The Manager Director Icici ... vs Prema W/O Devareddi Meti
2023 Latest Caselaw 105 Kant

      IN THE HIGH COURT OF KARNATAKA
             KALABURAGI BENCH

     DATED THIS THE 3RD DAY OF JANUARY, 2023
                     PRESENT
 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
                       AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

 MISCELLANEOUS FIRST APPEAL NO.201937/2015(MV)

                       C/W.

 MISCELLANEOUS FIRST APPEAL NO.201658/2015(MV)


IN MFA No.201937/2015

BETWEEN:

1.   Prema W/o Devareddi Meti,
     Age: 30 years, Occ: Household,
     R/o. Yavagal, Tq: Ron,
     Dist: Gadag,
     Now residing at
     Station Back Road,
     Vijaypur-586101.

2.   Vaishnavi D/o Devareddi Meti,
     Age: 7 years, Occ: Nil,
                                    MFA No.201937/2015
                               C/w MFA No.201658/2015
                          2



     R/o. Yavagal, Tq: Ron,
     Dist: Gadag,
     Now residing at
     Station Back Road,
     Vijaypur-586101.
     Appellant No.2 is minor
     R/by her Natural Mother
     appellant No.1.

3.   Giriyappa S/o Venkareddi Meti,
     Age: 60 years, Occ: Agriculture,
     R/o. Yavagal, Tq: Ron,
     Dist: Gadag-586101.

4.   Renawwa W/o Giriyappa Meti,
     Age: 53 years, Occ: Household,
     R/o. Yavagal, Tq: Ron,
     Dist: Gadag-586101.
                                        ... Appellants

(By Sri Babu Metagudda, Advocate)


AND:


1.   Santosh S/o Shankar Gujar,
     Age: 48 years, Occ: Business,
     R/o Shiv Parvati Nivas,
     Gujar Nagar, Thergaon,
     Pune-523101.

2.   The Managing Director,
     ICICI Lombard General Insurance Co. Ltd.
                                     MFA No.201937/2015
                                C/w MFA No.201658/2015
                          3



     Zenith House, Keshavrao Khade Marg,
     Mahalaxmi,
     Mumbai-523001.
                                  ... Respondents

(By Smt. Sharada R. Patil, Advocate for R1;
Sri. C.S. Kalburgi, Advocate for R2)


      This Miscellaneous First Appeal is filed under
Section 173(1) of MV Act, praying to allow this appeal
and modify the judgment and award dated
06.08.2015 passed in MVC No.382/2012 by the
Principal Senior Civil Judge and Motor Accidents claims
Tribunal No.V at Vijaypur and to enhance the
compensation from Rs.42,00,000/- with 9% interest
to Rs.60,00,000/- with 12% interest and etc.


In MFA No.201658/2015

BETWEEN:

The Manager Director,
ICICI Lombard Gen. Ins, Co, Ltd,
Zenith House,
Keshav Khade Marg,
Opp: Race Course,
Nehalaxmi,
Mumbai-400034.
Now represented by
ICICI Lombard Gen. Ins, Co, Ltd,
Kothari Complex, Court Road,
Gulbarga
                                        MFA No.201937/2015
                                   C/w MFA No.201658/2015
                          4



Opp: S.B.H. Station Bazar,
S.V. Patel Chowk,
Gulbarga-585103
Through its Manager Legal.
                                           ... Appellant
(By Sri C.S. Kalburgi, Advocate)

AND:

1.   Prema W/o Devareddi Meti,
     Age: 30 years, Occ: Household,
     R/o Yavagal, Tq. Ron,
     Dist: Gadag,
     Now R/o at Station Back Road,
     Vijapur-586101.

2.   Vaishnavi D/o Devareddi Meti,
     Age: 3 years 4 Months, Occ: Nil,
     R/o Yavagal, Tq. Rojn, Dist: Gadag,
     Now R/o at Station Back Road,
     Vijayapur-586101.

     R2 is minor R/by her Natural
     Mother R1.

3.   Giriyappa S/o Venkareddi Meti,
     Age: 60 years, Occ: Agriculture,
     R/o Yavagal, Tq. Ron,
     Dist: Gadag-580001.

4.   Renawwa W/o Giriyappa Meti,
     Age: 53 years, occ: Household,
     R/o Yavagal, Tq. Ron,
     Dist: Gadag-580001.
                                     MFA No.201937/2015
                                C/w MFA No.201658/2015
                          5




5.   Santosh S/o Shankar Gujar,
     Age: 48 years, Occ: Business,
     R/o Shiv Parvati Nivas,
     Gujar Nagar, Thergaon,
     Pune.
                                     ... Respondents

(By Sri Babu H. Metagudda, Advocate for R1 to R4;
Smt. Sharada R. Patil, Advocate for R5)

      This Miscellaneous First Appeal is filed under
Section 173(1) of MV Act, praying to modify the
judgment and award dated 6th August-2015 passed by
the Prl. Senior Civil Judge and Motor Accident Claims
Tribunal No.V Vijaypur in MVC No.382/2012 and to
pass such other orders as this Hon'ble Court deems fit
under the facts and circumstances of the case,
including the costs, in the interest of justice and
equity.

      These   appeals    coming on for      Hearing,
through physical hearing/video conference, this day
T.G. Shivashankare Gowda, J., delivered the
following:

                     JUDGMENT

In these appeals the appellants have challenged

the judgment and award dated 06.08.2015 passed in MFA No.201937/2015 C/w MFA No.201658/2015

MVC No.382/2012 on the file of the Principal Senior

Civil Judge and Motor Accident Claims Tribunal No.V,

Vijaypur (Hereinafter referred to as 'Tribunal' for

short).

2. MFA No.201937/2015 has been filed by the

petitioners in MVC No.382/2012 seeking enhancement

of compensation. The connected appeal in MFA

No.201658/2015 has been filed by the 2nd

respondent-Insurance Company seeking modification

of judgment and award of the Tribunal.

3. The parties will be referred with respect to

their status before the Tribunal for the sake of

convenience.

4. Briefly stated, the facts are that, the 1st

petitioner is the wife, the 2nd petitioner is the daughter MFA No.201937/2015 C/w MFA No.201658/2015

and the 3rd and 4th petitioners are the parents of

Devareddy Meti, the deceased. Devareddy Meti

suffered severe injuries in a road accident that took

place on 28.07.2011 at Bhosari-Nigadi Road hit by

Maruti Swift Car bearing registration No.MH-14/CC-

8496. He succumbed to injuries and he died at YCM

Hospital. Petitioners claimed compensation of

Rs.60,00,000/-. They pleaded that deceased was

aged 30 years, working as an Engineer and earning

Rs.21,000/- per month. The claim was opposed by

the Insurance Company. The Tribunal awarded

Rs.42,00,000/- with 9% interest.

5. The petitioners have pleaded inadequacy in

the compensation awarded by the Tribunal. Insurance

Company is also before this Court on the grounds that

father of the deceased was not a dependent, that MFA No.201937/2015 C/w MFA No.201658/2015

personal expense was taken 1/4th instead of 1/3rd,

that multiplier applicable is '16' and not '17', that

actual salary of the deceased was Rs.14,500/- per

month not of Rs.2,03,875/- per annum and that

future prospects was taken as 50% and excess

amounts have been awarded towards conventional

heads.

6. According to the learned counsel for

petitioners, the deceased was drawing salary of

Rs.21,000/- per month and accordingly he sought for

re-assessment and enhancement.

7. Per contra, learned counsel for Insurance

Company contended that there are only 3 dependents.

Personal expenses should be held as 1/3rd instead of

1/4th. Applicable multiplier is '17'. Amount granted

towards conventional head is on higher side and the MFA No.201937/2015 C/w MFA No.201658/2015

amount to be granted on future prospects to be

reduced to 40% from 50% as the deceased was

working in a private firm.

8. We have given our anxious consideration to

the arguments addressed on behalf of the parties and

perused the records.

9. Ex.P17 is the Bank Statement of the

deceased, on which the Insurance Company has relied

upon. There is a credit entry of Rs.14,500/-

pertaining to salary of the deceased. Ex.P12 - Salary

Certificate issued by the employer shows that

Rs.21,600/- was being paid to the deceased and it

was inclusive of DA, HRA and other allowances. In

between Exs.P17 and P12 there is difference, it has

been clarified in IT returns of the deceased at relevant

point of time. The income of the deceased was shown MFA No.201937/2015 C/w MFA No.201658/2015

as Rs.2,21,200/- per annum. It is argued by the

learned counsel for the petitioners that out of it the

Tribunal has deducted a sum of Rs.13,200/- which

was the commission the deceased was getting. To the

pointed question whether commission was being paid

every month, there is no answer from the learned

counsel for the petitioners. Hence, this commission

amount of Rs.13,200/- claimed by the petitioners

cannot be treated as regular income and it was an

occasional incentive, as such, deduction of

Rs.13,200/- is not erroneous. The Tribunal considered

tax component at Rs.4,125/- and deducted it from

Rs.2,08,000/- which comes to Rs.2,03,875/- and this

income so assessed by the Tribunal is proper.

10. As seen from the impugned judgment, the

Tribunal has added future prospects of 50%. The MFA No.201937/2015 C/w MFA No.201658/2015

Salary Certificate is issued in a letterhead signed by a

Partner, it does not disclose the nature of

appointment. There is no reference of deduction of

Professional Tax or Provident Fund, hence,

employment cannot be treated as permanent. By

applying the principles laid down in National

Insurance Company Limited vs. Pranay Sethi and

Others -2017 ACJ 680 future prospects should be

taken as 40% for age below 40 years. There is

dispute with regard to age of the deceased. In the IT

returns, date of birth of the deceased is shown as

10.07.1981. The accident was on 28.07.2011 and

then the age of the deceased was 30 and not 31 as

contended by the Insurance Company. Hence,

applicable multiplier as per decision of Apex Court in

the case of Sarla Verma v. DTC- (2009)6 SCC 121,

is '17'.

MFA No.201937/2015 C/w MFA No.201658/2015

11. The compensation towards conventional

head has been settled by the Hon'ble Apex Court in

Pranay Sethi's case, accordingly it has to be

assessed. The contention of Insurance Company that

father of the deceased was not a dependent is not

substantiated by placing evidence, hence, it cannot be

accepted.

12. If all these factors are taken into

consideration the assessment of loss of dependency

would be: Rs.2,03,875/- (Income of the deceased) +

Rs.81,550/- (40% Future Prospects) = Rs.2,85,425/-

per annum. The petitioners are the wife, minor

daughter and parents of the deceased. Since, they

are 4 in number, 1/4th of Rs.2,85,425/- has to be

deducted towards personal expenses of the deceased.

It comes to Rs.2,14,068/- and if it is multiplied by

'17', it comes to Rs.36,39,168/-. Under the MFA No.201937/2015 C/w MFA No.201658/2015

conventional head, each of the petitioners is entitled

to Rs.40,000/- towards loss of love and affection and

also consortium to wife, in total it comes to

Rs.1,60,000/-. Towards loss of estate and funeral

expenses Rs.15,000/- each is assessed. The total

compensation comes to Rs.36,39,168/- +

Rs.1,90,000/- = Rs.38,29,168/-, which is the just

compensation to which the petitioners are entitled. As

such, the grounds urged by the petitioners is devoid of

merits. The appeal filed by the Insurance Company

deserves to be allowed in part by modifying the

compensation from Rs.42,00,000/- to Rs.38,29,168/-.

13. In the result, the following:

ORDER

The appeal in MFA No.201937/2015 is

dismissed.

MFA No.201937/2015 C/w MFA No.201658/2015

The appeal in MFA No.201658/2015 is allowed in part. The judgment and award passed by the Tribunal is modified by reducing the compensation from Rs.42,00,000/- to Rs.38,29,168/-.

The petitioners are entitled to compensation of Rs.38,29,168/- with interest at the rate of 9% per year.

Rest of the judgment and award of the Tribunal is kept intact.

Office is directed to transfer the amount if any in deposit, to the Tribunal, forthwith and also transmit the records.

Sd/-

JUDGE

Sd/-

JUDGE SBS*