Karnataka High Court
The Branch Manager vs K. Chandrakala on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8744-DB
MFA No. 201600 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 201600 OF 2024 (MV-D)
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
1ST FLOOR, KATKAM KRISTAYYA COMPLEX
CITY TAKIES ROAD
RAICHUR-584 101
REPRESENTED BY ITS
AUTHORIZED OFFICER
...APPELLANT
(BY SRI. MANVENDRA REDDY, ADVOCATE)
AND:
Digitally signed by 1. K. CHANDRAKALA
SHAKAMBARI
W/O LATE KURVA GOPAL @
Location: HIGH
COURT OF GOPALKRISHNA AND
KARNATAKA D/O K. RAMANJANEYALU
AGED ABOUT 27 YEARS
OCC.:HOUSEWIFE
R/O H.NO. 9-128, LEEJA
2. GANGAMMA
W/O HANUMANTHU
AGED ABOUT 57 YEARS
OCC:HOUSEWIFE
3. HANAMANTHU
S/O MAREPPA
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NC: 2024:KHC-K:8744-DB
MFA No. 201600 of 2024
AGED ABOUT 63 YEARS
OCC: NIL
4. GOPAL KRISHNA
S/O HANUMANTHU
AGED ABOUT 27 YEARS
OCC:STUDENT
5. CHINNA KONDAIAH
S/O HANUMANTHU
AGED ABOUT 34 YEARS
OCC:NIL
DUE TO PHYSICALLY DISABLED PERSON
ALL R/O H.NO. 2-24, GHATTU MANDAL
KALOOR, TIMMANADODDI
NANDINNE
NOW ALL ARE R/O TIMMAPURPET
RAICHUR-584 101
6. SOMAREDDY
S/O BASAVAREDDY
MAJOR
OCC:OWNER OF CAR BEARING
REG NO. KA-03/AE-0568
R/O H.NO.205, JAYAKRISHNA AMD
MAHALAKSHMI ENCALVE
2ND FLOOR, NEAR DEEN'S SCHOOL
ECC ROAD, BENGALURU-560066.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE FOR C/R1;
VIDE ORDER DATED 21.06.2024 NOTICE
TO R-6 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 04.03.2024 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE AND M.A.C.T. RAICHUR, IN MVC NO. 308/2020
BY ALLOWING THE APPEAL AS PRAYED FOR IN THE INTEREST OF
JUSTICE AND EQUITY.
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NC: 2024:KHC-K:8744-DB
MFA No. 201600 of 2024
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) The appellant-Respondent No.3 in MVC No.308/2020 has assailed the correctness and the legality of the judgment dated 4.03.2024 by the Principal District and Session Judge, MACT, Raichur, wherein the learned MACT has passed a common judgment in MVC No.273/2020, MVC No.308/2020, MVC No.319/2020 and MVC No.350/2020. Respondent No.3-Insurance Company in MVC No.308/2020 has questioned the quantum and liability by preferring its appeal and no separate appeals are preferred by this respondent in other MVC cases. Thus, the common judgment and award so passed in the aforesaid Motor Vehicle Cases except MVC No.308/2020 has attained finality.
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 Brief and relevant facts as a set out in the petition filed by the petitioners is as under:
2. That on 29.4.2020 at 7.00 p.m., the injured Parvathi, deceased Kurva Gopal @ Gopalakrishna, injured Chandrakala and another injured Shivaraj Kumar were the inmates of car bearing Registration No.KA-03/AE-0568 and were proceeding from Bengaluru to Raichur in the said car.
When the said car was moving on Sindhanur- Raichur Main Road, nearby Ramathnal cross within Mannikeri Camp, the driver of the said car drove the car in high speed, in a rash and negligent manner endangering human life, dashed to a roadside neem tree and thereby, the said car turtle down on the road itself. Because of this accident, the inmates of the car sustained the grievous injuries on their person and the driver Kurva Gopal @ Gopalakrishna died on the spot. The aforesaid Parvathi, Chandrakala and Shivaraj Kumar sustained grievous injuries on their person. On the basis of complaint, Balaganoor Police registered the F.I.R. against the driver of the car and took up investigation and filed charge sheet against the driver of the car. The claimants -5- NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 being the dependents of Kurva Gopal @ Gopalakrishna and injured Parvathi, Chandrakala and Shivaraj Kumar filed claim petitions before the Tribunal claiming compensation.
3. Before the Tribunal, on notice, respondent no.2 the owner of the car bearing No.KA-03/AE-0568 remained absent and was placed ex-parte.
4. Respondent no.3-Insurance Company appeared through its Panel Counsel and filed written statement. In its written statement, it is inter alia contended that, in order to get the compensation, a false case is registered in collusion with the police. The said driver of the car was not holding the effective permit, fitness certificate and also was not holding the effective driving license. Therefore, there is violation of the policy conditions by respondent No.2 in permitting the driver to drive the car. The claim of the petitioner/claimants is exorbitant and highly excessive. Thus, respondent No.3-Insurance Company prayed to dismiss all the petitions.
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024
5. Based upon the rival pleadings of both the parties, the learned Tribunal framed issues in MVC No. 308/2020 as under:
"1. Whether petitioner proves that, on 30.04.2020 at about 5.00 a.m, when the driver of a Car bearing No.KA-03/AE-0568 has driven his car on Sindhanur-Raichur Main Road, near Ramthnal Cross in Mannikeri Camp in high speed, rash and negligent manner, dashed against a road side tree capsize the ame, on account of the same husband of claimant no.1 namely Gopal @ goplakrishna succumbed grievous injuries and died on account of accidental injuries as contended in the petition?
2. Whether petitioners are entitled for compensation, if so, how much and from whom?
3. What order or award?"
6. Before the Tribunal, to substantiate the case of the claimants, claimant No.1 in MVC No.308/2020 was examined as PW.2 and on behalf of the claimants in this petition, Ex.P42 to P46(4) were marked through PW.2, -7- NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 closed the claimant's evidence. One Mr.Sendu Natarajan the official of the Insurance Company was examined as CW.1 and on behalf of the Insurance Company Ex.C1 to C5 got marked, closed its evidence.
7. The learned Tribunal, having heard the arguments on both the side and on assessment of the evidence placed on record held that, the said accident has taken place because of the rash and negligent driving of the car by its driver and it is held that, Insurance Company as well as the owner of the said car are held liable to pay the compensation. The Tribunal awarded compensation of Rs.1,16,83,687/- to the claimants in MVC No.308/2020 with an observation that respondent No.2 and 3 are jointly and severally liable to pay the compensation and however appellant - Insurance company was directed to indemnify the compensation together with interest @ 6% per annum from date of petition till deposit and in case of default, the Insurance company was held liable to pay the default interest @ 12% per annum till -8- NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 final realization within three months from the date of award. This is how now the appellant-Insurance company has come up in this appeal by challenging the quantum of compensation as well as liability.
8. We have heard the arguments of learned counsel for the appellant-Insurance Company as well as claimants/respondents and meticulously perused the records.
Arguments of Appellant/Insurance Company:
9. It is submitted by the counsel for the appellant/Insurance Company Shri.Manvendra Reddy that, there is a violation of the policy conditions by the owner of car. The driver of the said offending car who died in the accident was not holding the effective driving license. He was not possessing any permit or fitness certificate. Therefore, as there is violation of the policy conditions, the Insurance Company is not liable to pay the compensation. He would further submit that, whatever the compensation so awarded by the Tribunal is highly excessive and -9- NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 exorbitant. The gross salary has been stated as Rs.51,168/- as the deceased was a Software Engineer working in Capgemini Technology Services India Limited, his net salary was shown as Rs.48,685/- . As per the records, he was an income tax assessee. He would submit that the income tax is not deducted. According to his submission, the deceased had to pay the Professional Tax of Rs.200/- per month. That also has not been deducted by the Tribunal. According to him for the relevant tax assessment year, income tax was liable to be paid by the deceased was up to Rs.2,50,000/- is nill and Rs.2,50,001/- to Rs.5,00,000/- is 5% and from Rs.5,00,001/- to 6,00,000/- is 20%. He would submit that, the tax has to be deducted from the total income. The Tribunal has not considered with regard to the deduction of income tax. Arguments of Respondent/Claimant:
10. As against this submission, the learned counsel for the claimants would submit that there were five dependents. Deceased was aged 28 years at the time of
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 accident. As he was having five dependents, 1/4th of his income is to be deducted towards his personal expenses. As per the age of the deceased and in view of the judgment in Sarla Verma v. DTC, reported in (2009) 6 SCC 121, the proper multiplier applicable is '17'. The learned counsel for the claimants is fair enough to submit that professional tax, income tax has to be deducted from the monthly salary of the deceased. But, he would submit that whatever the compensation so awarded by the Tribunal is just, reasonable and proper. He would submit that the claimants have not preferred any independent or separate appeal seeking enhancement of compensation. Thus, it is submitted by the counsel for the claimants to dismiss the appeal by confirming the judgment and award passed by the Tribunal.
11. We have given our anxious consideration to the arguments of both the side and perused the records. In view of the rival submissions of both the side, the only point that would arise for our consideration is:
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 "Whether the Tribunal has committed any illegality or infirmity in awarding the compensation and fastening the liability on the Insurance Company?
12. So far as accident that occurred on 29.04.2020 at 7.00 p.m. on Sindhanur - Raichur Main Road, nearby Ramathnal cross within Mannikeri camp, is concerned is not in dispute. So also it is not in dispute that the deceased Kurva Gopal @ Gopalkrishna was driving the car bearing registration No.KA-03/AE-0568 and in the said car Parvathi, Chandrakala, Shivarajkumar were the inmates. They sustained injuries on their person. According to the case of the claimants, because of rash and negligent driving of the said car by the deceased, the said accident has taken place. To prove the said fact, before the Tribunal, the claimants relied upon various documents. Amongst them, they rely upon certified copy of the FIR, Charge sheet, Spot Panchanama, M.V. Report marked in MVC.No.350/2020 marked as Exs.P1 to P4. So also, the present claimants also relied upon the inquest
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 Panchanama on the dead body of the deceased Kurva Gopal @ Gopalakrishna and also PM report at Ex.P43. These documents do demonstrate that, Police after investigation have filed a Charge-sheet against the driver of the said car who was the deceased and it is alleged that because of rash and negligent driving of the car by the driver, the said accident has taken place. The Spot Panchanama do establish that how the said accident has taken place. The Motor Vehicle Accident report shows that the said accident has taken place not because of any mechanical defects in the said vehicle. Further, 'B' extract of the said vehicle, fitness certificate along with the permit are produced. These documents have not been denied by the appellant-Insurance Company. That means as on the date of accident there was a permit to ply the said vehicle. It was fit to ply on the road, was in a movable condition and the driver was possessing the effective driveling licence. The said documents are marked as Exs.P.46(1), 46(2), 46(3) and Ex.P46(4). If all these documents coupled with the oral evidence of PWs.1 to 3 being the
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 inmates of the car at the relevant time is read together, as rightly observed by the learned Tribunal, it is proved that the said accident has taken place because of the rash and negligent driving of the car by its driver. Re. Assessment of Compensation:
13. So far the income of the deceased is concerned, as per the claimants, deceased was a software Engineer working in Capgemini Technology Services India Limited and his last drawn salary for the month of April 2020 was shown as Rs.51,168/-. He had to pay the professional tax to the extent of Rs.200/- per month. Thus, the total salary per month would be Rs.50,968/- per month. Annually, it comes to Rs.6,11,616/- (Rs.50,968 X 12). Thus, the total annual salary of the deceased, comes to Rs.6,11,616/-. The Tribunal has not taken into consideration the income tax to be paid by the claimant towards his salary income. The arguments of the learned counsel for the appellant submitted that the income tax slab is to be taken for the year 2020-21, but as the incident has occurred on
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 29.04.2020, so while calculating the income tax, we have to consider the slabs during the year 2019-20 as per the Income Tax rules, the taxable income is shown below:
Sl.No. Slab of Tax Rate Tax to be
Income paid
Total Income of the deceased Rs.6,11,616 ------
1. Up to Nil
Rs.3,00,000 ------
2. Rs.3,00,001 - 5% Rs.15,000.00
Rs.5,00,000 (Rs.6,11,616- Rs.3,00,000) (Rs.3,00,000X5%)
3. Rs.5,00,001 - 20% Rs.2,323.00 Rs.10,00,000 (Rs.3,11,616-Rs.
3,00,000=Rs.11,616X20%)
4. Above 30% ------
Rs.10,00,001
Total Rs.17,323.00
Thus the total salary income of the deceased comes to Rs.5,94,293 (Rs.6,11,616 - Rs.17,323).
14. As per the judgment in National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680, 50% is to be added towards the future prospects that comes to Rs.2,97,146/- thus the total income of the deceased is worked out at Rs.8,91,439/-.
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024
15. While awarding the compensation, the Tribunal has taken into consideration so many aspects. It is observed by the Tribunal that the claimant Nos. 4 and 5 are the brothers and they cannot be considered as dependents. Claimant No.1 is the wife and the claimant No. 2 and 3 are the parents of the deceased and claimant No. 4 is the brother of the deceased who was studying at the time of incident. Claimant no.5 is also a brother who is physically disabled. According to the case of the claimants, the deceased was the elder person in the family and was taking care of all these claimants. As claimant No.4 was a student and a claimant No.5 was the disabled person, as rightly observed by the Tribunal, claimants were depending upon the income of the deceased. Even disability certificate is also produced by the claimants at Ex.P46. While marking this document the Insurance Company has not raised any objections. While determining the compensation, all these factors of dependency have to be taken into consideration as laid down by the Hon'ble Apex Court in Pranay Sethi supra. As the claimants have
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 lost their earning member of the family in the said accident, they must have been put to mental shock and agony. It is observed by the Tribunal that the very accidental death message to a family members would have brought them unbearable shock. As per judgment in Pranay Sethi supra, while calculating the award of compensation, one has to keep in mind with regard to the income of the deceased, his future prospects and age. Hence, now we have to assess the compensation as per the guidelines laid down in the said judgment. As per the P.M. report, the age of the deceased was 28 years at the time of accident, therefore, the proper multiplier that is applicable is '17' as rightly held by the learned Tribunal. P.M. report is the only document to show his age. This document is not disputed by the Insurance Company.
16. The deceased had 5 dependents. Therefore 1/4th of his income is to be deducted towards his personal expenses and 3/4th of his income has to be considered for reckoning the loss of dependency. That means
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 Rs.8,91,439 has to be multiplied with 17 X 3/4th comes to Rs.1,13,65,847/-. Thus towards loss of dependency, the claimants are held entitled for Rs.1,13,65,847/-. Re. Loss of Consortium:
17. Claimants are entitled for the compensation towards the loss of consortium. As all dependants have lost their earning member in the family. It has come in evidence of the claimants that, at the time of accident this claimant No.1 was aged 22 years. Therefore, she is entitled for compensation towards the loss of consortium to an extent of Rs.40,000/-. Claimant Nos.2 and 3 being the parents are entitled for consortium at Rs.40,000/- each. Claimants no.4 and 5 being student and disabled are also entitled for loss of consortium as they have lost their brother who was taking care of education and other requirements. Hence, both are entitled for loss of consortium to the extent of Rs.40,000/- each. Claimants no.1 to 5 being the dependants are entitled for Rs.40,000/- each towards loss of consortium with 10%
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 hike. Thus, they are entitled for Rs.2,00,000/- + 20,000 = Rs.2,20,000/-.
18. Thus the claimants are held entitled for compensation under the following heads that is:
Sl. Heads Amount of
No. compensation
(Rs.)
1. Loss of dependency 1,13,65,847.00
2. Loss of consortium 2,20,000.00
3. Funeral expenses 15,000.00
4. Loss of eEstate 15,000.00
Total 1,16,15,847.00
Thus, the claimants are held entitled for
Rs.1,16,15,847/-.
19. The learned Tribunal has wrongly awarded compensation towards mental shock, agony which is not permissible. So also has awarded higher compensation towards loss of estate and transportation. It ought to have
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 followed the guidelines enumerated in the judgment of Pranay Sethi supra which holds the field.
20. As narrated supra though the Insurance Company has challenged the award on the question of quantum as well as liability, so far as fastening of liability in other connected MVC cases i.e., in MVC No.319/2020 and 315/20, no separate appeal is preferred by the Insurance Company perhaps conceding the liability fastened on the Insurance Company. But in this appeal the liability is questioned, whereas, the claimants in all these connected cases have produced the relevant documents and even existence and validity of the insurance policy as on the date of the accident is concerned is not in dispute. Even RW.1 admits the same. There was a fitness certificate, there was a permit, so also the driver of the said car was holding the effective driving license as on the date of accident. There is no evidence placed on record by the insurance company that, there is a violation of the policy conditions by the owner of the said vehicle. If that is
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024 so the initial liability is on the owner of the offending vehicle as the insurance policy was valid and was in force as at the time of the accident. Liability to pay the compensation is joint and several on owner of the car and insurance Company. However the Insurance Company has to indemnify the said compensation amount.
21. Accordingly, we pass the following:
ORDER
(i) Appeal filed by the Insurance Company is allowed in-part.
(ii) Claimants are held entitled for compensation of Rs.1,16,15,847/- as against Rs.1,16,83,687/- together with interest at the rate of 6% p.a from date of petition till its realization, thereby, there would be reduction of compensation by Rs.67,840/-.
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NC: 2024:KHC-K:8744-DB MFA No. 201600 of 2024
(iii) The order of the Tribunal with regard to deposit, apportionment and release of compensation shall remain undisturbed. There shall be modified award in above terms.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK/-
List No.: 19 Sl No.: 7