awarding compensation of Rs.82,64,600/holding that respondent No.2 being the insurer of the

¶46

¶47

offending vehicle is primarily liable to pay the compensation with interest and entitled to recover the same from the owner of the offending vehicle. Being aggrieved by the same, the Insurance company has approached this Court in this appeal to set aside the same.

¶48

We have heard learned counsel appearing for the appellant Sri B.C.Shivanne Gowda, and Sri K.T.Gurudev Prasad, learned counsel appearing for petitioners. However, notice to R4 is dispensed with.

¶49

The learned counsel appearing for the appellant Insurance Company has contended that the accident had taken place due to the rash and negligent driving of the motor cycle by the deceased and that the driving licence of the deceased has not been produced, and therefore, the Tribunal should have drawn adverse inference against the owner and the driver. It was contended that the owner of the motor cycle appeared through an advocate but failed to produce the driving licence in order to seek indemnification and therefore, the conclusion reached by

¶50

¶51

the Tribunal are perverse in nature. The main contention of the learned counsel for the appellant Insurance Company is in respect of the calculation of the quantum of the compensation made by the Tribunal. It is submitted that the future prospects should have been considered at 40% in the given circumstance that it was not a permanent occupation. It is submitted that the future prospects has been considered by the Tribunal at 50% and the same is erroneous.

¶52

Per contra, learned counsel appearing for the claimants has submitted that the Tribunal has considered all the relevant aspects and the evidence led by the respondents do not establish sufficient material which disentitle the claimants from the compensation.

¶53

We have given our anxious consideration to the submissions made by learned counsel for the appellant. It is to be noted that, the claimants are the father, mother and brother of the deceased. The chargesheet has been laid against the driver of Hitachi vehicle. There is no

¶54

¶55

contention or allegation that there was any negligence by the deceased while driving the motor cycle. No such evidence is led by the Insurance Company which establish that there was contributory negligence by the deceased. Therefore, when there is no iota of evidence regarding the contributory negligence, contending simply that the deceased was not having a driving licence will not help the appellant in any way. The Tribunal while delving on issue No.1 has rightly come to the conclusion that the accident occurred due to the negligence on the part of the driver of Hitachi bearing Reg.No.KA.52-MF 9948. Therefore, in no way, there is any reason to interfere with the said finding by the Tribunal.

¶56

Coming to the question of the quantum, the learned counsel for the appellant has fairly submitted that the deceased was working as a Staff Consultant, IT Engineer at Oracle Financial Services Software Ltd., Bengaluru, earning a sum of Rs.6,72,278/- per annum. The petitioners had examined an employee of the Oracle

¶57

¶58

as PW2 and pay-slips were produced at Exs.P26 to 28. Therefore, considering all the material which is placed on record in the form of pay slips and appointment order, the Tribunal has rightly come to the conclusion that the monthly income of the deceased was Rs.53,000/- per month. The only contention of the appellant is that, the future prospects should have been considered at 40% but not at 50%. By applying the principles laid down in the case of National Insurance Company Vs. Pranay Sethi and others,¹ the future prospects are to be calculated at 40% of the income of the deceased. Therefore, the loss of dependency is calculated as Rs.53,000/- + (53,000/- x 40%)=74,200/-. The deceased was unmarried and therefore, 50% has to be deducted towards personal expenses. Hence, the loss of dependency of the claimants is calculated as Rs.74,200/- x 50% x 12 x 17 = 75,68,400/- by adopting a multiplier of 17 for the age of 26 years. Hence, the revised compensation is calculated as below:

¶59

1 AIR 2017 SC 5157

¶60

¶61

Loss of dependency	Rs.75,68,400/-
Filial Consortium	Rs. 1,20,000/-
Transportation of dead body	Rs. 5,600/-
Towards funeral and obsequies ceremonies	Rs. 15,000/-
Loss of estate	Rs. 15,000/-
Total	Rs.77,24,000/-

¶62

Thus, the claimants are entitled for Rs.77,24,000/and there shall be a reduction of Rs.5,40,600/(82,64,600-77,24,000=5,40,600) from the compensation awarded by the Tribunal.

¶63

Hence, we pass the following:

¶64

ORDER

¶65

(i) The appeal is allowed in part.

¶66

(ii) The impugned judgment and award dated 14.06.2022 passed in MVC No.2104/2020 by the learned

¶67

XV Additional Small causes Judge, Court of Small Causes and XXIII ACMM and MACT, Mayohall Unit Bengaluru City SCCH-19 , is modified by reducing compensation from

¶68

Rs.82,64,600/- to Rs.77,24,000/-.

¶69

¶70

All other conditions imposed by the Tribunal remain unaltered.

¶71

The amount in deposit shall be transmitted to the

¶72

concerned Tribunal, forthwith.

¶73

Sd/JUDGE

¶74