The Regional Manager Vs Smt Puttalakshmamma

THE REGIONAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED NO.31, TBR TOWER, I CROSS NEW MISSION ROAD, NEAR STOCK EXCHANGE BANGALORE - 560 027. NOW AT BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., REGIONAL OFFICE, GOLDEN HEIGHTS 4TH LEVEL, NO.1/2, 59TH CROSS 4TH 'M' BLOCK, RAJAJAINAGAR BANGALORE - 560 010, BY ITS MANAGER.

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…APPELLANT

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(BY SRI. O MAHESH, ADVOCATE)

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AND:

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SMT. PUTTALAKSHMAMMA W/O LATE AYYANNA AGED ABOUT 48 YEARS

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HC-KAR

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SMT. RADHA D/O LATE AYYANNA MARRIED

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AGED ABOUT 29 YEARS

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MS. ROOPA D/O LATE AYYANNA MARRIED

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AGED ABOUT 27 YEARS

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THEJASHVINI D/O LATE AYYANNA AGED ABOUT 25 YEARS

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MS. SHARADA D/O LATE AYYANNA AGED ABOUT 23 YEARS

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MS. KAVYASHREE D/O LATE AYYANNA MARRIED AGED ABOUT 20 YEARS

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ALL ARE RESIDING AT KULUME BEEDHI, KURUPET KANAKAPURA TOWN RAMANAGARA DISTRICT - 571 511.

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SMT. USHA W/O LATE GOVINDARAJU AGED ABOUT 35 YEARS R/A NO.205,. MYSORE ROAD RAGHAVENDRA COLONY, KEREBEEDHI, KURUPETE, KANAKAPURA TOWN,

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HC-KAR

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RAMANAGARA DISTRICT - 571 511.

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SMT B.L. NANDHINI MAJOR ANNAPOORNA ASSOCIATES J-11, GANESHA BLOCK MALLESHWARAM PIPELINE BANGALORE - 560 003.

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…RESPONDENTS

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(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE FOR R1 TO R7; VIDE ORDER DATED 27.06.2019 NOTICE TO R8 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.8.2014 PASSED IN MVC NO.1993/2012 ON THE FILE OF 9TH ADDITIONAL SMALL CAUSES AND 34TH ACMM, COURT OF SMALL CAUSES, MEMBER, ADDITIONAL MACT-7, BANGALORE, AWARDING A COMPENSATION OF RS.14,51,310/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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IN MFA NO. 1376/2015

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BETWEEN:

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SMT. PUTTALAKSHMAMMA W/O LATE AYYANNA, AGED ABOUT 49 YEARS

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SMT. RADHA D/O LATE AYYANNA, AGED ABOUT 30 YEARS

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MS. ROOPA D/O LATE AYYANNA, AGED ABOUT 28 YEARS

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HC-KAR

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MS. THEJASHVINI D/O LATE AYYANNA, AGED ABOUT 26 YEARS

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MS. K. SHARADA D/O LATE AYYANNA, AGED ABOUT 24 YEARS

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MS. KAVYASHREE D/O LATE AYYANNA, AGED ABOUT 21 YEARS

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SMT. USHA W/O LATE GOVINDARAJU AGED ABOUT 35 YEARS R/AT NO.205, MYSORE ROAD, RAGHAVENDRA COLONY, KEEREBEEDHI KURUPETE, KANAKAPURA TOWN, RAMANAGARA DISTRICT

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...APPELLANTS

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(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)

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AND:

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SMT. B.L.NANDHINI ANNAPOORNA ASSOCIATES, J-11, GANESHA BLOCK, MALLESHWARAM, PIPELINE, BANGALORE-03.

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., NO.31, TBR TOWER, I CROSS, NEW MISSION ROAD,

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HC-KAR

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NEAR STOCK EXCHANGE, BANGALORE - 560 027, BY ITS MANAGER.

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...RESPONDENTS

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(BY SRI. O MAHESH, ADVOCATE FOR R2; VIDE ORDER DATED 09.10.2017, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.8.2014 PASSED IN MVC NO.1993/2012 ON THE FILE OF THE 9TH ADDITIONAL SMALL CAUSES JUDGE, 34TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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These appeals are against the judgment and award dated 28.08.2014 passed by IX Additional Small Causes Court and Additional MACT (SCCH-7), Bengaluru (for short ‘the Tribunal’) in MVC.No.1992/2012 and 1993/2012 respectively.

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MFA.No.8203/2014 is filed by the insurer - respondent No.2 and MFA.No.1376/2015 is filed by the claimants for seeking enhancement of compensation.

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HC-KAR

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Both the matters are taken up together for disposal.

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The brief facts of the case are that, on 25.02.2012,

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at around 3:50 p.m., the deceased, Annayya, was riding a motorcycle bearing registration No. KA-42-J-7188, with a pillion rider named Jogaiah, and traveling from Sathanur to Kanakapura on NH-209. When they reached near Thotahalli village, in Kanakapura Taluk, a Mahindra pick-up LGV bearing registration No. KA-04-D-284 (hereinafter referred to as the "offending vehicle") came from the opposite direction at high speed and in a rash and negligent manner, and collided with the motorcycle. Due to the impact, both riders sustained grievous injuries. As a result, Annayya succumbed to his injuries, while the pillion rider, Jogaiah, sustained grievous injuries. With these reasons, the claimants have prayed to award compensation.

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Respondent No.1 is the owner and respondent No.2

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is the insurer of the offending Mahindra Pickup LGV. Both the respondents filed written statement; they denied the contentions of the claimant. Respondent No.1 further

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HC-KAR

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contended that said vehicle was insured with respondent No.2 and it is liable to pay the compensation, in case the claim petition is allowed. Respondent No.2 in its further contention has stated that its liability is restricted to the terms and conditions of the policy of insurance. With these reasons both the respondents prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues. The Tribunal clubbed MVC Nos.1992-1993/2012 and recorded common evidence in both the cases. Claimants in both the cases examined 5 witnesses as PW.1 to 5 and marked 31 documents as Ex.P.1 to 31. The respondents examined 2 witnesses as RW.1 and 2 and marked 3 documents as Ex.R.1 to 3.

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After hearing both the parties and appreciating the pleadings and evidence available on record, the Tribunal held that the accident occurred due to rash and negligent driving of the offending vehicle by its driver, and in the said accident, Ayyanna sustained grievous injuries and succumbed to the injuries.

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HC-KAR

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The Tribunal assessed the income of the deceased

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at Rs.15,510/- p.m, applied a multiplier of 9 and awarded the

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compensation as under;

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Sl.No.	Compensation heads	Compensation amount
1.	Loss of Dependency	12,56,310
2.	Loss of Consortium	1,00,000
3.	Funeral Expenses	25,000
4.	Expenses of transportation of dead body	10,000
5.	Loss of Love and affection	35,000
6.	Loss of Estate	25,000
	Total	Rs.14,51,310/-

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Heard the arguments of both the parties.

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The learned counsel for the appellant–insurer contended that the accident occurred due to the negligence of both the rider of the motorcycle and the driver of the offending vehicle. The charge sheet also reflects this version. However, the Tribunal failed to consider this aspect and, therefore, erred in not attributing negligence to both the rider of the motorcycle and the driver of the offending vehicle. He further submitted

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HC-KAR

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that the Tribunal awarded compensation by accepting the claims of all the claimants without proper evaluation. Some of the claimants are married daughters, who cannot be considered as dependents. Moreover, after the death of Ayyanna, his wife obtained compassionate employment, as established by the evidence of RW-2, and therefore, she also cannot be treated as a dependent. It was further argued that future prospects should not be considered in this case, as the deceased was 56 years old at the time of death and had only about two years of service remaining. With these reasons, prayed to award just and reasonable amount of compensation.

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The learned counsel for the claimants contended that the accident occurred due to the negligence of driver of the offending vehicle, who was even charge sheeted by the concerned police. The Tribunal considered the said facts in detail and rightly held that the accident occurred due to rash and negligent driving of the offending vehicle by its driver, and therefore, it does not call for any interference.

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The learned counsel for the claimants further contended that Claimant No.1 is the wife of the deceased, and

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HC-KAR

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the remaining claimants are his daughters. Among them, one or two are married, while the others are still unmarried. All of them were dependent on the earnings of the deceased. Therefore, the Tribunal rightly deducted 1/4th of the income towards the deceased’s personal expenses. He submitted that the deceased was a Government servant and died due to the rash and negligent driving of the rider of the offending vehicle. Given his employment, there was a possibility of salary increments or promotion. Hence, it would be unjust to presume that there would be no salary hike or promotion, and his future prospects cannot be denied. He further contended that 15% of the income should be added towards future prospects. Additionally, the claimants are entitled to compensation under the head of loss of consortium . With these reasons prayed to enhance the amount of compensation.

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The following points arise for my consideration;

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1) Whether the Tribunal is justified in holding that the accident occurred due to the negligence of the driver of the offending vehicle?

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HC-KAR

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2) Whether the amount of compensation awarded

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by the Tribunal is just and reasonable?

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Point No.1: The case of the parties has been stated above, and the fact of the accident is not in serious dispute. The insurer contends that the accident occurred due to the negligence of both the motorcycle rider and the driver of the offending vehicle, however the same was not considered by the Tribunal. Undisputedly after the investigation, a charge sheet was filed against the driver of the offending vehicle. A copy of the charge sheet is at Ex.P.22. In this case, PW-1, Jogaiah, who was the injured pillion rider of the motorcycle, in his evidence has stated about the rash and negligent driving by the driver of the offending vehicle. Respondent No.1 has not examined the said driver of the vehicle to show that the accident occurred due to the negligence of the driver of motor cycle also.

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It is undisputed that the offending vehicle was going from Kanakapura towards Sathanur. As per the spot mahazar, marked as Ex.P.3, the accident occurred on the northern side of the road, which was the wrong side to the

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HC-KAR

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offending vehicle. The tyre marks of the offending vehicle are also indicated in Ex.P.3. It is further undisputed that the deceased was traveling from Sathanur towards Kanakapura, i.e., on the northern side of the road, and he was on proper side of the road. Exhibits P.3 and P.4 clearly establish that the accident occurred solely due to the negligence of the driver of the offending vehicle. The Tribunal has rightly held that the accident was caused by the rash and negligent driving of the said driver, and this does not call for any interference by this Court. Undisputedly, the charge sheet was not challenged by anyone. The competent person on investigation found that driver of offending vehicle caused the accident. Prima facie it is believable. Accordingly, I answer the point No.1 in the affirmative.

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Point No.2: The Tribunal has taken the age of the deceased as 56 years. On the basis of Ex.P.4, it has considered his salary as Rs.15,510/-, applied a multiplier of 9 and deducted 1/4^th towards personal expenses, and assessed the compensation under the head loss of dependency.

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HC-KAR

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The contention of the insurer is that, claimant No.1 is appointed on a compassionate basis as per the evidence of respondent No.1. Therefore, she is not dependent. Other daughters have already married and are residing in their respective husband's houses, and therefore they shall not be considered as dependents, and therefore, they are not entitled to any compensation. He further contended that since the deceased was due for his retirement, a split multiplier ought to have been applied by the Tribunal. The said contentions are not tenable. As per the law laid down in the case of National Insurance Company Limited Vs. Birender and Others¹ , the Hon’ble Apex Court, considering the similar facts and circumstances held that even major, married sons and daughters are also considered as dependents.

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The above judgment is applicable to the facts of the present case. Therefore, merely because claimant No.1 got the compassionate appointment and has her own source of income, or that the other claimants are married, cannot be valid

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1 (2020) 11 SCC 356

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HC-KAR

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grounds to deny compensation under the head of loss of dependency.

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According to the case of the claimants, he was aged about 56 years. As per Ex.P.14 the deceased was drawing salary of Rs.15,899/-, and after a deduction of 739 he was drawing a salary of Rs.15,160/-. The other deductions are pertaining to EGIS and LIC; the savings cannot be deducted from the salary. Rs.200 was deducted towards professional tax that has to be deducted from the gross salary. Therefore, his salary per month is taken as Rs.15,699/-.

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According to the pleadings, the deceased was aged about 56 years; date of birth of deceased as per Ex.P.24 is 09.05.1955, and the date of accident is 25.02.2012. He was aged about 57 years at the time of accident. It is to be noted that, from the year 2008 onwards, the age of superannuation was increased from 58 to 60 years. As a result, the deceased still had approximately three years of service remaining, as rightly submitted by the learned counsel for the claimants. There would be chances of any promotion or hike in the salary or even hike in the pension from time to time as per

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HC-KAR

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Government policy. Therefore, he is entitled to future prospects. As per the law laid down in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another² and National Insurance Company Limited Vs. Pranay Sethi & Others³ . Therefore, 15% of the income has to be added towards future prospects. Undisputedly, the multiplier applicable in this case is 9. On the basis of the same compensation under the head loss of dependency is assessed.

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In view of the law laid down in the case of Pranay Sethi (Supra), and Magma General Insurance Co. Ltd. Vs. Nanu Ram⁴ , each claimants are entitled for Rs.40,000/towards future prospects, and they are entitled for compensation under the conventional heads. The amount of compensation awarded under other heads merges in the conventional heads and no need to award separately. For the aforesaid discussions, the following compensation is awarded.

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2 AIR 2009 SCC 3104

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3 (2017) 16 SCC 680

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4 2018 ACJ 2782

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HC-KAR

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Particulars	Amount
Loss of Dependency (15,699 + 15% x 12 x 9 x 3/4)	14,62,361
Loss of Consortium (40,000x7)	2,80,000
Funeral Expenses	15,000
Loss of Estate	15,000
Total	17,72,361
(-) Awarded by Tribunal	14,51,310
Enhancement	3,21,051
Rounded off	3,21,000

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Undisputedly, respondent Nos.1 and 2 are owner

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and insurer of the offending vehicle, are liable to pay the compensation. Claimants are entitled to interest at the rate of

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6% p.a on the enhanced amount of compensation. Accordingly, point No.2 answered in partly affirmative.

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23. In the result, I proceed to pass the following:

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ORDER

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i) The Appeals are allowed in part.

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ii) The judgment and award dated 28th August 2014, passed in MVC.No.1993/2012 by the IX Addl. Small Causes and Addl. M.A.C.T., Bengaluru, stands modified.

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iii) The claimants are entitled to enhanced compensation of Rs.3,21,000/-, with interest at the

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