Partly allowed

M/S. Oriental Insurance Company Limited v. Mr.Prabhakaran M

Karnataka HC5 Nov 2024MFA/2137/2015

Case brief

AI extract

What is this about?

Insurer appealed and claimants cross-objected against a motor accident award for the death of a young software professional. The High Court recomputed income from salary evidence with 50% future prospects and 50% personal deduction, applied multiplier 17 per Pranay Sethi and Sarla Varma, and modified compensation to Rs.86,10,052/- with interest.

What did the court decide?

Award modified to Rs.86,10,052/- with interest at 6% p.a.; insurer directed to deposit before Tribunal within four weeks.

M/S. Oriental Insurance Company Limited Vs Mr.Prabhakaran M — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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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 VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.2137/2015 (MV-D)

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C/W

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MFA CROSS OBJECTION NO.53/2015 (MV-D)

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IN MFA NO.2137/2015

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BETWEEN:

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M/S.ORIENTAL INSURANCE COMPANY LIMITED NO.12, KATPADI ROAD GUDIYATHAM – 632 602 NOW REPRESENTED BY ITS REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BENGALURU – 560 025 REP. BY ITS AUTHORIZED SIGNATORY …APPELLANT

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SRI. A M VENKATESH, ADVOCATE)

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AND:

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MR.PRABHAKARAN M S/O MADAVAN NAIR R AGED ABOUT 60 YEARS

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MEENAKSHI T W/O PRABHAKARAN M AGED ABOUT 57 YEARS

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BOTH ARE R/AT NO.P.226, SECTOR X, 8^TH MAIN, LIC COLONY JEEVANBHIMA NAGAR BENGALURU – 560 075

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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MR. A. MURALI S/O ANANDAN R/AT 5^TH CROSS, JAYANAGAR EXTENSION KOLAR DISTRICT – 563 101 (OWNER OF THE LORRY BEARING REG.NO.KA-07/6174) … RESPONDENTS

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(BY SRI.NAGARAJ B, ADVOCATE FOR R1 AND R2; SERVICE OF NOTICE ON R3 IS HELD SUFFICIENT V/O DATED:29.03.2021)

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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 15.12.2014 PASSED IN MVC NO.6707/2012 ON THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM MEMBERMACT, BANGALORE, AWARDING COMPENSATION OF RS.93,42,000/WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA.CROB NO. 53/2015

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BETWEEN:

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MR.PRABHAKARAN M S/O MADAVAN NAIR R AGED ABOUT 57 YEARS

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MRS.MEENAKSHI T W/O PRABHAKARAN M AGED ABOUT 57 YEARS

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BOTH ARE R/AT NO.P.226, SECTOR X, 8^TH MAIN, LIC COLONY JEEVANBHIMA NAGAR BENGALURU – 560 075 … CROSS OBJECTORS

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(BY SRI.NAGARAJ B., ADVOCATE)

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AND:

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MR A MURALI S/O ANANDAN, R/AT 5TH CROSS,

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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JAYANAGAR EXTENSION, KOLAR DISTRICT – 563 101

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THE ORIENTAL INSURANCE COMPANY LTD., NO.12, KATPADI ROAD GUDIYATHAM-632 602 REP. BY ITS REGIONAL OFFICE THE ORIENTAL INSURANCE COMPANY LTD., NO.43/44, LEO COMPLEX, RESIDENCY ROAD, BANGALORE - 560 001. … RESPONDENTS

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(BY SRI.A.M.VENKATESH, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD: 14.03.2023)

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THIS M.F.A. CROSS OBJECTION IS FILED UNDER ORDER XLI, RULE 22 OF CPC, READ WITH SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 15.12.2014 PASSED IN MVC NO.6707/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE, XXXIII ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AND MFA CROSS OBJECTION HAVING BEEN RESERVED FOR JUDGMENT ON 22.10.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging the award in MVC No.6707/2012 passed by

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VIII Addl. Small Causes Judge & MACT (SCCH-5), Bengaluru Insurer has preferred MFA No.2137/2015 and the claimants have preferred Crob. No.53/2015.

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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The appellant in MFA No.2137/2015 was respondent

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No.2. Respondent Nos.1 and 2 in the said case were claimant Nos.1 and 2 and respondent No.3 was respondent No.1 in MVC No.6707/2012. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The brief facts of the case are as follows: Claimant Nos.1 and 2 are the father and mother of

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Pritish. On 03.10.2012 at 08.40 p.m. when the victim Pritish was riding his motor cycle bearing No.KA-02-ES-579 along with his friend as pillion rider near Kuvempu circle on MES Ring Road, Jalahalli, Bengaluru, lorry bearing No.KA-07-6174 hit them from the hind side and caused his spot death. At the time of the accident respondent Nos.1 and 2 were the registered owner and insurer of lorry No.KA-07-6174.

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Claimants filed MVC No.6707/2012 claiming compensation of Rs.1 crore from the respondents on the ground that the accident occurred due to the actionable negligence on the part of the driver of the lorry, Pritish was working as Manager Pre-Sales in Nuvento Systems Private Ltd and was earning Rs.60,635/- per month. They claimed that

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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they were dependent on the income of the deceased and suffered damages due to his death. They claimed that respondents are liable to compensate the damages caused to them.

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Respondent No.1 did not contest the petition. Respondent No.2/Insurer contested the petition denying the actionable negligence on the part of the driver of the lorry, age, occupation and income of the deceased and its liability to pay the compensation. Respondent No.2 further contended that the driver of the lorry was not holding valid licence and there is violation of policy conditions, therefore, it is not liable to indemnify the liability of respondent No.1.

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To substantiate the claim of claimants, claimant No.1 was examined as PW.1 and the official of the employer of the deceased was examined as PW.2. On behalf of the claimants Ex.P1 to P24 were marked. Respondents did not lead any evidence.

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

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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Tribunal based on the evidence of PWs.1 and 2 and the documents produced by PW.2, considered annual income of the deceased as Rs.7,27,620/-, added 50% future prospects to the same, deducted 50% out of the same for the personal expenses of the deceased, applied 17 multiplier and awarded compensation of Rs.92,77,155/- on the head of loss of dependency. Rs.50,000/- for loss of love and affection and Rs.15,000/- for funeral expenses. The Tribunal in all awarded compensation of Rs.93,42,000/- with interest at 6% per annum

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on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	92,77,155/-
2.	Loss of love and affection	50,000/-
3.	Funeral expenses	15,000/-
	Total	93,42,155/-
	Rounded off to	93,42,000/-

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Both Insurer and claimants have challenged the award in the above appeal and cross objection on the question of quantum.

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Submissions of Sri A.M.Venkatesh, learned counsel for the

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appellant/Insurer:

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The evidence of PW.2 regarding the income is not

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reliable. Salary slip was not proved. In the absence of production of income tax returns, bank account statement of the deceased, the Tribunal was in error in accepting the evidence that the deceased was earning monthly salary of Rs.60,635/- and annual salary of Rs.7,27,620/-. Since the deceased was not permanently employed adding 50% by way of future prospects is incorrect. Compensation awarded on other heads is also on higher side. Awarding interest on the future prospects is erroneous.

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In support of his submissions, he relied on the following judgments:

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i) Chandrakala vs. Dilipkumar¹

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ii) Malarvizhi & ors vs. United India Insurance Co.Ltd²

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Submissions of Sri Nagaraj B for claimants/Cross objectors:

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The Tribunal was in error in holding that claimant No.1 was not dependent on the deceased. For the education of the deceased, claimant No.1 had availed huge loan. Having

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1 (MFA No.1662/2023 DD 02.07.2024)

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2 (Civil Appeal No.9196-97/2019 @ SLP (C) Nos.9630-31/2019

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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regard to his qualification, the income of the deceased considered by the Tribunal is on the lower side. The compensation awarded on the other heads is on the lower side. Claim petition ought to have been allowed as prayed.

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On careful examination of the submissions of both

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side and material on record, the question that arises for consideration is:

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“Whether the compensation awarded by the Tribunal under the impugned award is just one ?”

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Analysis

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Even the respondents did not dispute the occurrence of the accident involving lorry bearing No. KA-076174 and motor cycle of the deceased bearing No.KA-02-ES579. It is also not disputed that respondent Nos.1 and 2 are the registered owner and insurer of the said lorry. To prove the occurrence of the accident was due to the actionable negligence on the part of the driver of the lorry, the claimants relied on FIR/Ex.P1, charge sheet/Ex.P2, spot mahazar/Ex.P3, sketch of scene of offence/Ex.P4 and IMV report/Ex.P5. There is no dispute that regarding the accident one Sri Ram filed complaint against the driver of the lorry. Based on the same, Ex.P1/FIR in Crime No.185/2012 of Yeshwantpura Police was registered.

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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On investigation, Police filed charge sheet as per Ex.P2 against the driver of the lorry for the offences punishable under Sections 279, 337, 304A of IPC and Section 134 (a) and (b) read with Section 187 of the MV Act. Exs.P1 to P6 are the prima facie proof of the actionable negligence on the part of the driver of the lorry. Presumption under the said documents was not rebutted by examining the driver of the lorry.

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As per Ex.P7 the driving license of the deceased produced by the claimants, the date of birth of the deceased was 03.04.1984. Therefore, as on the date of the accident he was aged 28 years. To prove the educational qualification and the income of the deceased, the claimants relied on the evidence of PWs.1 and 2 and Exs.P10 to P24. Exs.P12 and P13 show that the deceased was BE degree holder in Electrical and Electronics Engineering and he had completed MBA degree also in Marketing.

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The evidence of PW.2 and Ex.P24 show that the deceased was appointed in Nuvento Systems Pvt. Ltd as Manager Pre-Sales on 01.02.2011 and he worked as such up to his death on 03.10.2012. The evidence of PW.2 cannot be disbelieved merely on the ground that he was working in Kerala

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branch of the company. Further, fact of employment of deceased in the said company and salary slip were questioned in the evidence of PW.2, merely on the ground that income tax returns were not produced. PW.2 had no personal interest in the matter, therefore, Tribunal was justified in accepting his evidence. Pay-slip of the deceased for the month of September

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2012 shows that his gross salary was Rs.57,777/-.Out of that, the employer himself deducted Rs.2094/- towards income tax and Rs.200/- towards professional tax. After deducting the same his net salary comes to Rs.55,483/- p.m.

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Having regard to the age of the deceased, his employment and the judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi³ , the Tribunal was justified in adding 50% to the income of the deceased by way of future prospects. Therefore, monthly income comes to (55,483 + 27,742=) Rs.83,225/-. As the deceased was bachelor, in view of the judgment of the Supreme Court in Sarla Varma v. Delhi Transport Corporation⁴ , Tribunal rightly deducted 50% from his income towards his personal expenses. Therefore, monthly contribution to the

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3 AIR 2017 SC 5157

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4 AIR 2009 SC 3104

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Corrected Vide Court Order dt.14.11.2024

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NC: 2024:KHC:44492-DB MFA No.2137/2015 C/W MFA.CROB No.53/2015

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family comes to (83,225 X 50%=) 41612.5, rounded off to Rs.41,613/-. The applicable multiplier is 17. Therefore, compensation payable on the head of loss of dependency comes to (41,613 X12 X 17) Rs.84,89,052/-.

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As per the judgment of the Hon’ble Supreme Court in Pranay Sethi ’s case referred to supra, claimants are entitled to compensation of Rs.40,000/- each with escalation of 10% on the head of loss of consortium which comes to Rs.88,000/-. On the heads of funeral expenses and loss of estate, the claimants are entitled to Rs.15,000/- + Rs.15,000/- with escalation of

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10%. Therefore, just compensation payable is as follows:

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