Karnataka High Court
Sheshamma W/O Bhimanna Malsa And ... vs Smt Bharathi And Ors on 2 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201250/2021
C/W
MFA No.200850/2021 (MV)
IN MFA NO.201250/2021:
BETWEEN:
1. Sheshamma W/o Bhimanna Malsa,
Age: 75 years, Occ: Household,
R/o Village Degalmadi-585 307.
Tq. Chincholi, Dist. Kalaburagi.
2. Bhimanna S/o Anneppa Malsa,
(died on 29.11.2018) through his LRs.
2(a) Smt. Sheshamma W/o late
Bhimanna Masla,
Age: 75 years, Occ: Household,
2(b) Sri Ravishankar S/o late
Bhimanna Masla,
Age: 59 years, Occ: Agriculture,
2
2(c) Sri.Prabhushankar S/o late
Bhimanna Masla,
Age: 56 years, Occ: Agriculture,
2(d) Sri Basawaraj S/o late
Bhimanna Masla,
Age: 54 years, Occ: Agriculture,
All R/o Village Degalmadi-585307
Tq. Chincholi, Dist. Kalaburagi.
... Appellants
(By Sri Narendra M. Reddy, Advocate)
AND:
1. Smt. Bharathi W/o late Vaijanath,
Age: 30 years, Occ: Household,
R/o Village Degalmadi-585 307
Tq. Chincholi, Dist. Kalaburagi.
2. Shivappa Neeli S/o Marappa,
Age: Major, Occ: Owner of Ashok
Leyland lorry registration No.AP-28/Y-3738,
R/o House No.1-95/2,
Gotka Kalan, Basheerabad,
Dist. Ranga Reddy (A.P.)
3. Shriram General Insurance Company Limited,
3rd Floor, S and S Corner,
Building, Opp: Boring Hospital,
Shivaji Nagar, Bangalore-560 001.
... Respondents
(Sri. Basavaraj R. Math, Advocate for R1;
Sri. Sudarshan M., Advocate for R3;
Notice to R2 dispensed with)
3
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award dated 28.02.220 passed by the
Senior Civil Judge & JMFC, Chincholi in MVC No.73/2016
and allow the appeal by enhancing the compensation
amount, order for apportionment of compensation to the
extent of 40% to appellant No.1/respondent No.3 and
order for costs of this appeal.
IN MFA NO.200850/2021:
BETWEEN:
Shriram General Insurance Co. Ltd.,
3rd Floor, S and S Corner Building,
Opp: Bouring Hospital,
Shivaji Nagar, Bangalore-560001.
Presently represented by its
Authorized Signatory
Deputy Manager,
Shriram Manager,
Shriram General Insurance Co. Ltd.,
No.3/5, 3rd Floor, S.V.Arcade,
Bilekahalli Road, IIM Post,
Bengaluru-560076.
... Appellant
(By Sri Sudarshan M., Advocate)
AND:
1. Smt. Bharathi W/o Late Vaijinath Malsa,
Age: 29 years, Occ: Household,
R/o Village Degalmadi,
Taluk: Chincholi, Dist: Kalaburagi-585 307.
2. Shivappa Neeli S/o Marappa,
Age: Major, Occ: Owner of Ashok Leyland
4
Lorry No.AP-28/Y-3738,
R/o H.No.1-95/2, Gotka Kalan,
Basheerabad, Dist: Rangareddy (AP).
Pin Code: 501 143.
3. Sheshamma W/o Bhimanna Malsa,
Age: 74 years, Occ: Household,
R/o Village Degalmadi,
Taluk: Chincholi, Dist: Kalaburagi-585 307.
4. Sri. Ravinshankar S/o Late Bhimanna Malsa,
Age: 58 years, Occ: Agriculture,
5. Sri. Prabhushankar S/o Late Bhimanna Malsa,
Age: 55 years, Occ: Agriculture,
6. Sri. Basvaraj S/o Late Bhimanna Malsa,
Age: 53 years, Occ: Agriculture,
All are R/o Village Degalmadi,
Taluk: Chincholi, Dist: Kalaburagi-585307.
... Respondents
(Sri. Basavaraj R. Math, Advocate for C/R1)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 28.02.2020 passed in MVC
No.73/2016 by the Senior Civil Judge & JMFC at Chincholi.
These appeals coming on for orders this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
MFA No.201250/2021 is preferred by Smt.
Sheshamma, mother of the deceased who is respondent
No.3 before the Tribunal and her children, who were
brought on record as L.Rs. of her deceased husband
Sri. Bhimanna, who was respondent No.4 before the
Tribunal assailing the judgment and award dated
28.02.2020 in MVC No.73/2016 on the file of Senior Civil
Judge and JMFC, Chincholi (for short 'the Tribunal'),
seeking enhancement of compensation and for
apportionment of compensation to the extent of 40% in
favour of appellant No.1.
2. MFA No.2000850/2021 is preferred by the
insurance company, assailing the very same judgment and
award passed by the Tribunal on the ground of quantum.
3. For the sake of convenience, the parties shall
be referred to as per their ranking before the Tribunal.
4. The claim petition was filed under Section 166
of the Motor Vehicles Act, seeking compensation of
Rs.52,00,000/- by the wife of deceased Vaijinath Malsa,
who succumbed to the injuries in a fatal road accident,
contending that on 13.06.2015, the deceased and his
subordinate were proceeding from Degalmadi to Tandur on
a bike bearing No.KA-38-H-9690. At about 7.30 p.m. when
they were near Kunchavaram Cross on Chincholi Tandur
road, a lorry bearing Reg.No.AP-28/Y-3738 came from
opposite direction in a rash and negligent manner and
dashed against the motorcycle. Due to the accident, the
deceased sustained multiple grievous injuries and
succumbed to the said injuries during treatment. The
deceased was aged 39 years and was hale and healthy at
the time of accident and he was working as an Technical
Assistant in the Agricultural Department and was drawing
a salary of Rs.30,000/- and also earning Rs.10,000/- from
agriculture. The deceased was the sole breadwinner of the
family and the claimants were depending on the deceased.
Respondent Nos.3 and 4 are the parents of deceased
Vaijinath.
5. In response to the notice issued by the
Tribunal, respondent Nos.1 to 4 appeared.
6. Respondent No.2-insurance company filed
objections specifically denying the age, occupation and
income of the deceased and also contended that the driver
of the lorry bearing Reg.NoAP-28-Y-3738 was not holding
valid and effective driving licence as on the date of the
accident and sought to deny the liability to pay any
compensation to the claimant and respondent Nos.3 and 4.
7. On the basis of the pleadings of the parties,
the Tribunal framed the following issues:
ISSUES
1. Whether the petitioners proved that
Vaijinath was died in the motor vehicle
accident that occurred on 13.06.2015 at
about 7.15 p.m., on Chincholi to Tandur
road nearby Kunchavaram cross on
account of rash and negligent driving of
lorry driver bearing No.AP-28-Y-3738?
2. Whether the respondent No.2 has proved
that, as on the date of accident the
offending lorry driver did not possess valid
and effective driving licence?
3. Whether the petitioner is entitled for the
compensation? If so, to what amount and
from whom?
4. What order or Award?
8. To substantiate her case, the claimant
examined herself as PW.1 and two witnesses as PWs.2 and
3 and got marked Exs.P1 to P15. On the other hand,
respondent No.2 examined its officer as RW.1 and
produced the insurance policy as per Ex.R1.
9. The Tribunal, considering the pleading,
evidence and material on record held that the accident
occurred due to the negligence on the part of the driver of
the lorry bearing Reg.No.AP-28-Y-3738 and fastened the
liability upon the insurance company and awarded
compensation of Rs.46,14,000/ with interest at 6% per
annum from the date of petition till the date of deposit.
10. Being aggrieved by the quantum of
compensation awarded by the Tribunal, the insurance
company has preferred MFA No.200850/2021 and the
mother and her children, who are the brothers of the
deceased have preferred MFA No.201250/2021, seeking
enhancement of compensation and for apportionment of
compensation to the extent of 40% in favour of appellant
No.1.
11. Heard the learned counsel for the parties in
both the appeals and perused the material on record.
12. Sri Narendra M. Reddy, learned counsel for the
appellants in MFA No.201250/2021 would contend that the
Tribunal has awarded a meager amount of compensation
and the apportionment of 30% made in favour of appellant
No.1 is not just and proper and seeks for enhancement of
compensation as well as the apportionment.
13. Sri. Basavaraj R. Math, learned counsel for
respondent No.1 in both the appeals would justify the
impugned judgment and award passed by the Tribunal and
contend that the same does not call for any interference by
this Court.
14. Sri. Sudarshan M., learned counsel for the
appellant in MFA No.200850/2021-insurance company
would inter alia contend that the deceased was employed
on temporary basis for a period of 179 days and thus, 40%
ought to have been taken as future prospects instead of
50% as taken by the Tribunal, since the deceased did not
possess permanent job/employment.
15. Having heard the learned counsel for the
parties and in view of the rival contentions, the following
points would arise for consideration in these appeals:
1) Whether the Tribunal was justified in
taking 40% towards future prospects in
view of the employment of the
deceased in a government undertaking?
2) Whether the apportionment of 30%
made in favour of appellant No.1 is just
and proper and whether the same call
for any interference.
Point No.1:
16. The deceased was employed as an Technical
Assistant in the Agriculture Department and drawing a
monthly salary of Rs.25,000/- along with certain increment
as is permitted in the Government undertaking. The
evidence of PW.3-Assistant Director of Agriculture,
Chincholi which is corroborated with Exs.P11, P12 and P15,
the salary certificate, authorization letter and the Office
Order of the Agriculture Department respectively would go
to show that the deceased was neither self-employed nor
had fixed salary and he is to be treated as having
permanent job for the purpose of the computation of
future prospects, as the deceased was aged about 39
years and there were chances of prospect of advancement
in future career by being regularized and permanent
cannot be ruled out and consequently 50% is to be added
towards future prospects. The deceased was more or less
on a stable job and considering the future prospects that
the deceased would be made permanent, the contention of
the insurance company that 40% future prospects needs
to be awarded to the deceased is not acceptable, as the
deceased was employee in the Agriculture Department as
a Technical Assistant and the said appointment is neither a
self- employed nor had a fixed salary.
17. In this regard, we would like to refer to the
judgment of the Hon'ble Apex Court in the case of
National Insurance Company Limited vs. Pranay
Sethi and others reported in (2017) 16 SCC 680,
wherein at para 57 it is held as under:
"57. Having bestowed our anxious
consideration, we are disposed to think when
we accept the principle of standardization,
there is really no rationale not to apply the said
principle to the self-employed or a person who
is on a fixed salary. To follow the doctrine of
actual income at the time of death and not to
add any amount with regard to future
prospects to the income for the purpose of
determination of multiplicand would be unjust.
The determination of income while computing
compensation has to include future prospects
so that the method will come within the ambit
and sweep of just compensation as postulated
under Section 168 of the Act. In case of a
deceased who had held a permanent job with
inbuilt grant of annual increment, there is an
acceptable certainty. But to state that the legal
representatives of a deceased who was on a
fixed salary would not be entitled to the benefit
of future prospects for the purpose of
computation of compensation would be
inapposite. It is because the criterion of
distinction between the two in that event would
be certainty on the one hand and staticness on
the other. One may perceive that the
comparative measure is certainty on the one
hand and uncertainty on the other but such a
perception is fallacious. It is because the price
rise does affect a self-employed person; and
that apart there is always an incessant effort to
enhance one's income for sustenance. The
purchasing capacity of a salaried person on
permanent job when increases because of
grant of increments and pay revision or for
some other change in service conditions, there
is always a competing attitude in the private
sector to enhance the salary to get better
efficiency from the employees. Similarly, a
person who is self-employed is bound to garner
his resources and raise his charges/fees so that
he can live with same facilities. To have the
perception that he is likely to remain static and
his income to remain stagnant is contrary to
the fundamental concept of human attitude
which always intends to live with dynamism
and move and change with the time. Though it
may seem appropriate that there cannot be
certainty in addition of future prospects to the
existing income unlike in the case of a person
having a permanent job, yet the said
perception does not really deserve acceptance.
We are inclined to think that there can be some
degree of difference as regards the percentage
that is meant for or applied to in respect of the
legal representatives who claim on behalf of
the deceased who had a permanent job than a
person who is self-employed or on a fixed
salary. But not to apply the principle of
standardization on the foundation of perceived
lack of certainty would tantamount to
remaining oblivious to the marrows of ground
reality. And, therefore, degree-test is
imperative. Unless the degree-test is applied
and left to the parties to adduce evidence to
establish, it would be unfair and inequitable.
The degree-test has to have the inbuilt concept
of percentage. Taking into consideration the
cumulative factors, namely, passage of time,
the changing society, escalation of price, the
change in price index, the human attitude to
follow a particular pattern of life, etc., an
addition of 40% of the established income of
the deceased towards future prospects and
where the deceased was below 40 years an
addition of 25% where the deceased was
between the age of 40 to 50 years would be
reasonable.
Emphasis supplied
18. As per the judgment of the Hon'ble Apex Court
in the case of Sarla Verma and others V. Delhi
Transport Corporation and another reported in 2009
ACJ 1298, it is contended by the insurance company that
since the deceased was self-employed or had a fixed salary
and was below the age of 40 years, 40% is to be added
towards future prospects. This contention of the learned
counsel for the insurance company is not acceptable for
the reason that the deceased was neither a self-employee
nor had a fixed salary, but was appointed in a Government
department, where the chances of the deceased being
permanent cannot be ruled out. Thus, the contention of
the insurance company that 40% is to be added towards
future prospects does not appraise the mind of this Court.
19. In Pranay Sethi's case supra, the Hon'ble
Apex Court held that, in case of self-employment or having
a fixed salary, an addition of 40% towards future prospect
should be warranted where the deceased was below the
age of 40 years and 50% to be added if the deceased was
permanent employee and below the age of 40 years. In
the present case, the deceased was not a self-employee
nor had a fixed salary, but he was appointed on temporary
basis in a Government undertaking. Hence, the judgment
of the Hon'ble Apex Court in Pranay Sethi's case supra is
squarely applicable to the facts and circumstances of the
present case. Thus, the deceased could not be termed that
he was a self-employee or had any fixed salary, but has to
be treated as on permanent job even though the
appointment was temporary, for the purpose of calculating
future prospects. Thus, we do not find any illegality or
infirmity in the impugned judgment and award and
consequently answered point No.1 in the affirmative.
Accordingly, the appeal filed by the insurance company in
MFA No.200850/2021 is dismissed.
Point No.2:
20. In the appeal in MFA No.201250/2021
preferred by Smt. Sheshamma, the mother of the
deceased and her children, who are brought on record as
L.Rs. of her deceased husband Sri. Bhimanna, who was
respondent No.4 before the Tribunal, it is contended that
under the impugned judgment and award, the claimant
Smt. Bharathi, the wife of deceased Vaijinath was
apportioned 70% of the compensation amount while the
remaining 30% was apportioned in favour of Smt.
Sheshamma, the mother of the deceased. However,
having regard to the fact that Bhimanna, the father of the
deceased expired during the pendency of the claim
proceedings, we deem it just and proper to modify the
apportionment made by the Tribunal as under:
Smt. Bharathi, the claimant is entitled to 60% and
Smt. Sheshamma and her children/respondent No.3 and
the L.Rs. of deceased respondent No.4 before the Tribunal,
who are the appellants in MFA No.201250/2021 would be
entitled to the remaining 40% of the compensation. Thus,
we answered point No.2 in the affirmative by apportioning
the compensation to the extent of 60% in favour of the
claimant Smt. Bharathi and 40% in favour of Smt.
Sheshamma.
21. Insofar as the quantum of compensation
awarded by the Tribunal as assailed by Smt. Sheshamma
and the L.Rs. of her deceased husband in MFA
No.201250/2021 is concerned, we are of the considered
view that the quantum of compensation awarded by the
Tribunal is just, fair and proper and does not call for any
interference.
22. In the result, we pass the following:
ORDER
i) MFA No.200850/2021 filed by the insurance
company is dismissed.
ii) MFA No.201250/2021 filed by Sheshamma and
the L.Rs. of her deceased husband is partly
allowed.
iii) The impugned judgment and award dated
28.02.2020 passed in MVC No.73/2016 by the
Tribunal is hereby modified by apportioning the
compensation to the extent of 60% in favour of
the claimant-Bharathi and 40% in favour of
respondent No.3-Sheshamma. However, the
quantum of compensation awarded by the
Tribunal is confirmed.
iv) The insurance company shall deposit the
compensation awarded by the Tribunal within a
period of eight weeks from the date of receipt of a
certified copy of this judgment.
v) The amount in deposit before this Court is
directed to be transmitted to the Tribunal for
disbursement.
vi) Registry is directed to transmit the Trial Court
records to the Tribunal forthwith.
vii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
