Karnataka High Court
Smt Renuka W/O Kallappa Sakri vs Satish S/O Shyamrao Nilugal on 9 January, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:471-DB
MFA No. 100311 of 2023
C/W MFA No. 104687 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.100311 OF 2023 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.104687 OF 2022 (MV-D)
IN MFA NO.100311/2023
BETWEEN:
HDFC ERGO GENERAL INS. COM LTD.,
JINEVA HOUSE, CUNNINGHAM ROAD,
3RD FLOOR, BENGALURU,
BRANCH OFFICE AT OPP. KIMS GATE,
VIDYANAGAR, HUBBALLI,
REPTED BY ITS AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. SMT. RENUKA W/O. KALLAPPA SAKRI,
AGE. 57 YEARS, OCC. HOUSEHOLD,
Digitally
signed by K M
SOMASHEKAR
R/O. KALLANAVAR ONI, BENGERI,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580001.
KM
SOMASHEKAR Date:
2024.01.16
14:46:28
+0530
2. KUMARI. PRATIBHA D/O. KALLAPPA SAKRI,
AGE. 29 YEARS, OCC. HOUSEHOLD,
R/O. KALLANAVAR ONI, BENGERI,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580001.
3. KUMARI. PREETI D/O. KALLAPPA SAKRI,
AGE. 27 YEARS, OCC. HOSEHOLD,
R/O. KALLANAVAR ONI, BENGERI,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580001.
4. SATISH S/O. SHYAMRAO NILUGAL,
AGE. 48 YEARS, OCC. PRIVATE SERVICE,
R/O. DEVANGMETH ONI, NEAR GANESH TEMPLE,
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NC: 2024:KHC-D:471-DB
MFA No. 100311 of 2023
C/W MFA No. 104687 of 2022
BETAGERI-GADAG, TQ AND DIST. GADAG-580001.
...RESPONDENTS
(BY SRI. ANKIT R. DESAI AND
SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATES FOR R1& R3,
SMT. TRUPTI P. SADEKAR AND C.S. SHETTAR, ADVOCATES FOR R4)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 23.09.2022 PASSED
IN MVC NO.341/2020 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, AWARDING
COMPENSATION OF RS.69,15,962/- WITH INTEREST AT 6 PERCENT
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA NO. 104687/2022
BETWEEN:
1. SMT. RENUKA W/O. KALLAPPA SAKRI,
AGE. 54 YEARS, OCC. HOUSE HOLD,
2. KUMARI. PRATIBHA D/O. KALLAPPA SAKRI,
AGE. 26 YEARS, OCC. HOUSE HOLD,
3. KUMARI. PREETI D/O. KALLAPPA SAKRI,
AGE. 24 YEARS, OCC. HOUSE HOLD,
ALL ARE R/O. KALLANAVAR ONI, BENGARI,
TQ. HUBBALLI, DIST. DHARWAD.
...APPELLANTS
(BY SRI. ANKIT R. DESAI AND
SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATES)
AND:
1. SATISH S/O. SHYAMRAO NILUGAL,
AGE. 45 YEARS, OCC. PRIVATE SERVICE,
R/O. DEVANGMETH ONI, NEAR GANESH TEMPLE,
BETAGERI GADAG, DIST. GADAG 582101.
(OWNER OF THE MARUTI OMNI NO.KA-26/M 8841)
2. THE BRANCH MANAGER,
HDFC ERGO GENERAL INSURANCE CO.LTD.,
JINEVA HOUSE, CUNNINGHAM ROAD,
3RD FLOOR, BENGALURU, BRANCH OFFICE
AT OPP. KIMS GATE, VIDYANAGAR, HUBBALLI-580001.
...RESPONDENTS
(BY SMT. TRUPTI P. SADEKAR AND
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NC: 2024:KHC-D:471-DB
MFA No. 100311 of 2023
C/W MFA No. 104687 of 2022
SRI. C.S. SHETTER, ADVOCATES FOR R1,
SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
23.09.2022 PASSED IN MVC NO.341/2020 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
S G PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for orders, they are
taken up for final disposal with the consent of learned counsel
for both the parties.
2. Since both these appeals are against judgment and
award dated 23.09.2022 passed in MVC No.341/2020 on the
file of learned I Addl. Senior Civil Judge & MACT, Hubballi (for
short, 'Tribunal'), they are taken up together for final disposal.
3. MFA No.100311/2023 is filed by the insurance
company challenging the quantum of compensation, whereas
the claimants have filed MFA No.104687/2022 praying for
enhancement of compensation, not being satisfied with
quantum of compensation granted by the Tribunal.
NC: 2024:KHC-D:471-DB
4. The parties would be referred to as they stand in
MFA No.104687/2022 for the sake of convenience.
5. Brief facts of the case are that, the
appellants/claimants, who are mother and sisters of the
deceased Praveenkumar Sakari, filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988 seeking
compensation for the accidental death of Praveenkumar Sakari
that took place on 3.7.2020 involving Motorcycle bearing
registration No.KA-25/EY-5506 and Omni Car bearing
registration No.KA-26/M-8841. It is stated that the deceased
was riding the said motorcycle. It is further stated that as on
the date of accident, deceased was aged 29 years, working in
South Western Railway, drawing a salary of Rs.38,036/- per
month.
6. On issuance of notice, respondents appeared
through their learned counsel and filed separate statement of
objections denying the entire claim petition averments.
Respondent No.1 contended that vehicle is covered by valid
insurance policy and respondent No.2/Insurer is liable to pay
compensation. Respondent No.2-Insurance Company admitted
the coverage of insurance and contended that the driver of
NC: 2024:KHC-D:471-DB
Omni Car was not having valid and effective driving license as
on the date of accident. Thus, sought for dismissal of claim
petition.
7. Before the Tribunal, claimant No.1-mother of the
deceased examined herself as PW1 and also examined PW2-
Assistant Personnel Officer of the Railways to establish income
of the deceased, apart from marking the documents as Exs.P1
to P22, whereas the respondents examined RW1 and marked
documents as Ex.R1 to R3(a). The Tribunal based on the
material on record awarded a total compensation of
Rs.69,15,962/- with interest at 6% per annum from the date of
petition till realization on the following heads:
Loss of dependency Rs.68,43,962/-
Loss of consortium Rs. 40,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Transportation charges Rs. 2,000/-
-------------------
Total Rs.69,15,962/-
-------------------
8. While awarding the above compensation, the
Tribunal assessed monthly income of the deceased at
Rs.34,218/-, added 50% of the assessed income towards future
NC: 2024:KHC-D:471-DB
prospects, adopted multiplier of 17, deducted 1/3rd towards
personal expenses of the deceased.
9. Heard the learned counsel Sri.Nagaraj C Kolloori,
appearing for the insurance company as well as learned counsel
Sri.Ankit R Desai for the claimants and perused the appeal
papers along with original records.
10. Sri.Nagaraj C Kolloori, learned counsel appearing
for the Insurance Company in support of his appeal would
vehemently contend that the Tribunal committed an error in
deducting 1/3rd of the assessed income towards personal
expenses of the deceased, taking into account the sisters of the
deceased as dependents. He further submits that since the
deceased was a bachelor, as per decision of Hon'ble Apex Court
in Sarla Verma & Others Vs. Delhi Transport Corporation
& Another1, 50% of the assessed income has to be deducted
towards personal expenses of the deceased. It is further
submitted that date of birth of the deceased is 7.11.1990 and
as on the date of the accident, the deceased was aged 30 years
8 months, therefore, multiplier of 16 would be applicable
instead of 17 as taken by the Tribunal. He also submits that
(2009) 5 SCC 121
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the deceased was liable to pay a sum of Rs.10,075/- towards
income tax for his taxable income. Thus, he prays for modifying
the judgment and award of the Tribunal by allowing the appeal
filed by the Insurer.
11. Per contra, Sri. Ankit R Desai, learned counsel for
Sri. Mallikarjunswamy B Hiremath, learned counsel for the
claimants in support of his appeal would contend that the
Tribunal committed an error in assessing income of the
deceased at Rs.34,218/- per month by deducting a sum of
Rs.3,077/- towards New Pension Scheme Tier-1, Rs.30/-
towards Central Government Group Insurance Scheme,
Rs.200/- towards Professional tax and Rs.100/- towards Social
Security Scheme. He further submits that a sum of Rs.3,077/-
towards pension scheme, Rs.30/- towards CGIS and Rs.100/-
towards SSS/UBL cannot be deducted from the gross salary,
since those are savings of the deceased from his earnings for
his future benefits. It is his submission that the only deductions
that would be permissible from the salary are, income tax and
professional tax. Thus, he prays for allowing the appeal filed
by the claimants and to dismiss the appeal filed by the insurer.
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12. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original records,
the following points would arise for consideration:
a) Whether the Tribunal is justified in assessing
income of the deceased at Rs.34,218/- per
month?
b) Whether the Tribunal is justified in deducting
1/3rd of the assessed income towards
personal expenses of the deceased?
Our answer to the above points would be in the negative
and affirmative respectively for the following reasons:
13. The accident took place on 3.7.2020 involving
Motorcycle bearing registration No.KA-25/EY-5506 and Omni
Car bearing registration No.KA-26/M-8841, resultant death of
the deceased is not in dispute in these appeals. It is also not in
dispute with regard to employment of the deceased in South
Western Railway. The claimants have placed on record Ex.P13-
Salary Slip of the deceased for the month of April 2020. A
perusal of Ex.P13 would indicate that the deceased was
receiving gross salary of Rs.37,625/- per month and after
deductions, getting net salary of Rs.31,755/- per month. The
Tribunal committed a grave error in deducting a sum of
NC: 2024:KHC-D:471-DB
Rs.3,077/- towards NPST-1, Rs.30/- towards CGIS and
Rs.100/- towards SSS/UBL. Those amounts are earnings of the
deceased and he was contributing the same towards his
personal savings and for future benefits. The only permissible
deductions from the salary of the deceased are, professional
tax and income tax. Admittedly, the claimants have not placed
on record the income tax returns of the deceased. Taking note
of Ex.P13-Salary Slip for the month of April 2020, the deceased
would be liable to pay income tax as per following computation:
GROSS SALARY (Rs.37,625 x 12) 4,51,500
Less: Professional Tax (200 x 12) 2,400
NPST (3077x12) 36924
CGIS (30x12) 360
LIC (1586x12) 19032
SSS (100x12) 1200
Standard Deductions 40000
Total Deductions 99,916
351,584
Total Taxable Income (-250000) 101584
Tax payable as per slab (5%) 5079
Less: Income tax rebate u/s 87A 2500
Tax payable on total income 2579
TOTAL TAX PAYABLE 2656
14. Thus, we are of the view that income of the
deceased shall have to be re-assessed at Rs.4,46,444/- per
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annum (Rs.37,625 per month x 12 = Rs.4,51,500 -
(Rs.2,400/- Professional tax + Rs.2656/- Income tax).
15. Further, the claimants are mother and unmarried
sisters of the deceased Praveenkumar. PW1-mother of the
deceased in her evidence has deposed that deceased son was
only male member in their family and he was the only earning
member. She further deposed that herself and unmarried
daughters were depending on the income of the deceased and
due to death of her son, they are in great financial and
irreparable loss. The Hon'ble Apex Court in Sarla Verma's
case (supra) at paragraphs-30 and 31 has held as under:
30. Through in some cases the deduction to be made
towards personal and living expenses is calculated on
the basis of units indicated in Trilok Chandra, the
general practice is to apply standardised deductions.
Having considered several subsequent decisions of
this Court, we are of the view that where the
deceased was married, the deduction towards
personal and living expenses of the deceased, should
be one-third (1/3rd) where the number of dependent
family members is 2 to 3 one-forth (1/4th) where the
number of dependent family members is 4 to 6, and
one-fifth (1/5th) where the number of dependent
family members exceeds six.
31. Where the deceased was a bachelor and the
claimants are the parents, the deduction follows a
different principle. In regard to bachelors, normally,
50% is deducted as personal and living expenses,
because it is assumed that a bachelor would tend to
spend more on himself. Even otherwise, there is also
the possibility of his getting married in a short time,
in which event the contribution to the parent(s) and
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siblings is likely to be cut drastically. Further,
subject to evidence to the contrary, the father is
likely to have his own income and will not be
considered as a dependent and the mother alone will
be considered as a dependent. In the absence of
evidence to the contrary, brothers and sisters will not
be considered as dependents, because they will
either be independent and earning, or married, or be
dependent on the father.
16. The Hon'ble Apex Court has made it clear that if the
deceased is a bachelor, 50% of the assessed income has to be
deducted towards personal and living expenses of the
deceased, however, it is clarified by observing that in the
absence of evidence to the contrary, brothers and sisters will
not be considered as dependents, because they will either be
independent and earning, or married, or be dependent on the
father. In the instant case, there is evidence on record, which
is unchallenged, to the effect that mother and unmarried sisters
were entirely depending on the income of the deceased.
17. Learned counsel Sri. Nagaraj C Kolloori submitted
that father of the deceased was working in Railways and on his
death, family members are receiving family pension, therefore,
the claimants are not depending only on the income of the
deceased. It is well settled that pension and family pension
cannot be taken note while deciding dependency as held by the
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Hon'ble Apex Court in N. Sivammal & Others Vs.
Managing Director, Pandian Roadways Corporation &
Another2. Moreover, there is no cross-examination with
regard to family pension, dependency or earnings of the sisters
of the deceased by the insurance company. Admittedly, in the
evidence, it has come on record that sisters of the deceased
are unmarried and they were depending on the income of the
deceased brother. In a normal course, if there is no contrary
evidence, 50% of the assessed income shall have to be
deducted towards personal expenses, if he is a bachelor. When
evidence is brought on record with regard to dependency,
taking note of number of dependents, the Tribunal could deduct
1/3rd, 1/4th and 1/5th towards personal expenses of the
deceased. Therefore, we are of the considered view that the
Tribunal was right in deducting 1/3rd towards personal
expenses of the deceased taking unmarried sisters as
dependents, while awarding compensation on the head of loss
of dependency. Thus, there is no merit in the contention of the
insurance company that the Tribunal committed in error in
(1985) 1 SCC 18
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deducting 1/3rd towards personal expenses of the deceased and
same is rejected.
18. Further, as per Ex.P17-Aadhar Card, the date of
birth of the deceased is 7.11.1990. The date of accident is
3.7.2020. Taking note of the same, the age of the deceased as
on the date of the accident would be 29 years 8 months.
Therefore, the Tribunal was justified in taking the age of the
deceased as 29 years and adopting multiplier of 17. There is
no dispute with regard to addition of 50% of the assessed
income towards future prospects since the deceased was in
permanent employment in Railways. Thus, the claimants would
be entitled for modified compensation on the head of loss of
dependency as under:
Rs.4,46,444 + 50%(future prospects) x 17(multiplier) x
2/3(deduction) = Rs.75,89,548/-
19. Further, 1st claimant would be entitled to a sum of
Rs.70,000/- on the conventional heads including loss of
consortium, loss of estate and funeral expenses.
20. Thus, the claimants would be entitled for modified
compensation on the following heads:
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Sl.No. Particulars Amount
1. Loss of dependency Rs.75,89,548/-
2. Loss of estate & Funeral Rs. 30,000/-
expenses
3. Filial Consortium Rs. 40,000/-
Total Rs.76,59,458/-
21. Thus, the claimants would be entitled to total
compensation of Rs.76,59,548/- as against Rs.69,15,962/-
awarded by the Tribunal.
22. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of
Tribunal is modified to an extent that the
claimants are entitled to total
compensation of Rs.76,59,548/- as
against Rs.69,15,962/- awarded by the
Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
d) The appellant-Insurer shall deposit the
enhanced 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.
Pending applications are disposed off as not surviving for
consideration.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
