The Manager Vs Smt Chandrika

GAREPALYA LAYOUT, SRIGANDADAKAVAL, NAGARBHAVI, BANGALORE - 79. PREVIOUS ADDRESS: NO.1914, 3^RD MAIN, 19^TH CROSS, 6^TH BLOCK, JAYANAGAR, BANGALORE – 560 082.

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…APPELLANTS

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(BY SRI. CHANDRASHEKAR SWAMY K B., ADVOCATE)

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AND:

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AXA BUSINESS SERVICES PVT. LTD., I & II FLOOR, MFAR MANYATHA TECH, PARK PHASE - 4, RACHENAHALLI, NAGAWARA, BANGALORE – 560 045,

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MANAGER BHARATHI AXA GENERAL INS. CO. LTD., PRIDE QUADRA, NO.30, 3^RD FLOOR, BELLARY ROAD, HEBBALA, BANGALORE – 560 024

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…RESPONDENTS

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(BY SRI. B.PRADEEP, ADVOCATE FOR R2;

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NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 11.04.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 27.04.2018 PASSED IN MVC NO.6734/2016 ON THE FILE OF THE II ADDITIONAL JUDGE & XXVIII ACMM, COURT OF SMALL CAUSES, BENGALURU (SCCH-13), PARTLY ALLOWING THE

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HC-KAR

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CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 6178/2018

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BETWEEN:

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THE MANAGER, M/S BHARTI AXA GENERAL INSURANCE COMPANY LTD., PRIDE QUADRA, NO.30, 3^RD FLOOR, BELLARY ROAD, HEBBALA BENGALURU - 560 024

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NOW REP BY ITS MANAGER M/S BHARTI AXA GENERAL INSURANCE COMPANY LTD., 10^TH FLOOR, SURVEY NO.28, DODDANKUNDI TOWER RING ROAD, BENGALURU - 560 034.

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...APPELLANT

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(BY SRI. B. PRADEEP., ADVOCATE)

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AND:

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SMT. CHANDRIKA W/O LATE MANJUNATH NOW AGED ABOUT 40 YEARS,

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RAKSHA M

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D/O LATE MANJUNATH AGED ABOUT 19 YEARS,

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MASTER DHRUVA S/O LATE MANJUNATH AGED ABOUT 13 YEARS, MINOR REPRESENTED BY MOTHER AND NATURAL GUARDIAN RESPONDENT NO.1

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HC-KAR

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ALL ARE R/AT NO.181, 27^TH CROSS, GAREPALYA LAYOUT, SRIGANDADAKAVAL

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NAGARABHAVI BENGALURU - 79.

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PREVIOUS ADDRESS NO.1914, 3^RD MAIN, 19^TH CROSS, 6^TH BLOCK, JAYANAGARA, BENGALURU - 560 082.

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AXA BUSINESS SERVICES PVT. LTD., I & II FLOOR, MFAR MANYATHA TECH PARK, PHASE - 4 RACHENAHALLI, NAGAWARA BENGALURU - 560 045.

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...RESPONDENTS

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(BY SRI. T PARAMESHWARAPPA., ADVOCATE FOR R1-R3; NOTICE TO R4 IS DISPENSED WITH VIDE ORDER DATED 10.02.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 27.04.2018 PASSED IN MVC NO.6734/2016 ON THE FILE OF THE 2^ND ADDITIONAL JUDGE & 28^TH ACMM, COURT OF SMALL CAUSES, BENGALURU (SCCH-13), AWARDING COMPENSATION OF RS.14,80,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.

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

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI & HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

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The present appeals have been filed seeking to challenge the Judgment and Award dated 27.04.2018 in M.V.C.No.6734/2016 passed by the Motor Vehicles Accident Claims Tribunal, Bengaluru (SCCH.13) (hereinafter referred to as the ‘Impugned Award’). By the Impugned Award, the learned Tribunal has awarded compensation to the appellants/claimants in a sum of Rs.14,80,000/- along with interest at 6% per annum from the date of petition till its realisation.

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While MFA No.7811/2018 has been filed by the claimants seeking for enhancement of compensation, MFA No.6178/2018 has been filed by the Insurance Company seeking a reduction of the compensation awarded by the learned Tribunal.

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Although these matters are listed for admission today, with the consent of the parties, these appeals are taken up for hearing and final disposal today itself.

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We have heard the learned counsel for the

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appellants/claimants in MFA No.7811/2018, who is also appearing for respondent Nos.1 to 3 in MFA No.6178/ 2018 and the learned counsel appearing for the appellant/ Insurance Company in MFA No.6178/2018, who is also appearing for respondent No.2/Insurance Company in MFA No.7811/2018. Notice to respondent No.1/owner in MFA No.7811/2018 was dispensed with by order dated 11.04.2023 and notice to respondent No.4/owner in MFA No.6178/2018 was dispensed with by order dated 10.02.2023.

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Briefly the facts of the case are that on 13.08.2016 at about 7:45 p.m., while the deceased was riding her Scooter bearing registration No.KA-05-ES-1224 on service road of Ring Road near Sumanahalli fly over, a Car bearing registration No.KA-04-MQ-4438 stated to being driven by

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its driver in a rash and negligent manner from the opposite direction collided with the Scooter. Due to the impact, the deceased fell on the road along with the

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Scooter and the Car ran over her. The deceased was shifted to a nearby ‘Essential Hospital’ for treatment. Inspite of the hospitalisation, the deceased succumbed to her injuries on the same day. It is the case of the appellants/claimants that the deceased was aged about 20 years at the time of the accident.

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A claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the M.V. Act’) by the mother and two siblings of the deceased. It was stated in the claim petition that on account of the death of the deceased who was the sole earning member of the family, the claimants are being put to untold pain,

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suffering and mental agony. It was stated therein that the deceased was working as a Fashion Designer at IIFT, Bangalore and was earning a sum of Rs.10,000/- per month.

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6.1. On notice of the claim petition, though the respondent No.1/owner was served, he remained absent and was placed ex-parte . However, the respondent No.2/

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Insurance Company entered appearance and filed its written statement, admitting the issuance of policy but denying the entire averments made in the claim petition.

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Based on the pleadings filed by the parties, the following issues were framed by the learned Tribunal:

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ISSUES

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“1. Whether the petitioners prove that the deceased Amulya M. died in a road traffic accident that occurred on 13.08.2016 at about 7.45 p.m. on service road of Ring Road near Sumanahalli fly over from Ravi jim towards Vijaya Nethralaya, Bengaluru when deceased was riding the scooter bearing Regn.No.KA 05 ES 1224, due to rash & negligent driving by the driver of car bearing No.KA 04 MQ 4438 as alleged in the petition?

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2. Whether the petitioners are entitled for compensation as claimed? If so, to what extent and from whom?

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3. What order or award?”

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The claimants examined petitioner No.1 (mother of deceased) as PW-1 and marked a copy of the FIR(Ex.P1), complaint(Ex.P2), spot mahazar(Ex.P4), spot

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sketch(Ex.P3), P.M. report(Ex.P7), charge sheet(Ex.P8), death certificate(Ex.P9), SSLC marks card(Ex.P10), Beautification course certificate(Ex.P12), salary

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certificate(Ex.P13), certificate issued by IIFT(Ex.P14), receipt issued by IIFT(Ex.P15) and the Aadhar card of deceased and of all the claimants as Ex.P1 to Ex.P19. However, neither any witness was examined nor any documents were produced on behalf of the appellant/ Insurance Company in M.F.A.No.6178/2018.

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The learned Tribunal, based on the oral and documentary evidence available found that the rash and negligent driving of the driver of the Car was proved. It was held that the deceased died on account of the injuries sustained in the motor vehicle accident. So far as concerns the compensation, the learned Tribunal calculated the loss

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of dependency based on the salary of the deceased and deducting 1/3^rd towards the personal and living expenses of the deceased. The learned Tribunal took the salary of the deceased as Rs.10,000/- per month. Since the deceased was aged about 20 years, the multiplier of ‘18’ was used. Accordingly, applying the judgments in the case

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of Sarla Verma (Smt) and others Vs. Delhi Transport

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Corporation and another¹ and National Insurance Co.

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Ltd. Vs. Pranay Sethi² , the ‘loss of dependency’ was calculated at Rs.14,40,000/- [Rs.10,000/-x12=1,20,000/(-) 40,000/- (living expenses) x ‘18’]. The Tribunal also

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awarded amounts towards ‘loss of estate’ as well as funeral and other expenses in the following manner:

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Sl. No.	Heads of Compensation	Amount (in Rs.)
1	Loss of dependency	14,40,000/-
2	Loss to estate	25,000/-
3	Transportation of dead body & funeral expenses	15,000/-
	TOTAL	14,80,000/-

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9.1 The learned Tribunal thus awarded a sum of Rs.14,80,000/- along with interest at 6% per annum.

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As stated above, the challenge to the Impugned Award has been made by both the appellants/claimants in MFA.No.7811/2018 as well as the appellant/Insurance Company in MFA No.6178/2018.

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1 (2009) 6 SCC 121

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2 (2017) 16 SCC 680

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The learned counsel for the parties have submitted that they have amicably resolved their inter-se disputes at the instance of the Court. The learned counsels fairly submitted that given the settled law, the deduction towards personal and living expenses of the deceased, who was unmarried, was wrongly considered at 1/3^rd instead of 50% and no amount towards future prospects was awarded. Both these aspects were requisite and 10% for escalation was also to be granted towards loss of estate, transportation and funeral expenses and loss of consortium.

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This Court has examined the record. It is undisputed that the accident took place on 13.08.2016 and as per the notional income chart, the income is fixed at Rs.9,500/per month. The learned Tribunal has deducted 1/3^rd towards the living and personal expenses of the deceased. However, since indisputably, the deceased was unmarried, the deduction of 50% was requisite. The amounts towards loss of estate as well as transportation and funeral

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expenses are also required to be calculated in terms of

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Sarla Verma’s case and Pranay Sethi’s case.

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12.1 The challenge is only on the aspect of the income as well as on the award of compensation in respect of nonpecuniary heads. An examination of the record reflects that Exhibit P-13 has been placed on record, which is the Salary Certificate issued by ‘New Star Herbal Beauty Parlour’. The Certificate is on the letterhead of ‘New Star Herbal Beauty Parlour’. It also bears the seal and

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signature of the proprietor/Smt.Vimala and reads as follows:

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“CERTIFICATE

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This is to certify that, AMULYA.M. D/o. late Manjunath, aged about 20 years, resident of Nagarabhavi was working in our parlour as a beautician from 2.00 p.m. to 7.00 p.m. since a year prior to her death and was drawing a salary of Rs.10,000/- p.m. She died in an accident on 13-082016.

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Her conduct was good during her tenure.

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New Star Herbal Beauty Parlour Sd/Proprietor”

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[Emphasis Supplied]

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12.2 The salary certificate (Exhibit P-13) sets out that the deceased was earning a salary of Rs.10,000/- per month.

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12.3 In addition, PW-3/Smt. Vimala, the proprietor of

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‘New Star Herbal Beauty Parlour’ has appeared as a witness before the learned Tribunal and has deposed in

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the following terms:

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“PETITIONERS	..	CHANDRIKA & OTHERS
RESPONDENTS	-VS.- ..	AXA BUSINESS SERVICES PVT. LTD., & ANOTHER
		PW-3
DEPOSITION OF	:	VIMALA
Husband Name	:	SRINIVAS
Age	:	52 years
Occupation	:	Proprietor of New Star
		Herbal Beauty Parlour
Address	:	Byraveshwaranagara, Bengaluru-72.

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EXAMINATION IN CHIEF BY WAY OF AFFIDAVIT

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I, Vimala w/o Srinivas, aged about 52 years residing at No.36, 9^th ‘E’ Main, Byraveshwaranagara, Bangalore-72, do hereby solemnly affirm and state on oath as follows:

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1. I submit that I am the Proprietor of New Star Herbal Beauty Parlour for the last 4 years.

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2. I submit that deceased AMULYA.M D/o Late Manjunath, aged about 20 years was working in our parlour as a Beautician from 2.00 P.M. to 7.00.P.M. every day since one year prior to her death

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in an accident and was drawing a salary a sum of Rs.10,000/- per month.

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This is my name and signature and contents of this affidavit are true and correct.

Sd/-

DEPONENT”

[Emphasis Supplied]

12.4 Since the documentary evidence and the oral

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evidence was produced with respect to the salary of the deceased which reflected a monthly salary of Rs.10,000/-

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as is set out above, it is apposite to consider the monthly

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income of the deceased as Rs.10,000/-.

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12.5 The Supreme Court in Rajwati Rajjo and Others

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Vs. United India Insurance Company Ltd. And

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Others³ , has held that proceedings under the Motor Vehicles Act are summary in nature and the Act being a beneficial legislation, strict rules of pleadings and evidence

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are inapplicable. The standard of proof is one of preponderance of probabilities, and once the occurrence of

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the accident is established, the Tribunal is required to

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3 2022 SCC OnLine SC 1699

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award just compensation. Accordingly, the Court held that the salary certificate and pay slip, corroborated by the oral testimony of the dependants and co-workers, constitute reliable and corroborative proof of the income of the deceased and cannot be rejected merely on the ground that the author of such documents was not examined. The relevant extract is set out below:

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"20. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, “the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases”.

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21. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit 19) and pay slip (Exhibit 20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased's wife (Appellant No. 1 herein) and his co-workers . As such, the High Court was not justified in assessing the income of the deceased at Rs. 4,836/- per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we

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affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased's income at Rs. 11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs. 11,225/- × 12 = Rs. 1,34,700/-.”

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[Emphasis Supplied]

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So far concerns the compensation towards loss of consortium, the learned Tribunal has not awarded any compensation. However, in view of the law laid down by the Supreme Court in Pranay Sethi’s case, loss of consortium is payable at Rs.40,000/- each, to the three

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appellants/ claimants totalling to Rs.1,20,000/- .

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This Court agrees with the submission of the learned

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counsel for the parties that no escalation has been awarded. Accordingly, escalation at the rate of 10% is also awarded on the conventional heads of compensation.

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Thus, the revised calculation would be as follows :

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Sl. No.	Particulars	Amount (Rs.)
1	Loss of Dependency [Rs.10,000/-(+)40%(-)50%x12x’18’]	15,12,000/-
2	Loss of estate [Rs.15,000/-(+)10%]	16,500/-
3	Loss of Estate [Rs.15,000/-(+)10%]	16,500/-

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4	Loss of Consortium [Rs.40,000/-x3 (+)10%]	1,32,000/-
	TOTAL	16,77,000/-
	Less: Awarded by the Tribunal	14,80,000/-
	Enhanced compensation	1,97,000/-

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Hence, the appellants/claimants in MFA No.7811/ 2018 are entitled to an enhancement in the sum of

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Rs.1,97,000/- along with interest at 6% per annum as awarded by the learned Tribunal, from the date of petition till its realization.

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Accordingly, this Court proceeds to pass the following:

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ORDER

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(i) Both appeals are disposed of.

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(ii) The Judgment and Award dated 27.04.2018, in M.V.C. No.6734/2016, passed by the Motor Vehicles Accident Claims Tribunal, Bengaluru (SCCH.13) is modified, enhancing the compensation by Rs.1,97,000/- along with interest at the rate of 6% per annum as awarded by the learned Tribunal from the date of petition till realization;

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( ii) The remaining portion of the Impugned Award of the Tribunal remains undisturbed;

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( iii) The appellant/Insurance company in MFA No.6178/2018 is directed to pay the enhanced compensation with interest as awarded by the Tribunal within eight weeks from today;

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(iv) On deposit of such compensation, the same shall be released in favour of the appellants/ claimants in MFA No.7811/2018, on filing of an appropriate application for withdrawal of the enhanced amount;

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(v) The Registry is directed to draw the modified Award accordingly;

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(vi) The Registry is directed to transmit a copy of this judgment to the concerned Tribunal, along with its records;

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(vii) The amount deposited by the appellant/ insurance company in MFA No.6178/2018 shall be transmitted to the concerned Tribunal for disbursement to the claimants.

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(viii) No order as to costs.

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Sd/(JAYANT BANERJI) JUDGE

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Sd/(TARA VITASTA GANJU) JUDGE