Karnataka High Court
Smt. Suguna vs M/S Ina India Ltd on 7 January, 2021
Author: Alok Aradhe Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.4869 OF 2016 (MV-D)
C/W
M.F.A. NO.3827 OF 2016 (MV-D)
IN MFA NO.4869/2016:
BETWEEN:
1. SMT.SUGUNA,
W/O LATE.BASAPPA @ BASAVARAJU,
AGED 35 YEARS,
2. KUM.PALLAVI D/O LATE.BASAPPA
@ BASAVARAJU AGED 18 YEARS,
3. B.VINAY KUMAR S/O LATE BASAPPA
@ BASAVARAJU, AGED 16 YEARS
ALL ARE R/AT KURUBARAHALLI,
KASABA HOBLI,
HOSKOTE TALUK,
BENGALURU DISTRICT-560 070.
3RD APPELLANT IS A MINOR, HENCE
HE IS REPRESENTED BY ITS MOTHER
AND NATURAL GUARDIAN, THE
2
FIRST APPELLANT
... APPELLANTS
(BY SRI. SRIDHAR.D.S, ADVOCATE)
AND:
1. M/S. INA INDIA LTD.,
R/P BY ITS MANAGING DIRECTOR,
NO.14 16TH CROSS, 6TH SECTOR,
H S R LAYOUT, BENGALURU-560 172.
2. M/S. UNITED INDIA INSURANCE CO. LTD.,
REPRESENTED BY ITS MANAGER,
5TH AND 6TH FLOORS,
KRISHI BHAVAN
BUILDING, HUDSON CIRCLE,
NRUPATHUNGA ROAD,
BENGALURU-560002.
... RESPONDENTS
(BY SRI. S.R.SREEPRASAD ADVOCATE FOR RESPONDENT NO.1;
SRI. JANARDHAN REDDY ADVOCATE FOR RESPONDENT NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 26.02.2016 PASSED IN
MVC NO.2150/2014 ON THE FILE OF THE XXI ACMM AND XXIII
ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU,
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.3827/2016:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
#18, 5TH & 6TH FLOORS,
KRISHIBHAVAN,
HUDSON CIRCLE,
3
BANGALORE-560 001.
REP. BY ITS MANAGER.
... APPELLANT
(BY SRI. JANARDHAN REDDY, ADVOCATE)
AND:
1. SMT. SUGUNA
W/O LATE BASAPPA @ BASAVARAJU,
AGED ABOUT 35 YEARS
2. KUMARI PALLAVI
D/O LATE BASAPPA @ BASAVARAJU,
AGED ABOUT 18 YEARS,
3. VINAY KUMAR.B,
S/O LATE BASAPPA @ BASAVARAJU,
AGED ABOUT 16 YEARS
RESPONDENT NOS.2 AND 3 ARE MINORS
REPT. BY THEIR MOTHER, RESPONDENT NO.1
RESPONDENT NOS.1 TO 3 ARE
RESIDING AT KURUBARAHALLI,
KASABA HOBLI,
HOSKOTE TALUK,
BANGALORE DISTRICT-562101.
4. M/S INA INDIA LTD.,
NO.14, 16TH CROSS,
6TH SECTOR, HSR LAYOUT,
BANGALORE-560 034.
REPT. BY ITS MANAGING DIRECTOR.
... RESPONDENTS
[BY SRI. D.S.SRIDHAR, ADVOCATE FOR RESPONDENT NOS.1
TO 3 VIDE ORDER DATED 12.10.2017
SRI. S.R.SREEPARASAD, ADVOCATE FOR RESPONDENT NO.4]
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED:26.02.2016 PASSED IN MVC
NO.2150/2014 ON THE FILE OF THE XXI ACMM, AND XXIII
4
ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU,
AWARDING COMPENSATION OF RS.23,39,600/- WITH
INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR HEARING
INTERLOCUTORY APPLICATION THIS DAY, NATARAJ
RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
This MFA No.3827/2016 is filed by the insurer
challenging the quantum of compensation as well as the
liability fastened on it to pay the compensation awarded by
the Motor Accident Claims Tribunal, Court of Small Causes
at Bangalore (hereinafter referred to as 'Tribunal') in MVC
No.2150/2014.
2. MFA No.4869/2016 is filed by claimants
seeking enhancement compensation awarded by the
Tribunal in the aforesaid case.
3. The appellant in MFA No.3827/2016, who is
respondent No.2 in MFA No.4869/2016, will henceforth be
referred to as the 'insurer' of the offending vehicle involved
in the accident. Appellants in MFA No.4869/2016, who are
respondent Nos.1 to 3 in MFA No.3827/2016, will
henceforth be referred to as 'claimants'. Respondent No.1
in MFA No.4869/2016, who is respondent No.4 in MFA
No.3827/2016, will henceforth be referred to as the
'owner' of the offending vehicle involved in the accident.
4. The claim petition discloses that the claimants
are the legal representatives of deceased V.Basappa. On
02.04.2014 at 8:30 p.m., the said Mr. V.Basappa was
traveling in an autorickshaw bearing registration No.KA-
03-4035 on Hosakote-Chinthamani road. At that time, the
driver of the tanker lorry bearing registration No.KA-01-
AB-1025 (henceforth referred to as the 'offending vehicle'),
drove it in a rash and negligent manner and dashed
against the autorickshaw, which turned turtle. The said Mr.
V. Basappa sustained grievous injuries and was shifted to
M.V.J. Hospital and thereafter, to Manipal Hospital,
Bengaluru for further treatment, but he was declared dead
at the hospital.
5. The driver of the offending vehicle was accused
of offences punishable under Sections 279 and 304A of the
Indian Penal Code in Crime No.135/2014.
6. The claimants accused actionable negligence
on the part of the driver of the offending vehicle and
therefore, filed the claim petition under Section 166 of the
Motor Vehicles Act, 1988 (hereinafter referred to as 'the
Act' for the sake of brevity) claiming compensation of a
sum of Rs.50,00,000/- from the owner and insurer of the
offending vehicle.
7. The claimants contended that the deceased
was 43 years old and was employed as a shift chemist at
S.F. Dyes Pvt. Ltd. and was earning Rs.20,000/- per
month. They claimed that as a result of untimely death,
they were put to untold hardship, suffering and were
deprived of the emotional and financial support of the
deceased.
8. The owner of the offending vehicle contested
the claim petition and denied that the driver of the
offending vehicle was negligent and was responsible for
the accident.
9. The insurer also denied that the driver of the
offending vehicle was negligent. However, it contended
that the offending vehicle was classified as a hazardous
vehicle and that the driver of the offending vehicle did not
possess appropriate endorsement in his driving licence and
therefore, contended that it was not liable to pay the
compensation
10. On these rival contentions, the claim petition
was set down for trial. The claimant No.1 was examined as
PW.1 and she marked documents Exs.P1 to 20. She also
examined PW.2 and who marked two documents as
Exs.P.21 and 22. The insurer examined its officials as
RWs.1 and 2.
11. The Tribunal on appreciation of the oral and
documentary evidence in the form of Ex.P1 - complaint
and FIR, IMV report at Ex.P4, charge sheet at Ex.P7 and
the evidence of PWs.1 and 2 held that the driver of the
offending vehicle was negligent and was responsible for
the commission of the offence.
12. In so far as the quantum of compensation
payable to the claimants is concerned, the Tribunal held
that the deceased was 43 years old and was employed as
Shift Chemist. The Tribunal noticed the evidence of the
PW.2, who was the employer of the deceased who deposed
before the court that the deceased was drawing
Rs.18,100/- per month. The salary certificate at Ex.P8
disclosed that the total monthly salary of the deceased was
a sum of Rs.18,100/- of which a sum of Rs.200/- was
deducted towards professional tax and a sum of Rs.1,347/-
towards Provident Fund. However, the Tribunal held that
the monthly salary of the deceased was a sum of
Rs.14,250/- (Basic+DA = Rs.11,225/- + HRA Rs.3,025/-).
The Tribunal notionally deducted 1/3rd out of the monthly
income of the deceased towards his living expenses and
applied the multiplier of 14 and awarded the following
compensation:
Heads under which Amount
compensation awarded (in Rupees)
Loss of dependency 15,96,000
Loss of love and affection 75,000
Funeral expenses 25,000
Transportation of dead body 10,000
Loss of estate 79,800
Loss of consortium 75,000
Loss of future prospects 4,78,800
Total 23,39,600
13. In so far as the liability to pay the
compensation is concerned, the Tribunal noticed that as on
the date of the accident, the offending vehicle was not
transporting any hazardous goods which required a special
endorsement. Even otherwise, the Tribunal noticed that
the driver of the offending vehicle possessed a driving
licence to drive a heavy vehicle at the time of the accident
and also that the during April 2014, the driver had
undergone training program on Safe Transportation of
Hazardous Goods on 09.04.2014 at Ashok Leyland Training
School, Vallipuram and that he was entitled to get an
endorsement within 30 days. The Tribunal relied upon the
Judgment of this Court in MFA No.3571/2012 and
connected appeals (disposed of on 11.12.2014), wherein
this Court had held that a driver driving a vehicle carrying
empty cylinders need not obtain special endorsement to
drive the vehicle. Therefore, the Tribunal held that the
owner and insurer of the offending vehicle are liable to pay
the compensation.
14. The insurer has challenged the quantum of
compensation as well as the liability fixed on it to pay the
compensation as awarded by the Tribunal. Likewise, the
claimants have challenged the quantum of compensation.
15. The insurer contended that the driver of the
offending vehicle did not possess the special endorsement
to drive the offending vehicle which was a petrol tanker
and contended that under Rules 9 and 132 of the Central
Motor Vehicle Rules, 1989, the driver of the offending
vehicle ought to have possessed special endorsement. He
also contended that the Tribunal awarded a sum of
Rs.75,000/- towards loss of love and affection and a sum
of Rs.75,000/- towards loss of consortium and Rs.25,000/-
towards funeral expenses and a sum of Rs.10,000/-
towards transportation of the body which was in excess of
the compensation payable as per the Apex court in the
case of National Insurance Company Limited vs.
Pranay Sethi and others reported in (2018) 2 SCC (Cri)
205. The claimants contended that the Tribunal considered
the income of the deceased at Rs.14,250/- though Ex.P8 -
salary certificate indicated that salary was Rs.16,553/- and
PW.2 deposed that the deceased was earning Rs.18,100/-
per month.
16. The learned counsel for the insurer did not
dispute the fact that a sum of Rs.200/- was deducted
towards Professional Tax and a sum of Rs.1,050/- was
deducted towards conveyance allowance which were
deductible from out of the salary of Rs.18,100/-. The
deceased was 43 years old and therefore, claimants were
entitled to the loss of future prospects @30% of the actual
income of the deceased. The deceased left behind three
dependents and therefore, as per the Judgment of the
Apex Court in the case of Pranay Sethi, 1/3rd of the income
was to be deducted towards the living expenses of the
deceased.
17. We have given our anxious consideration to
the case pleaded by the learned counsel for the parties and
we have perused the records of the Tribunal and its
Judgment and Award.
18. The evidence on record indicates beyond doubt
that the accident was due to the rash and negligent driving
by the offending vehicle. It is not in dispute that the
deceased was employed as a Shift Chemist in a private
establishment. PW.2 was the HR executive at S.F. Dyes
Pvt. Ltd., who deposed before the Court that the deceased
was drawing a monthly salary of Rs.18,100/- of which sum
of Rs.200/- was deducted towards the Professional Tax
and a sum of Rs.1347/- was deducted towards Provident
Fund. A sum of 1050/- was paid towards conveyance and
a sum of Rs.2,800/- was paid towards Special Allowance.
The Tribunal committed an error in only considering the
Basic + DA and HRA to arrive at the monthly salary of the
deceased. It is now well settled that the provident fund is
a contribution made by the deceased and is a part of his
income and therefore, the same has to be considered as a
part of his income. PW.2 deposed that the Special
Allowance was towards the food and other expenses of the
deceased which had to be considered as part of the salary
as the living expenses of the deceased could be set-off.
Neither the owner nor the insurer of the offending vehicle
disputed the income of the deceased. Therefore, the
income of the deceased had to be considered at a sum of
Rs.17,050/-. The age of the deceased was 43 years as on
the date of the accident and the deceased had a
permanent job in a private establishment. He had 11 years
of service and therefore, it was quite probable that he had
a fair chance of progressing in his career. As per the
Judgment of the Apex Court in Pranay Sethi's case, the
claimants were entitled to loss of future prospects at the
rate of 30% of the actual income of the deceased. The
deceased was 43 years old at the time of the accident and
therefore, the proper multiplier would be 14. Since the
deceased had left behind three dependents, 1/3rd of his
income had to be deducted towards his living expenses.
Hence, the compensation to which the claimants were
entitled is to be reconsidered and recalculated as follows:
Heads under which Amount
compensation awarded (in Rupees)
Loss of dependency along 24,82,536/-
with loss of future prospects
@ 30%
(Rs.17050 + future prospects at 30%
Rs.17050/- + Rs.5115/-; Rs.22165/-; 1/3rd of the same
deducted
Rs.22165/- - Rs.7388/- = Rs.14,777/-
(Rs.14777/- x 12 x 14)
Loss of consortium to 40,000/-
claimant No.1
Loss of parental love and 80,000/-
affection to claimants 2 and
3 Rs.40000/- each
Loss of estate 25,000/-
Funeral expenses and 25,000/-
transportation of dead body
Total 26,52,536/-
19. In so far as the liability to pay the
compensation is concerned, RW.1 deposed that at the time
of the accident, the offending vehicle was not loaded with
any hazardous good. RW.1 admitted that the driver of the
offending vehicle possessed licence to drive a transport
vehicle, which was in force till the year 2015. RW.1 further
deposed that the driver was authorized to drive a vehicle
to carry hazardous material. RW.2, who was the director
and the owner of the company which owned the offending
vehicle, deposed that the driver of the offending vehicle
had a driving licence valid up to April 2013 which
authorized him to drive a vehicle carrying hazardous
goods. He also deposed that at the time of the accident,
the vehicle was not carrying any hazardous material. He
deposed that the driver of the offending vehicle was
entitled to get his licence renewed within a period of 30
days and that the accident was within the grace period of
30 days. He placed on record Ex.R7 to demonstrate that at
the time of the accident, the vehicle was empty and was
not carrying any hazardous material.
20. In view of the above, the insurer of the
offending vehicle could not have escaped liability to pay
the compensation on the ground that the driver of the
offending vehicle did not possess special endorsement to
drive a vehicle carrying hazardous goods. In that view of
the matter, the insurer is liable to pay the compensation as
determined by this Court.
21. Consequently, MFA No.3827/2016 filed by the
insurer is dismissed and MFA No.4869/2016 filed by
claimants is allowed in part and in modification of the
impugned Judgment and Decree passed by the Tribunal,
the compensation of Rs.23,39,600/- awarded by the
Tribunal is enhanced to a sum of Rs.26,52,536/-.
22. The insurer is liable to pay the enhanced
compensation of Rs.26,52,536/- along with interest at the
prevalent rate of 7% p.a. from the date of the claim
petition till the date of realization.
23. The insurer shall deposit the enhanced
compensation with interest as determined by this Court
within a period of one month from the date of receipt of a
certified copy of this Judgment.
24. In view of disposal of these appeals, I.A.
No.1/2019 in MFA No.4869/2016 does not survive for
consideration and the same stands disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
sma
