Karnataka High Court

The Regional Manager vs Shilpa Sreenath on 4 January, 2021

Author: Alok Aradhe Srishananda

                            1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 4TH DAY OF JANUARY 2021

                      PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

            M. F. A. No.7677/2014 (MV-D)
                         C/W
             M. F. A. CROB. No.19/2015

IN MFA No.7677/2014:

BETWEEN :


THE REGIONAL MANAGER,
CHOLA MS. GENERAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICER AT NO.135/5,
15TH CROSS, 3RD PHASE,
J.P NAGAR, BENGALURU - 560 078

BY THE CLAIMS MANAGER,
CHOLAMANDALAM MS GENERAL
INSURANCE COMPANY LIMITED,
UNIT NO.04, NINTH FLOOR (LEVEL-06)
"GOLDEN HEIGHTS" COMPLEX,
59TH 'C' CROSS, INDUSTRIAL SUBURB,
RAJAJINAGAR, 4TH 'M' BLOCK,
BENGALURU - 560 010.                   ...APPELLANT

(BY SRI. O. MAHESH, ADV.)
                          2


AND :
1.   SHILPA SREENATH,
     AGED ABOUT 33 YEARS,
     W/O. LATE P.V. SREENATH

2.   P.S. AKANKSHA,
     MINOR,
     AGED ABOUT 13 YEARS,
     S/O. LATE P.V. SREENATH

3.   P.S. ARNAV,
     MINOR,
     AGED ABOUT 6 YEARS,
     S/O. LATE P.V. SREENATH

     RESPONDENTS 2 AND 3 ARE MINORS,
     BY M/G RESPONDENT NO.1,
     ALL R/AT DOOR NO.343,
     N.G.E.F. LAYOUT,
     2ND CROSS, 4TH MAIN,
     2ND STAGE, MALLATHAHALLI,
     BENGALURU - 560 056.

4.   V. RAJENDRAN,
     AGE 42 YEARS,
     S/O. VALLAISWAMY,
     R/AT OLD NO.11,
     NEW NO.37, L.G.V. NAGAR,
     INAMKARUR, KARUR
     L.N. SUNDARAM B.O.
     TAMILNADU - 639 002.

5.   THE MANAGING DIRECTOR,
     TAMILNADU STATE TRANSPORT
     CORPORATION, REGIONAL
     OFFICE AT SUBASH NAGAR,
     GANDHINAGAR,
     NEAR KSRTC BUS STAND,
                          3


     BENGALURU - 560 009.          ...RESPONDENTS

(BY SRI. N.M. PRUTHVIRAJ, ADV FOR R1 TO R3
(R1 REPRESENTED FOR R2 AND R3 MINORS); R4 SERVED)

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
23.09.2014 PASSED IN MVC NO.2328/2012 ON THE FILE
OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND
MEMBER MACT, BANGALORE, AWARDING COMPENSATION
OF RS,59,32,200/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.

IN MFA CROB. No.19/2015:

BETWEEN :


1.   SMT. SHILPA SREENATH,
     W/O. LATE P.V. SREENATH,
     AGED ABOUT 32 YEARS,
2.   P.S. AKANKSHA,
     D/O. LATE P.V. SREENATH,
     AGED ABOUT 12 YEARS,
3.   P.S. ARNAV,
     S/O. LATE P.V. SREENATH,
     AGED ABOUT 05 YEARS,
     SINCE RESP/CROSS OBJECTOR NO.2 AND 3
     ARE MINORS BOTH ARE REP. BY NATURAL
     GUARDIAN MOTHER -
     RESP/CROSS OBJECTOR NO.1
     ALL ARE R/AT NO.343,
     NGEF LAYOUT, 2ND CROSS,
     4TH MAIN, 2ND STAGE,
     MALLATHALLI,
     BENGALURU - 560056.       ...CROSS OBJECTORS
                            4


     AND :
1.   V. RAJENDRAN,
     S/O. VALLISWAMY,
     AGED 43 YEARS,
     R/AT OLD NO.11,
     NEW NO.37, L.G.V. NAGAR,
     INAMKARUR,
     KARUR L.N. SUNDARAM B.O.
     TAMIL NADU - 639 002.

2.   CHOLA M.S. GENERAL INSURANCE CO.LTD.,
     REGIONAL OFF AT: NO.135/5,
     15TH CROSS, 3RD PHASE,
     J.P. NAGAR, BENGALURU - 560 078.

3.   THE MANAGING DIRECTOR,
     TAMIL NADU STATE TRANSPORT CORPORATION,
     REGIONAL OFF AT SUBASH NAGAR,
     GANDHINAGAR,
     NEAR KSRTC BUS STAND,
     BENGALURU - 560 009           ...RESPONDENTS

      THIS M.F.A. CROB IN MFA.NO.7677/2014 FILED U/O 41
RULE 22 CPC, AGAINST THE JUDGMENT AND AWARD DATED
23.09.2014 PASSED IN MVC NO.2328/2012 ON THE FILE OF
THE XIII ADDITIONAL SMALL CAUSES JUDGE, MEMBER MACT,
COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE M.F.A AND M.F.A.CROB. COMING ON FOR ORDER,
THIS DAY, V. SRISHANANDA J., DELIVERED THE
FOLLOWING:

                   JUDGMENT

This appeal is preferred by the Insurance Company

challenging the validity of the judgment and award dated

23.09.2014 passed in MVC No.2328/2012 on the file of the

Addl. MACT, Bengaluru (SCCH-15). In the same appeal,

cross objection in MFA Crob No.19/2015 is filed by the

claimants seeking enhancement of the compensation by

challenging the validity in regard to the quantum of

compensation.

2. The brief facts which are necessary for disposal

of the appeal are as under:

A claim petition came to be filed by the claimants

under Section 166 of the I.M.V. Act contending that on

03.09.2011 Sri. P.V. Sreenath was proceeding in a car

bearing registration No.TN-47 U-7587 as an inmate on

Coimbatore - Trichy Road, when the car reached near

Pongalur E.B. Power House office at about 01.45 P.M., a

bus bearing registration No.TN-33 N-2706 came from

opposite direction in a rash and negligent manner and

dashed against the car whereby the inmates of the car

suffered severe injuries. Injured inmates were shifted to

the Government hospital, Palladam, whereas

Sri.P.V.Sreenath succumbed to the injuries on the way to

the hospital. It is further contended that the accident has

occurred only on account of rash and negligent driving of

the driver of the TNSTC bus and therefore, the claimants

being the dependents of Sri. P.V. Sreenath, having lost

their breadwinner, sought for awarding suitable

compensation.

3. In response to the notice issued, the 1st

respondent who is the owner of the car remained ex-parte.

2nd respondent who is the insurer of the car and 3rd

respondent appeared before the Tribunal and filed their

objection statement denying the claim petition averments

in toto and sought for dismissal of the claim petition.

Based on the rival contentions, Tribunal raised the

following issues:

1) Whether the petitioners prove that deceased P V Sreenath has died in the motor vehicle accident that occurred on 03-09-2011 at about 1.45 p.m. near Pongalur E B office, Coimbatore - 2, Trichy road, NH-67, within the jurisdiction of Avinashi Palayam Police Station

on account of rash and negligent driving of bus bearing Registration No.TN-33-N-2706 by its driver as alleged?

2) Whether the petitioners are entitled to the compensation? If so, what is the quantum and from whom?

3) What order?

4. In order to prove the claim, wife of the

deceased Smt. Shilpa Sreenath is examined as PW1 and

another witness by name Sri. K. Venu Gopal as PW2.

Claimants relied on 19 documents which were exhibited

and marked as Ex.P1 to Ex.P19. On behalf of respondents,

officer of the Insurance Company by name Sri. G. Suresh,

is examined as RW1 and Sri.S.Balasubramaniam, is

examined as RW2 and the Investigating Officer-

Sri.P.Murugeshan is examined as RW3.

5. Respondents relied on 10 documents which

were exhibited and marked as Ex.R1 to Ex.R10.

6. On cumulative consideration of the oral and

documentary evidence on record, the Tribunal allowed the

claim petition in part and awarded a sum of

Rs.59,32,200/- as compensation at the ratio of 40:30:30

together with interest at 6% p.a. from the date of the

petition till the realization from 2nd respondent. It is that

judgment which is under challenge in this appeal by the

insurer of the car and seeking enhancement of the

compensation by the claimants.

7. Learned counsel for the appellant vehemently

contended that the Tribunal grossly erred in fastening

liability on the Insurance Company ignoring the

contributory negligence of the driver of the bus. He

further argued that the Tribunal did not properly

appreciate the evidence of RW2 especially ignoring the

improvement made by the driver of the offending bus in

the evidence. He further contended that the photographs

produced by the driver of the bus is not properly

appreciated by the Tribunal while fastening the liability on

the appellant-Insurance Company. On the quantum of

compensation also, learned counsel for appellant

contended that a sum of Rs.10,00,000/- should have been

deducted from the compensation as the same has been

received by the claimants as the 'service benefits' and

thus, sought for allowing the appeal.

8. Per contra, learned counsel for the

claimants/cross-objectors objects while supporting the

findings recorded by the Tribunal in respect of the

negligence on the part of the driver of the offending car

and fastening the liability on the Insurance Company,

contended that the compensation granted by the Tribunal

is on the lower side and sought for suitable enhancement

of the compensation. He further contended that the

Tribunal grossly erred in computing the monthly income at

Rs.38,717/- by improper deductions made out of the gross

salary which is against the settled principles of law and

thus, sought to award suitable enhancement of the

compensation.

9. In view of the rival contentions, following

points would arise for consideration:

(i) Whether the finding recorded by the Tribunal that the Insurance Company of the car is liable to pay the adjudged compensation is erroneous?

(ii) Whether the quantum of compensation as ordered by the Tribunal is just compensation?

10. The answer to the above points is in the

negative for the following:

REASONS

11. Regarding point No.1:-

In the case on hand, the accidental death of

Sri.P.V.Sreenath involving car bearing car bearing

registration No.TN-47 U-7587 is not disputed.

12. Admittedly, Tribunal has taken into

consideration, police investigation papers while attributing

the negligence to the driver of the car. The police

investigation papers comprising of the translation copies of

the FIR, spot sketch, IMV report, and the charge sheet

which is marked at Ex.P7, clearly establishes that it is the

driver of the car who proceeded on a high speed which

resulted in the accident in question. The said aspect of the

matter is dealt in detail in the impugned judgment in para

Nos.26 and 27. There is no material on record which

would contradict the reasoning recorded by the Tribunal

that it is not the driver of the car who is responsible for the

accident in question. As such, even after re-appreciation

of the entire material on record, we are unable to accept

the contentions urged on behalf of the Insurance Company

that the Tribunal has wrongly concluded that the accident

has occurred on account of the sole negligence of the

driver of the car. No other material is placed on record to

show that there was a contributory negligence on the part

of the driver of the bus bearing registration No.TN-33 N-

2706 for the accident. In view of the aforesaid discussion,

point No.1 is accordingly answered.

13. Regarding point No.2:-

Insofar as the quantum of compensation is

concerned, admittedly the deceased was a salaried

employee. Three pay slips are marked together as Ex.P16

indicates that the gross salary of the deceased was

Rs.44,785.15/-. Tribunal in the impugned judgment in

para 32 has discussed about the income of the deceased

and deducted a sum of Rs.2,874/- towards P.F. and

Rs.200/- towards Professional Tax and Rs.1,794/- towards

Income Tax and Rs.1,200/- towards GIS and thereafter

arrived at income of Rs.38,717/-.

14. It is settled principle of law that it is only the

Income Tax and Professional Tax that would be deducted

from the gross salary. Thus, the monthly income of the

deceased is to be re-computed by deducting sum of

Rs.1,794/- towards Income Tax and Rs.200/- towards

Professional Tax. In all Rs.1,994/-. Thus, monthly income

would be Rs.42,791/-. The deceased being aged 41 years,

would be entitled to 25% addition as per the decision of

the Hon'ble Apex Court in National Insurance Company

Limited vs. Pranay Sethi and others (2017) 16 SCC 680

towards 'future prospects'. Having regard to the number of

dependents, 1/3rd is to be deducted towards personal

expenditure. Claimant Nos.2 and 3 being minor children of

the deceased, they are entitled for a sum of Rs.40,000/-

each towards 'loss of consortium' as per Magma General

Insurance Company Limited vs. Nanu Ram & Others

(2018) 18 SCC 130 and United India Insurance Co. Ltd.,

Vs. Satinder Kaur (2020) SCC Online SC 410 and

Rs.40,000/- towards conventional heads and Rs.30,000/-

towards shifting of dead body and funeral expenses.

Accordingly, as against Rs.59,32,200/- claimants

are entitled to following sums:

1   Loss of dependency                             59,90,880
    (Rs.35,660/- x 12 x 14)

2   Conventional Head                                 70,000

3   Loss of filial affection for claimant             80,000

                                   Total           61,40,880

Insofar as the contention of the learned counsel for

the appellant-Insurance Company that Rs.10,00,000/-

given as service benefits by the employer of the deceased

is to be deducted out of the compensation is concerned, it

is settled principle of law that 'service benefits' are not to

be deducted out of the compensation amount.

Accordingly, the point No.2 is answered and

following order is passed:

ORDER

Appeal filed by the Insurance Company is rejected.

               Cross        objection      filed        by   the
         claimants     is    allowed       in     part.       In

modification of the judgment and award of the Tribunal, the claimants are entitled to a sum of Rs.61,40,880/- along with interest at the rate of 6% p.a., from the date of petition till realization as against a sum of Rs.59,32,200/- awarded by the Tribunal.