Karnataka High Court
Mr. Prabhakaran .M vs Mr A Murali on 5 November, 2024
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NC: 2024:KHC:44492-DB
MFA No.2137/2015
C/W MFA.CROB No.53/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO.2137/2015 (MV-D)
C/W
MFA CROSS OBJECTION NO.53/2015 (MV-D)
IN MFA NO.2137/2015
BETWEEN:
M/S.ORIENTAL INSURANCE COMPANY LIMITED
NO.12, KATPADI ROAD
GUDIYATHAM - 632 602
NOW REPRESENTED BY ITS
REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD, BENGALURU - 560 025
REP. BY ITS AUTHORIZED SIGNATORY ...APPELLANT
Digitally (BY SRI. A M VENKATESH, ADVOCATE)
signed by K S
RENUKAMBA AND:
Location:
High Court of
Karnataka 1. MR.PRABHAKARAN M
S/O MADAVAN NAIR R
AGED ABOUT 60 YEARS
2. MEENAKSHI T
W/O PRABHAKARAN M
AGED ABOUT 57 YEARS
BOTH ARE R/AT NO.P.226, SECTOR X,
8TH MAIN, LIC COLONY
JEEVANBHIMA NAGAR
BENGALURU - 560 075
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MFA No.2137/2015
C/W MFA.CROB No.53/2015
3. MR. A. MURALI
S/O ANANDAN
R/AT 5TH CROSS,
JAYANAGAR EXTENSION
KOLAR DISTRICT - 563 101
(OWNER OF THE LORRY BEARING
REG.NO.KA-07/6174) ... RESPONDENTS
(BY SRI.NAGARAJ B, ADVOCATE FOR R1 AND R2;
SERVICE OF NOTICE ON R3 IS HELD SUFFICIENT
V/O DATED:29.03.2021)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 15.12.2014 PASSED IN MVC NO.6707/2012 ON
THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM MEMBER-
MACT, BANGALORE, AWARDING COMPENSATION OF RS.93,42,000/-
WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA.CROB NO. 53/2015
BETWEEN:
1. MR.PRABHAKARAN M
S/O MADAVAN NAIR R
AGED ABOUT 57 YEARS
2. MRS.MEENAKSHI T
W/O PRABHAKARAN M
AGED ABOUT 57 YEARS
BOTH ARE R/AT NO.P.226, SECTOR X,
8TH MAIN, LIC COLONY
JEEVANBHIMA NAGAR
BENGALURU - 560 075 ... CROSS OBJECTORS
(BY SRI.NAGARAJ B., ADVOCATE)
AND:
1. MR A MURALI
S/O ANANDAN,
R/AT 5TH CROSS,
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MFA No.2137/2015
C/W MFA.CROB No.53/2015
JAYANAGAR EXTENSION,
KOLAR DISTRICT - 563 101
2. THE ORIENTAL INSURANCE COMPANY LTD.,
NO.12, KATPADI ROAD
GUDIYATHAM-632 602
REP. BY ITS REGIONAL OFFICE
THE ORIENTAL INSURANCE
COMPANY LTD., NO.43/44,
LEO COMPLEX, RESIDENCY ROAD,
BANGALORE - 560 001. ... RESPONDENTS
(BY SRI.A.M.VENKATESH, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O DTD: 14.03.2023)
THIS M.F.A. CROSS OBJECTION IS FILED UNDER ORDER XLI,
RULE 22 OF CPC, READ WITH SECTION 173(1) OF MV ACT PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 15.12.2014 PASSED
IN MVC NO.6707/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL
CAUSES JUDGE, XXXIII ACMM, MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROSS OBJECTION HAVING BEEN
RESERVED FOR JUDGMENT ON 22.10.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CAV JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Challenging the award in MVC No.6707/2012 passed by
VIII Addl. Small Causes Judge & MACT (SCCH-5), Bengaluru
Insurer has preferred MFA No.2137/2015 and the claimants
have preferred Crob. No.53/2015.
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2. The appellant in MFA No.2137/2015 was respondent
No.2. Respondent Nos.1 and 2 in the said case were claimant
Nos.1 and 2 and respondent No.3 was respondent No.1 in MVC
No.6707/2012. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the
Tribunal.
3. The brief facts of the case are as follows:
Claimant Nos.1 and 2 are the father and mother of
Pritish. On 03.10.2012 at 08.40 p.m. when the victim Pritish
was riding his motor cycle bearing No.KA-02-ES-579 along
with his friend as pillion rider near Kuvempu circle on MES Ring
Road, Jalahalli, Bengaluru, lorry bearing No.KA-07-6174 hit
them from the hind side and caused his spot death. At the
time of the accident respondent Nos.1 and 2 were the
registered owner and insurer of lorry No.KA-07-6174.
4. Claimants filed MVC No.6707/2012 claiming
compensation of Rs.1 crore from the respondents on the
ground that the accident occurred due to the actionable
negligence on the part of the driver of the lorry, Pritish was
working as Manager Pre-Sales in Nuvento Systems Private Ltd
and was earning Rs.60,635/- per month. They claimed that
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they were dependent on the income of the deceased and
suffered damages due to his death. They claimed that
respondents are liable to compensate the damages caused to
them.
5. Respondent No.1 did not contest the petition.
Respondent No.2/Insurer contested the petition denying the
actionable negligence on the part of the driver of the lorry, age,
occupation and income of the deceased and its liability to pay
the compensation. Respondent No.2 further contended that
the driver of the lorry was not holding valid licence and there is
violation of policy conditions, therefore, it is not liable to
indemnify the liability of respondent No.1.
6. To substantiate the claim of claimants, claimant
No.1 was examined as PW.1 and the official of the employer of
the deceased was examined as PW.2. On behalf of the
claimants Ex.P1 to P24 were marked. Respondents did not lead
any evidence.
7. The Tribunal on hearing the parties by the
impugned award held that the accident occurred due to
actionable negligence on the part of the driver of the lorry. The
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Tribunal based on the evidence of PWs.1 and 2 and the
documents produced by PW.2, considered annual income of the
deceased as Rs.7,27,620/-, added 50% future prospects to the
same, deducted 50% out of the same for the personal
expenses of the deceased, applied 17 multiplier and awarded
compensation of Rs.92,77,155/- on the head of loss of
dependency. Rs.50,000/- for loss of love and affection and
Rs.15,000/- for funeral expenses. The Tribunal in all awarded
compensation of Rs.93,42,000/- with interest at 6% per annum
on different heads as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 92,77,155/-
2. Loss of love and affection 50,000/-
3. Funeral expenses 15,000/-
Total 93,42,155/-
Rounded off to 93,42,000/-
8. Both Insurer and claimants have challenged the
award in the above appeal and cross objection on the question
of quantum.
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Submissions of Sri A.M.Venkatesh, learned counsel for the
appellant/Insurer:
9. The evidence of PW.2 regarding the income is not
reliable. Salary slip was not proved. In the absence of
production of income tax returns, bank account statement of
the deceased, the Tribunal was in error in accepting the
evidence that the deceased was earning monthly salary of
Rs.60,635/- and annual salary of Rs.7,27,620/-. Since the
deceased was not permanently employed adding 50% by way
of future prospects is incorrect. Compensation awarded on
other heads is also on higher side. Awarding interest on the
future prospects is erroneous.
10. In support of his submissions, he relied on the
following judgments:
i) Chandrakala vs. Dilipkumar1
ii) Malarvizhi & ors vs. United India Insurance Co.Ltd2
Submissions of Sri Nagaraj B for claimants/Cross objectors:
11. The Tribunal was in error in holding that claimant
No.1 was not dependent on the deceased. For the education of
the deceased, claimant No.1 had availed huge loan. Having
(MFA No.1662/2023 DD 02.07.2024)
(Civil Appeal No.9196-97/2019 @ SLP (C) Nos.9630-31/2019
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regard to his qualification, the income of the deceased
considered by the Tribunal is on the lower side. The
compensation awarded on the other heads is on the lower side.
Claim petition ought to have been allowed as prayed.
12. On careful examination of the submissions of both
side and material on record, the question that arises for
consideration is:
"Whether the compensation awarded by the Tribunal
under the impugned award is just one ?"
Analysis
13. Even the respondents did not dispute the
occurrence of the accident involving lorry bearing No. KA-07-
6174 and motor cycle of the deceased bearing No.KA-02-ES-
579. It is also not disputed that respondent Nos.1 and 2 are
the registered owner and insurer of the said lorry. To prove the
occurrence of the accident was due to the actionable negligence
on the part of the driver of the lorry, the claimants relied on
FIR/Ex.P1, charge sheet/Ex.P2, spot mahazar/Ex.P3, sketch of
scene of offence/Ex.P4 and IMV report/Ex.P5. There is no
dispute that regarding the accident one Sri Ram filed complaint
against the driver of the lorry. Based on the same, Ex.P1/FIR
in Crime No.185/2012 of Yeshwantpura Police was registered.
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On investigation, Police filed charge sheet as per Ex.P2 against
the driver of the lorry for the offences punishable under
Sections 279, 337, 304A of IPC and Section 134 (a) and (b)
read with Section 187 of the MV Act. Exs.P1 to P6 are the
prima facie proof of the actionable negligence on the part of the
driver of the lorry. Presumption under the said documents was
not rebutted by examining the driver of the lorry.
14. As per Ex.P7 the driving license of the deceased
produced by the claimants, the date of birth of the deceased
was 03.04.1984. Therefore, as on the date of the accident he
was aged 28 years. To prove the educational qualification and
the income of the deceased, the claimants relied on the
evidence of PWs.1 and 2 and Exs.P10 to P24. Exs.P12 and P13
show that the deceased was BE degree holder in Electrical and
Electronics Engineering and he had completed MBA degree also
in Marketing.
15. The evidence of PW.2 and Ex.P24 show that the
deceased was appointed in Nuvento Systems Pvt. Ltd as
Manager Pre-Sales on 01.02.2011 and he worked as such up to
his death on 03.10.2012. The evidence of PW.2 cannot be
disbelieved merely on the ground that he was working in Kerala
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branch of the company. Further, fact of employment of
deceased in the said company and salary slip were questioned
in the evidence of PW.2, merely on the ground that income tax
returns were not produced. PW.2 had no personal interest in
the matter, therefore, Tribunal was justified in accepting his
evidence. Pay-slip of the deceased for the month of September
2022 shows that his gross salary was Rs.57,777/-. Out of that,
the employer himself deducted Rs.2094/- towards income tax
and Rs.200/- towards professional tax. After deducting the
same his net salary comes to Rs.55,483/- p.m.
16. Having regard to the age of the deceased, his
employment and the judgment of the Hon'ble Supreme Court in
National Insurance Company Limited vs. Pranay Sethi3, the
Tribunal was justified in adding 50% to the income of the
deceased by way of future prospects. Therefore, monthly
income comes to (55,483 + 27,742=) Rs.83,225/-. As the
deceased was bachelor, in view of the judgment of the
Supreme Court in Sarla Varma v. Delhi Transport Corporation4,
Tribunal rightly deducted 50% from his income towards his
personal expenses. Therefore, monthly contribution to the
AIR 2017 SC 5157
AIR 2009 SC 3104
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family comes to (83,225 X 50%=) 41612.5, rounded off to
Rs.41,613/-. The applicable multiplier is 17. Therefore,
compensation payable on the head of loss of dependency
comes to (41,613 X12 X 17) Rs.84,89,052/-.
17. As per the judgment of the Hon'ble Supreme Court
in Pranay Sethi's case referred to supra, claimants are entitled
to compensation of Rs.40,000/- each with escalation of 10% on
the head of loss of consortium which comes to Rs.88,000/-. On
the heads of funeral expenses and loss of estate, the claimants
are entitled to Rs.15,000/- + Rs.15,000/- with escalation of
10%. Therefore, just compensation payable is as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 84,89,052/-
2. Loss of consortium 88,000/-
3. Loss of Estate and Funeral 33,000/-
expenses
Total 86,10,052/-
18. For the aforesaid reasons, appeal and cross
objection deserve to be allowed in part. Hence the following:
ORDER
i) Appeal and the cross objection are partly allowed.
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ii) The impugned award in MVC No.6707/2012 passed
by the Tribunal is modified as follows:
a) Claimants are entitled to compensation of
Rs.86,10,052/- with interest at 6% per annum
from the date of petition till its realization.
b) Respondent No.2/Insurer shall deposit the said
amount before the Tribunal within four weeks from
the date of receipt of copy of this judgment.
c) The award of the Tribunal with regard to
apportionment of the compensation amongst the
claimants and investment in Fixed Deposit is
maintained.
d) The amount deposited, if any, before this Court and
the TCRs shall be transmitted to the Tribunal
forthwith.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
AKC
