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2015 DIGILAW 508 (KAR)

REGIONAL MANAGER, UNITED INDIA INS. CO. LTD. v. SHAILAJA

2015-04-29

N.K.PATIL, RATHNAKALA

body2015
JUDGMENT : RATHNAKALA, J. 1. The appeal MFA. No. 8178/2010 and MFA. No. 603/2011 are filed by the Insurance Companies i.e., United India Insurance Company and Oriental Insurance Company, aggrieved by the judgment and award passed by the 14th Additional Judge, Court of Small Causes, Member, MACT, Bengaluru City, in MVC. No. 3842 of 2006, whereby, the Tribunal apportioned the liability of the compensation to be paid to the claimants equally by both the Insurance Companies. The United India Insurance Company in MFA. No. 8178/2010, apart from challenging the quantum of award ordered to be paid, is also challenging it's liability to pay compensation. The grievance of the Oriental Insurance Company in MFA. No. 608/2011 is, the compensation awarded is excessive. In both the appeals, the claimants of MVC. No. 3842/2006 have filed cross appeals. 2. Briefly stated: It is a case of vehicular accident that occurred on 17.11.2005 at 11.00 p.m. on B.M. Road, near Hemagangothri Daba; the deceased was the inmate of the Scorpio Car bearing registration No. KA-35-N-7190. Because of the rash and negligent driving of the vehicle by the driver of the Scorpio Car, the vehicle hit the parked Lorry bearing registration No. KA-02-B-9601. During the accident, the deceased N.L. Prakash sustained grievous injuries and succumbed to the same. On his death, his wife and children filed a petition under Section 166 of the Motor Vehicles Act, 1988, before the MACT, seeking compensation of Rs. 65,00,000/-. The owners and Insurers of both vehicles were arrayed as respondent Nos. 1 to 4. Both Insurance Companies contested the petition. 3. Enquiry was held and the Tribunal on an overall consideration of the evidentiary material placed on record, allowed the petition partly by awarding Rs. 28,05,000/- with 6% interest per annum from the date of the petition payable by both the Insurance Companies equally. 4. Sri Hegde Mulkand, learned Counsel for the appellant of MFA. No. 603/2011/Insurer of Scorpio Car submits, the multiplier of 13' applied to workout 'loss of dependency' was not proper. The appropriate multiplier is 13', having regard to the fact that the deceased was aged 51 years. As per the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , there shall not be addition of 30% towards future prospects, while calculating 'loss of dependency, where deceased is above 50 years. As per the judgment of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , there shall not be addition of 30% towards future prospects, while calculating 'loss of dependency, where deceased is above 50 years. Contrary to the principle laid down by the Apex Court, the Tribunal added 30% towards future prospects to the net salary of Rs. 23,000/- p.m. that enhanced his annual income to Rs. 30,000/-. That apart, while deducting income towards his personal expenses 1/3rd out of Rs. 30,000/-, i.e., Rs. 10,000/- was deducted for the multiplier of 10', at the 1st stage and in the next stage, half of his income was deducted for his personal expenses for multiplying the same with remaining multiplier of 3'. Thereby, 'loss of dependency' is worked out to Rs. 27,60,000/-. It is exorbitant and unreasonable, wherefore the compensation awarded by the Tribunal may be reduced to reasonable amount. 5. Sri A. Ravi Shankar, learned Counsel for the appellant (Insurer of Lorry) in MFA. No. 8178/2010 submits that the vicarious liability of the accident cannot be attributed to the Lorry. The Tribunal has rightly observed that the accident has occurred on account of the rash and negligent driving of the Scorpio Jeep. However, it has attributed the negligence against the driver of the Lorry also. It was a road of 28 feet width with sufficient shoulder margin, the Lorry was parked on the foot path; the jurisdictional police have filed charge-sheet against the driver of the Scorpio Car. In that context, saddling 50% liability on the Insurer of the Lorry is erroneous and illegal. Hence, the Insurance Company may be exonerated of its liability to pay 50% of the award to the claimants. 6. Sri G.M. Srinivasa Reddy, learned Counsel for the claimants/cross-objectors submits that, the deceased was aged 48 years; he was working as Assistant General Manager in M/s. Sandur Manganese and Iron Ores Limited, Malleswaram, Bangalore, drawing a gross salary of Rs. 50,248/-; his net salary was Rs. 46,700/- p.m. after deducting statutory deductions towards provident fund, professional tax and income tax. But the Tribunal without properly assessing the loss of dependency to the claimants and by ignoring the evidence of P.W. 2/employer, awarded less compensation amount. No amount was awarded towards 'Transportation of the dead body'. 50,248/-; his net salary was Rs. 46,700/- p.m. after deducting statutory deductions towards provident fund, professional tax and income tax. But the Tribunal without properly assessing the loss of dependency to the claimants and by ignoring the evidence of P.W. 2/employer, awarded less compensation amount. No amount was awarded towards 'Transportation of the dead body'. The future prospects and promotional opportunity of the deceased ought to have been considered and 30% of his present income should have been added to the actual salary of the deceased. The deductions made was not proper. Instead of interest at the rate of 6% p.a., the Tribunal ought to have been awarded 12% interest per annum. The compensation awarded is inadequate and the same may be enhanced by just and reasonable amount. 7. In the backdrop of the rival submissions from the learned Counsel for both the parties, the point that arise for consideration is: 1. Whether the Tribunal was justified in apportioning the contributory negligence at 50% each on the drivers of both the vehicles thereby, saddling the appellant/Insurance Company of MFA. No. 8178/2010 to pay 50% of the compensation amount is just and reasonable? 2. Whether the compensation awarded by the Tribunal requires enhancement? 8. The admitted facts between the parties is:-- The claimants/appellants are the wife and children of the deceased N.L. Prakash, who expired in the vehicular accident that occurred on 17.11.2005 at 11 p.m., while travelling in a Scorpio Car bearing registration No. KA-35-N-7190, which collided with the parked Lorry bearing registration No. KA-02-B-9601. The claimants contended before the Tribunal that the vehicle was landed by its driver without indicator and signal, thereby the drivers of both the vehicles were responsible for the accident. On behalf of the claimants, the first appellant/widow of the deceased is examined as P.W. 1 and there was no rebuttal evidence. In the circumstances, on over all appreciation of the evidentiary material, the Tribunal recorded its finding that the driver of both the vehicles are responsible for the accident. 9. The deceased was aged 48 years at that point of time, rightly, the Tribunal has chosen the multiplier of 13' following the judgment of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121 . While working out the loss of dependency to the family, the Tribunal considered Ex. Delhi Transport Corporation and Another (2009) 6 SCC 121 . While working out the loss of dependency to the family, the Tribunal considered Ex. P. 17/the salary certificate of the deceased, he was getting actual salary of Rs. 23,000/- p.m. and 30% of the said income was added towards his future income 1/3rd of said amount was deducted towards his personal income and multiplied by multiplier of 10', since he would have enjoyed service of 10 years, had he been alive. For rest of period, 50% of his income was deducted towards his annual income and multiplied by multiplier of 3'. That worked out to Rs. 27,60,000/- towards loss of dependency. Under conventional heads, Rs. 45,000/- was awarded and thereby, the total compensation worked out to Rs. 28,05,000/-. 10. In our considered opinion, the calculation is supported with sound reasoning and we do not propose to interfere with the quantum of compensation awarded by the Tribunal. 11. Coming back to the question of the apportionment of the liability, there was no evidence before the Tribunal to infer that the driver of the Lorry had taken all care while parking the vehicle on the road, by putting on indicators/parking light. The appellant/Insurance Company having not disputed its liability to cover the risk of owner of the Lorry, is made liable to the extent of 50% of the compensation along with the Insurer of the Scorpio vehicle. The apportionment of the liability in our opinion is also well founded and is in accordance with the established norms. In the net, we do not find any merit in the appeals filed by the Insurance Companies or Cross Objections filed by the claimants. Accordingly both MFA. Nos. 8178/2010 and 603/2011 and MFA. Crob. Nos. 144/2012 and 48/2011 are dismissed. Registry is directed to transmit the amount in deposit in MFA Nos. 8178/2010 and 603/2011, to the jurisdictional Tribunal, immediately.