Partly allowed

The Regional Manager , v. Smt. Krupa v Kulkarni

Karnataka HC7 Dec 2023MFA/1817/2023

Case brief

AI extract

What is this about?

The High Court affirmed negligent finding against lorry driver but modified compensation quantum. It corrected multiplier to 14, calculated future prospects at 30%, and combined funeral and transportation expenses, enhancing total award to Rs. 172.15 lakhs.

What did the court decide?

Modified compensation awarded at Rs. 1,72,15,220/- inclusive of loss of dependency, consortium, estate, and joint funeral expenses.

The Regional Manager , Vs Smt. Krupa v Kulkarni — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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MISCELLANEOUS FIRST APPEAL No.1817/2023 (MV-D) C/w MFA CROSS OBJECTION NO.90/2023 (MV-D)

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MFA No.1817/2023:

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BETWEEN:

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THE REGIONAL MANAGER NATIONAL INS. CO. LTD. REGIONAL OFFICE, NO.144, 2^ND FLOOR SHUBHARAM COMPLEX M. G. ROAD, BENGALURU–560 001 …APPELLANT

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(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)

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AND:

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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SMT. KRUPA V. KULKARNI W/O LATE VINAYAK V. KULKARNI AGED ABOUT 43 YEARS

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MASTER KAUSTUBH V. KULKARNI S/O LATE VINAYAK V. KULKARNI AGED ABOUT 18 YEARS

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MASTER VEDANT V. KULKARNI S/O LATE VINAYAK V. KULKARNI AGED ABOUT 11 YEARS

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SRI VIRUPAKSHA RAO KULKARNI S/O LATE SHIVA RAO KULKARNI AGED ABOUT 87 YEARS ALL ARE R/AT No.1006, 1^ST FLOOR SAI NANDANA GARDENIA BANNERGHATTA ROAD

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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NEAR NANDI RETREAT DODDAKAMMANAHALLI GOTTIGERE, BENGALURU – 560 008.

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R3 IS MINOR REP.BY THEIR MOTHER AND NATURAL GUARDIAN SMT. KRUPA V. KULKARNI

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MR. KARTHICK K. N. S/O NATARAJAN K. MAJOR No. 98/68, KARUPPANNAN STREET S.P.PUDUR, NAMAKKAL DISTRICT NAMAKKAL, TAMIL NADU – 637 001 …RESPONDENTS

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(BY SRI R.VENKATESHA NAIDU, ADVOCATE FOR R1 TO R4 R3 MINOR REP. BY R1; R5 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 21.12.2022 PASSED BY III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU SCCH-18 IN MVC NO.5949/2019.

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MFA CROB. No.90/2023:

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BETWEEN:

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SMT. KRUPA V. KULKARNI W/O LATE VINAYAK V. KULKARNI AGED ABOUT 43 YEARS

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KAUSTUBH V. KULKARNI S/O LATE VINAYAK V. KULKARNI AGED ABOUT 19 YEARS

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MASTER VEDANT V. KULKARNI S/O LATE VINAYAK V. KULKARNI AGED ABOUT 11 YEARS

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SRI VIRUPAKSHA RAO KULKARNI S/O LATE SHIVA RAO KULKARNI AGED ABOUT 87 YEARS

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ALL ARE R/AT NO.1006, 1^ST FLOOR SAI NANDANA GARDENIA BANNERGHATTA ROAD NEAR NANDI RETREAT DODDAKAMMANAHALLI

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GOTTIGERE, BENGALURU – 560 083 CROSS OBJECTOR NO.3 IS MINOR REP. BY HIS MOTHER AND NATURAL GUARDIAN SMT. KRUPA V. KULKARNI …CROSS OBJECTORS

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(BY SRI R. VENKATESHA NAIDU, ADVOCATE)

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AND:

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THE REGIONAL MANAGER NATIONAL INSURANCE CO. LTD. REGIONAL OFFICE, NO.144 2^ND FLOOR, SHUBHARAM COMPLEX M. G. ROAD, BENGALURU-560 001

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MR. KARTHICK K. N. S/O NATARAJAN K. MAJOR NO.98/68, KARUPPANNAN STREET S. P. PUDUR, NAMAKKAL DISTRICT

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NAMAKKAL, TAMIL NADU 637 001 …RESPONDENTS

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(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R1; NOTICE TO R2 DISPENSED WITH V/C/O DTD. 24.11.2023)

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THIS MFA CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22 READ WITH SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE AWARD DATED 21.12.2022 PASSED BY THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU SCCH-18 IN MVC.NO.5949/2019.

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THIS MISCELLANEOUS FIRST APPEAL AND MFA CROSS OBJECTION COMING ON FOR FURTHER HEARING THIS DAY, K.S .MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the award passed in MVC No.5949/2019 on the file of III Additional Judge, Court of Small Causes and Member, MACT, Bengaluru, the insurer has preferred M.F.A.No.1817/2023 and the claimants have filed M.F.A. Crob.No.90/2023.

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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The appellant in M.F.A.No.1817/2023 was

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respondent No.1, respondent Nos.1 to 4 were claimant Nos.1 to 4 and respondent No.5 was respondent No.2 in M.V.C.No.5949/2019. For the purpose of convenience, parties are referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the wife, claimant Nos.2 and 3 are the minor children and claimant No.4 is the father of deceased Vinayak V.Kulkarni. On 05.07.2019, at 10.50 p.m., when Vinayak Kulkarni was proceeding on his motorcycle bearing registration No.KA-25/R-3694, the said motorcycle hit the trailer lorry bearing Registration No.TN-88-3875 on Nice road near Naidu Properties Bridge within the limits of Electronic City Traffic Police Station. Due to the injuries suffered in the accident, victim was shifted to Ramakrishna Government Hospital and he succumbed to the injuries on his way to the Hospital.

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Regarding the accident, on the complaint of one Bommegowda H.K., Highway Patrolling Officer, NICE Company, Electronic City Traffic Police registered first information report as per Ex.P1 in Crime No.80/2019 against the driver of lorry as well as the deceased. In the complaint it was alleged that the

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lorry was parked negligently on the road without parking indicator lights and the victim was also riding the motorcycle in high speed and that led to the accident and death. On investigation, the Police filed charge sheet as per Ex.P7, against the driver of lorry alone for the offences under Sections 283, 304A of IPC and Sections 134 (a) & (b) and 187 of Indian Motor Vehicles Act, 1988. In the charge sheet, it was alleged that the driver of the lorry had parked the lorry on the NICE Road negligently without parking lights and Vinayak V.Kulkarni who was riding the motorcycle could not notice the lorry and hit his motorcycle to the lorry. It was further alleged that the driver of the lorry without attending to the injured victim escaped from the spot. At the time of accident, respondent Nos.1 and 2 were the insurer and registered owner of the vehicle respectively.

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The claimants filed MVC No.5949/2019 before the Tribunal against the respondents claiming compensation of Rs.3.00 Crores contending that the deceased was working as Senior Manager in Axis Bank, Electronic City Branch, Bengaluru and earning gross salary of Rs.1,15,873/- per month. They further contended that they were dependent on the income of deceased. They further contended that accident and

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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consequential death occurred due to actionable negligence on the part of the driver of lorry and they have suffered damages. They contended that respondent Nos.1 and 2 being insurer and owner of the lorry respectively, are liable to compensate the damages.

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Respondent No.2 did not contest the matter. Respondent No.1 alone contested the matter. Respondent No.1 did not deny the accident and death of Vinayak Kulkarni due to the injuries suffered in the accident. However, it is contended that the accident occurred due to negligence on the part of the victim himself. Respondent No.1 alleged that the lorry was moving slowly and the deceased himself was rash and negligent in riding the motorcycle, hitting the lorry, which led to the accident and his death. Further, respondent No.1 denied the age, occupation, income of the deceased and its liability to pay the compensation.

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In support of the case of claimants, claimant No.1 was examined as PW.1, representative of the employer of the deceased was examined as PW.2 and Exs.P1 to P33 were marked. On behalf of respondent No.1, its officer was examined as RW.1, Police Officer who filed charge sheet was examined as RW.2 and Exs.R1 and R2 were marked.

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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The Tribunal on hearing the parties, by the impugned judgment and award held that the accident occurred due to actionable negligence on the part of the driver of lorry.

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The Tribunal relying on Ex.P15 the SSLC marks card considered the age of deceased as 46 years. Relying on the evidence of PW.2, the Tribunal considered the income of deceased at Rs.1,12,134/- per month and on deducting income tax, professional tax, considered his income at Rs.1,01,244/- per month and Rs.12,14,928/- per annum. The Tribunal deducted 1/4^th of the income towards personal expenses of the deceased, applied 13 multiplier and added 30% to the same by

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way of future prospects and awarded compensation of Rs.1,53,99,215/- on the head loss of dependency. The Tribunal in all awarded compensation of Rs.1,54,86,215/- on different heads as per the table below payable by the insurer.

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Compensation heads	Compensation Amount
Towards loss of dependency	Rs.1,53,99,215-00
Towards loss of consortium	Rs. 44,000-00
Towards loss of estate	Rs. 16,500-00
Towards funeral & obsequies ceremony expenses	Rs. 16,500-00
Towards transportation of dead body	Rs. 10,000-00
Total	Rs.1,54,86,215-00

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The insurer has challenged the said award on the ground that the victim was guilty of contributory negligence in occurrence of accident and awarding future prospects at 25% is erroneous.

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Reiterating the grounds of appeal memo, Sri.A.N.Krishnaswamy, learned counsel for the Insurer submits that the income considered by the Tribunal is on the higher side, the Tribunal should have given deduction to the compensation received by the claimants from the employer of the deceased due to his accidental death. Therefore, seeks to reduce the compensation and reject the cross-objection filed by the claimants.

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Sri R.Venkatesha Naidu, learned counsel for the claimants submits that the evidence on record clearly shows that it was the driver of lorry who had negligently parked the vehicle on the road. The insurer did not chose to examine the driver of lorry. Respondent No.2 did not contest the matter at all on any of the grounds. The complainant was not the eyewitness. He further submits that the income of the victim considered by the Tribunal is on the lower side and the future prospects awarded is in accordance with the judgment of the Hon'ble Supreme Court in the case of National Insurance

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Company vs. Pranay Sethi¹ . He also submits that the

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applicable multiplier is 14 and not 13.

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Considering the submissions on both side and on

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examination of material on record, the questions that arise for consideration are:

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i) Whether the finding of the Tribunal that accident in question occurred due to actionable negligence of the driver of Lorry bearing No.TN-88-3875 is sustainable?

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ii) Whether the compensation awarded under the impugned award is just?

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Analysis

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Reg. Point No.1:

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Respondent No.1 did not dispute the occurrence of accident involving the motorcycle bearing No.KA-25/R-3694 and lorry bearing No.TN-88-3875. Respondent No.1 did not dispute the death of Vinayak Kulkarni, the rider of motorcycle due to accidental injuries. Respondent No.2 owner of the lorry did not contest the petition at all denying actionable negligence on the part of the driver of lorry.

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The prime contention of learned counsel for respondent No.1 is that in the FIR, claimants own document, it

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1 (2017) 16 SCC 680

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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was alleged that both victim and driver of lorry were negligent. Therefore, that document takes precedence over charge sheet Ex.P7. It is no doubt true that charge sheet is not the conclusive proof of actionable negligence on the part of the driver of lorry. However, the material on record clearly shows that the complainant was not the eyewitness to the accident. In the complaint, he states that on somebody informing him about the accident, he rushed to the spot and found the parked lorry and made arrangement for shifting the victim to the hospital. Therefore, his version regarding victim also being rash and negligent cannot be accepted unless the same is corroborated by any other evidence. Even in his complaint, he has only stated that according to his information, victim was riding the vehicle in high speed. But he has not stated that the victim was negligent also.

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Further, on detailed investigation, the police filed charge sheet Ex.P7 against the driver of lorry for offences punishable under Sections 283, 304A of IPC and Sections 134(a) & (b) and 187 of MV Act. Respondent No.1-insurer got the police officer examined as RW.2. RW.2 himself states that the investigation revealed that the driver of lorry had parked the vehicle without indicator lights on the road which was not

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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meant for parking, which led the victim dashing his motorcycle to the same. Though respondent No.1 treated RW.2 as hostile and cross-examined, nothing was elicited in the crossexamination of RW.2 to impeach his evidence regarding filing of charge sheet and his conclusion at the time of filing of the charge sheet. The charge sheet Ex.P7 shows that one Narashimamurthy and Prabath were cited as eyewitnesses to the incident. Respondent No.1 did not choose to examine those witnesses. Under Section 114 of the Indian Evidence Act, 1872, there is a presumption that official acts are correctly performed. Thus, Ex.P7 had presumptive value. That presumption was further confirmed by the evidence of RW.2 himself. The insurer did not choose to examine the driver of lorry to rebut the said evidence. Therefore, by no stretch of imagination it can be said that the finding of Tribunal regarding actionable negligence on the part of the driver of lorry in causing the accident is erroneous one.

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Reg. Point No.2 Quantum:

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As per Ex.P15 SSLC Marks card, date of birth of deceased is 22.07.1973. The accident took place on 05.07.2019. Therefore, as on the date of accident, deceased was aged 45 years 11 months 13 days. As per the judgment

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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of the Hon'ble Supreme Court in Sarla Verma v. Delhi

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Transport Corporation² , the multiplier applicable in case of death of a person aged between 41 to 45 years is '14'. Therefore, the Tribunal should have taken '14' multiplier instead of '13'.

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Though much was argued by learned counsel for claimants that the salary shown in the last month pay slip has to be taken, the deceased admittedly was an income tax assessee. Therefore, his consistent income as declared by him

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for the purpose of submitting of IT Returns has to be considered. Ex.P32 consists of the income of the deceased for the period mentioned below:

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Assessment year	Financial Year
2020-2021	01.04.2019 to 31.03.2020
2020-2021	01.04.2019 to 05.07.2019
2019-2020	01.04.2018 to 31.03.2019
2018-2019	01.04.2017 to 31.03.2018

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Form No.16 relevant for the purpose of this case for the Assessment year 2019-2020 and Financial year 01.04.2018 to 31.03.2019 was submitted on 31.05.2019. As per the said Form No.16, gross income of the deceased was

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2 AIR 2009 SCC 3104

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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Rs.13,76,087/-, Tax deducted was Rs.1,30,210/-. Therefore,

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his income comes to Rs.12,45,877/-.

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The evidence of PW.2 shows that deceased had joined Axis Bank as Deputy Manager, Information Technology, on 14.07.2008. The services of the victim was confirmed on 14.01.2009. At the time of his death, he was working as Senior Manager. Relying on Clause 9 of Ex.P9 the contract of employment, learned Counsel for the Insurer claims that service of deceased was terminable with one month’s notice unconditionally. Therefore, the said employment was not permanent employment. However, even respondent No.1 did not dispute that the service of the deceased was confirmed and by the time of his death he had completed more than 10 years of service. It is also not in dispute that Axis Bank which is the employer of the deceased is sound and well established institution.

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In similar circumstances, in para 10 of the judgment in New India Assurance Co. Ltd. v . Ashish Ravindra Kulkarni³ the Hon'ble Supreme Court held that a condition in the employment letter that job can be terminated with thirty

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3 2023 ACJ 1997

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NC: 2023:KHC:44429-DB MFA No.1817/2023 C/w MFA.CROB No.90/2023

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days notice, cannot be the basis to indicate that the employment was of temporary nature. The employer concerned in that case was Tata Precision Industries which is clearly well established like Axis Bank. In that case also, there was a clause containing termination of the contract by either parties with one month’s notice. In such circumstances, it was held that the right of the employee to terminate itself does not suggest employment to be temporary. Therefore the contention that the employment of the deceased was temporary deserves no merit.

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra, in case of permanently employed person, to the income of the deceased aged between 40-50 years, 30% of his income has to be superadded by way of future prospects which comes to (Rs.12,45,877/-x 30%) Rs.3,73,763/-. Therefore his total annual income comes to Rs.16,19,640/-. (Rs.12,45,877 + Rs.3,73,763/-).

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Since the deceased had four dependants, as per the judgment of the Hon'ble Supreme Court in Sarla Verma’s case referred to supra , 1/4^th of his income has to be deducted

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towards his personal expenses, which comes to Rs.16,19,640 x 1/4^th = Rs.4,04,910/-. Therefore his annual contribution to family comes to Rs.12,14,730/- (Rs.16,19,640 - Rs.4,04,910).

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As per the said judgment, the applicable multiplier for his age is 14. Therefore, the compensation payable on the head of loss of dependency comes to Rs.12,14,730 x 14 =1,70,06,220/-.

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The claimants being the widow, minor children and father of the deceased are entitled to compensation on the head of loss of parental, spousal and filial consortium. As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd. v. Nanu Ram⁴ on the head of consortium, they are entitled to compensation of Rs.40,000/- each with escalation of 10% which comes to Rs.1,76,000/-.

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The compensation awarded on the head of loss of estate and funeral expenses is just one. The compensation of Rs.16,500/- includes funeral expenses as well as transportation of the dead body. Therefore the Tribunal should not have awarded another Rs.10,000/- separately towards expenses of

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4 2018 (18) SCC 130

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transportation of dead body. Therefore just compensation

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payable to the claimants in this case is as follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	1,70,06,220/-
2.	Loss of consortium	1,76,000/-
3.	Loss of estate	16,500/-
4.	Transportation & funeral expenses	16,500/-
	Total	1,72,15,220/-

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As the vehicle in question is covered with valid policy issued by respondent No.1, respondent No.1 is liable to indemnify the damages. The impugned award needs to be modified accordingly. Hence, the following:

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ORDER

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M.F.A.No.1817/2023 is dismissed.

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M.F.A.Crob.No.90/2023 is party allowed. The impugned award is modified as follows:

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(i) The claimants are entitled to compensation of Rs.1,72,15,220/- with interest thereon at 6% p.a. from the date of petition till the date of its realization.

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(ii) Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. However, respondent No.1 being Insurer is liable to indemnify the damages.

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(iii) Respondent No.1 Insurer shall deposit the compensation before the Tribunal on adjusting the compensation already deposited, if any, within four weeks from the date of receipt of copy of this order.

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(iv) The impugned award with regard to apportionment of the compensation and investment so far as claimant Nos.1 to 3 is maintained.

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(v) The entire share of claimant No.4 shall be released to him digitally on furnishing required documents.

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(vi) Registry shall transmit the trial Court records and the amount in deposit, if any, to the Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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MV,KSR