Karnataka High Court
United India Insurance Co Ltd vs Smt B S Bhavya on 6 January, 2021
Author: Alok Aradhe Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.9895 OF 2012 (MV-D)
C/W
M.F.A. NO.840 OF 2013 (MV-D)
IN MFA NO.9895/2012:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
MUSEUM ROAD, NO.21,
ST.PATRICK BUILDING,
BANGALORE-560025.
THROUGH ITS REGIONAL OFFICE,
UNITED INDIA INSURANCE CO., LTD.
KRISHI BHAVAN, 5TH FLOOR,
NRUPATUNGA ROAD,
BANGALORE-560001.
REP. BY ITS MANAGER
SMT.P.NAVAMANY
... APPELLANT
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE)
2
AND:
1. SMT. B.S. BHAVYA
AGED ABOUT 30 YEARS,
W/O LATE K.BHANUPRAKASH
2. SRI.B.KRISHNAPPA
AGED ABOUT 64 YEARS,
S/O SRI. BYRAPPA
3. SMT. C.ASHA DEVI
AGED ABOUT 59 YEARS,
W/O B.KRISHNAPPA
4. KUM. B.RISHITHA
D/O LATE K.BHANUPRAKASH,
AGED ABOUT 5 YEARS,
SINCE MINOR, REPRESENTED BY HER MOTHER
THE FIRST RESPONDENT HEREIN B.S.BHAVYA
ALL ARE RESIDING AT NO.28,
3RD CROSS, GANESHA BLOCK,
SULTHAN PALYA,
R.T.NAGAR POST,
BANGALORE-560032.
5. SRI. K.JAGADISH,
MAJOR,
S/O K.N.KRISHNAPPA,
NO.24, 2ND CROSS,
ANKAPPA BLOCK,
J.C.NAGAR,
BANGALORE-560022.
(OWNER OF TEMPO NO.KA.04/D-9396)
... RESPONDENTS
(BY SRI. D.N.NANJUNDA REDDY, SENIOR ADVOCATE FOR
SRI. C.ASHWATHAPPA, ADVOCATE FOR RESPONDENT
NOS.1 TO 4;
3
NOTICE TO RESPONDENT NO.5 IS SERVED BUT
UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
25.08.2012 PASSED IN MVC NO.3625/2008 ON THE FILE
OF THE XX ADDITIONAL JUDGE AND XVIII ACMM, MACT,
BANGALORE, AWARDING A COMPENSATION OF
RS.47,38,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT IN COURT.
IN MFA NO.840/2013:
BETWEEN:
1. B.S. BHAVYA
W/O LATE K. BHANUPRAKASH
AGED ABOUT 31 YEARS
2. SRI. B. KRISHNAPPA
S/O SRI. BYRAPPA,
AGED ABOUT 65 YEARS
3. SMT. C. ASHA DEVI
W/O B. KRISHNAPPA,
AGED ABOUT 60 YEARS
4. KUMARI B. RISHITHA
D/O LATE K. BHANUPRAKASH,
AGED ABOUT 6 YEARS,
SINCE MINOR, REPRESENTED BY HER
MOTHER AND NATURAL GUARDIAN
SMT. B.S. BHAVYA
ALL ARE RESIDING AT
NO.28, 3RD CROSS,
GANESHA BLOCK,
SULATHANPALYA,
4
R.T. NAGAR POST,
BANGALORE-560032.
... APPELLANTS
(BY SRI. C. ASWATHAPPA, ADVOCATE)
AND:
1. K. JAGADISH
MAJOR,
S/O K.N. KRISHNAPPA,
NO.24, 2ND CROSS,
ANKAPPA BLOCK,
J.C. NAGAR, BANGALORE-560022.
2. THE MANAGER
UNITED INDIA INSURANCE CO. LTD.,
NO.21, ST.PATRICK BUILDING,
MUSEUM ROAD,
BANGALORE-560025.
... RESPONDENTS
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR
RESPONDENT NO.2;
SERVICE OF NOTICE TO RESPONDENT NO.1 IS
DISPENSED WITH VIDE COURT ORDER DATED
04.04.2014)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
25.08.2012 PASSED IN MVC NO.3625/2008 ON THE FILE
OF THE XX ADDITIONAL JUDGE AND XVIII ACMM, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:
5
JUDGMENT
MFA No.9895/2012 is filed by the insurer challenging
the quantum of compensation as well as the liability
imposed upon it to pay the compensation awarded by the
MACT, XX Additional Judge and XVIII ACMM, Bengaluru in
MVC No.3625/2008.
2. MFA No.840/2013 is filed by the claimants
seeking enhancement of the compensation awarded in
MVC No.3625/2008 awarded by the MACT, XX Additional
Judge and XVIII ACMM, Bengaluru in MVC No.3625/2008.
3. The parties shall henceforth be referred to as
they were arrayed before the Tribunal.
4. The claim petition discloses that the claimants
are the legal representatives of Bhanuprakash K. It is
stated that on 30.03.2008, the said Mr.Bhanuprakash was
riding his motor cycle bearing registration No.KA-04-EA-
6652 on the left side of C.B.I road and when he took a
turn towards the R.T.Nagar Cross in front of Ashakiran
Children's Clinic at about 11.50 pm., the driver of a Tempo
Traveler bearing registration No.KA-04-D-9396
(hereinafter referred to as the 'offending vehicle') drove it
in a rash and negligent manner and dashed against the
motor cycle ridden by Bhanuprakash. As a result, the said
Bhanuprakash fell down and sustained injuries and was
shifted to Chaitanya Nursing Home where he was
administered first aid, and then shifted to M.S.Ramaiah
Hospital where he succumbed to the injuries. It was
claimed that the deceased was employed as a Senior
Software Engineer at M/s Accenture Services Private
Limited, Bannerghatta Road, Bengaluru and was earning a
monthly salary of Rs.86,000/- per month. The claimants
contended that on account of the sudden demise, they
suffered untold pain and suffering and also immense
financial hardship. The claimants alleged that the driver of
the offending vehicle was negligent and was responsible
for the accident and therefore filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation of a sum of Rs.3.00 Crores.
5. The owner of the offending vehicle did not
contest the claim petition. The insurer of the offending
vehicle contested the claim petition and denied the
averments of the claim petition. It contended that the
accident was due to the negligence on the part of the
deceased who rode his motor cycle in a rash and negligent
manner and took a sudden turn from a side road on to the
main road without observing the oncoming traffic. The
insurer therefore, contended that the driver of the
offending vehicle could not have averted the accident. The
insurer contended that the driver of the offending vehicle
did not possess a valid licence to drive the offending
vehicle.
6. Based on these rival contentions, the claim
petition was set down for trial.
7. Before the Tribunal, the claimant No.2 was
examined as PW1 and two witnesses were examined as
PWs.2 and 3 and marked Exs.P1 to P21. The driver of the
offending vehicle was examined as RW1 and the
Administrative Officer of the insurer of the offending
vehicle was examined as RW2 and they marked documents
as Exs.R1 to P12.
8. The Tribunal noticed the evidence of PW2 who
deposed that on 30.03.2008, he saw the deceased who
was riding his motor cycle on the extreme left side of the
road and that about 11.50 pm., the driver of the offending
vehicle drove it from the opposite direction in a rash and
negligent manner and dashed against the motor cycle.
PW2 was the person who shifted the deceased to the
nearby Chaitanya Nursing Home. The Tribunal also
noticed the evidence of RW1, who in his in his examination
in chief stated that, at the time of the accident BMTC buses
of R.T.Nagar Depot were parked on the left side of the
R.T.Nagar main road. Hence, when he reached CBI cross
road, the deceased came from the CBI cross road and
suddenly turned towards R.T.Nagar main road. He
deposed in his cross examination that the R.T.Nagar main
road and CBI main road were 80 feet wide. He further
deposed that since BMTC buses were parked on the left
side of the road, he swerved the offending vehicle on the
right side and dashed against the motor cycle ridden by
the deceased. The Tribunal also noticed Ex.P3 which
indicated that the spot of the accident was on the right
side of the road leading from South to North. It also
noticed that the jurisdictional police had charge sheeted
the driver of the offending vehicle in C.C.No.1322/2008.
The Tribunal also verified form the MV report that the front
right corner head light, parking light, corner bumper and
top body of the parking light were damaged. Hence, the
Tribunal held that the accident was due to the rash and
negligent driving by the driver of the offending vehicle. In
so far as the claim for compensation is concerned, it
noticed that the claimant Nos.1 and 4 were the wife and
daughter of the deceased while claimant Nos.2 and 3 were
the parents of the deceased. PW1 deposed that the
deceased was drawing a monthly salary of Rs.86,652/-.
The claimants examined PW3 who was the HR Manager at
M/s Accenture Services Private Limited who deposed that
the deceased was employed as a Senior Software Engineer
between 16.03.2004 and 30.03.2008 and was drawing a
salary of Rs.86,652/- per month. The Tribunal noticed
from Ex.P16 that the gross annual compensation paid by
the M/s Accenture Services Private Limited to the deceased
was a sum of Rs.5,88,214/- per annum. The Income Tax
Returns of the deceased for the Assessment Year 2005-06
indicated the income from salary at a sum of
Rs.1,71,740/- and after deducting the income tax of
Rs.17,307/- paid, the net income was a sum of
Rs.1,54,433/-. Thus, the Tribunal held that the monthly
income of the deceased during the year 2004-05 was a
sum of Rs.12,869/-. In so far as the income of the
deceased for the year 2007-08, the Tribunal though
noticed Ex.P7 which was the salary slip for the month of
March 2008 which indicated his monthly income as
Rs.86,652/-, yet it held that after deducting the house rent
allowance, special allowance, conveyance, hot skill bonus
and variable pay local, the monthly income of the
deceased was Rs.18,405/-. The Tribunal held that the
income of the deceased could not be considered at a sum
of Rs.86,652/- per month. The Tribunal took exception to
the claimants not producing the pass book of the deceased
which he had maintained at HDFC and ICICI Banks. Thus,
the Tribunal on preponderance of probabilities assessed
the average salary of the deceased at a sum of
Rs.23,000/- per month. The Tribunal noticed that the
deceased was a permanent employee at M/s Accenture
Services Private Limited and therefore, held that the
deceased would have progressed vertically in his carrier
and that the claimants were entitled to the loss of future
prospects at the rate of 50% of the actual income of the
deceased. The Tribunal noticed the age of the deceased
was 28 years as per Ex.P13 and applying the proper
multiplier of '17' awarded the following compensation.
Heads under which Amount in
compensation awarded Rupees
Towards loss of dependency 46,92,000
Loss of love and affection 15,000
Loss of consortium 15,000
Funeral and conveyance expenses 10,000
Medical expenses 6,000
Total 47,38,000
9. In so far as the liability to pay the
compensation is concerned, the Tribunal noticed that the
offending vehicle was owned by the respondent No.1 and
duly insured by the insurer and therefore, directed that
the compensation shall be paid jointly and severally by the
insurer and the owner of the offending vehicle.
10. Feeling aggrieved by the aforesaid Judgment
and Award the insurer has filed an appeal challenging the
quantum as well as the liability to pay the compensation.
The claimants have also filed the appeal for enhancement
contending that the Tribunal ought to have considered the
income of the deceased at a sum of Rs.86,652/- per
month.
11. During the pendency of these appeals this
Court in terms of the Order dated 28.11.2019, allowed
I.A.No.1/2015 filed by the claimants in MFA No.9895/2012
for production of additional evidence and directed the
Tribunal to permit the claimants to adduce further
evidence. Consequent thereto, the claimants marked
Exs.P22 and 23.
12. The insurer contended in this appeal that Ex.P3
indicated that the deceased came on to the R.T.Nagar
main road from the CBI road without noticing the
oncoming offending vehicle and therefore, the deceased
had contributed to the accident, which the Tribunal lost
sight of. The learned counsel reiterated that the Tribunal
committed an error in solely relying upon the evidence of
RW1 to hold that the driver of the offending vehicle was
negligent and was responsible for the accident. The
learned counsel further contended that the driver of the
offending vehicle was acquitted in the criminal case and
therefore, it could not be held that the driver of the
offending vehicle was negligent and was responsible for
the accident. The learned counsel therefore, contended
that the Tribunal ought to have held that the deceased had
contributed in the causation of the accident and ought not
to have held that the driver of the offending vehicle was
alone negligent and responsible for the accident. The
learned counsel further contended that the claimants had
received a sum of Rs.10,00,000/- from the employer of the
deceased on account of a personal accident insurance
cover that was availed by the employer for the deceased.
The learned counsel therefore, contended that in view of
the Judgment of the Apex Court in the case of Helen C.
Rebello (Mrs) and Others vs. Maharashtra State
Road Transport Corporation and Another reported in
(1999) 1 SCC 90 the amount of Rs.10,00,000/- received
by the claimants was "pecuniary advantage" received by
the claimants on account of the death and that therefore,
the same had to be deducted from out of the
compensation payable to the claimants. In so far as the
income of the deceased is concerned, the learned counsel
pointed out that the bank extract issued by HDFC Bank
indicated that the deceased was drawing salary of
Rs.40,092/- for the month of January, 2008 and a sum of
Rs.63,531/- during March, 2008. He therefore, contended
that the claim of the claimants that the deceased was
earning Rs.86,652/- per month was without any basis.
The learned counsel also invited the attention of the Court
to Ex.P23(a) which was the income tax return of the
deceased for the year 2008-09 which was filed on
13.01.2010 which indicated the gross total income of the
deceased was Rs.6,29,744/-, while the total income after
deductions was Rs.5,87,810/- and after deducting the tax
of Rs.1,29,103/- the annual income would be
Rs.4,58,707/- and therefore, the monthly income would be
Rs.38,225/-. The learned counsel contended that
Ex.P23(a) could not be believed since the same was filed
on 30.01.2010 long after the accident. Therefore, the
learned counsel submitted that the only tangible evidence
available was the HDFC Bank extract which indicated the
income of the deceased. The learned counsel took us
through the Bank extract which indicated that the income
of the deceased varied from Rs.9,393/- during March,
2004 to Rs.63,531/- during March, 2008. The learned
counsel therefore, contended that there was no clear proof
about the actual income earned by the deceased. Lastly,
the counsel for the insurer contended that Ex.R8 indicated
that the driver of the offending vehicle did not possess a
valid licence and that there was a violation of condition of
the policy and that it was not liability to pay the
compensation. Therefore, the learned counsel for the
insurer claimed that the Judgment and Award of the
Tribunal deserve to be interfered with.
13. Per contra, Sri.Nanjunda Reddy, Senior counsel
appearing for the appellants contended that there was
voluminous evidence on record to indicate the monthly
income of the deceased at a sum of Rs.86,652/-. The
learned senior counsel took us through the evidence of
PW3 who was the HR Manager at M/s Accenture Services
Private Limited who deposed that the deceased was a
Senior Manager and was earning a sum of Rs.86,652/- per
month. PW3 marked Exs.P15 to P18 which was the letter
of authorization authorizing PW3 to depose before the
Court, the details of annual compensation payable to the
deceased, the letter of appointment dated 09.03.2004
which indicated that the deceased was offered an
employment of Software Engineer on an annual pay packet
of Rs.2,75,000/- and that the deceased would be entitled
to variable pay of Rs.20,625/- for the Financial Year 2004.
The learned Senior counsel also brought to the notice of
this Court Exs.P19 to P21 which indicated that the
deceased was awarded for his valuable contribution and
exemplary team performance. The learned Senior counsel
also contended that the tax computation sheet issued by
M/s Accenture Services Private Limited for the year 2005-
06 indicated a gross salary of Rs.3,43,040/- and that the
gross income of the deceased grew to Rs.6,32,144/- as per
the Form-16 issued by the M/s Accenture Services Private
Limited. The learned Senior counsel contended that the
income tax return filed for the year 2008-09 was not
jacked up to make an exorbitant claim but was based on
the Form No.16 issued by the M/s Accenture Services
Private Limited. The learned Senior claimed that when
PW1 was further examined before the Trial Court, there
was not even a suggestion put to PW1 that Ex.P23(a) was
not based on the Form No.16 issued. The learned Senior
counsel invited the attention of this Court to the
suggestion put to PW1 during his cross examination on
19.12.2019 where the counsel for the insurer suggested to
PW1 that the deceased was earning monthly salary of
Rs.63,531/- per month after all deductions. Therefore, the
learned Senior counsel submitted that the income of the
deceased could not have been considered by the Tribunal
at a sum of Rs.23,000/- per month and therefore, prayed
that this Court may consider the income of the deceased at
a sum of Rs.63,531/ per month. The learned Senior
counsel contended that the deceased was 28 years old, the
claimants were entitled to loss of future prospects at the
rate of 50% of the actual income of the deceased.
14. In so far as the question regarding the
contributory negligence is concerned, the learned Senior
counsel invited the attention of the Court to Ex.P2 which
was the spot mahazar which indicated that the road width
at the spot of the accident was 65 feet. The learned
Senior counsel pointed out from Ex.P3 that the place of the
accident was more towards the right side on the road
running South to North. Therefore, he contended that the
offending vehicle which was moving from South to North
came on to the right track and dashed against the motor
cycle ridden by the deceased. Therefore, the learned
Senior counsel claimed that there was no contributory
negligence on the part of the deceased. He invited the
attention of the Court to evidence of RW1 wherein he
categorically stated that on the road running from South to
North (R.T.Nagar Main Road) there were buses belonging
to BMTC parked on the left side and therefore, he had to
move his vehicle towards the left side and that the same
caused the accident. The learned Senior counsel therefore
contended that there was no contributory negligence on
the part of the deceased. Further, he contended that the
accident occurred at 11.50 pm., and that the damages
caused on the right side of the offending vehicle clearly
indicated that it was the driver of the offending vehicle was
negligent and dashed against the motor cycle ridden by
the deceased.
15. The learned Senior counsel contended that a
sum of Rs.10,00,000/- that was received by the claimants
from M/s Accenture Services Private Limited was on
account of the personal accident cover for which the
Employer of the deceased was paying the premium.
Therefore, the learned Senior counsel contended that this
amount was not to be deducted from the compensation
payable to the claimants. The learned Senior counsel also
submitted that the claimant No.4 was entitled to loss of
parental love and affection and the claimant Nos.2 and 3
were entitled to loss of filial consortium at Rs.40,000/-
each as decided by the Apex Court in the case of United
India Insurance Company Limited Vs. Satinder Kaur
@ Satwinder Kaur and others reported in AIR 2020 SC
3076.
16. We have given our thoughtful consideration to
the material on record and we have perused the records of
the Trial Court, its Judgment and Award as well as the
grounds urged by the insurer and the claimants in their
respective appeals.
17. There is no dispute regarding the occurrence of
the accident in which the deceased suffered serious
injuries and died on the way to the Hospital. It is seen
from Ex.P3 which is the sketch of the scene of the accident
drawn by the jurisdictional police in Crime No.56/2008 that
the accident occurred more on the right side of the road
running from South to North. The offending vehicle was
proceeding from South to North, while the deceased was
proceeding from North to South on the left side. Ex.P4
which is the report of the Motor Vehicles Inspector
indicates that the front right corner head light and parking
light, right corner bumper were damaged. In addition to
the above, RW1 in his deposition clearly stated that buses
belonging to BMTC were parked on the left side of the road
running from South to North and therefore, he had to
move away from the parked buses, on to the right side of
the road and that as a result the accident occurred in
which the deceased died. It is hence, clear that the
deceased was well within his track on the road and the
damages on the offending vehicle make it clear that it was
not a head on collusion but it was a clear case of the
offending vehicle dashing against the motor cycle ridden
by the deceased. It is now trite and as held by the Apex
Court in Mangla Ram vs Oriental Insurance Co. Ltd.
reported in 2018(5) SCC 656 that the person who alleges
contributory negligence ought to prove it by credible
evidence, which in the present case is clearly absent. The
simple and effective test to determine contributory
negligence is as to who was in a position to avert the
accident and whether such person attempted to avert it.
The other test is whether the person accused of
contributory negligence had exercised care, precaution
and vigilance which a person of ordinary prudence would
exercise in the circumstances. In the case on hand, there
was no traffic prohibition for the deceased to enter the RT
Nagar Main road from the CBI Road. The deceased was
within his track of the road and the evidence of RW1
indicates that the driver moved the vehicle on to his right
side and dashed against the deceased. Hence, there is no
contributory negligence on the part of the deceased and it
was the driver of the offending vehicle who must have
exercised caution, more so, when he was aware that there
was not enough space on his track of the road as buses
were parked. Consequently, we do not find any exception
to the finding recorded by the Tribunal that it was the
driver of the offending vehicle who was negligent and who
was responsible for the accident.
18. In so far as the question whether a sum of
Rs.10,00,000/- received by the claimants from the
Employer is to be deducted form the compensation
payable, the Apex Court in the case of Reliance General
Insurance Company Limited vs. Shashi Sharma and
Others reported in 2016(9) SCC 627 considered its
earlier Judgment in Halen C. Rebello and held as follows:
"15. The principle expounded in this decision
in Helen C. Rebello case [(1999) 1 SCC 90] that
the application of general principles under the
common law to estimate damages cannot be
invoked for computing compensation under the
Motor Vehicles Act. Further, the "pecuniary
advantage" from whatever source must correlate to
the injury or death caused on account of motor
accident. The view so taken is the correct analysis
and interpretation of the relevant provisions of the
Motor Vehicles Act of 1939, and must apply proprio
vigore to the corresponding provisions of the Motor
Vehicles Act, 1988. This principle has been restated
in the subsequent decision of the two-Judge Bench
in Patricia Jean Mahajan case [(2002) 6 SCC 281],
to reject the argument of the Insurance Company
to deduct the amount receivable by the dependents
of the deceased by way of "social security
compensation" and "life insurance policy".
17. Be that as it may, the term
"compensation" has not been defined in the Act of
1988. By interpretative process, it has been
understood to mean to recompense the claimants
for the possible loss suffered or likely to be suffered
due to sudden and untimely death of their family
member as a result of motor accident. Two cardinal
principles run through the provisions of the Motor
Vehicles Act of 1988 in the matter of determination
of compensation. Firstly, the measure of
compensation must be just and adequate; and
secondly, no double benefit should be passed on to
the claimants in the matter of award of
compensation. Section 168 of the 1988 Act makes
the first principle explicit. Sub-section (1) of that
provision makes it clear that the amount of
compensation must be just. The word "just" means
- fair, adequate, and reasonable. It has been
derived from the Latin word "justus", connoting
right and fair. In para 7 of State of Haryana v.
Jasbir Kaur & Ors.[(2003) 7 SCC 484], it has been
held that expression "just" denotes that the
amount must be equitable, fair, reasonable and not
arbitrary. In para 16 of Sarla Verma v. DTC
[(2009) 6 scc 121], this Court has observed that
the compensation "is not intended to be a bonanza,
largesse or source of profit". That, however may
depend upon facts and circumstances of each case,
as to what amount would be a just compensation.
18. The principle discernable from the
exposition in Helen C.Rebello's case [(1999) 1 SCC
90] is that if the amount "would be due to the
dependants of the deceased even otherwise", the
same shall not be deductible from the
compensation amount payable under the 1988 Act.
At the same time, it must be borne in mind that
loss of income is a significant head under which
compensation is claimed in terms of the 1988 Act.
The component of quantum of "loss of income",
inter alia, can be "pay and wages" which otherwise
would have been earned by the deceased employee
if he had survived the injury caused to him due to
motor accident. If the dependents of the deceased
employee, however, were to be compensated by
the employer in that behalf, as is predicated by the
2006 Rules - to grant compassionate assistance by
way of ex-gratia financial assistance on
compassionate grounds to the dependents of the
deceased Government employee who dies in
harness, it is unfathomable that the dependents
can still be permitted to claim the same amount as
a possible or likely loss of income to be suffered by
them to maintain a claim for compensation under
the 1988 Act."
19. In view of the above, the Tribunal was justified
in not deducting the sum of Rs.10,00,000/- received by
the claimants from the employer which was infact a
personal accident cover in respect of the deceased which
was availed by the employer for the deceased.
20. In so far as the income of the deceased is
concerned, the statement of total income for the
assessment year 2008-09 shows the total salary of a sum
of Rs.6,32,144/- and the total taxable income was a sum
of Rs.5,87,810/-. The claimants had paid a sum of
Rs.1,25,343/- and therefore, the annual income of the
deceased must have been Rs.4,62,467/- and the monthly
income must have been Rs.38,538/-. In addition, the
deceased had paid a premium towards LIC of a sum of
Rs.15,736/- and there was a deduction of Rs.26,202/-
towards PF., and if this is added on to the annual income
the total income of the deceased would have been
Rs.5,04,405/- and the monthly income would have been
Rs.42,033/- after deducting the tax. It is inevitable in
Motor Accident cases that claims for compensation has to
be adjudicated upon by some guess work and therefore,
the monthly income of the deceased could be accepted at
a sum of Rs.42,000/-. Since, the deceased was 28 years
old, the claimants were entitled to the loss of future
prospects of the actual income of the deceased at the rate
of 50% of his actual income. Since, the deceased left
behind the four dependents, as held by the Apex Court in
the case of National Insurance Company Limited Vs.
Pranay Sethi reported in AIR 2017 SC 5157, 1/4th of his
income has to be notionally deducted towards the living
expenses of the deceased. Consequently, the loss of
dependency of the claimants would be Rs.47,250/- per
month. The claimants would therefore, be entitled to loss
of dependency of Rs.96,39,000/-. As rightly contended by
the learned Senior counsel for the claimants, the claimant
No.4 is entitled to loss of parental consortium which is
assessed at a sum of Rs.40,000/-. Like wise, the loss of
filial consortium to the claimant Nos.2 and 3 is also to be
assessed at the rate of Rs.40,000/- each as per the
Judgment of the Apex Court in the case of United India
Insurance Company Limited Vs. Satinder Kaur @
Satwinder Kaur and others. Hence, the claimants are
entitled to the following compensation.
Heads under which Amount in
compensation awarded Rupees
Towards loss of dependency 96,39,000
Loss of parental love and affection to 40,000
claimant No.4
Loss of consortium to claimant No.1 25,000
Loss of filial consortium to claimant 80,000
Medical expenses 6,000
Loss of estate 25,000
Funeral expenses 20,000
Total 98,35,000
21. In view of the above, the appeal filed by the
insurer in MFA No.9895/2012 is dismissed and the appeal
filed by the claimants for enhancement in MFA
No.840/2013 is allowed in part.
22. The compensation awarded by the Tribunal in
MVC No.3625/2008 is enhanced by a sum of
Rs.50,97,000/-which is payable by the owner and insurer
of the offending vehicle along with interest @ 6% per
annum from the date of claim petition till the date of
realization.
23. The insurer is directed to deposit the
compensation along with interest at the rate of 6% per
annum within a period of one month from the date of
receipt of a certified copy of this Judgment.
24. Upon such deposit, 50% of the amount shall
be kept in the Fixed Deposit in the name of the claimant
No.4 till she attains the age of majority. Out of the
remaining 50%, 25% shall be kept in a Fixed Deposit in
the name of the claimant No.1 in any Nationalized Bank for
a period of five years. Out of the remaining 25%, the
same shall be released in equal portions to the claimant
Nos.1, 2 and 3. In the result, the appeals are disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
GH
