Legal Manager Vs Smt. Swathi Y

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.07.2018 PASSED IN MVC NO.2911/2017 ON THE FILE OF THE XXI ADDITIONAL SCJ & XIX ACMM, MEMBER-MACT, BENGALURU[SCCH-23], AWARDING COMPENSATION OF RS.55,31,050/- WITH INTEREST @ 6% PA.. FROM THE DATE OF PETITION TILL DEPOSIT.

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NC: 2025:KHC:22202-DB MFA No. 8265 of 2018 C/W MFA No. 10078 of 2018

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HC-KAR

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IN MFA NO. 10078/2018

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BETWEEN:

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SMT SWATHI Y W/O LATE TEJASWI S, AGED 24 YEARS,

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MASTER. CHIRANTH T HOSMANE S/O LATE TEJASWI S, AGED 3 YEARS,

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R SHIVALINGAIAH S/O LATE RAMAIAH, AGED 67 YEARS,

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SMT.GIRIJAMMA W/O R SHIVALINGAIAH, AGED 61 YEARS,

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ALL ARE R/AT SHIVAKRUPA, 1^ST FLOOR, GARDEN B LINK ROAD, MARUTHI NAGARA, SOMESHWARAPURAM, TUMAKURU-572102.

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SECOND APPELLANT IS A MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN THE FIRST APPELLANT VIZ., SMT. SWATHI.Y

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…APPELLANTS

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(BY SRI. K V SHYAMAPRASADA.,ADVOCATE)

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HC-KAR

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AND:

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M/S RELIANCE GENERAL INSURANCE CO LTD R/BY ITS MANAGER, 5^TH FLOOR, CENTENARY BUILDING, NO.28, M.G.ROAD, BENGALURU-560001.

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K N VINODKUMAR S/O NARAYAN REDDY, MAJOR, # 1517. VENKATESHWARA NILAYA, BOMMANAHALLI, MADIVALA, BENGALURU-560068.

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…RESPONDENTS

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(BY SRI.PRADEEP B., ADVOCATE FOR R1; VIDE ORDER DATED 03.11.2022

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NOTICE TO R2 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31/07/2018, PASSED IN MVC NO.2911/2017, ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM., MEMBER, MACT, BENGALURU (SCCH23), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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HC-KAR

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

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CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD and HON'BLE MR JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE B M SHYAM PRASAD)

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These appeals are by certain claimants and an Insurer. The claimants' appeal is in MFA No.10078/2018, and the Insurer's appeal is in MFA No.8265/2018. The claimants and the Insurer have called in question the Judgment and Award dated 31.07.2018 in MVC No.2911/2017 on the file of the XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal, Bengaluru [for short 'the Tribunal' ]. The Tribunal has awarded to the claimants a sum of Rs.55,31,050/- with interest at 6% per annum from the date of the petition till deposit. The Tribunal has awarded the aforesaid amount of Rs.55,31,050/- under the following heads:

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HC-KAR

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Sl. No.	Heads of compensation	Amount [In Rs.]
1.	Loss of dependency	54,31,050
2.	Loss of consortium	40,000
3.	_Loss of love and affection _	45,000
4.	Transportation of dead body and funeral expenses	15,000
	TOTAL	55,31,050

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The claimants are the parents, widow and

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son of the deceased, Sri Tejasvi, who has died in a road accident on 30.01.2017. The accident is when he was riding a two-wheeler, and he is hit by a private bus insured by the Insurer. On behalf of the Insurer, Sri B. Pradeep, the learned counsel, submits that this Court must interfere with the Tribunal's decision to fasten the liability on the Insurer and also on the quantum because the Tribunal has taken a higher income for computing loss of dependency .

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Sri B. Pradeep, on the first ground,

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submits that the claimants cannot dispute that the deceased Sri Tejasvi was riding his motorcycle without a helmet, and his death is because of the

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HC-KAR

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injuries suffered because of his failure to wear a helmet, and the learned counsel, on the next ground, canvasses that the Income Tax Returns [ITR] as per Exhibit P23 show that the deceased had declared only Rs.2,27,142/- as the annual income, but the Tribunal has taken the deceased’s monthly income in a sum of Rs. 40,000/-.

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In rebuttal, Sri K V Shyamaprasada, the

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learned counsel for the claimants, submits that it is settled that if any liability is to be fastened on the deceased because he was not wearing a helmet, it should have shown that it is the reason for the death and there is no evidence in this regard. This Court finds considerable force in this submission in rebuttal, and this Court must observe that if the Insurer proposed to deflect any liability because the deceased was negligent, it should have led evidence, and in the absence thereof, it cannot avoid any part

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HC-KAR

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of the liability. The question in this regard is answered accordingly.

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Sri K. V Shyamaprasada, responding to

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the submission on behalf of the Insurer that the Tribunal could not have computed loss of dependency taking any income other than the income offered to tax as per the ITR [ Exhibit - P23 ], submits that the evidence on record, which includes the deceased’s academic credentials and track record of employment, shows that the deceased, an Engineering Graduate, was initially employed with M/s. IBM and that as on the date of the accident, he was employed with M/s. KPMG. The learned counsel, relying upon the Income Tax Returns [ITR] as per Exhibit P23, also submits that the deceased had filed ITR on 14.07.2016 [ much before the date of the accident ] declaring the annual income at Rs.2,27,142/-.

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HC-KAR

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The claimants have examined a

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representative of M/s. KPMG as PW2 and this witness has spoken about the deceased being paid a gross salary of Rs.40,230/- per month. This Court, because of this evidence and because it is seen from the records that the deceased entered employment with M/s. KPMG in September 2016 and the Returns are filed in July 2016, the Returns as per Exhibit P23 does not show the deceased’s last drawn income. There is nothing on record to discredit the evidence of PW2 and the employment documents marked as Exhibit P10 and Exhibit P11. These documents probabilize that the appellant was being paid a net monthly salary in a sum of Rs.40,230/-after deduction of professional tax and income tax.

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This Court therefore does not find any reason to take exception with the loss of dependency being computed based on such monthly income. However, as is rightly canvassed by Sri K V

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HC-KAR

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Shyamaprasada, this Court must provide for addition towards future prospects at 40% in terms of the proposition that is settled by the Apex Court in ' National Insurance Company Limited v. 'Pranay

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Sethi and Others¹ ' . The other parameters viz., deduction towards personal expenditure and multiplier should remain the same. When the loss of dependency is thus computed, the claimants will be entitled for a sum of Rs.76,03,470/- as against Rs.54,31,050/- with the loss of dependency being computed as follows:

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The Computation of Loss of Dependency will be :

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Computation of Loss of Dependenc	y [in Rs.]
Monthly income of the deceased	40,230
Annual Income for Loss of Dependency	4,82,760
Addition towards future Prospects at 40%	1,93,104
Annual Income with Future prospects	6,75,864
Deduction at 1/4^thtowards personal expenses	1,68,966

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1 AIR 2017 SC 5157

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HC-KAR

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Annual Income after deduction towards personalexpenses	5,06,898
Loss of dependency with multiplier of '15'	76,03,470

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The deceased has left behind four claimants viz., his wife, a minor son and his parents and each of them will be entitled for loss of consortium at the rate of Rs.40,000/- with escalation of 10% for every three years after the accident. They would be entitled under this head in a sum of Rs.1,92,000/- . The appellants would also be entitled for funeral and other expenses in a conventional sum of Rs.30,000/-. The claimants will thus be entitled to a total sum of Rs.78,25,470/- as against the sum of Rs.55,31,050/- as brought out by the comparative table of the amount awarded by the Tribunal and by

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this Court.

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	By the Tribunal [in Rs.]	By this Court [in Rs.]
Loss of dependency	54,31,050	76,03,470
Loss of consortium	40,000	1,92,000
Loss of love and _affection _	45,000	30,000

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HC-KAR

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Transportation of dead body and funeral expenses	15,000
Total	55,31,050	78,25,470
Enhancement		22,94,420

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In the light of the afore, the following:

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ORDER

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[a] The Insurer's Appeal in MFA No. 8265/2018 is dismissed and the claimants' appeal in MFA No.10078/2018

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is allowed granting an enhancement in a sum of Rs.22,94,420/- with interest at 6%

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per annum from the date of the petition till deposit.

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[b] The Insurer is called upon to deposit the enhanced compensation along with interest as aforesaid within eight [8] weeks from the date of receipt of a certified copy of this Judgment.

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[c] The amount so deposited by the Insurer and the amount in deposit with the

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