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2019 DIGILAW 1161 (KAR)

New India Assurance Company Limited v. S. Shaffi

2019-06-07

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : K. Natarajan, J. 1. Though these appeals are listed for admission along with I.A.No.1/2015 for condonation of delay in filing MFA No.6200/2015, with consent of learned counsel on both sides, they are heard finally. 2. Mfa No.4288/2015 is filed by the insurance company while MFA No.6200/2015 is filed by the legal representatives of deceased Irfan, both assailing the judgment and award passed by the Motor Accident Claims Tribunal at Bengaluru in MVC No.6006/2013, dated 12.03.2015. 3. For the sake of convenience, parties shall be referred to in terms of the status before the Tribunal. 4. The petitioners, who are the claimants have filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'Act') claiming compensation of Rs.25,00,000/- inter alia, contending that on 18.10.2013, at about 5.00 a.m., one Irfan was walking on the extreme left side near flyover towards Hebbal Circle, Bangluru. At that time, a lorry bearing No.AP-09-Y-7624 came from Esteem Mall towards Hebbal ring road at a very high speed in a rash and negligent manner and dashed against him. As a result, he suffered severe injures and later succumbed to the same on the spot. Petitioner No.1 is the father and petitioner No.2 is the brother of deceased Irfan. They filed claim petition contending that they lost the earning member of their family. The deceased was working as Divisional Executive at Dolphin's D-Mart and was drawing salary of Rs.18,558/- per month and he was contributing the entire amount to the family. Due to untimely death of the deceased, they lost the bread winner of the family. Hence, they claimed compensation on various heads. In pursuance of notice, respondent No.2 being the owner of the vehicle did not appear and contest the claim petition. Hence, he was placed ex parte. Respondent No.1-Insurance Company appeared through the counsel and filed written statement denying the manner of accident and contending that the deceased was abruptly crossing the road without observing the traffic rules and thereby the accident has occurred, as such the deceased has also contributed to the negligence. The petitioners are majors and not entitled for any compensation as they are not dependents. However, it was contended that compensation, if any, may be subject to the terms and conditions of Insurance Policy and the interest may be awarded at 4% per annum and prayed for dismissal of the claim petition. 5. The petitioners are majors and not entitled for any compensation as they are not dependents. However, it was contended that compensation, if any, may be subject to the terms and conditions of Insurance Policy and the interest may be awarded at 4% per annum and prayed for dismissal of the claim petition. 5. Based upon the pleadings, the Tribunal framed the following issues: "(1) Whether the petitioner proves that on 18.10.2013 at about 5.00 a.m., when deceased Irfan was walking on the extreme left side of the road near flyover city upramp, towards Hebbal Circle, Hebbal, Bangalore, at that time, driver of lorry bearing Regn.No.AP- 09-Y-7624 came from Esteem Mall direction towards Hebbal Ring Road with high speed in a rash and negligent manner endangering human life and dashed to him by which Irfan succumbed to the injuries? 2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom? 3. What Order or award?" 6. To substantiate the claim, the claimants examined PWs.1 and 2 and got marked 15 documents as per Exs.P.1 to P.15. Respondent No.1-Insurance Company did not lead any evidence. 7. After considering the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and granted compensation of Rs.25,47,996/- with interest at 6% per annum from the date of petition till complete realization from respondent No.1, which is as under: "(1) Loss of dependency Rs.24,87,996/- (2) Funeral, obsequies and Transportation of dead body Rs. 20,000/- (3) Loss of love and affection Rs. 20,000/- (4) Loss of estate Rs. 20,000/- Total Rs.25,47,996/-" 8. Assailing the quantum of compensation awarded by the Tribunal, Insurance Company preferred MFA No.4288/2015 for reduction of the compensation and the claimants preferred MFA No.6200/2015 seeking enhancement by additional compensation of Rs.10,00,000/- in their appeal. 9. Learned counsel for the appellant-Insurance Company contended that the Tribunal has erred in adding 50% of the future prospects and also committed error in not deducting statutory deductions as also in not taking the multiplier of 5' corresponding to the age of claimant No.1. Hence, prayed for reduction of the compensation awarded by the Tribunal. 10. Per contra, learned counsel for claimants contended that the income of the deceased was Rs.18,558/- per month, but the Tribunal has committed error in calculating the monthly income of the deceased at Rs.15,358/-. Hence, prayed for reduction of the compensation awarded by the Tribunal. 10. Per contra, learned counsel for claimants contended that the income of the deceased was Rs.18,558/- per month, but the Tribunal has committed error in calculating the monthly income of the deceased at Rs.15,358/-. The loss of consortium was not awarded as per the dictum of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 . Therefore, prayed for enhancement of compensation. 11. Upon hearing the arguments of learned counsel on both sides, perused the evidence on records. 12. The points that arise for our consideration are: (i) Whether the Tribunal is not justified in passing the award of Rs.25,47,996/- to the claimant as contended by the insurer? (ii) Whether the claimants are entitled for enhancement of compensation? (iii) What order?" 13. The claimants have contended that the accident occurred on 18.10.2013, at about 5.00 a.m., when the deceased Irfan was walking on the extreme left side near flyover towards Hebbal Circle, Bangluru. At that time, a lorry bearing No.AP-09-Y-7624 came from Esteem Mall towards Hebbal ring road at a very high speed in a rash and negligent manner and dashed against him. As a result, he suffered severe injuries and succumbed to the same on the spot. The claimants produced copies of the FIR, complaint, spot sketch, panchanama, charge sheet, inquest report, Post Mortem Report, IMV Report before the Court. Though the respondent-Insurance Company cross-examined PW.1, but did not enter into witness box to disprove the evidence of PW.1. The respondent-Insurance Company contended that there was contributory negligence on the part of deceased Irfan, but there are no grounds made out in their appeal regarding the findings recorded by the Tribunal in holding rash and negligent driving of the lorry by its driver. From the evidence of PW.1 and the documents, it is clear that the claimants are successful in establishing that the accident has occurred due to rash and negligent driving of the lorry by its driver, due to which the deceased sustained injuries and succumbed on the spot. 14. As regards the quantum of compensation, the claimants contended that the deceased Irfan was working as Divisional Executive at Dolphin's D-Mart and was drawing salary of Rs.18,558/- per month. 14. As regards the quantum of compensation, the claimants contended that the deceased Irfan was working as Divisional Executive at Dolphin's D-Mart and was drawing salary of Rs.18,558/- per month. To support their claim, the claimants also got marked the pay-slip of the deceased as per Ex.P.14. The claimants also examined PW.2, the employer of the deceased and got marked Ex.P.11-appointment letter, Ex.P.13-Identify Card of the deceased and Ex.P.15-Bank Statement. These documents were not seriously disputed by the respondent-Insurance Company in the cross examination of PWs.1 and 2. The pay-slip Ex.P.14 goes to show that the deceased was earning Rs.18,558/- per month as gross salary. The Tribunal has deducted an amount of Rs.3,200/-. On perusal of the salary slip, Professional Tax of Rs.200/- has been deducted by the employer and Rs.3,000/- has been deducted towards personal expenses, which is not a statutory deduction. The Tribunal has committed error in deducting Rs.3,200/- per month. Only Professional Tax of Rs.200/- which is statutory deduction is permissible to be deducted from the gross salary. Therefore, we propose to deduct only Rs.200/- from the gross salary of Rs.18,558/-, which comes to Rs.18,358/-. 15. Learned counsel for the respondent-Insurance Company contended that, the Tribunal contended error in not considering the age of the first claimant for determining the multiplier and taking the age of the deceased. The submission of learned counsel appellant is not acceptable as it is well settled by the Hon'ble Apex Court in the case Pranay Sethi (supra), the age of the claimants has nothing to do with the multiplier. The Court is required to take the age of the deceased for considering the multiplier. Therefore, we propose to consider multiplier 17, as the age of the deceased is taken at 27 years. It is also held by the Hon'ble Apex Court in the case of Pranay Sethi (supra) that the age group of 40 years, 50% of the income should be considered as future prospects when the deceased had fixed salary. If the income of the deceased is considered at Rs.18,358/-, and 50% of the income towards future prospects at Rs.9,179/- is added, it comes to Rs.27,537/-. The claimants are only two in number. If the income of the deceased is considered at Rs.18,358/-, and 50% of the income towards future prospects at Rs.9,179/- is added, it comes to Rs.27,537/-. The claimants are only two in number. Therefore, as per the dictum of the Hon'ble Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation Limited and another, (2009) 6 SCC 121 , 50% of the income shall be deducted towards personal expenses of the deceased. If 50% is deducted from Rs.27,537/- it comes to Rs.13,768.50 x 12x 17, it comes to Rs.28,08,774/-. As per the decision of the Hon'ble Apex Court in the case of Nanu Ram Alias Chuhru Ram vs. Magma General Insurance Co. Ltd., (2018) ACJ 2782, the Court is required to grant loss of filial consortium to the father and Rs.30,000/- to the brother towards loss of love and affection. The Tribunal has not awarded any amount under the head of consortium. Therefore, we propose to award Rs.40,000/- to claimant No.1 towards loss of filial consortium and Rs.30,000/- to claimant No.2 towards loss of love and affection. We also propose to award Rs.15,000/- towards funeral and transportation charges and Rs.15,000/- towards loss of estate. Hence, the compensation is awarded as follows; Loss of Dependency Rs.28,08,774/- Loss of filial consortium to Claimant No.1 Rs. 40,000/- Towards loss of love and affection to claimant No.2 Rs. 30,000/- Funeral & Transportation Rs. 15,000/- Loss of estate Rs. 15,000/- Total Rs.29,08,774/- 16. In the result, the appeal filed by the insurance company is dismissed, while the appeal filed by the respondents-claimants is allowed in-part. The amount in deposit shall be transmitted to the Tribunal. The compensation is re-assessed at Rs.29,08,774/- (Rupees Twenty Nine Lakh Eight Thousand Seven Hundred and Seventy Four Only). The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization. The appellant-insurance company shall deposit the compensation amount within a period of four weeks from the date of receipt of certified copy of this judgment. Out of the said compensation, a sum of Rs.20,00,000/- with proportionate interest shall be apportioned to the first claimant-father of the deceased while a sum of Rs.9,08,774/- with proportionate interest shall be apportioned to the brother of the deceased-second claimant. Parties to bear their respective costs.