Karnataka High Court
The Regional Manager vs Smt. Krupa V Kulkarni on 7 December, 2023
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NC: 2023:KHC:44429-DB
MFA No.1817/2023
C/w MFA.CROB No.90/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No.1817/2023 (MV-D)
C/w
MFA CROSS OBJECTION NO.90/2023 (MV-D)
MFA No.1817/2023:
BETWEEN:
THE REGIONAL MANAGER
NATIONAL INS. CO. LTD.
REGIONAL OFFICE, NO.144, 2ND FLOOR
SHUBHARAM COMPLEX
M. G. ROAD, BENGALURU-560 001 ...APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)
AND:
Digitally signed 1. SMT. KRUPA V. KULKARNI
by PRABHU W/O LATE VINAYAK V. KULKARNI
KUMARA
NAIKA AGED ABOUT 43 YEARS
Location: High
Court of 2. MASTER KAUSTUBH V. KULKARNI
Karnataka
S/O LATE VINAYAK V. KULKARNI
AGED ABOUT 18 YEARS
3. MASTER VEDANT V. KULKARNI
S/O LATE VINAYAK V. KULKARNI
AGED ABOUT 11 YEARS
4. SRI VIRUPAKSHA RAO KULKARNI
S/O LATE SHIVA RAO KULKARNI
AGED ABOUT 87 YEARS
ALL ARE R/AT No.1006, 1ST FLOOR
SAI NANDANA GARDENIA
BANNERGHATTA ROAD
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MFA No.1817/2023
C/w MFA.CROB No.90/2023
NEAR NANDI RETREAT
DODDAKAMMANAHALLI
GOTTIGERE, BENGALURU - 560 008.
R3 IS MINOR
REP.BY THEIR MOTHER AND
NATURAL GUARDIAN
SMT. KRUPA V. KULKARNI
5. MR. KARTHICK K. N.
S/O NATARAJAN K.
MAJOR
No. 98/68, KARUPPANNAN STREET
S.P.PUDUR, NAMAKKAL DISTRICT
NAMAKKAL, TAMIL NADU - 637 001 ...RESPONDENTS
(BY SRI R.VENKATESHA NAIDU, ADVOCATE FOR R1 TO R4
R3 MINOR REP. BY R1; R5 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 21.12.2022 PASSED BY III ADDITIONAL JUDGE
AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU
SCCH-18 IN MVC NO.5949/2019.
MFA CROB. No.90/2023:
BETWEEN:
1. SMT. KRUPA V. KULKARNI
W/O LATE VINAYAK V. KULKARNI
AGED ABOUT 43 YEARS
2. KAUSTUBH V. KULKARNI
S/O LATE VINAYAK V. KULKARNI
AGED ABOUT 19 YEARS
3. MASTER VEDANT V. KULKARNI
S/O LATE VINAYAK V. KULKARNI
AGED ABOUT 11 YEARS
4. SRI VIRUPAKSHA RAO KULKARNI
S/O LATE SHIVA RAO KULKARNI
AGED ABOUT 87 YEARS
ALL ARE R/AT NO.1006, 1ST FLOOR
SAI NANDANA GARDENIA
BANNERGHATTA ROAD
NEAR NANDI RETREAT
DODDAKAMMANAHALLI
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MFA No.1817/2023
C/w MFA.CROB No.90/2023
GOTTIGERE, BENGALURU - 560 083
CROSS OBJECTOR NO.3 IS MINOR
REP. BY HIS MOTHER AND
NATURAL GUARDIAN
SMT. KRUPA V. KULKARNI ...CROSS OBJECTORS
(BY SRI R. VENKATESHA NAIDU, ADVOCATE)
AND:
1. THE REGIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE, NO.144
2ND FLOOR, SHUBHARAM COMPLEX
M. G. ROAD, BENGALURU-560 001
2. MR. KARTHICK K. N.
S/O NATARAJAN K.
MAJOR
NO.98/68, KARUPPANNAN STREET
S. P. PUDUR, NAMAKKAL DISTRICT
NAMAKKAL, TAMIL NADU 637 001 ...RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R1;
NOTICE TO R2 DISPENSED WITH V/C/O DTD. 24.11.2023)
THIS MFA CROSS OBJECTION IS FILED UNDER ORDER XLI
RULE 22 READ WITH SECTION 173(1) OF MV ACT PRAYING TO SET
ASIDE THE AWARD DATED 21.12.2022 PASSED BY THE III
ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU SCCH-18 IN MVC.NO.5949/2019.
THIS MISCELLANEOUS FIRST APPEAL AND MFA CROSS
OBJECTION COMING ON FOR FURTHER HEARING THIS DAY,
K.S .MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the award passed in MVC No.5949/2019 on
the file of III Additional Judge, Court of Small Causes and
Member, MACT, Bengaluru, the insurer has preferred
M.F.A.No.1817/2023 and the claimants have filed
M.F.A. Crob.No.90/2023.
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2. The appellant in M.F.A.No.1817/2023 was
respondent No.1, respondent Nos.1 to 4 were claimant Nos.1
to 4 and respondent No.5 was respondent No.2 in
M.V.C.No.5949/2019. For the purpose of convenience, parties
are referred to henceforth according to their ranks before the
Tribunal.
3. Claimant No.1 is the wife, claimant Nos.2 and 3 are
the minor children and claimant No.4 is the father of deceased
Vinayak V.Kulkarni. On 05.07.2019, at 10.50 p.m., when
Vinayak Kulkarni was proceeding on his motorcycle bearing
registration No.KA-25/R-3694, the said motorcycle hit the
trailer lorry bearing Registration No.TN-88-3875 on Nice road
near Naidu Properties Bridge within the limits of Electronic City
Traffic Police Station. Due to the injuries suffered in the
accident, victim was shifted to Ramakrishna Government
Hospital and he succumbed to the injuries on his way to the
Hospital.
4. Regarding the accident, on the complaint of one
Bommegowda H.K., Highway Patrolling Officer, NICE Company,
Electronic City Traffic Police registered first information report
as per Ex.P1 in Crime No.80/2019 against the driver of lorry as
well as the deceased. In the complaint it was alleged that the
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lorry was parked negligently on the road without parking
indicator lights and the victim was also riding the motorcycle in
high speed and that led to the accident and death. On
investigation, the Police filed charge sheet as per Ex.P7,
against the driver of lorry alone for the offences under Sections
283, 304A of IPC and Sections 134 (a) & (b) and 187 of Indian
Motor Vehicles Act, 1988. In the charge sheet, it was alleged
that the driver of the lorry had parked the lorry on the NICE
Road negligently without parking lights and Vinayak V.Kulkarni
who was riding the motorcycle could not notice the lorry and
hit his motorcycle to the lorry. It was further alleged that the
driver of the lorry without attending to the injured victim
escaped from the spot. At the time of accident, respondent
Nos.1 and 2 were the insurer and registered owner of the
vehicle respectively.
5. The claimants filed MVC No.5949/2019 before the
Tribunal against the respondents claiming compensation of
Rs.3.00 Crores contending that the deceased was working as
Senior Manager in Axis Bank, Electronic City Branch, Bengaluru
and earning gross salary of Rs.1,15,873/- per month. They
further contended that they were dependent on the income of
deceased. They further contended that accident and
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consequential death occurred due to actionable negligence on
the part of the driver of lorry and they have suffered damages.
They contended that respondent Nos.1 and 2 being insurer and
owner of the lorry respectively, are liable to compensate the
damages.
6. Respondent No.2 did not contest the matter.
Respondent No.1 alone contested the matter. Respondent
No.1 did not deny the accident and death of Vinayak Kulkarni
due to the injuries suffered in the accident. However, it is
contended that the accident occurred due to negligence on the
part of the victim himself. Respondent No.1 alleged that the
lorry was moving slowly and the deceased himself was rash
and negligent in riding the motorcycle, hitting the lorry, which
led to the accident and his death. Further, respondent No.1
denied the age, occupation, income of the deceased and its
liability to pay the compensation.
7. In support of the case of claimants, claimant No.1
was examined as PW.1, representative of the employer of the
deceased was examined as PW.2 and Exs.P1 to P33 were
marked. On behalf of respondent No.1, its officer was
examined as RW.1, Police Officer who filed charge sheet was
examined as RW.2 and Exs.R1 and R2 were marked.
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8. The Tribunal on hearing the parties, by the
impugned judgment and award held that the accident occurred
due to actionable negligence on the part of the driver of lorry.
The Tribunal relying on Ex.P15 the SSLC marks card considered
the age of deceased as 46 years. Relying on the evidence of
PW.2, the Tribunal considered the income of deceased at
Rs.1,12,134/- per month and on deducting income tax,
professional tax, considered his income at Rs.1,01,244/- per
month and Rs.12,14,928/- per annum. The Tribunal deducted
1/4th of the income towards personal expenses of the
deceased, applied 13 multiplier and added 30% to the same by
way of future prospects and awarded compensation of
Rs.1,53,99,215/- on the head loss of dependency. The
Tribunal in all awarded compensation of Rs.1,54,86,215/- on
different heads as per the table below payable by the insurer.
Compensation heads Compensation
Amount
Towards loss of dependency Rs.1,53,99,215-00
Towards loss of consortium Rs. 44,000-00
Towards loss of estate Rs. 16,500-00
Towards funeral & obsequies Rs. 16,500-00
ceremony expenses
Towards transportation of dead Rs. 10,000-00
body
Total Rs.1,54,86,215-00
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9. The insurer has challenged the said award on the
ground that the victim was guilty of contributory negligence in
occurrence of accident and awarding future prospects at 25%
is erroneous.
10. Reiterating the grounds of appeal memo,
Sri.A.N.Krishnaswamy, learned counsel for the Insurer submits
that the income considered by the Tribunal is on the higher
side, the Tribunal should have given deduction to the
compensation received by the claimants from the employer of
the deceased due to his accidental death. Therefore, seeks to
reduce the compensation and reject the cross-objection filed by
the claimants.
11. Sri R.Venkatesha Naidu, learned counsel for the
claimants submits that the evidence on record clearly shows
that it was the driver of lorry who had negligently parked the
vehicle on the road. The insurer did not chose to examine the
driver of lorry. Respondent No.2 did not contest the matter at
all on any of the grounds. The complainant was not the
eyewitness. He further submits that the income of the victim
considered by the Tribunal is on the lower side and the future
prospects awarded is in accordance with the judgment of the
Hon'ble Supreme Court in the case of National Insurance
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Company vs. Pranay Sethi . He also submits that the
applicable multiplier is 14 and not 13.
12. Considering the submissions on both side and on
examination of material on record, the questions that arise for
consideration are:
i) Whether the finding of the Tribunal that
accident in question occurred due to
actionable negligence of the driver of Lorry
bearing No.TN-88-3875 is sustainable?
ii) Whether the compensation awarded under
the impugned award is just?
Analysis
Reg. Point No.1:
13. Respondent No.1 did not dispute the occurrence of
accident involving the motorcycle bearing No.KA-25/R-3694
and lorry bearing No.TN-88-3875. Respondent No.1 did not
dispute the death of Vinayak Kulkarni, the rider of motorcycle
due to accidental injuries. Respondent No.2 owner of the lorry
did not contest the petition at all denying actionable negligence
on the part of the driver of lorry.
14. The prime contention of learned counsel for
respondent No.1 is that in the FIR, claimants own document, it
(2017) 16 SCC 680
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was alleged that both victim and driver of lorry were negligent.
Therefore, that document takes precedence over charge sheet
Ex.P7. It is no doubt true that charge sheet is not the
conclusive proof of actionable negligence on the part of the
driver of lorry. However, the material on record clearly shows
that the complainant was not the eyewitness to the accident.
In the complaint, he states that on somebody informing him
about the accident, he rushed to the spot and found the parked
lorry and made arrangement for shifting the victim to the
hospital. Therefore, his version regarding victim also being
rash and negligent cannot be accepted unless the same is
corroborated by any other evidence. Even in his complaint, he
has only stated that according to his information, victim was
riding the vehicle in high speed. But he has not stated that the
victim was negligent also.
15. Further, on detailed investigation, the police filed
charge sheet Ex.P7 against the driver of lorry for offences
punishable under Sections 283, 304A of IPC and Sections
134(a) & (b) and 187 of MV Act. Respondent No.1-insurer got
the police officer examined as RW.2. RW.2 himself states that
the investigation revealed that the driver of lorry had parked
the vehicle without indicator lights on the road which was not
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meant for parking, which led the victim dashing his motorcycle
to the same. Though respondent No.1 treated RW.2 as hostile
and cross-examined, nothing was elicited in the cross-
examination of RW.2 to impeach his evidence regarding filing
of charge sheet and his conclusion at the time of filing of the
charge sheet. The charge sheet Ex.P7 shows that one
Narashimamurthy and Prabath were cited as eyewitnesses to
the incident. Respondent No.1 did not choose to examine
those witnesses. Under Section 114 of the Indian Evidence Act,
1872, there is a presumption that official acts are correctly
performed. Thus, Ex.P7 had presumptive value. That
presumption was further confirmed by the evidence of RW.2
himself. The insurer did not choose to examine the driver of
lorry to rebut the said evidence. Therefore, by no stretch of
imagination it can be said that the finding of Tribunal regarding
actionable negligence on the part of the driver of lorry in
causing the accident is erroneous one.
Reg. Point No.2 Quantum:
16. As per Ex.P15 SSLC Marks card, date of birth of
deceased is 22.07.1973. The accident took place on
05.07.2019. Therefore, as on the date of accident, deceased
was aged 45 years 11 months 13 days. As per the judgment
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of the Hon'ble Supreme Court in Sarla Verma v. Delhi
Transport Corporation2, the multiplier applicable in case of
death of a person aged between 41 to 45 years is '14'.
Therefore, the Tribunal should have taken '14' multiplier
instead of '13'.
17. Though much was argued by learned counsel for
claimants that the salary shown in the last month pay slip has
to be taken, the deceased admittedly was an income tax
assessee. Therefore, his consistent income as declared by him
for the purpose of submitting of IT Returns has to be
considered. Ex.P32 consists of the income of the deceased for
the period mentioned below:
Assessment year Financial Year
2020-2021 01.04.2019 to 31.03.2020
2020-2021 01.04.2019 to 05.07.2019
2019-2020 01.04.2018 to 31.03.2019
2018-2019 01.04.2017 to 31.03.2018
18. Form No.16 relevant for the purpose of this case for
the Assessment year 2019-2020 and Financial year 01.04.2018
to 31.03.2019 was submitted on 31.05.2019. As per the
said Form No.16, gross income of the deceased was
AIR 2009 SCC 3104
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Rs.13,76,087/-, Tax deducted was Rs.1,30,210/-. Therefore,
his income comes to Rs.12,45,877/-.
19. The evidence of PW.2 shows that deceased had
joined Axis Bank as Deputy Manager, Information Technology,
on 14.07.2008. The services of the victim was confirmed on
14.01.2009. At the time of his death, he was working as
Senior Manager. Relying on Clause 9 of Ex.P9 the contract of
employment, learned Counsel for the Insurer claims that
service of deceased was terminable with one month's notice
unconditionally. Therefore, the said employment was not
permanent employment. However, even respondent No.1 did
not dispute that the service of the deceased was confirmed and
by the time of his death he had completed more than 10 years
of service. It is also not in dispute that Axis Bank which is the
employer of the deceased is sound and well established
institution.
20. In similar circumstances, in para 10 of the
judgment in New India Assurance Co. Ltd. v. Ashish Ravindra
Kulkarni3 the Hon'ble Supreme Court held that a condition in
the employment letter that job can be terminated with thirty
2023 ACJ 1997
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days notice, cannot be the basis to indicate that the
employment was of temporary nature. The employer concerned
in that case was Tata Precision Industries which is clearly well
established like Axis Bank. In that case also, there was a
clause containing termination of the contract by either parties
with one month's notice. In such circumstances, it was held
that the right of the employee to terminate itself does not
suggest employment to be temporary. Therefore the
contention that the employment of the deceased was
temporary deserves no merit.
21. As per the judgment of the Hon'ble Supreme Court
in Pranay Sethi's case referred to supra, in case of
permanently employed person, to the income of the deceased
aged between 40-50 years, 30% of his income has to be
superadded by way of future prospects which comes to
(Rs.12,45,877/-x 30%) Rs.3,73,763/-. Therefore his total
annual income comes to Rs.16,19,640/-. (Rs.12,45,877 +
Rs.3,73,763/-).
22. Since the deceased had four dependants, as per the
judgment of the Hon'ble Supreme Court in Sarla Verma's case
referred to supra, 1/4th of his income has to be deducted
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towards his personal expenses, which comes to Rs.16,19,640 x
1/4th= Rs.4,04,910/-. Therefore his annual contribution to
family comes to Rs.12,14,730/- (Rs.16,19,640 - Rs.4,04,910).
As per the said judgment, the applicable multiplier for his age
is 14. Therefore, the compensation payable on the head of
loss of dependency comes to Rs.12,14,730 x 14
=1,70,06,220/-.
23. The claimants being the widow, minor children and
father of the deceased are entitled to compensation on the
head of loss of parental, spousal and filial consortium. As per
the judgment of the Hon'ble Supreme Court in Pranay Sethi's
case referred to supra and Magma General Insurance
Company Ltd. v. Nanu Ram4 on the head of consortium, they
are entitled to compensation of Rs.40,000/- each with
escalation of 10% which comes to Rs.1,76,000/-.
24. The compensation awarded on the head of loss of
estate and funeral expenses is just one. The compensation of
Rs.16,500/- includes funeral expenses as well as transportation
of the dead body. Therefore the Tribunal should not have
awarded another Rs.10,000/- separately towards expenses of
2018 (18) SCC 130
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transportation of dead body. Therefore just compensation
payable to the claimants in this case is as follows:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 1,70,06,220/-
2. Loss of consortium 1,76,000/-
3. Loss of estate 16,500/-
4. Transportation & funeral 16,500/-
expenses
Total 1,72,15,220/-
25. As the vehicle in question is covered with valid
policy issued by respondent No.1, respondent No.1 is liable to
indemnify the damages. The impugned award needs to be
modified accordingly. Hence, the following:
ORDER
M.F.A.No.1817/2023 is dismissed.
M.F.A.Crob.No.90/2023 is party allowed. The impugned
award is modified as follows:
(i) The claimants are entitled to compensation of
Rs.1,72,15,220/- with interest thereon at 6% p.a. from the
date of petition till the date of its realization.
(ii) Respondent Nos.1 and 2 are jointly and severally
liable to pay the compensation. However, respondent No.1
being Insurer is liable to indemnify the damages.
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(iii) Respondent No.1 Insurer shall deposit the
compensation before the Tribunal on adjusting the
compensation already deposited, if any, within four weeks from
the date of receipt of copy of this order.
(iv) The impugned award with regard to apportionment of
the compensation and investment so far as claimant Nos.1 to 3
is maintained.
(v) The entire share of claimant No.4 shall be released
to him digitally on furnishing required documents.
(vi) Registry shall transmit the trial Court records and
the amount in deposit, if any, to the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
MV,KSR
