Karnataka High Court
The Branch Manager vs K. Chandrakala on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 201600 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 201600 OF 2024 (MV-D)
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
1ST FLOOR, KATKAM KRISTAYYA COMPLEX
CITY TAKIES ROAD
RAICHUR-584 101
REPRESENTED BY ITS
AUTHORIZED OFFICER
...APPELLANT
(BY SRI. MANVENDRA REDDY, ADVOCATE)
AND:
Digitally signed by 1. K. CHANDRAKALA
SHAKAMBARI
W/O LATE KURVA GOPAL @
Location: HIGH
COURT OF GOPALKRISHNA AND
KARNATAKA D/O K. RAMANJANEYALU
AGED ABOUT 27 YEARS
OCC.:HOUSEWIFE
R/O H.NO. 9-128, LEEJA
2. GANGAMMA
W/O HANUMANTHU
AGED ABOUT 57 YEARS
OCC:HOUSEWIFE
3. HANAMANTHU
S/O MAREPPA
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MFA No. 201600 of 2024
AGED ABOUT 63 YEARS
OCC: NIL
4. GOPAL KRISHNA
S/O HANUMANTHU
AGED ABOUT 27 YEARS
OCC:STUDENT
5. CHINNA KONDAIAH
S/O HANUMANTHU
AGED ABOUT 34 YEARS
OCC:NIL
DUE TO PHYSICALLY DISABLED PERSON
ALL R/O H.NO. 2-24, GHATTU MANDAL
KALOOR, TIMMANADODDI
NANDINNE
NOW ALL ARE R/O TIMMAPURPET
RAICHUR-584 101
6. SOMAREDDY
S/O BASAVAREDDY
MAJOR
OCC:OWNER OF CAR BEARING
REG NO. KA-03/AE-0568
R/O H.NO.205, JAYAKRISHNA AMD
MAHALAKSHMI ENCALVE
2ND FLOOR, NEAR DEEN'S SCHOOL
ECC ROAD, BENGALURU-560066.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE FOR C/R1;
VIDE ORDER DATED 21.06.2024 NOTICE
TO R-6 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 04.03.2024 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE AND M.A.C.T. RAICHUR, IN MVC NO. 308/2020
BY ALLOWING THE APPEAL AS PRAYED FOR IN THE INTEREST OF
JUSTICE AND EQUITY.
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MFA No. 201600 of 2024
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
The appellant-Respondent No.3 in MVC No.308/2020
has assailed the correctness and the legality of the
judgment dated 4.03.2024 by the Principal District and
Session Judge, MACT, Raichur, wherein the learned MACT
has passed a common judgment in MVC No.273/2020,
MVC No.308/2020, MVC No.319/2020 and MVC
No.350/2020. Respondent No.3-Insurance Company in
MVC No.308/2020 has questioned the quantum and
liability by preferring its appeal and no separate appeals
are preferred by this respondent in other MVC cases. Thus,
the common judgment and award so passed in the
aforesaid Motor Vehicle Cases except MVC No.308/2020
has attained finality.
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Brief and relevant facts as a set out in the petition
filed by the petitioners is as under:
2. That on 29.4.2020 at 7.00 p.m., the injured
Parvathi, deceased Kurva Gopal @ Gopalakrishna, injured
Chandrakala and another injured Shivaraj Kumar were the
inmates of car bearing Registration No.KA-03/AE-0568 and
were proceeding from Bengaluru to Raichur in the said car.
When the said car was moving on Sindhanur- Raichur Main
Road, nearby Ramathnal cross within Mannikeri Camp, the
driver of the said car drove the car in high speed, in a rash
and negligent manner endangering human life, dashed to
a roadside neem tree and thereby, the said car turtle down
on the road itself. Because of this accident, the inmates of
the car sustained the grievous injuries on their person and
the driver Kurva Gopal @ Gopalakrishna died on the spot.
The aforesaid Parvathi, Chandrakala and Shivaraj Kumar
sustained grievous injuries on their person. On the basis of
complaint, Balaganoor Police registered the F.I.R. against
the driver of the car and took up investigation and filed
charge sheet against the driver of the car. The claimants
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being the dependents of Kurva Gopal @ Gopalakrishna and
injured Parvathi, Chandrakala and Shivaraj Kumar filed
claim petitions before the Tribunal claiming compensation.
3. Before the Tribunal, on notice, respondent no.2
the owner of the car bearing No.KA-03/AE-0568 remained
absent and was placed ex-parte.
4. Respondent no.3-Insurance Company appeared
through its Panel Counsel and filed written statement. In
its written statement, it is inter alia contended that, in
order to get the compensation, a false case is registered in
collusion with the police. The said driver of the car was not
holding the effective permit, fitness certificate and also
was not holding the effective driving license. Therefore,
there is violation of the policy conditions by respondent
No.2 in permitting the driver to drive the car. The claim of
the petitioner/claimants is exorbitant and highly excessive.
Thus, respondent No.3-Insurance Company prayed to
dismiss all the petitions.
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5. Based upon the rival pleadings of both the
parties, the learned Tribunal framed issues in MVC No.
308/2020 as under:
"1. Whether petitioner proves that, on
30.04.2020 at about 5.00 a.m, when the driver
of a Car bearing No.KA-03/AE-0568 has driven
his car on Sindhanur-Raichur Main Road, near
Ramthnal Cross in Mannikeri Camp in high
speed, rash and negligent manner, dashed
against a road side tree capsize the ame, on
account of the same husband of claimant no.1
namely Gopal @ goplakrishna succumbed
grievous injuries and died on account of
accidental injuries as contended in the petition?
2. Whether petitioners are entitled for
compensation, if so, how much and from
whom?
3. What order or award?"
6. Before the Tribunal, to substantiate the case of
the claimants, claimant No.1 in MVC No.308/2020 was
examined as PW.2 and on behalf of the claimants in this
petition, Ex.P42 to P46(4) were marked through PW.2,
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closed the claimant's evidence. One Mr.Sendu Natarajan
the official of the Insurance Company was examined as
CW.1 and on behalf of the Insurance Company Ex.C1 to
C5 got marked, closed its evidence.
7. The learned Tribunal, having heard the
arguments on both the side and on assessment of the
evidence placed on record held that, the said accident has
taken place because of the rash and negligent driving of
the car by its driver and it is held that, Insurance
Company as well as the owner of the said car are held
liable to pay the compensation. The Tribunal awarded
compensation of Rs.1,16,83,687/- to the claimants in MVC
No.308/2020 with an observation that respondent No.2
and 3 are jointly and severally liable to pay the
compensation and however appellant - Insurance company
was directed to indemnify the compensation together with
interest @ 6% per annum from date of petition till deposit
and in case of default, the Insurance company was held
liable to pay the default interest @ 12% per annum till
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final realization within three months from the date of
award. This is how now the appellant-Insurance company
has come up in this appeal by challenging the quantum of
compensation as well as liability.
8. We have heard the arguments of learned
counsel for the appellant-Insurance Company as well as
claimants/respondents and meticulously perused the
records.
Arguments of Appellant/Insurance Company:
9. It is submitted by the counsel for the
appellant/Insurance Company Shri.Manvendra Reddy that,
there is a violation of the policy conditions by the owner of
car. The driver of the said offending car who died in the
accident was not holding the effective driving license. He
was not possessing any permit or fitness certificate.
Therefore, as there is violation of the policy conditions, the
Insurance Company is not liable to pay the compensation.
He would further submit that, whatever the compensation
so awarded by the Tribunal is highly excessive and
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exorbitant. The gross salary has been stated as
Rs.51,168/- as the deceased was a Software Engineer
working in Capgemini Technology Services India Limited,
his net salary was shown as Rs.48,685/- . As per the
records, he was an income tax assessee. He would submit
that the income tax is not deducted. According to his
submission, the deceased had to pay the Professional Tax
of Rs.200/- per month. That also has not been deducted
by the Tribunal. According to him for the relevant tax
assessment year, income tax was liable to be paid by the
deceased was up to Rs.2,50,000/- is nill and Rs.2,50,001/-
to Rs.5,00,000/- is 5% and from Rs.5,00,001/- to
6,00,000/- is 20%. He would submit that, the tax has to
be deducted from the total income. The Tribunal has not
considered with regard to the deduction of income tax.
Arguments of Respondent/Claimant:
10. As against this submission, the learned counsel
for the claimants would submit that there were five
dependents. Deceased was aged 28 years at the time of
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accident. As he was having five dependents, 1/4th of his
income is to be deducted towards his personal expenses.
As per the age of the deceased and in view of the
judgment in Sarla Verma v. DTC, reported in (2009) 6
SCC 121, the proper multiplier applicable is '17'. The
learned counsel for the claimants is fair enough to submit
that professional tax, income tax has to be deducted from
the monthly salary of the deceased. But, he would submit
that whatever the compensation so awarded by the
Tribunal is just, reasonable and proper. He would submit
that the claimants have not preferred any independent or
separate appeal seeking enhancement of compensation.
Thus, it is submitted by the counsel for the claimants to
dismiss the appeal by confirming the judgment and award
passed by the Tribunal.
11. We have given our anxious consideration to the
arguments of both the side and perused the records. In
view of the rival submissions of both the side, the only
point that would arise for our consideration is:
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"Whether the Tribunal has committed any
illegality or infirmity in awarding the compensation
and fastening the liability on the Insurance
Company?
12. So far as accident that occurred on 29.04.2020
at 7.00 p.m. on Sindhanur - Raichur Main Road, nearby
Ramathnal cross within Mannikeri camp, is concerned is
not in dispute. So also it is not in dispute that the
deceased Kurva Gopal @ Gopalkrishna was driving the car
bearing registration No.KA-03/AE-0568 and in the said car
Parvathi, Chandrakala, Shivarajkumar were the inmates.
They sustained injuries on their person. According to the
case of the claimants, because of rash and negligent
driving of the said car by the deceased, the said accident
has taken place. To prove the said fact, before the
Tribunal, the claimants relied upon various documents.
Amongst them, they rely upon certified copy of the FIR,
Charge sheet, Spot Panchanama, M.V. Report marked in
MVC.No.350/2020 marked as Exs.P1 to P4. So also, the
present claimants also relied upon the inquest
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Panchanama on the dead body of the deceased Kurva
Gopal @ Gopalakrishna and also PM report at Ex.P43.
These documents do demonstrate that, Police after
investigation have filed a Charge-sheet against the driver
of the said car who was the deceased and it is alleged that
because of rash and negligent driving of the car by the
driver, the said accident has taken place. The Spot
Panchanama do establish that how the said accident has
taken place. The Motor Vehicle Accident report shows that
the said accident has taken place not because of any
mechanical defects in the said vehicle. Further, 'B' extract
of the said vehicle, fitness certificate along with the permit
are produced. These documents have not been denied by
the appellant-Insurance Company. That means as on the
date of accident there was a permit to ply the said vehicle.
It was fit to ply on the road, was in a movable condition
and the driver was possessing the effective driveling
licence. The said documents are marked as Exs.P.46(1),
46(2), 46(3) and Ex.P46(4). If all these documents
coupled with the oral evidence of PWs.1 to 3 being the
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inmates of the car at the relevant time is read together, as
rightly observed by the learned Tribunal, it is proved that
the said accident has taken place because of the rash and
negligent driving of the car by its driver.
Re. Assessment of Compensation:
13. So far the income of the deceased is concerned,
as per the claimants, deceased was a software Engineer
working in Capgemini Technology Services India Limited
and his last drawn salary for the month of April 2020 was
shown as Rs.51,168/-. He had to pay the professional tax
to the extent of Rs.200/- per month. Thus, the total salary
per month would be Rs.50,968/- per month. Annually, it
comes to Rs.6,11,616/- (Rs.50,968 X 12). Thus, the total
annual salary of the deceased, comes to Rs.6,11,616/-.
The Tribunal has not taken into consideration the income
tax to be paid by the claimant towards his salary income.
The arguments of the learned counsel for the appellant
submitted that the income tax slab is to be taken for the
year 2020-21, but as the incident has occurred on
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29.04.2020, so while calculating the income tax, we have
to consider the slabs during the year 2019-20 as per the
Income Tax rules, the taxable income is shown below:
Sl.No. Slab of Tax Rate Tax to be
Income paid
Total Income of the deceased Rs.6,11,616 ------
1. Up to Nil
Rs.3,00,000 ------
2. Rs.3,00,001 - 5% Rs.15,000.00
Rs.5,00,000 (Rs.6,11,616- Rs.3,00,000)
(Rs.3,00,000X5%)
3. Rs.5,00,001 - 20% Rs.2,323.00
Rs.10,00,000 (Rs.3,11,616-Rs.
3,00,000=Rs.11,616X20%)
4. Above 30% ------
Rs.10,00,001
Total Rs.17,323.00
Thus the total salary income of the deceased comes
to Rs.5,94,293 (Rs.6,11,616 - Rs.17,323).
14. As per the judgment in National Insurance
Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC
680, 50% is to be added towards the future prospects
that comes to Rs.2,97,146/- thus the total income of the
deceased is worked out at Rs.8,91,439/-.
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15. While awarding the compensation, the Tribunal
has taken into consideration so many aspects. It is
observed by the Tribunal that the claimant Nos. 4 and 5
are the brothers and they cannot be considered as
dependents. Claimant No.1 is the wife and the claimant
No. 2 and 3 are the parents of the deceased and claimant
No. 4 is the brother of the deceased who was studying at
the time of incident. Claimant no.5 is also a brother who
is physically disabled. According to the case of the
claimants, the deceased was the elder person in the family
and was taking care of all these claimants. As claimant
No.4 was a student and a claimant No.5 was the disabled
person, as rightly observed by the Tribunal, claimants
were depending upon the income of the deceased. Even
disability certificate is also produced by the claimants at
Ex.P46. While marking this document the Insurance
Company has not raised any objections. While determining
the compensation, all these factors of dependency have to
be taken into consideration as laid down by the Hon'ble
Apex Court in Pranay Sethi supra. As the claimants have
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lost their earning member of the family in the said
accident, they must have been put to mental shock and
agony. It is observed by the Tribunal that the very
accidental death message to a family members would
have brought them unbearable shock. As per judgment in
Pranay Sethi supra, while calculating the award of
compensation, one has to keep in mind with regard to the
income of the deceased, his future prospects and age.
Hence, now we have to assess the compensation as per
the guidelines laid down in the said judgment. As per the
P.M. report, the age of the deceased was 28 years at the
time of accident, therefore, the proper multiplier that is
applicable is '17' as rightly held by the learned Tribunal.
P.M. report is the only document to show his age. This
document is not disputed by the Insurance Company.
16. The deceased had 5 dependents. Therefore
1/4th of his income is to be deducted towards his personal
expenses and 3/4th of his income has to be considered for
reckoning the loss of dependency. That means
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Rs.8,91,439 has to be multiplied with 17 X 3/4th comes
to Rs.1,13,65,847/-. Thus towards loss of dependency, the
claimants are held entitled for Rs.1,13,65,847/-.
Re. Loss of Consortium:
17. Claimants are entitled for the compensation
towards the loss of consortium. As all dependants have
lost their earning member in the family. It has come in
evidence of the claimants that, at the time of accident this
claimant No.1 was aged 22 years. Therefore, she is
entitled for compensation towards the loss of consortium
to an extent of Rs.40,000/-. Claimant Nos.2 and 3 being
the parents are entitled for consortium at Rs.40,000/-
each. Claimants no.4 and 5 being student and disabled are
also entitled for loss of consortium as they have lost their
brother who was taking care of education and other
requirements. Hence, both are entitled for loss of
consortium to the extent of Rs.40,000/- each. Claimants
no.1 to 5 being the dependants are entitled for
Rs.40,000/- each towards loss of consortium with 10%
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hike. Thus, they are entitled for Rs.2,00,000/- + 20,000
= Rs.2,20,000/-.
18. Thus the claimants are held entitled for
compensation under the following heads that is:
Sl. Heads Amount of
No. compensation
(Rs.)
1. Loss of dependency 1,13,65,847.00
2. Loss of consortium 2,20,000.00
3. Funeral expenses 15,000.00
4. Loss of eEstate 15,000.00
Total 1,16,15,847.00
Thus, the claimants are held entitled for
Rs.1,16,15,847/-.
19. The learned Tribunal has wrongly awarded
compensation towards mental shock, agony which is not
permissible. So also has awarded higher compensation
towards loss of estate and transportation. It ought to have
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followed the guidelines enumerated in the judgment of
Pranay Sethi supra which holds the field.
20. As narrated supra though the Insurance
Company has challenged the award on the question of
quantum as well as liability, so far as fastening of liability
in other connected MVC cases i.e., in MVC No.319/2020
and 315/20, no separate appeal is preferred by the
Insurance Company perhaps conceding the liability
fastened on the Insurance Company. But in this appeal the
liability is questioned, whereas, the claimants in all these
connected cases have produced the relevant documents
and even existence and validity of the insurance policy as
on the date of the accident is concerned is not in dispute.
Even RW.1 admits the same. There was a fitness
certificate, there was a permit, so also the driver of the
said car was holding the effective driving license as on the
date of accident. There is no evidence placed on record by
the insurance company that, there is a violation of the
policy conditions by the owner of the said vehicle. If that is
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so the initial liability is on the owner of the offending
vehicle as the insurance policy was valid and was in force
as at the time of the accident. Liability to pay the
compensation is joint and several on owner of the car and
insurance Company. However the Insurance Company has
to indemnify the said compensation amount.
21. Accordingly, we pass the following:
ORDER
(i) Appeal filed by the Insurance Company is
allowed in-part.
(ii) Claimants are held entitled for
compensation of Rs.1,16,15,847/- as
against Rs.1,16,83,687/- together with
interest at the rate of 6% p.a from date of
petition till its realization, thereby, there
would be reduction of compensation by
Rs.67,840/-.
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(iii) The order of the Tribunal with regard to
deposit, apportionment and release of
compensation shall remain undisturbed.
There shall be modified award in above
terms.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/-
