Karnataka High Court
The Divisional Manager vs Smt.Sweeta W/O Guruprasad Nayak on 12 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:3165-DB
MFA No. 101993 of 2020
C/W MFA No. 100171 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH 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. 101993 OF 2020 (MV-D)
C/W
MFA NO.100171 OF 2022
IN MFA NO.101993/2020
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LIMITED,
CLUB ROAD BELAGAVI,
REPRESENTED BY ITS
REGIONAL MANAGER,
AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND:
Digitally signed by
CHANDRASHEKAR 1. SMT. SWEETA W/O. GURUPRASAD NAYAK,
LAXMAN
KATTIMANI AGE: 37 YEARS,
Date: 2024.02.22 OCC: HOUSEHOLD WORK AND PVT SERVICE,
18:16:08 +0530
R/O. SANTHEKATTE, TAL & DIST: UDUPI,
NOW AT C/O. VIJAYKUMAR D. NERLEKAR,
DHANARAJ, PLOT NO 2, RUKMINI NAGAR,
BELAGAVI-590016.
2. KUMARI DHATRI D/O. GURUPRASAD,
AGE: 6 YEARS, OCC: NIL,
R/O. SANTHEKATTE, TAL & DIST: UDUPI,
NOW AT C/O. VIJAYKUMAR D. NERLEKAR,
DHANARAJ, PLOT NO.2, RUKMINI NAGAR,
BELAGAVI-590016.
SINCE MINOR REPTD. BY M/G. NATURAL
MOTHER RESPONDENT NO.1 SWEETA G. NAYAK.
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MFA No. 101993 of 2020
C/W MFA No. 100171 of 2022
3. SHRI. SUPRITH,
S/O. SACHIDANAND CHATHRA,
AGE: MAJOR, OCC: BUSINESS,
R/O. SUGUMA TOURIST NO.257/A-1,
HOSUR MAIN ROAD,
NEAR NH HOSPITAL BOMMASANDRA,
INDUSTRIAL AREA, BANGALORE-560021.
4. SMT. ASHA W/O. KESHAV NAYAK,
AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
R/O. KUNJIBETTU, TAL & DIST: UDUPI-576103.
5. KESHAV S/O. BABANNA NAYAK,
AGE: 78 YEARS, OCC: PENSIONER,
R/O. KUNJIBETTU, TAL & DIST UDUPI-576103.
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADV. FOR RESPONDENT NO.1 & 2,
SRI. S. B. PATIL, ADV. FOR RESPONDENT NO.4 & 5,
NOTICE TO RESPONDENT NO.3 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
THE MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND HEAR THE PARTIES AND MODIFY AND SET ASIDE THE
JUDGMENT AND AWARD DATED 20.01.2020 IN MVC NO.1989/2016
PASSED IN THE COURT OF THE IV ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC AND ADDITIONAL MACT BELAGAVI AT BELAGAVI
BY EXONERATING THE APPELLANT INSURANCE COMPANY FROM THE
LIABILITY AND REDUCING THE COMPENSATION BY ALLOWING THIS
APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.
IN MFA NO.100171/2022
BETWEEN
1. SWEETA W/O. GURUPRASAD NAYAK,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK AND PVT. SERVICE,
R/O. C/O. VIJAYKUMAR D. NERLEKAR,
DHANARAJ PLOT NO.2,
RUKMINI NAGAR, BELAGAVI-590016.
2. DHATRI D/O. GURUPRASAD NAYAK,
AGE: 06 YEARS, OCC: STUDENT,
R/O. C/O. VIJAYKUMAR D. NERLEKAR,
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MFA No. 101993 of 2020
C/W MFA No. 100171 of 2022
DHANARAJ PLOT NO.2,
RUKMINI NAGAR, BELAGAVI-590016.
(SINCE APPELLANT NO.2 IS MINOR
SHE IS REP. BY HER MOTHER
I.E, APPELLANT NO.1)
...APPELLANTS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND
1. SUPRITH S/O. SACHIDANAND CHATHRA,
AGE: MAJOR, OCC: BUSINESS,
R/O. SUGMA TOURIST,
NO.257/A/1, HOSUR MAIN ROAD,
NEAR NH HOSPITAL, BOMMASANDRA,
INDUSTRIAL AREA, BENGALURU-560099.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD,
CLUB ROAD, BELAGAVI-590006.
3. ASHA W/O. KESHAV NAYAK,
AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
R/O. KUNJIBETTU, TQ & DIST: UDUPI-574118.
4. KESHAV S/O. BABANNA NAYAK,
AGE: 76 YEARS, OCC: HOUSEHOLD WORK,
R/O. KUNJIBETTU, TQ & DIST: UDUPI-574118.
...RESPONDENTS
(BY SRI. G. N. RAICHUR, ADV. FOR RESPONDENT NO.2,
SRI. S. B. PATIL, ADV. FOR RESPONDENT NO.3 AND 4,
NOTICE TO RESPONDENT NO.1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 20.01.2020 PASSED IN MVC NO.1989/2016 ON THE FILE OF
THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS AND ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
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MFA No. 101993 of 2020
C/W MFA No. 100171 of 2022
JUDGMENT
Though the appeals are listed for admission, they are
taken up for final disposal, with the consent of learned
counsel for both the parties.
2. These appeals by the claimants and the insurer
against the judgment and award in MVC No.1989/2016 dated
20.01.2020 on the file of IV Addl.Senior Civil Judge and
J.M.F.C. and Addl.MACT, Belagavi (for short, 'Tribunal')
3. MFA No.101993/2020 by the insurer challenging
the liability on the ground of contributory negligence and
also quantum. MFA No.100171/2022 by the claimants for
enhancement of compensation.
4. The parties are referred to as per their ranks
before the Tribunal for convenience.
5. The petitioners being wife and daughter of
deceased Guruprasad Keshav Naik filed claim petition
u/sec.166 of the Motor Vehicles Act, claiming compensation
due to accidental death of Guruprasad Keshav Naik on
13.02.2016 involving car bearing No.KA-20/P-7644 and bus
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bearing No.KA-51/C-8429. It is stated that the deceased was
aged 35 years and drawing salary of Rs.4,33,476/- per
annum.
6. On issuance of notice, respondent No.1-owner of
the bus remained absent. Respondent No.2 appeared
through counsel and filed objections. Respondent No.2-
insurer denying the petition averments, admitted the policy.
However disputed the validity of driving licence of the bus
driver, attributed negligence to the deceased.
7. The petitioner examined herself as PW1 and
examined another witness as PW2 and got marked Exs.P1 to
45. Respondent No.2 examined RW1 and marked Exs.R1 to
8. The Tribunal determined the compensation of
Rs.73,00,600/- under various heads as under:
1. Loss of dependency Rs.68,25,000/-
2. Funeral & transportation Rs.25,000/-
expenditure
3. Loss of love and affection Rs.4,00,000/-
(parents)
4. Loss of estate Rs.50,000/-
Total Rs.73,00,600/-
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8. The Tribunal while awarding compensation
concluded that the accident was due to negligent driving of
the bus (insured vehicle). The Tribunal considered the age of
the deceased as 35 years on the basis of marks cards,
considered income at Rs.31,600/- per month and applied
multiplier '16'.
9. Heard learned counsel Sri. G.N.Raichur for
appellant/insurer, learned counsels Sri. Vitthal S. Teli and
Sri. S.B.Patil, for claimants.
10. Learned counsel Sri G.N.Raichur for insurer
submits that the accident occurred due to rash and negligent
driving of the deceased himself. The Tribunal committed an
error in fastening the entire liability on the bus. By relying on
Ex.R3-spot sketch submits that the bus was traveling from
Agumbe - Thirthahalli, the car was traveling from
Thirthahalli - Agumbe. The accident occurred on the middle
of the road due to contributory negligence of the driver of
the car.
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11. It is further submitted that petitioner No.1 was
working in the same company where deceased was working
and not dependent on the income of the deceased. Hence,
petitioner No.1 is not entitled for any compensation.
Respondent Nos.3 and 4 being parents of the deceased
having independent income not entitled to be considered as
dependents to award any compensation. Alternatively
submits that the liability is to be apportioned between the
insurer and towards negligence of the deceased. Thus prays
to recompute the compensation by reducing the same.
12. Learned counsel appearing for the claimants-
petitioners submits that the accident occurred due to rash
and negligent driving of the bus. The Tribunal has rightly
fixed liability on the insurer of the bus.
13. Learned counsel further submits that the date of
accident is 13.02.2016. The income of the deceased ought to
be assessed by considering Ex.P19-increment letter issued
by the employer at Rs.4,33,476/- per annum. Ex.P19 is from
01.05.2015 and is proximate to the date of death of the
deceased. The Tribunal committed error by referring to
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Exs.P20 and 21-pay slips for the month of January 2016 and
December 2015 to consider income at Rs.31,600/- per
month. It is submitted that Ex.P19 would reflect the correct
income of the deceased and prays to compute the
compensation as per Ex.P19.
14. Learned counsel further by referring Ex.P19
submits that the Tribunal committed an error in not
considering the basket allowance of Rs.2,27,400/- per
annum. It is submitted that as per Ex.P19, the actual salary
is to be considered at Rs.4,33,476/- per annum. Thus prays
to recompute the compensation.
15. Having heard learned counsel for the parties and
on perusal of the appeal papers and the record, the following
points arise for consideration.
i. Whether the Tribunal is correct in holding
the accident was due to negligence of the
driver of the bus and fastening liability on
the insurer?
ii. Whether the compensation awarded by the
Tribunal is just and needs interference?
NC: 2024:KHC-D:3165-DB
16. Our answer to the above points is 'in the
affirmative' for the following reasons.
17. The death of deceased Guruprasad Nayak due to
accident on 13.02.2016 involving car bearing No.KA-20/P-
7644 and bus bearing No.KA-51/C-8429 is not in dispute in
this appeal.
18. The contention of the insurer that accident
occurred due to negligence of the driver of the car is not
acceptable. It is not in dispute that bus was traveling from
Agumbe - Thirthahalli and car was traveling from Thirthahalli
- Agumbe. As per the spot sketch at Ex.R3, the bus has
crossed the middle of the road towards right i.e. opposite to
the car. As per the sketch, the width of the road is 18 feet.
Considering the width of the road and the bus having crossed
beyond middle of the road, it is clear that no sufficient road
was left to the car to move. Further, the police after detailed
investigation have filed a charge sheet as per Ex.P7 against
driver of the bus holding that the accident on 03.02.2016
occurred due to speed and negligence of the driver of the
bus. In such circumstances, the contention of the insurer
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that accident occurred due to negligent driving of the car is
not tenable. The Tribunal has rightly arrived at a conclusion
that accident occurred due to rash and negligent driving of
the bus. As a consequence the insurer not having disputed
the policy to the bus, the liability has been rightly fastened
on the insurer.
19. Learned counsel for the claimants by referring to
Ex.P19 vehemently contends that the income of the
deceased is to be computed on the basis of Ex.P19. Learned
counsel further contends that basket allowances are part of
the salary and the same is to be computed while assessing
the income of the deceased. Exs.P20 and P21 are pay slips
for the month of January 2016 and December 2015. Ex.P19
refers to effective from 01.05.2015. The pay slips does not
refer to any basket allowances.
20. On close perusal of Ex.P19, it is the offer made to
the deceased by Robos Technologies Private Limited. No
evidence is placed for having paid the entire sum as reflected
in Ex.P19. The claimants have not proved that the amounts
as per Ex.P19 were in reality paid to the deceased. Pay slips
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at Ex.P20 would clearly establish the actual payment to the
deceased. The Tribunal is justified in considering Ex.P20 as a
basis for assessing the income of the deceased. As per
Ex.P20, gross pay is Rs.31,600/- per month. Out of the said
amount, a sum of Rs.3,750/- towards medical
reimbursement, Rs.200/- towards professional tax is to be
reduced. The net salary per month would be Rs.27,650/-.
Salary per month Rs.31,600.00
Less medical reimbursement Rs.3,750.00
Less professional tax Rs.200.00
Net salary before tax Rs.27,650.00
The income tax liability on the said amount is as under:
Salary per annum Rs.3,31,800.00
IT up to Rs.2,50,000 Nil
- Rs.2,50,000 Rs.81,800.00
Less 10% tax on (Rs.81,800) Rs.8,180.00
Less rebate Rs.5,000.00
Tax amount Rs.3,180.00
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21. Hence after all deductions, statutory deductions,
net salary to be considered per annum is Rs.3,28,620/-
(Rs.3,31,800 - Rs.3,180). The age of the deceased at 35
years on the basis of SSLC marks card is not in dispute. The
contention of the insurer that the 1st petitioner-wife was
working and cannot be considered as dependent is not
tenable. In view of the law laid down by the Hon'ble
Supreme Court in the case of National Insurance
Company Limited V/s Birender and others1, the wife
being legal representative of the deceased is entitled for
compensation. The insurer contends that respondent Nos.3
and 4 are not depending on the earning of the deceased. No
evidence is placed to prove that respondent Nos.3 and 4
parents were not depending on the earnings of their
deceased son. Respondent Nos.3 and 4 being parents and
considering their age, it is to be held that parents were
dependents on the earning of the deceased. There are four
dependents and the Tribunal has rightly deducted 1/4th of
the assessed income towards personal expenses of the
(2020) 11 SCC 356
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deceased. The deceased was not in permanent job and was
aged 35 years. As per Pranay Sethi, the assessed income is
further added by 40% towards future prospects. The total
compensation under the head of loss of dependency is
Rs.55,20,816/- (Rs.3,28,620 + 40% x 16 x 3/4).
22. In terms of Magma General Insurance
Company Limited V/s Nanu Ram @ Chuhru Ram and
others2, the petitioner-wife, daughter and parents would be
entitled for Rs.40,000/- each towards spousal, parental and
filial consortium. Further, the claimants are entitled for sum
of Rs.15,000/- each towards loss of estate and funeral
expenses.
23. Learned counsel for the claimants relying on
(2018) 15 SCC 649 in the case of Sureshchandra
Bagmal Doshi and another V/s New India Assurance
Company Ltd., contends that the future prospects is to be
awarded at 100% considering the rise in income and the
prospective income. The claimants have not placed any
(2017) 6 SCC 680
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evidence to prove, how the future income of the deceased
would rise to that extent if he was alive. In the absence of
any evidence, the principle of law laid down in the case of
Pranay Sethi, cannot be deviated. The judgment referred to
supra was in the facts and circumstances of that case and
not applicable to the present case. In the referred judgment,
the evidence was produced regarding future rise in income to
consider 100% towards future prospects. Moreover no law in
that regard is laid down in that decision.
24. The interest awarded at 12% by the Tribunal is
on the higher side. Considering the current rate of interest
by the Banks rate of interest is reduced to 6% per annum.
Thus, the total compensation is computed as under:
1. Loss of dependency Rs.55,20,816/-
2. Loss of estate and funeral Rs.30,000/-
expenses
3. Spousal, parental and filial Rs.1,60,000/-
consortium (Rs.40,000/-
each)
Total Rs.57,10,816/-
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2. Thus, the claimants would be entitled to total
compensation of Rs.57,10,816/- as against Rs.73,00,600/-
awarded by the Tribunal. Hence, we pass the following
order:
ORDER
a. Both appeals are allowed in part.
b. The impugned judgment and award passed by
the Tribunal is modified to the extent that the
claimants would be entitled to total
compensation of Rs.57,10,816/- as against
Rs.73,00,600/- awarded by the Tribunal.
c. The compensation amount shall carry interest
at the rate of 6% per annum from the date of
petition till date of payment.
d. The respondent-Insurance Company shall
deposit compensation amount along with
accrued interest before the Tribunal within a
period of six weeks from the date of receipt of
certified copy of this judgment.
e. Deposit, apportionment and disbursement of
the enhanced compensation shall be made as
per the award of the Tribunal.
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f. Registry to transmit the records to the
Tribunal forthwith.
g. Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
CLK
