Partly allowed

Hdfc Ergo General Ins. Com Ltd. v. Smt. Renuka

Karnataka HC9 Jan 2024MFA/100311/2023

Case brief

AI extract

What is this about?

Motor accident compensation appeals concerning quantum for death of a railway employee. The High Court reassessed income deducting only professional and income tax from gross salary, upheld one-third personal expense deduction where unmarried sisters depended on the bachelor deceased, and enhanced compensation to Rs.76,59,548 with 6% interest.

What did the court decide?

Both appeals allowed in part; total compensation enhanced to Rs.76,59,548 with 6% interest; insurer to deposit before Tribunal within six weeks.

Hdfc Ergo General Ins. Com Ltd. Vs Smt. Renuka — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE K V ARAVIND

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MISCELLANEOUS FIRST APPEAL NO.100311 OF 2023 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.104687 OF 2022 (MV-D)

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IN MFA NO.100311/2023

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BETWEEN:

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HDFC ERGO GENERAL INS. COM LTD., JINEVA HOUSE, CUNNINGHAM ROAD, 3^RD FLOOR, BENGALURU, BRANCH OFFICE AT OPP. KIMS GATE, VIDYANAGAR, HUBBALLI, REPTED BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)

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AND:

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K MSOMASHEKAR Digitallysigned by K MSOMASHEKARDate:2024.01.1614:46:28+0530

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SMT. RENUKA W/O. KALLAPPA SAKRI, AGE. 57 YEARS, OCC. HOUSEHOLD, R/O. KALLANAVAR ONI, BENGERI, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580001.

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KUMARI. PRATIBHA D/O. KALLAPPA SAKRI, AGE. 29 YEARS, OCC. HOUSEHOLD, R/O. KALLANAVAR ONI, BENGERI, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD–580001.

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KUMARI. PREETI D/O. KALLAPPA SAKRI, AGE. 27 YEARS, OCC. HOSEHOLD, R/O. KALLANAVAR ONI, BENGERI, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD–580001.

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SATISH S/O. SHYAMRAO NILUGAL, AGE. 48 YEARS, OCC. PRIVATE SERVICE, R/O. DEVANGMETH ONI, NEAR GANESH TEMPLE,

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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BETAGERI-GADAG, TQ AND DIST. GADAG-580001.

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…RESPONDENTS

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(BY SRI. ANKIT R. DESAI AND

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SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATES FOR R1& R3, SMT. TRUPTI P. SADEKAR AND C.S. SHETTAR, ADVOCATES FOR R4)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.09.2022 PASSED IN MVC NO.341/2020 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, AWARDING COMPENSATION OF RS.69,15,962/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO. 104687/2022

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BETWEEN:

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SMT. RENUKA W/O. KALLAPPA SAKRI, AGE. 54 YEARS, OCC. HOUSE HOLD,

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KUMARI. PRATIBHA D/O. KALLAPPA SAKRI, AGE. 26 YEARS, OCC. HOUSE HOLD,

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KUMARI. PREETI D/O. KALLAPPA SAKRI, AGE. 24 YEARS, OCC. HOUSE HOLD,

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ALL ARE R/O. KALLANAVAR ONI, BENGARI, TQ. HUBBALLI, DIST. DHARWAD.

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…APPELLANTS

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(BY SRI. ANKIT R. DESAI AND

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SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATES)

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AND:

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SATISH S/O. SHYAMRAO NILUGAL, AGE. 45 YEARS, OCC. PRIVATE SERVICE, R/O. DEVANGMETH ONI, NEAR GANESH TEMPLE, BETAGERI GADAG, DIST. GADAG 582101. (OWNER OF THE MARUTI OMNI NO.KA-26/M 8841)

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THE BRANCH MANAGER, HDFC ERGO GENERAL INSURANCE CO.LTD., JINEVA HOUSE, CUNNINGHAM ROAD, 3RD FLOOR, BENGALURU, BRANCH OFFICE AT OPP. KIMS GATE, VIDYANAGAR, HUBBALLI-580001.

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…RESPONDENTS (BY SMT. TRUPTI P. SADEKAR AND

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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SRI. C.S. SHETTER, ADVOCATES FOR R1, SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.09.2022 PASSED IN MVC NO.341/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ORDERS, THIS DAY, S G PANDIT J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these appeals are listed for orders, they are taken up for final disposal with the consent of learned counsel for both the parties.

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2. Since both these appeals are against judgment and award dated 23.09.2022 passed in MVC No.341/2020 on the file of learned I Addl. Senior Civil Judge & MACT, Hubballi (for short, ‘Tribunal’), they are taken up together for final disposal.

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3. MFA No.100311/2023 is filed by the insurance company challenging the quantum of compensation, whereas the claimants have filed MFA No.104687/2022 praying for enhancement of compensation, not being satisfied with quantum of compensation granted by the Tribunal.

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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4. The parties would be referred to as they stand in MFA No.104687/2022 for the sake of convenience.

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5. Brief facts of the case are that, the

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appellants/claimants, who are mother and sisters of the deceased Praveenkumar Sakari, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Praveenkumar Sakari that took place on 3.7.2020 involving Motorcycle bearing registration No.KA-25/EY-5506 and Omni Car bearing registration No.KA-26/M-8841. It is stated that the deceased was riding the said motorcycle. It is further stated that as on the date of accident, deceased was aged 29 years, working in South Western Railway, drawing a salary of Rs.38,036/- per month.

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6. On issuance of notice, respondents appeared through their learned counsel and filed separate statement of objections denying the entire claim petition averments. Respondent No.1 contended that vehicle is covered by valid insurance policy and respondent No.2/Insurer is liable to pay compensation. Respondent No.2-Insurance Company admitted the coverage of insurance and contended that the driver of

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Omni Car was not having valid and effective driving license as on the date of accident. Thus, sought for dismissal of claim petition.

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7. Before the Tribunal, claimant No.1-mother of the deceased examined herself as PW1 and also examined PW2Assistant Personnel Officer of the Railways to establish income of the deceased, apart from marking the documents as Exs.P1 to P22, whereas the respondents examined RW1 and marked documents as Ex.R1 to R3(a). The Tribunal based on the material on record awarded a total compensation of Rs.69,15,962/- with interest at 6% per annum from the date of petition till realization on the following heads:

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Loss of dependency	Rs.68,43,962/-
Loss of consortium	Rs. 40,000/-
Loss of estate	Rs. 15,000/-
Funeral expenses	Rs. 15,000/-
Transportation charges	Rs. 2,000/-
	-------------------
Total	Rs.69,15,962/- -------------------

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8. While awarding the above compensation, the Tribunal assessed monthly income of the deceased at Rs.34,218/-, added 50% of the assessed income towards future

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prospects, adopted multiplier of 17, deducted 1/3^rd towards personal expenses of the deceased.

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9. Heard the learned counsel Sri.Nagaraj C Kolloori, appearing for the insurance company as well as learned counsel Sri.Ankit R Desai for the claimants and perused the appeal papers along with original records.

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10. Sri.Nagaraj C Kolloori, learned counsel appearing for the Insurance Company in support of his appeal would vehemently contend that the Tribunal committed an error in deducting 1/3^rd of the assessed income towards personal expenses of the deceased, taking into account the sisters of the deceased as dependents. He further submits that since the deceased was a bachelor, as per decision of Hon’ble Apex Court

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in Sarla Verma & Others Vs. Delhi Transport Corporation

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& Another¹ , 50% of the assessed income has to be deducted towards personal expenses of the deceased. It is further submitted that date of birth of the deceased is 7.11.1990 and as on the date of the accident, the deceased was aged 30 years

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8 months, therefore, multiplier of 16 would be applicable instead of 17 as taken by the Tribunal. He also submits that

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1 (2009) 5 SCC 121

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the deceased was liable to pay a sum of Rs.10,075/- towards income tax for his taxable income. Thus, he prays for modifying the judgment and award of the Tribunal by allowing the appeal filed by the Insurer.

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11. Per contra , Sri. Ankit R Desai, learned counsel for Sri. Mallikarjunswamy B Hiremath, learned counsel for the claimants in support of his appeal would contend that the Tribunal committed an error in assessing income of the deceased at Rs.34,218/- per month by deducting a sum of Rs.3,077/- towards New Pension Scheme Tier-1, Rs.30/towards Central Government Group Insurance Scheme, Rs.200/- towards Professional tax and Rs.100/- towards Social Security Scheme. He further submits that a sum of Rs.3,077/towards pension scheme, Rs.30/- towards CGIS and Rs.100/towards SSS/UBL cannot be deducted from the gross salary, since those are savings of the deceased from his earnings for his future benefits. It is his submission that the only deductions that would be permissible from the salary are, income tax and professional tax. Thus, he prays for allowing the appeal filed by the claimants and to dismiss the appeal filed by the insurer.

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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12. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the following points would arise for consideration:

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a) Whether the Tribunal is justified in assessing income of the deceased at Rs.34,218/- per month?

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b) Whether the Tribunal is justified in deducting 1/3^rd of the assessed income towards personal expenses of the deceased?

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Our answer to the above points would be in the negative and affirmative respectively for the following reasons:

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13. The accident took place on 3.7.2020 involving Motorcycle bearing registration No.KA-25/EY-5506 and Omni Car bearing registration No.KA-26/M-8841, resultant death of the deceased is not in dispute in these appeals. It is also not in dispute with regard to employment of the deceased in South Western Railway. The claimants have placed on record Ex.P13Salary Slip of the deceased for the month of April 2020. A perusal of Ex.P13 would indicate that the deceased was receiving gross salary of Rs.37,625/- per month and after deductions, getting net salary of Rs.31,755/- per month. The Tribunal committed a grave error in deducting a sum of

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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Rs.3,077/- towards NPST-1, Rs.30/- towards CGIS and Rs.100/- towards SSS/UBL. Those amounts are earnings of the deceased and he was contributing the same towards his personal savings and for future benefits. The only permissible deductions from the salary of the deceased are, professional tax and income tax. Admittedly, the claimants have not placed on record the income tax returns of the deceased. Taking note of Ex.P13-Salary Slip for the month of April 2020, the deceased

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would be liable to pay income tax as per following computation:

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	GROSS SALARY(Rs	.37,625 x 1	2)
Less:	Professional Tax	(200 x 12)	2,400
	NPST	(3077x12)	36924
	CGIS	(30x12)	360
	LIC	(1586x12)	19032
	SSS	(100x12)	1200
	Standard Deductions		40000
	Total Deductions		99,916

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	351,584
Total Taxable Income (-250000)	101584
Tax payable as per slab (5%)	5079
Less:Income tax rebate u/s 87A	2500
Tax payable on total income	2579
Add: Education Cess @ 2% + SHEC @ 1%	77
TOTAL TAX PAYABLE	2656

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14. Thus, we are of the view that income of the deceased shall have to be re-assessed at Rs.4,46,444/- per

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annum (Rs.37,625 per month x 12 = Rs.4,51,500 – (Rs.2,400/- Professional tax + Rs.2656/- Income tax).

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15. Further, the claimants are mother and unmarried sisters of the deceased Praveenkumar. PW1-mother of the deceased in her evidence has deposed that deceased son was only male member in their family and he was the only earning member. She further deposed that herself and unmarried daughters were depending on the income of the deceased and due to death of her son, they are in great financial and irreparable loss. The Hon’ble Apex Court in Sarla Verma’s case (supra) at paragraphs-30 and 31 has held as under:

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Through in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3 one-forth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

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Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and

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siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.

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16. The Hon’ble Apex Court has made it clear that if the deceased is a bachelor, 50% of the assessed income has to be deducted towards personal and living expenses of the deceased, however, it is clarified by observing that in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father . In the instant case, there is evidence on record, which is unchallenged, to the effect that mother and unmarried sisters were entirely depending on the income of the deceased.

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17. Learned counsel Sri. Nagaraj C Kolloori submitted that father of the deceased was working in Railways and on his death, family members are receiving family pension, therefore, the claimants are not depending only on the income of the deceased. It is well settled that pension and family pension cannot be taken note while deciding dependency as held by the

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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Hon’ble Apex Court in N. Sivammal & Others Vs.

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Managing Director, Pandian Roadways Corporation &

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Another² . Moreover, there is no cross-examination with regard to family pension, dependency or earnings of the sisters of the deceased by the insurance company. Admittedly, in the evidence, it has come on record that sisters of the deceased are unmarried and they were depending on the income of the deceased brother. In a normal course, if there is no contrary evidence, 50% of the assessed income shall have to be deducted towards personal expenses, if he is a bachelor. When evidence is brought on record with regard to dependency, taking note of number of dependents, the Tribunal could deduct 1/3^rd , 1/4^th and 1/5^th towards personal expenses of the deceased. Therefore, we are of the considered view that the Tribunal was right in deducting 1/3^rd towards personal expenses of the deceased taking unmarried sisters as dependents, while awarding compensation on the head of loss of dependency. Thus, there is no merit in the contention of the insurance company that the Tribunal committed in error in

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2 (1985) 1 SCC 18

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deducting 1/3^rd towards personal expenses of the deceased and same is rejected.

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18. Further, as per Ex.P17-Aadhar Card, the date of birth of the deceased is 7.11.1990. The date of accident is 3.7.2020. Taking note of the same, the age of the deceased as on the date of the accident would be 29 years 8 months. Therefore, the Tribunal was justified in taking the age of the deceased as 29 years and adopting multiplier of 17. There is no dispute with regard to addition of 50% of the assessed income towards future prospects since the deceased was in permanent employment in Railways. Thus, the claimants would be entitled for modified compensation on the head of loss of dependency as under:

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Rs.4,46,444 + 50%(future prospects) x 17(multiplier) x 2/3(deduction) = Rs.75,89,548/-

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19. Further, 1^st claimant would be entitled to a sum of Rs.70,000/- on the conventional heads including loss of consortium, loss of estate and funeral expenses.

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20. Thus, the claimants would be entitled for modified compensation on the following heads:

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NC: 2024:KHC-D:471-DB MFA No. 100311 of 2023 C/W MFA No. 104687 of 2022

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Sl.No.	Particulars	Amount
1.	Loss of dependency	Rs.75,89,548/-
2.	Loss of estate & Funeral expenses	Rs. 30,000/-
3.	Filial Consortium	Rs. 40,000/-
	Total	Rs.76,59,458/-

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21. Thus, the claimants would be entitled to total

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compensation of Rs.76,59,548/- as against Rs.69,15,962/awarded by the Tribunal.

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22. Hence, we pass the following:

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ORDER

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a) Both appeals are allowed in part .

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b) The impugned judgment and award of Tribunal is modified to an extent that the claimants are entitled to total compensation of Rs.76,59,548/- as against Rs.69,15,962/- awarded by the Tribunal.

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c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.

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d) The appellant-Insurer shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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