Karnataka High Court
M/S United India Insurance Company Ltd vs Smt. Nirmala Sharam @ Nirmala on 7 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 101310 of 2022
C/W MFA.CROB No. 100097 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 101310 OF 2022 (MV-D)
C/W
MFA CROSS OBJECTION NO. 100097 OF 2022 (MV-D)
IN MFA.NO. 101310/2022
BETWEEN:
M/S UNITED INDIA INSURANCE COMPANY LTD.,
BY ITS DIVISIONAL MANAGER, STATION ROAD,
NEAR PRIYADARSHINI HOTEL,
HOSAPETE, BALLARI DISTRICT,
R/BY ITS AUTHORIZED SIGNATORY
DIVISIONAL MANAGER.
...APPELLANT
(BY SRI. SHARNAPPA S KOLIWAD, ADVOCATE)
AND:
1. SMT. NIRMALA SHARMA @ NIRMALA
W/O LATE RAJENDRA PRASAD SHARMA
@ RAJENDRA SHARMA,
Digitally
signed by K M
AGE-55 YEARS, OCC-HOUSEWIFE,
SOMASHEKAR
KM
SOMASHEKAR Date:
2024.02.12
11:12:19
+0530
2. KARTHIK SHARMA S/O LATE RAJENDRA PRASAD SHARMA
@ RAJENDRA SHARMA,
AGE-27 YEARS, OCC-STUDENT.
3. PRATHIK SHARMA S/O LATE RAJENDRA PRASAD SHARMA
@ RAJENDRA SHARMA,
AGE-21 YEARS OCC-STUDENT.
4. SMT. GEETHA DEVI
W/O LATE BUDHLAL SHARMA
AGE-76 YEARS, OCC- HOUSEWIFE,
ALL ARE R/O- #5 KHB COLONY,
NEAR JMFC COURT, SANDUR
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MFA No. 101310 of 2022
C/W MFA.CROB No. 100097 of 2022
BALLARI DIST. PIN:
5. PRASHANTH TALAWAR S/O FAKKIRAPPA
AGE-27 YEARS, OCC- LORRY DRIVER,
R/O-ADAVISOMAPURA VILLAGE,
TQ- DIST. GADAG -582101.
6. MAHANTESH BATTUR S/O RENUKAMMA BATTUR
AGE-47 YEARS, OCC- BUSINESS,
R/O-HITNAL VILLAGE, DIST, TQ- KOPPAL.
(OWNER OF THE LORRY KA-37/A-6346)
...RESPONDENTS
(BY SRI. NEEL P. PATEL, ADVOCATE FOR R1 TO R4,
NOTICE TO R5 & R6 ARE SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 07.01.2022
PASSED IN MVC NO.445/2020 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL VI AT KUDLIGI,
SITTING AT SANDUR, AWARDING COMPENSATION OF
RS.58,75,832/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE
OF PETITION TILL ITS REALIZATION.
IN MFA CROB.NO. 100097/2022
BETWEEN:
1. SMT. NIRMALA SHARMA @ NIRMALA
W/O LATE RAJENDRA PRASAD SHARMA
@ RAJENDRA SHARMA,
AGE-55 YEARS, HOUSEWIFE,
2. KARTHIK SHARMA S/O LATE RAJENDRA PRASAD SHARMA
@ RAJENDRA SHARMA,
AGE-27 YEARS, STUDENT.
3. PRATHIK SHARMA S/O LATE RAJENDRA PRASAD SHARMA
@ RAJENDRA SHARMA,
AGE-21 YEARS, STUDENT.
4. SMT. GEETHA DEVI W/O LATE BUDHLAL SHARMA
AGE-76 YEARS, HOUSEWIFE,
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MFA No. 101310 of 2022
C/W MFA.CROB No. 100097 of 2022
ALL ARE R/O- #5 KHB COLONY,
NEAR JMFC COURT, SANDUR
BALLARI DISTRICT.
...CROSS OBJECTORS
(BY SRI. NEEL P PATEL, ADVOCATE)
AND:
1. PRASHANTH TALAWAR S/O FAKKIRAPPA
AGE-27 YEARS, OCC- DRIVER,
LORRY BEARING REG NO.KA-37/A-6346,
R/O-ADAVISOMAPURA VILLAGE,
DIST. GADAG -582101.
2. MAHANTESH BATTUR S/O RENUKAMMA BATTUR
AGE-47 YEARS, OCC- OWNER,
LORRY BEARING REG NO.KA-37/A-6346
R/O-HITNAL VILLAGE,
TQ & DIST- KOPPAL-583234.
3. M/S UNITED INDIA INSURANCE COMPANY LTD.,
R/BY ITS DIVISIONAL MANAGER,
OFF AT. STATION ROAD,
NEAR PRIYADARSHINI HOTEL,
HOSAPETE, BALLARI DISTRICT-583201.
...RESPONDENTS
(BY SRI. SHARNAPPA S. KOLIWAD, ADVOCATE FOR R3,
NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA.CROB IN MFA NO.101310/2022 IS FILED UNDER
ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD
DATED 07.01.2022 PASSED IN MVC NO. 445/2020 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-VI, KUDLIGI, SITTING AT SANDUR, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEAL AND CROSS OBJECTIONS ARE COMING ON FOR
ADMISSION, THIS DAY, S G PANDIT, J., DELIVERED THE
FOLLOWING:
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MFA No. 101310 of 2022
C/W MFA.CROB No. 100097 of 2022
JUDGMENT
Though this appeal as well as cross objection are listed
for admission, they are taken up for final disposal, with the
consent of learned counsel for both the parties.
2. Insurer as well as claimants are before this Court in
appeal as well as cross-objection respectively questioning the
quantum of compensation awarded under judgment and award
dated 07.01.2022 in MVC No.445/2020 on the file of learned
Senior Civil Judge and MACT-VI at Kudligi sitting at Sandur (for
short, 'Tribunal).
3. The claimants, who are the wife, two children and
mother of the deceased Rajendra Prasad Sharma, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
claiming compensation for the accidental death of Rajendra
Prasad Sharma that took place on 24.06.2020 involving Bolero
Utility vehicle bearing registration No.KA-53/D-5239 and Lorry
bearing registration No.KA-37/A-6376. It is stated that the
deceased was aged 55 years as on the date of accident and
was working as Manager in Basaveshwara Enterprises, drawing
a salary of Rs.80,000/- per month.
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4. On appearance, respondent/Insurance Company
filed its statement of objections denying the entire claim
petition averments. It was contended that driver of offending
lorry had no valid and effective driving license as on the date of
the accident. It was further contended that driver of Bolero
vehicle was responsible for causing the accident and
contributed to the occurrence of the accident. Thus, prayed for
dismissal of the claim petition.
5. Before the Tribunal, claimant No.2-son of the
deceased Rajendra Prasad Sharma examined himself as PW1
and another witness as PW2 apart from marking the documents
as Exs.P1 to P30. Respondents examined one witness as RW1
and marked the documents as Ex.R1 & R2. The Tribunal based
on the material on record awarded a total compensation of
Rs.58,75,832/- with interest at 6% per annum from the date of
petition till realization on the following heads:
Loss of dependency Rs.56,75,832/-
Loss of Consortium Rs. 1,60,000/-
Funeral expenses Rs. 25,000/-
Loss of Estate Rs. 15,000/-
-------------------
Total Rs.58,75,832/-
-------------------
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6. While awarding the above compensation, the
Tribunal determined income of deceased at Rs.78,832/- per
month, added 10% of the same towards future prospects,
applied multiplier of 9 and deducted 1/3rd towards personal
expenses of the deceased. Aggrieved by the same, insurer is in
appeal seeking reduction of compensation, whereas claimants
are in cross objection praying for enhancement of
compensation.
7. Heard learned counsel Sri S.S. Koliwad for
insurance company and learned counsel Sri Neel P.Patel for
claimants, perused the appeal papers including original records.
8. Sri. S.S.Koliwad, learned counsel appearing for the
appellant-Insurer in support of his appeal strenuously
contended that the income of the deceased assessed by the
Tribunal is not proper and same is contrary to the material on
record. He would submit that Ex.P17 is the Certificate, on
which the Tribunal placed reliance and the said document
cannot be believed, since it is only a certificate issued by the
employer of the deceased and it is not conclusive evidence to
determine the income of the deceased. Learned counsel
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further submits that the Tribunal ought to have determined the
income of the deceased based on the income tax returns, which
are placed on record as Ex.P22 to P24. Learned counsel further
submits that average income of the deceased as per Ex.P22 to
P24, would be Rs.4,86,400/- per annum after deduction of
income tax and professional tax. Therefore, he submitted that
the Tribunal committed an error in assessing the income of the
deceased ignoring income tax returns. Further, learned counsel
would submit that deduction of 1/3rd towards personal
expenses of the deceased is proper and correct and the
Tribunal rightly held that the claimant No.2, son of the
deceased, who is pursuing Chartered Accountant course is not
dependent of the deceased. Thus, he submits that
compensation awarded by the Tribunal requires to be modified
by reassessing the income of the deceased.
9. Per contra, Sri.Neel P Patel, learned counsel for the
claimants in support of his cross objection would contend that
the Tribunal rightly assessed income of the deceased at
Rs.78,832/- per month and he would request for maintaining
the said income to determine the compensation. He would
further submit that the Tribunal rightly placed reliance on
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Ex.P17-Certificate issued by the employer, which would indicate
that the deceased was receiving a sum of Rs.50,000/- as salary
apart from Rs.15,000/- towards Transport Allowance. Further,
learned counsel would submit that the deceased was also
getting rent from his building. Thus, he justifies the income
assessed by the Tribunal. He further submits that the Tribunal
committed an error in deducting 1/3rd towards personal
expenses of the deceased. He submits that claimant No.2-son
of the deceased, was a student pursuing Chartered Account
course and he was dependent on the income of the deceased.
Moreover, he submits that since the deceased was aged 56
years and was in permanent/secured employment, in terms of
decision of Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi & Others1,
claimants would be entitled for addition of 15% of the assessed
income towards loss of future prospects as against 10% added
by the Tribunal. Thus, learned counsel prays for enhancement
of compensation by allowing the cross-objection.
10. Having heard the learned counsel for both the
parties and on perusal of the appeal papers along with original
2017 (16) SCC 680
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records, the following points would arise for our consideration
in these appeals:
a. Whether the income of the deceased
determined by the Tribunal is proper and
correct?
b. Whether the claimants would be entitled
for enhanced compensation?
11. Our answer to the above points would be in the
negative for the following reasons:
12. The occurrence of the accident on 24.06.2020
involving Bolero Utility Vehicle bearing registration No.KA-
53/D-5239 and Lorry bearing registration No.KA-37/A-6376
and resultant death of deceased Rajendra Prasad Sharma is not
in dispute. It is also not in dispute that the deceased was
working as Manager in Basaveshwara Enterprises. The insurer
is in appeal challenging the grant of excess compensation,
whereas the claimants are in cross-objection praying for
enhancement of compensation.
13. The Tribunal assessed income of the deceased at
Rs.78,832/- per month placing reliance on Ex.P17-certificate
issued by Partner of Basaveshwara Enterprises, which would
disclose that the deceased was drawing salary of Rs.50,000/-
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per month, however, the said certificate does not disclose any
details of salary drawn by the deceased. Further, Ex.P17 would
not bear any date nor would indicate the period during which
the deceased was drawing the said salary. The claimants
placed on record the income tax returns as per Ex.P22 to P24.
Ex.P22-income tax returns for the Assessment Year 2018-19
would indicate that the income of the deceased was
Rs.4,77,851/- after deduction of income tax and professional
tax; for the Assessment Year 2019-20, the income of the
deceased was Rs.3,78,836/-; and for the Assessment Year
2019-20, it was Rs.4,86,400/- after deducting income tax and
professional tax. Average income of the deceased prior to three
years from the date of death would be Rs.4,47,696/- per
annum, which would be Rs.37,308/- per month. When income
tax returns are placed on record, the Tribunal ought to have
placed reliance on said income tax returns, which would be the
best evidence or material on record to determine income of the
deceased. Normally, when income tax returns are placed on
record, it is safe to determine the income based on such
income tax returns without looking into any other material. In
the instant case, placing reliance on Ex.P22 to P24, we deem it
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appropriate to re-assess the income of the deceased at
Rs.4,47,696/- per annum i.e. Rs.37,308/- per month.
14. Further, the Tribunal committed an error in adding
10% of the assessed income towards future prospects. The
claimants would be entitled for addition of 15% of the assessed
income towards future prospects as the deceased was aged 56
years and was in permanent/secured employment in terms of
Pranay Sethi's case (supra). The claimants are wife, two
children and mother of the deceased. When there are four
dependents, 1/4th has to be deducted towards personal
expenses of the deceased. However, the Tribunal considering
2nd claimant-son of the deceased, who was pursuing Chartered
Accountant course, as not dependent on the income of the
deceased, deducted 1/3rd towards personal expenses of the
deceased, which according to us is erroneous. The claimant
No.2, son of the deceased, was pursuing Chartered Accountant
course and he had not completed the said course. Since he has
not completed Chartered Accountant course, he has to be
considered as student and dependent on the income of the
deceased. Thus, we are of the view that deduction towards
personal expenses of the deceased would be 1/4th and not 1/3rd
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as held by the Tribunal. There is no dispute with regard to age
of the deceased as 56 years and multiplier of 9. Accordingly,
the claimants would be entitled for compensation on the head
of loss of dependency at Rs.34,75,240/- (Rs.37,308 + 15/100
x 12 x 9x 3/4).
15. The Tribunal rightly awarded a sum of Rs.40,000/-
each towards Spousal, Parental and Filial Consortium, which is
not disturbed. The claimants would be entitled to Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses and transportation of dead body. In terms of decision
of the Hon'ble Apex Court in Pranay Sethi's case supra, the
claimants would be entitled for 10% escalation for three years
on the conventional heads as well as loss of consortium. Thus,
the claimants would be entitled for modified compensation on
the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.34,75,240/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses including 10%
escalation
3. Filial Consortium (Rs.40,000/- Rs. 1,76,000/-
each including 10% escalation)
Total Rs.36,51,240/-
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16. Thus, the claimants would be entitled to total
compensation of Rs.36,51,240/- as against Rs.58,75,832/-
awarded by the Tribunal.
17. In the result, we proceed to pass the following:
ORDER
a) Both appeal as well as cross objection are
allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total compensation
of Rs.36,51,240/- as against
Rs.58,75,832/- awarded by the Tribunal.
c) The entire compensation amount will bear
interest at 6% per annum from the date of
claim petition till date of realization.
d) The appellant-Insurer shall deposit the
entire compensation amount with accrued
interest before the Tribunal within a period
of six weeks from the date of receipt of
certified copy of this judgment.
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e) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
f) The apportionment, deposit and
disbursement shall be made as per the
award of the Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
