Karnataka High Court
United India General Insurance Co ... vs Hussain S/O Imamsab And Ors on 21 June, 2021
Author: S.G.Pandit And M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA NO.200747/2016 (MV)
C/W
MFA CROB NO.200048/2020 (MV)
MFA NO.200747/2016:
Between:
United India General Insurance Co. Ltd.
Represented by Divisional Manager
United India General Insurance Co. Ltd.
Post Box No.47, Jawali Complex
Super Market, Kalaburagi - 585 101
... Appellant
(By Smt. Anuradha M. Desai, Advocate)
And:
1. Hussain S/o Imamsab
Age: 36 Years, Occ: Business
R/o H.No.1/95, Sithanur
Tq. & Dist. Kalaburagi - 585 101
2. Prabhavati W/o Late Venkat Kulkarni
Age: 54 years, Occ: Employee
R/o H.No.8-8-289 KHB Colony
Bidar - 585 101
2
3. Neetu Kulkarni W/o Harish Kulkarni
Age: 33 Years, Occ: Household
R/o Jaya Nagar, Bangalore - 560 001
4. Ajay Kulkarni S/o late Venkat Kulkarni
Age: 31 Years, Occ: Employee
R/o KHB Colony, Bidar
Now at Bangalore - 560 001
5. Vimlabai W/o Late Abarao Kulkarni
AGe: 77 Years, Occ: Household
R/o KHB Colony, Bidar- 585 401
... Respondents
(Sri K.A. Kalaburagi, Adv. for R1;
Sri Basavaraj R. Math, Adv. for R2 to 5)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the appeal and
consequently be pleased to modify the judgment and award dated
05.02.2016 passed by the learned Addl. Senior Civil Judge & Addl.
MACT at Bidar in MVC No.311/2013 and also discharge the
appellant of its liability to pay the compensation.
MFA CROB NO.200048/2020:
Between:
1. Prabhavati W/o Late Venkat Kulkarni
Age: 58 years, Occ: Employee
R/o H.No.8-8-289 KHB Colony
Bidar - 585 101
2. Neetu Kulkarni W/o Harish Kulkarni
Age: 37 Years, Occ: Household
R/o Jaya Nagar, Bangalore - 560 001
3. Ajay Kulkarni S/o late Venkat Kulkarni
Age: 35 Years, Occ: Employee
R/o KHB Colony, Bidar
Now at Bangalore - 560 001
3
4. Vimlabai W/o Late Abarao Kulkarni
Age: 81 Years, Occ: Household
R/o KHB Colony, Bidar- 585 401
... Cross-objectors
(Sri Basavaraj R. Math, Advocate)
And:
1. Hussain S/o Imamsab
Age: 40 Years, Occ: Business
R/o H.No.1/95, Sithanur
Tq. & Dist. Kalaburagi - 585 101
2. United India General Insurance Co. Ltd.
Represented by Divisional Manager
United India General Insurance Co. Ltd.
Post Box No.47, Jawali Complex
Super Market, Kalaburagi - 585 101
... Respondents
(By Smt. Anuradha M. Desai, Advocate for R2;
Notice to R1 D/w V.O.D. 16.10.2020)
This Miscellaneous First Appeal Cross-objection is filed
under Order 41 Rule 22 of C.P.C, praying to modify the impugned
judgment and award dated 05.02.2016 passed by the Addl. Senior
Civil Judge & MACT at Bidar in MVC No.311/2013 in respect of
enhancing the award amount and pleased to dismiss the MFA
No.200747/2016 filed by the appellant.
These MFA & MFA CROB having been heard and
reserved for judgment on 09.06.2021, coming on for
pronouncement of Judgment this day, M.G.S.KAMAL, J.,
delivered the following:-
JUDGMENT
MFA No.200747/2016 is filed by the United India
Insurance Company Limited under Section 173(1) of the
Motor Vehicles Act, 1988 (hereinafter referred to as 'the
Act') and MFA CROB No.200048/2020 is filed by the
claimants under Order 41 Rule 22 of Code of Civil
Procedure, 1908 against the judgment and award dated
05.02.2016 passed in MVC No.311/2013 on the file of
the Addl. Senior Civil Judge and Addl. Motor Accident
Claims Tribunal, Bidar (hereinafter referred to as 'the
Tribunal').
2. Facts giving rise to filing of the above appeal
and cross-objection are that, on 20.02.2013 at about
4.30 p.m., deceased - Venkat Kulkarni was traveling
towards Gulbarga from Bidar on Gulbarga- Humnabad
Road in an Alto Car bearing Reg.No.KA-05-MJ-5068
along with one Mr. Suryakanth. The deceased was
driving the said car and when they reached near
Bhavani temple near Uploan cross, a Indica Vesta Car
bearing Reg.No.KA-33/A-5000 belonging to the
respondent No.1 driven by its driver in a high speed
with rash and negligent manner came and dashed the
aforesaid Alto Car. As a result of which, deceased
sustained head injuries and succumbed to the same on
the spot.
3. The claimants being the wife, daughter, son
and mother of the deceased filed petition under Section
166 of the Act seeking compensation of Rs.45,00,000/-
together with interest @ 12% per annum on the ground
that the deceased was hale and healthy and was aged
about 59 years and he was working as a Co-ordinator in
Block Education Office and was getting a salary of
Rs.40,208/- per month. That the deceased was only
earning member of the family and the untimely death of
the deceased had caused hardship to the claimants.
The death was due to the rash and negligent driving of
the offending vehicle.
4. Upon service of notice, respondent No.1
remained absent and was placed ex parte. Respondent
No.2 - insurance company appeared through its counsel
and filed statement of objection inter alia denying the
age, occupation and income of the deceased and also
the nature of the accident. It was contended that there
was insurance policy in respect of Indica car belonging
to respondent No.1. That the deceased Venkat Kulkarni
did not have valid and effective driving licence to drive
the car. That the petition was bad for non-joinder of
necessary parties as the owner of the Alto Car and
insurer had not been made party. That the claimant
No.2 and 3 are married daughter and son were not
dependent on the income of the deceased. As such, they
were not entitled for compensation and that there was a
contributory negligence on the part of both the drivers.
That the compensation claimed was exorbitant.
5. Based on the pleadings of the parties, the
Tribunal framed issues and recorded evidence. The
claimant No.3 being the son of the deceased examined
himself as P.W.1 and one Mr. Hanmanthreddy has been
examined as P.W.2 and got exhibited eight documents
as Exs.P.1 to P8 (a) on their behalf. On behalf of the
respondents, one Mr. Hanmantappa M., Branch
Manager of United Insurance Company Limited, Bidar
and Mr. Siddappa as R.Ws.1 and 2, respectively and
got exhibited three documents as Exs.R.1 to 3.
6. The Tribunal by its judgment and award
held that the accident occurred due to the contributory
negligence on the part of the deceased and the driver of
the Indica Car resulting in death of the deceased Venkat
Kulkarni. The Tribunal further held that the claimants
are entitled to a compensation of Rs.41,25,214/- along
with interest at 6% per annum from the date of petition
till the date of deposit and directed the respondent
Nos.1 and 2, being the insured and the insurer of the
Tata Indica car jointly and severally to pay 50% of their
contribution of compensation to the tune of
Rs.20,62,607/-. Being aggrieved by the same, the
United India Insurance Company Ltd. filed the appeal in
MFA No.200747/2016 and the claimants have filed MFA
CROB No.200048/2020 seeking enhancement of
compensation.
7. The learned counsel for the insurance
company submitted that the Tribunal grossly erred in
not considering that the driver of the Indica Car was
having light motor vehicle driving licence and was not
having transport driving licence and that the said car
was a transport vehicle as such there was violation of
policy condition and thus the insurance company was
not liable to pay the compensation and in that regard
the licencing authority had been examined as R.W.2
and the same has not been appreciated by the Tribunal.
That though the Tribunal has deducted tax component
from the annual income of the deceased, it has not
deducted any amount towards personal expenses of the
deceased before applying the multiplier of '9' while
computing the loss of dependency. He further submitted
that the claimant No.2 is a married daughter and
claimant No.3 is a major son who is having an
employment. As such, they cannot be treated as
dependent, only the widow and the mother had to be
treated as the dependents. He further submits that the
compensation awarded is exorbitant, hence sought for
setting aside of the impugned judgment and award.
8. On the other hand, learned counsel for the
cross-objectors submitted that Tribunal erred in fixing
the contributory negligence on the drivers of the vehicle
contrary to the material evidence available on record.
That the Tribunal erred in not awarding future
prospects at 15%, which is contrary to the law laid
down by the Apex Court. In reply to the submissions
made by the learned counsel for the insurance company
regarding the driver of Indica car not having licence, he
submits that the issue has been settled by the Apex
Court in the judgment of Mukund Dewangan Vs.
Oriental Insurance Company Limited, reported in
AIR 2017 SC 3668. Further adverting to the
submission with regard to claimant Nos.2 and 3 not
being dependents on the deceased, he relied upon the
judgment of the Apex Court in the case of National
Insurance Company Limited Vs. Birender & Ors.
reported in (2020) 11 SCC 356. Hence, sought for
enhancement.
9. Heard the learned counsel for the parties
and perused the records. The issues that arise for
consideration are with regard to the negligence and the
quantum of compensation awarded by the Tribunal.
10. The Tribunal after evaluating the material
evidence and the depositions given by the witnesses has
come to the conclusion that the accident in question
occurred on account of the contributory negligence
equally attributable to the driver of Alto Car and Indica
Car. The Tribunal has relied upon Ex.P.2 complaint,
Ex.P.3 spot mahazar, Ex.P.4 inquest report, Ex.P.6 copy
of charge-sheet submitted by the police after thorough
investigation, which evidence the fact that both the
vehicles were moving "on the middle of the road
resulting in head on collusion". One Mr. Suryakanth,
who filed the complaint - Ex.P.2 was the inmate of the
Maruti Alto Car. The said Mr. Suryakanth has not been
examined by the claimants. On the other hand, P.W.2
who claims to be an eyewitness to the accident has
stated that he was 50-60 meters away behind the car
driven by the deceased towards Gulbarga. The said
witness has however not given any particulars regarding
the manner and direction in which the deceased was
driving his Car.
11. Perusal of Ex.P.2, a complaint given by
Mr. Suryakanth who was the inmate of the Alto Car
reveal that he has categorically stated that deceased
was driving his car on the middle of the road while the
Indica car driven by its driver was also on the middle of
the road. That since both the drivers had driven their
respective car in a high speed on the middle of the road
there was sudden head on collusion resulting in death
of the deceased and grievous causing injury to Mr.
Suryakanth. The contents of Ex.P.3, crime details form
/spot mahazar reveal that the accident was head on
collusion and had taken place right on the middle of the
road. Under the aforesaid facts and circumstances of
the case and in view of the material evidence available
on record, the conclusion arrived at by the Tribunal
attributing equal negligence on the part of the drivers of
the cars involved in the accident does not require any
interference by this court. As such, the said finding is
confirmed.
12. The appellant - insurance company has
contended that the claimant Nos.2 and 3 being married
daughter and a son were not dependents on the income
of the deceased and were thus not entitled for
compensation. The Apex Court in the case of National
Insurance Company Limited Vs. Birender and Ors.
(supra) has held that the legal representatives of the
deceased are entitled to make an application for
compensation in view of Section 166(1)(c) of the Act. It
has been further held that even the nature of major
married and earning sons of the deceased being a legal
representatives have the right to apply for compensation
and it would be bounden duty of the Tribunal to
consider the application irrespective of the fact whether
the concerned legal representative was fully dependent
on the deceased and not to limit the claim towards
conventional heads.
13. The submission of the learned counsel for
the insurance company with regard to driver of the
Indica Car having light motor vehicle driving licence and
not having light motor vehicle transport driving licence,
the said issue is settled by the decision of the Apex
Court in Mukund Dewangan (supra), wherein it has
been held that the driver holding light motor vehicle
licence can drive all vehicles of all class including a
transport vehicle. In view of the said enunciation and
taking into account the insurance policy being in force
at the time of accident, the contention of the insurance
company not being liable to pay the compensation
cannot accepted.
14. Adverting to the issue with regard to the
quantum of compensation, admittedly the deceased
was employed as Co-ordinator in Block Education Office
and was earning monthly salary of Rs.40,528/-. as per
Ex.P.7, the Pay Slip, the monthly salary of the deceased
was Rs.40,208/- after deduction of professional tax.
Thus, the annual income of the deceased would come to
Rs.40,208 x 12 = Rs.4,82,496/-. The Tribunal has not
added the future prospects. Deceased aged about 59
years at the time of his death. As per the judgment of
Constitution Bench of the Apex Court in the case of
National Insurance Company Limited Vs. Pranay Sethi
and Others, reported in AIR 2017 SC 5157, 15% has to
be added towards future prospects. Thus, the annual
income of the deceased would be Rs.5,54,870/-
(Rs.4,82,496 + 15% i.e., Rs.72,374).
15. Out of the said amount of Rs.5,54,870/-,
permissible deduction from the salary towards the
income tax is to be made. Prevailing tax rates for
individual during the financial year 2012-13 upto
Rs.1,80,000/- no tax is payable. For the amount
exceeding Rs.1,80,000/- upto Rs.5,00,000/- tax
payable is @ 10%. For the amount exceeding
Rs.5,00,000/- upto Rs.8,00,000/- tax payable is @
20%. Accordingly, for Rs.3,20,000/- (being second slab
of income between Rs.1,80,000/- and Rs.5,00,000/- of
Rs.5,54,870/-) tax rate is 10% which comes upto
Rs.32,000/-. For balance sum of Rs.54,870/- (being
the third slab of income exceeding Rs.5,00,000/-) 20%
tax rate is 20% which comes upto Rs.10,974/-.
Therefore, the total tax deductible on the enhanced sum
of Rs.5,54,870/- would be Rs.42,974/- (Rs.32,000/- +
Rs.10,974/-). After such deduction, the annual income
of the deceased comes to Rs.5,12,896/- (Rs.5,54,870/-
minus Rs.4,2,974/-).
16. On the date of the accident the age of the
deceased was 59 years, proper multiplier of '9' has to be
applied. Thus, the loss of dependency would come to
Rs.5,12,896 x 9 = Rs.46,16,064 /-. Out of the said
amount, 1/4th has to be deducted towards the personal
expenses of the deceased. Thus, the loss of dependency
would come to Rs.34,62,048/-. (Rs.46,16,064/- minus
1/4th i.e., Rs.11,54,016).
17. The Tribunal has awarded Rs.25,000/- to
the petitioner No.1 under the head of loss of
consortium, Rs.25,000/- towards funeral ceremony and
Rs.5,000/- towards loss of estate. In view of the law
laid down by the Hon'ble Apex Court in Magma
General Insurance Company Limited Vs. Nanu Ram
& Ors. reported in (2018) 18 SCC 130, which is later
confirmed by the Apex Court in case of United India
Insurance Company Limited Vs. Satinder Kaur &
Ors. reported in AIR 2020 SC 3076, the claimant No.1
being the wife is entitled for Rs.40,000/- under the head
of loss of love and affection and consortium. Claimant
Nos. 2 to 4 being children and mother are entitled to
Rs.40,000/- each on account of parental and filial
consortium. In addition, claimant No.1 is entitled to
Rs.15,000/- towards funeral expenses and RS.15,000/-
towards loss of estate. Thus, the claimants are entitled
for the compensation as under:
Heads By Tribunal By this Court
Loss of dependency Rs.40,70,214/ Rs.34,62,048/-
-
Consortium to Rs.25,000/- Rs.40,000/-
petitioner No.1
Expenses towards Rs.25,000/- Rs.15,000/-
funeral ceremony
Loss of estate Rs.5,000/- Rs.15,000/-
Loss of love and
affection to claimant Rs.1,20,000/-
Nos.2 to 4 @
Rs.40,000/- each
Total Rs.41,25,214/- Rs.36,52,048/-
18. Thus, the claimants are held entitled
reduced compensation of Rs.36,52,048/- with interest
@ 6% per annum from the date of petition till the date of
realization.
19. In view of the Tribunal arriving at conclusion
that the accident occurred due to the contributory
negligence on the part of the drivers of the respective
cars and fixing the liability equally on them, the
insurance company shall pay 50% of the aforesaid
compensation i.e., Rs.18,26,024/- with interest as
aforesaid, within a period of six weeks from the date of
receipt of a certified copy of this judgment.
20. The amount in deposit by the insurance
company shall be transmitted to the Tribunal.
Accordingly, both the appeal and cross-objection
are disposed off.
The judgment and award of the Tribunal is
modified to the extent as indicated above.
Sd/-
JUDGE
Sd/-
JUDGE
BL
