United Inidia Insurance Co., ... vs Sri Narayana Bhat
2021 Latest Caselaw 481 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                  M.F.A. NO.8057 OF 2015
                           C/W
              M.F.A. NO.8058 OF 2015 (MV-D)


M.F.A. NO.8057 OF 2015

BETWEEN:

UNITED INDIA INSURANCE CO., LTD.,
REGIONAL OFFICE
KRISHI BHAVAN BUILDING
NRUPATHUNGA ROAD
BENGALURU - 560 009
REP. BY ITS MANAGER SMT.P.NAVAMANY.
                                              ... APPELLANT
(BY MR. ANUP SEETHARAMARAO, ADV., FOR
    MR. B.C. SEETHA RAMA RAO, ADV.,)

AND:

1.     SRI NARAYANA BHAT
       AGED ABOUT 86 YEARS
       S/O LATE SHANKAR BHAT.

2.     SMT. SARASWATHI
       AGED ABOUT 76 YEARS
       W/O SRI NARAYANA BHAT.
                             2



3.   SMT. DEEPTHI
     AGED ABOUT 30 YEARS
     W/O LATE KRISHNA KUMAR.

     ALL ARE R/AT D.NO. 4/44
     SRI SKANDA HOUSE, KUMBURU ROAD
     ALAPE POST, PADIL, MANGALURU-575001.

4.   SRI MATHAR PASHA
     S/O REHEMATH
     AGED ABOUT 38 YEARS
     RESIDENT OF RAMARA KOPPALU
     HOSA THOTA HOBLI, ALURU TALUK
     HASSAN-573401
     (OWNER OF LORRY NO. KA.13/3556).
                                            ... RESPONDENTS
(BY MR. SANDESH SHETTY, ADV., FOR R1 & R2
        R3 SERVED
V/O DTD:7.11.2019 NOTICE TO R4 D/W)

                           ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2015 PASSED IN MVC NO.778/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, AND MACT, DAKSHINA KANNADA, MANGALURU, AWARDING COMPENSATION OF RS.68,85,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

M.F.A. NO.8058 OF 2015 BETWEEN:

UNITED INDIA INSURANCE CO., LTD., REGIONAL OFFICE KRISHI BHAVAN BUILDING NRUPATHUNGA ROAD BENGALURU-560 009 REP. BY ITS MANAGER SMT. P. NAVAMANY.

... APPELLANT (BY MR. ANUP SEETHARAMA RAO, ADV., FOR MR. SEETHA RAMA RAO B.C. ADV.,)

AND:

1. SRI. NARAYANA BHAT AGED ABOUT 86 YEARS S/O LATE SHANKAR BHAT.

2. SMT. SARASWATHI AGED ABOUT 76 YEARS W/O SRI NARAYANA BHAT.

3. SMT. K. MAMATHA AGED ABOUT 38 YEARS W/O LATE SHANKARA BHAT.

4. MISS. VANISHREE AGED ABOUT 15 YEARS D/O LATE SHANKARA BHAT.

5. MISS. DEEPASHREE AGED ABOUT 11 YEARS D/O LATE SHANKARA BHAT.

6. MISS. NIDHINSHREE AGED ABOUT 9 YEARS D/O LATE SHANKARA BHAT.

RESPONDENTS 4 TO 6 BEING MINORS REP. BY THEIR MOTHER AND NATURAL GUARDIAN i.e., FIRST RESPONDENT HEREIN.

ALL ARE R/AT D.NO.4/44, "SRI SKANDA HOUSE"

KUMBURU ROAD, ALAPE POST PADIL, MANGALURU-575001.

7. SRI. MATHAR PASHA S/O REHEMATH AGED ABOUT 38 YEARS R/O RAMARA KOPPALU HOSA THOTA HOBLI, ALURU TALUK HASSAN-573401 (OWNER OF LORRY NO KA.13/3556).

... RESPONDENTS (BY MR. SANDESH SHETTY T, ADV., FOR R2, R3 & R4

R1 SERVED R5 - R6 ARE MINORS REP. BY R1)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2015 PASSED IN MVC NO.779/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE AND MACT, D.K. MANGALURU, AWARDING COMPENSATION OF RS.20,50,000/- WITH INTEREST @6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.8057/2015 and M.F.A.No.8058/2017

have been filed by the insurance company under Section

173(1) of the Motor Vehicles Act, 1988 (hereinafter

referred to as 'the Act', for short) against the judgment

dated 15.06.2015 passed by the Motor Accident Claims

Tribunal (hereinafter referred to as 'the tribunal' for

short). Since, both the appeals arise out of the same

accident and from the same judgment, they were heard

analogously and are being decided by this common

judgment.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.10.2007, the deceased

Krishna Kumar and the deceased Shankar N Bhat were

proceeding in a car bearing registration No.GJ-6-AH-

122. When they reached near Sanabagate, a goods lorry

bearing Registration No.KA-12-3556 which was being

driven by its driver in a rash and negligent manner,

came from the opposite direction and dashed against the

vehicle of the deceased. As a result of the aforesaid

accident, the deceased sustained multiple grievous

injuries and succumbed to the same.

3. The claimants of the deceased Krishna Kumar

in MFA 8057/2015 thereupon filed a petition under

Section 166 of the Act claiming compensation on the

ground that the deceased was aged about 36 years at

the time of accident and was engaged in the business of

electrical works and was earning a sum of Rs.7,50,000/-

per annum whereas the claimants of the deceased

Shankar N Bhat in MFA 8058/2015 also filed a petition

under Section 166 of the Act claiming compensation on

the ground that the deceased was aged about 40 years

at the time of accident and was engaged in the real

estate business and was earning a sum of Rs.40,000/-

per month. The claimants claimed compensation to the

tune of Rs.65,00,000/- along with interest. It was

further pleaded in both the claim petitions that accident

took place solely on account of rash and negligent

driving of the lorry by its driver.

4. The insurance company filed written statement

in both the petitions in which, inter alia, in which the

mode and manner of the accident was denied. It was

pleaded that the accident did not occur on account of

the negligence of the driver of the goods lorry. The

ages, occupations, incomes and injuries sustained by the

claimant was denied. It was also pleaded that liability of

the insurance company to the compensation, if any, is

subject to the terms and conditions of the policy. The

age, avocation and income of the deceased was also

denied and it was pleaded that the claim of the

claimants is exorbitant and excessive.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to prove

their case, examined Narayana Bhat (PW1), Balakrishna

Gowda (PW2) and Mahabaleshwar Bhat (PW3) and got

exhibited documents namely Ex.P1 to Ex.P24. The

respondents examined Iyyar Swamy (RW1), Mohammed

Kabeer (RW2) and got marked copy of the insurance

policy as Ex.R1. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place on

account of rash and negligent driving of the goods lorry

by its driver, as a result of which, the deceased

sustained injuries and succumbed to the same. The

Tribunal further held that the claimants in MFA

8057/2015 and MFA 8058/2015 to be entitled to a

compensation of Rs.68,85,000/- and Rs.20,05,000/-

respectively along with interest at the rate of 6% p.a.

Being aggrieved, these appeals have been filed by the

insurance company.

6. Learned counsel for the insurance company

submitted that the Tribunal erred in making an addition

to the tune of 50% instead of 40% to the income of the

deceased on account of future prospects when it is clear

from Ex.P20 Income Tax Returns that the deceased

Krishna Kumar was self-employed and not in a

permanent job. It is further submitted the Tribunal erred

in making an addition of 50% instead of 25% to the

income of the deceased Ex.P10 IT returns clearly

disclosed that the deceased Shankar N Bhat was aged

41 years at the time of the accident and that the

decased Shankar N Bhat was self employed an not in a

permanent job. It is further submitted that the Tribunal

erred in applying a multiplier of '16' instead of '15' when

the age of the deceased was 36 years in MFA 8057/15

and a multiplier of '15' instead '14' when Ex.P10 Saral

Forms clearly disclose that the age of the deceased

Shankar N Bhat was 41 years.

7. We have considered the submissions made by

learned counsel for the insurance company and have

perused the record. The only question which arises for

our consideration in this appeal is with regard to the

quantum of compensation. Now we may advert to the

quantum of compensation to be assessed in MFA

8057/2015. It is pertinent to note here that the income

assessed by Tribunal at Rs.4,25,000/- per annum is not

disputed by the insurance company.

8. In view of the law laid down by the

Constitution Bench of the Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED Vs. PRANAY SETHI

AND OTHERS' AIR 2017 SC 5157, 40% of the amount

has to be added on account of future prospects as the

deceased Krishna Kumar was self-employed. Thus, the

annual income comes to Rs.5,95,000/-. Since, the

number of dependents is 3, therefore, 1/3rd of the

amount of the amount has to be deducted towards

personal expenses and therefore, the annual

dependency comes to Rs.3,96,667/- Taking into account

the age of the deceased which was 36 years at the time

of accident, the multiplier of '15' has to be adopted.

Therefore, the claimants are held entitled to (Rs.

3,96,667x15) i.e., Rs.59,50,005/- on account of loss of

dependency.

9. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU

RAM & ORS.' (2018) 18 SCC 130, which has been

subsequently clarified by the Supreme Court in 'UNITED

INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR

AND ORS.' IN CIVIL APPEAL NO.2705/2020

DECIDED ON 30.06.2020 each of the claimant's are

entitled to a sum of Rs.40,000/- on account of loss of

consortium and loss love and affection. Thus, the

claimants are held entitled to Rs.1,20,000/-. In addition,

claimants are held entitled to Rs.30,000/- on account of

loss of estate and funeral expenses. Thus, in all, the

claimants in MFA 8057/2015 are held entitled to a total

compensation of Rs.61,00,005/-. Needless to state that

the aforesaid compensation shall carry interest at the

rate of 6% per annum from the date of filing of the

petition till the payment is made.

10. Now we may advert to the quantum of

compensation to be assessed in MFA 8058/2015. It is

pertinent to note here that the income assessed by

Tribunal at Rs.1,20,000/- per annum is not disputed by

the insurance company. The Tribunal has on the basis of

Ex.P9 PM Report has concluded that the age of deceased

to be 40 years at the time of accident. However, it is

pertinent to note that from the perusal of Ex.P10 Saral

Form, it evident that the date of birth of the deceased is

05.03.1967. Therefore, in view of the admission of the

aforesaid document by the claimants, the age of the

deceased Shankar N Bhat is taken as 40 years 7

months. In view of the law laid down by the Constitution

Bench of the Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED Vs. PRANAY SETHI

AND OTHERS' AIR 2017 SC 5157, 25% of the amount

has to be added on account of future prospects as the

deceased Shankar N Bhat was self-employed and aged

above 40 years. Thus, the annual income comes to

Rs.1,50,000/-. Since, the number of dependents is 6,

therefore, 1/4th of the amount of the amount has to be

deducted towards personal expenses and therefore, the

annual dependency comes to Rs.1,12,500/- Taking into

account the age of the deceased which was 40 years 7

months at the time of accident, the multiplier of '15' has

to be adopted in view of the law laid down by the

Supreme Court in SARALA VERMA VS. DELHI

TRANSPORT CORPORATION (2009) 6 SCC 121.

Therefore, the claimants are held entitled to (Rs.

1,12,500x15) i.e., Rs.16,87,500/- on account of loss of

dependency.

11. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU

RAM & ORS.' (2018) 18 SCC 130, which has been

subsequently clarified by the Supreme Court in 'UNITED

INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR

AND ORS.' IN CIVIL APPEAL NO.2705/2020

DECIDED ON 30.06.2020 each of the claimant's are

entitled to a sum of Rs.40,000/- on account of loss of

consortium and loss of love and affection. Thus, the

claimants are held entitled to Rs.2,40,000/-. In addition,

claimants are held entitled to Rs.30,000/- on account of

loss of estate and funeral expenses. Thus, in all, the

claimant is held entitled to a total compensation of

Rs.19,57,500/-. Needless to state that the aforesaid

compensation shall carry interest at the rate of 6% per

annum from the date of filing of the petition till the

payment is made. To the aforesaid extent, the judgment

passed by the Claims Tribunal in MVC 778/2009 and

MVC 2770/2009 is modified.

Accordingly, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss