Partly allowed

The Manager v. Thomas P

Karnataka HC21 Nov 2024MFA/3427/2024

Case brief

AI extract

What is this about?

The Division Bench allowed this Motor Accident Claims Appeal, partially dismissing the insurer's claim. The Court revised the compensation award from Rs.39.01 lakhs to Rs.33.02 lakhs by deducting overtime allowances, professional tax, and personal expenses from the deceased's income before calculating loss of dependency and other heads like consortium and loss of estate.

What did the court decide?

Compensation reduced to Rs.33,02,048/- with interest at 6% p.a.; total quantum revised according to the Court's calculations.

The Manager Vs Thomas P — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:47223-DB MFA No.3427/2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2024 PRESENT

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

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.3427/2024 (MV-D)

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BETWEEN:

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THE MANAGER M/S BAJAJ ALLIANZ GIC LTD., NO.1/2, GOLDEN HEIGHTS, 4TH FLOOR 59TH C CROSS, 4TH M BLOCK RAJAJINAGAR, BENGALURU-10.

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…APPELLANT

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(BY SRI. PRADEEP B, ADV.,)

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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AND:

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THOMAS .P S/O LATE JOSEPH AGED ABOUT 82 YEARS.

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SMT. MONIKA THOMAS W/O THOMAS .P AGED ABOUT 78 YEARS.

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BOTH ARE R/AT. BIBRAD, HEGGALA POST VIRAJPETE TALUK KODAGU DISTRICT.

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PRESENTLY R/AT NO.185 3RD CROSS, 5TH PHASE, BEML LAYOUT RAJARAJESHWARI NAGAR BENGALURU-560098.

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MOHAMMED NOORULLA S/O ABDUL ZAHEEB MAJOR

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NC: 2024:KHC:47223-DB MFA No.3427/2024

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NO.9, 1ST MAIN, 5TH CROSS DINNUR MAIN ROAD R T NAGAR POST BENGALURU-560032.

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SMT. ANURADHA W/O SANTHOSH P.T. AGED ABOUT 28 YEARS R/AT: BURUJANAROPPA VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT.

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KUM. SAARAPRIYA D/O SANTHOSH P.T. AGED ABOUT 8 YEARS R/AT BURUJANAROPPA VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT. SINCE THE 5^TH RESPONDENT IS MINOR WILL BE REPRESENTED BY HER MOTHER AND N/G. i.e., 4^TH RESPONDENT SMT. ANURADHA.

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…RESPONDENTS

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(BY SRI. SOMASHEKARA, ADV., FOR R1 & R2 SRI. R. LAKSHMANA, ADV., FOR R4 R4 IS MINOR REPRESENTED BY R4 V/O/DTD:21.11.2024 NOTICE TO R3 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL RECORDS AND TO MODIFY THE JUDGMENT AND DATED 1^ST DAY OF MARCH 2024 PASSED BY THE COURT OF THE XXI ADDL. SMALL CAUSE JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE (SCCH-23) (XXI ADDL. SCJ & ACMM, MEMBER - MACT, BENGALURU) IN MVC NO.4598/2019 AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLDUING THE COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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3 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL)

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Challenging the judgment and award in MVC

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No.4598/2019 passed by the XXI Addl. SCJ and MACT, Bengaluru (SCCH-23), the Insurance Company has filed this appeal.

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Appellant was respondent No.2, respondent Nos.1 and 2 were claimants and respondent Nos.3 to 5 in this appeal

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were respondent Nos.1, 3 and 4 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The parents of deceased Sri.Santosh P.T. filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.50,00,000/- for the death of Sri.Santosh P.T. in a road traffic accident that occurred on 13.07.2019 at 5.30 p.m. Respondent No.3 is the wife and respondent No.4 is the daughter of the deceased.

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It was contended that the deceased was proceeding on Honda Activa Scooter bearing registration No.KA-41 EB5665. When he reached near Kuntegowdanahalli Gate,

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4 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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Tumakuru-Shira NH-48 road, car bearing registration No.KA-05 ML-4552 driven by its driver in rash and negligent manner, dashed the motorcycle ridden by the deceased Santhosh P.T. Due to the impact, the deceased fell down, sustained grievous injuries and succumbed to the same on the way to the hospital. It was further contended that the deceased was aged about 42 years at the time of accident, was working as an Electrician at Manipal Hospital and earning Rs.20,000/- p.m. Claimants have lost the love and affection and financial dependency of the deceased. Hence, they sought for allowing the claim petition.

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Respondent No.1 was placed exparte before the Tribunal. Respondent No.2 - insurer filed written statement denying the age, avocation and income of the deceased. It was contended that the payment of compensation and its liability is subject to the terms and conditions of the policy. It was further contended that the deceased - rider of the scooter was negligent. The deceased was not wearing helmet, not having valid driving licence at the time of accident and hence, the Insurance Company is not liable to pay the compensation. They sought dismissal of the claim petition.

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5 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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The Tribunal recorded the evidence of the parties. Claimant No.1 got examined himself as PW-1 and got marked Exs.P1 to P11. Respondent No.3, wife of the deceased got examined herself as RW-1 and got marked Exs.R1 to R6. The Insurance Company did not adduce any evidence before the Tribunal. The Tribunal, on appreciation of the oral and documentary evidence, assessed the income of the deceased at Rs.23,883/- p.m., added 25% under the head of loss of future prospects, applied '14' multiplier, deducted 1/4^th of his income towards his personal and living expenses and awarded Rs.37,08,000/- under the head of loss of dependency. In total, the Tribunal awarded compensation of Rs.39,01,000/- with interest at 6% p.a. from the date of petition till deposit. Being aggrieved, the Insurance Company is in appeal.

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Sri.B.Pradeep, learned counsel for the appellant

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submits that the Tribunal has erred in assessing the income of the deceased at Rs.23,883/- p.m. without deducting allowances like overtime wages and professional tax. It is submitted that the Tribunal, without appreciating the evidence in its proper prospective more particularly the spot sketch and IMV report, erred in saddling the entire liability on the Insurance Company

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NC: 2024:KHC:47223-DB MFA No.3427/2024

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by holding that the driver of the car was negligent. Hence, he seeks to allow the appeal.

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Per contra, Sri.Somashekara learned counsel for the respondent Nos.1 and 2 supports the impugned judgment and award of the Tribunal and submits that the assessment of income of the deceased by the Tribunal is as per Ex.P6. The deceased was working as an Electrician in Manipal Hospital. It is submitted that the police records show that the driver of the car was negligent and caused the accident. Hence, the question of contributory negligence and saddling of liability on the deceased would not arise. Hence, he seeks dismissal of the appeal.

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Considering the rival submissions of the parties and examining the material on record, the point that arises for consideration is “ Whether the impugned judgment and award of the Tribunal calls for any interference”?

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ANALYSIS

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The undisputed facts are that in the road traffic accident that occurred on 13.07.2019, son of claimant Nos.1 and 2, husband of respondent No.3 and father of respondent

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7 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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No.4 died. Insofar as negligence is concerned, the Tribunal recorded the finding based on the pleading and evidence available on record that the driver of the car bearing registration No.KA-05 ML-4552 was negligent. Admittedly, the appellant - Insurance Company did not adduce any evidence before the Tribunal. Ex.P1 - FIR, Ex.P2 - complaint, Ex.P3 - spot mahazar, Ex.P11 - charge sheet in Crime No.141/2019 clearly indicate that the driver of the offending car was negligent and charge sheet is filed against him. No other evidence is placed by the Insurance Company to disbelieve the evidence available on record. Hence, the contention with regard to the negligence urged by the appellant - Insurance Company has no merit and is accordingly rejected.

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Regarding the quantum of compensation, the claimants contended that the deceased was working as Electrician at Manipal Hospital. In support of his income and avocation Ex.P6-salary slip issued by the Manipal Hospital is produced, which shows the salary of the deceased for the month of June 2019 as Rs.23,883/-. Ex.P6 is the salary certificate of just one month prior to the accident. The Tribunal considered the gross salary of the deceased at Rs.23,883/-

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8 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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p.m. without deducting the overtime allowance of Rs.4,044/-.

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The overtime allowance is not the regular salary component and is paid by the employer only if the employee works more than the working hours. Hence, the said overtime allowance requires to be deducted from the gross salary. The Tribunal also erred in not deducting Rs.200/- towards professional tax from the gross salary. After deducting the aforesaid components, the income of the deceased is assessed at Rs.19,639/- (23,883 - 4,044 - 200).

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Deceased was aged about 42 years at the time of accident. Hence, the appropriate addition under the head of loss of future prospects would be 25% of the assessed income of the deceased which comes to Rs.4,909/-. Claimant Nos.1 and 2 are the parents of the deceased, respondent Nos.3 and 4 are wife and daughter of the deceased. Hence, there are four dependants of the deceased and the appropriate deduction would be 1/4^th towards the personal and living expenses of the deceased. The appropriate multiplier would be 14. The loss of dependency is re-assessed as under:

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9 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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Rs.19,639/- + 4,909 (25% future prospects) = Rs.24,548 - 1/4^th (6,137/-) = Rs.18,411/- x 12 x 14 = Rs.30,93,048/-.

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Claimant Nos.1 and 2 being the parents and

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respondent Nos.3 and 4 being the wife and daughter of the deceased are entitled to consortium at Rs.40,000/- each with 10% escalation. They are also entitled to compensation of Rs.15,000/- towards loss of estate with 10% escalation and Rs.15,000/- towards funeral expenses and transportation of

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dead body with 10% escalation. The compensation is redetermined as under:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	30,93,048/-
2.	Loss of consortium	1,76,000/-
3.	Loss of estate	16,500/-
4.	Funeral expenses and transportation of dead body	16,500/-
	Total	33,02,048/-
A	warded by Tribunal	39,01,000/-
Red	uced compensation	5,98,952/-

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The compensation amount carries interest at the rate of

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6% p.a. from the date of petition till its realization.

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For the aforementioned reasons, we pass the following:

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10 - NC: 2024:KHC:47223-DB MFA No.3427/2024

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ORDER

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The appeal is partly allowed.

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The impugned award is modified as follows:

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i. Claimants are entitled to compensation of

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Rs.33,02,048/- with interest thereon at 6% p.a. from the date of petition till realization.

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ii. Respondent No.2 - insurer shall deposit the said amount before the Tribunal within four weeks from the date of receipt of copy of this order.

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iii. The order of the Tribunal with regard to apportionment and investment is maintained.

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iv. Transmit the Trial Court Records and amount in deposit, if any to the Tribunal.

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Pending interlocutory applications do not survive for consideration and are disposed of accordingly.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV List No.: 1 Sl No.: 14

The Manager v. Thomas P

Case brief

What is this about?

What did the court decide?

The Manager v. Thomas P

Case brief

What is this about?

What did the court decide?

What the court decided

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