Manager Reliance General Insurance Co. Ltd. v. Shivaleela
2019-09-11
B.M.SHYAM PRASAD, L.NARAYANA SWAMY
body2019
DigiLaw.ai
JUDGMENT : B.M. Shyam Prasad, J. This appeal is filed by the Insurer of the Tata Indica Car bearing Reg.No.KA-22/1274 calling in question the judgment and award dated 19.11.2013 in MVC.No.1863/2011 on the file of the 5th Additional District Judge and 6th Additional Motor Accident Claims Tribunal, Belagavi (for short, 'the Tribunal'). The Tribunal has allowed the claim petition in MVC.No.1863/2011 in part awarding a sum of Rs.2,55,65,500/- to the claimants viz., the wife and two minor children of the deceased, Sri Prakash Patil. The Tribunal has awarded interest at the rate of 8% per annum from the date of the petition till the date of deposit. 2. The Insurer has filed this appeal challenging the quantum of compensation awarded by the Tribunal. There is no dispute that the deceased Sri Prakash Patil succumbed to the injuries in the road accident on 21.12.2009 at about 04.45 p.m. on Chikkodi- Shankeshwar Road near Nidasosi Gate or that the Insurer is liable to pay just and reasonable compensation to the dependents of Sri Prakash Patil. Further, there is no dispute that the claimants4 respondents No.1 to 3 are the wife and children of Sri Prakash Patil and they are entitled for compensation as his dependents. 3. The necessary details for the purposes of this case could be described as follows: Sri.Prakash Patil was waiting, along with others including students from a nearby college, for a Bus to return to Belgaum. Sri Prakash Patil and the others were waiting for the bus at the edge of the Eastern Side of Chikkodi - Shankeshwar Road measuring 32 feet in width. The Tata Indica Car coming from Chikkodi side ran into Sri Prakash Patil and others who were waiting on the eastern side of the road. The Tata Indica Car was being driven rashly and negligently. Sri Prakash Patil and others namely, Sri.Balasahed Dastagir, Smt. Neelambika Pattar and Sri.Basavaraj Badiger were severely injured and the four others suffered simple injuries. Sri Prakash Patil was shifted to Government5 Hospital, Sankeswar for initial treatment, and he was later shifted to KLE Hospital, Belgaum for further treatment. Sri Prakash Patil who was under treatment in the said Hospital breathed his last on 25.12.2009 at about 08.50 a.m. The jurisdictional police registered FIR in Crime No.298/2009 against the driver of the Tata Indica Car.
Sri Prakash Patil was shifted to Government5 Hospital, Sankeswar for initial treatment, and he was later shifted to KLE Hospital, Belgaum for further treatment. Sri Prakash Patil who was under treatment in the said Hospital breathed his last on 25.12.2009 at about 08.50 a.m. The jurisdictional police registered FIR in Crime No.298/2009 against the driver of the Tata Indica Car. The jurisdictional police, after investigation, filed the Final Report against the driver of Tata Indica Car for offences punishable under Sections 279,337,338,304 (A) of IPC and Section 134 and 187 of the Motor Vehicles Act. 4. The claimants i.e., wife of Sri Prakash Patil, and his two minor children aged about 09 years and 05 years, filed the claim petition in MVC.No.1863/2011 before the Tribunal seeking compensation in a sum of Rs.1,05,00,000/. The owner of the Tata Indica Car and the Insurer were arraigned as parties. The owner of the Tata Indica Car filed his objections statement perfunctorily denying the entire case; the Insurer also6 filed objections statement denying the entire case but with the qualification that the liability of the Insurance Company, if any, would be subject to the terms and condition of the policy. 5. Insofar as the pecuniary loss caused to claimants because of the untimely demise of Sri.Prakash Patil, the claimants contended that Sri Prakash Patil, was an Engineering Graduate from the Karnataka University. He graduated in Engineering in the year 1990. He was also a Post-Graduate in Business Administration from the Karnataka University. He obtained such Post-Graduation in the year 1994. He was employed between 10.04.1996 and 31.07.2003 as Marketing Head with M/s. Gujarat Guardian Limited. 6. Sri Prakash Patil was later employed as Area Sales Manager of East and Central Africa with M/s. Asiaguard Float Glass Company Limited. Sri Prakash Patil was employed with this company between August 2003 and July 2008, and he was earning USD 27,240/- per annum. Sri.Prakash Patil returned to India in the month of July 2008 because of a dispute between his sister and her husband. Sri Prakash Patil had an offer to return to employment with M/s. Asiaguard Float Glass, Co. Ltd., on an annual salary of USD 33,240/-. The claimants were entirely depending on Sri Prakash Patil, and because of the untimely and tragic demise of Sri Prakash Patil in the road accident on 21.12.2009, the claimants are deprived of the support of the only breadwinner.
Ltd., on an annual salary of USD 33,240/-. The claimants were entirely depending on Sri Prakash Patil, and because of the untimely and tragic demise of Sri Prakash Patil in the road accident on 21.12.2009, the claimants are deprived of the support of the only breadwinner. The claimant No.1 has lost consortium of her husband and the minor claimants have lost the love and affection of a doting father. 7. The Owner and the Insurer of the Tata Indica Car, as part of their denial of the entire case, denied these assertions. The claimants examined claimant No.1 as PW.1 and marked Ex.P.1 to P.18 which include the police records, Sri Prakash Patil's academic records and Income Tax Returns filed with the Kenya Income Tax Department. The owner of the Tata Indica car did not lead any evidence. On behalf of the Insurer of this vehicle, Insurance Policy was marked as Exhibit R1, but no ocular evidence was led. 8. The Tribunal framed Issues as regards the reason for the road accident on 21.12.2009, the quantum of compensation payable to the claimants and who should pay such compensation. The Tribunal, on appreciation of evidence, concluded that the driver of the Tata Indica Car was rash and negligent in driving the Car and as such, the owner and the Insurer would be liable to pay compensation. Insofar as the quantum of compensation, the Tribunal has awarded the amounts as mentioned hereinafter: Description Amount Loss of Dependency Rs.2,50,15,200/- Funeral Expenses Rs.25,000/- Cost of Transportation of the Dead Body Rs.5,000/- Loss of Love and Affection for each of the three claimants at the rate of Rs.1,00,000/- Rs.3,00,000/- Loss of expectancy of life Rs.1,00,000/- Loss of consortium to the claimant No.1 Rs.1,00,000/- Medical Expenses Rs.20,220/- Total Rs.2,55,65,420/- 9. The learned counsel for the insurer argued that the Tribunal has erred in awarding highly exaggerated amounts towards loss of dependency as well as the conventional heads. The learned counsel contended firstly, that the Tribunal could not have taken the income of Sri Prakash Patil at the rate of USD 30,000 per annum because he was employed until July 2008. The Tribunal ought to have seen that Sri Prakash Patil admittedly was not in employment after he returned to India in the month of July 2008, that is for a period of about one and half years prior to the date of the accident in December,2009.
The Tribunal ought to have seen that Sri Prakash Patil admittedly was not in employment after he returned to India in the month of July 2008, that is for a period of about one and half years prior to the date of the accident in December,2009. There is no evidence on record to justify that he had taken a sabbatical or that M/s. Asiaguard Float Glass Co. Ltd. had offered him re-employment. The Tribunal has accepted Ex.P.17, a purported letter of offer by M/s. Asiaguard Float Glass Co. Ltd., marked by the claimants in this regard without any proof thereof. According to the claimants Ex.P.17 is a letter purportedly issued by Financial Director of the Company. But, this Letter is not dated and is not even on the Letter head of the Company. The claimants did not explain how and when this letter vide Ex.P.17 was reached by the Company. 10. Secondly, the employment of Sri Prakash Patil, prior to July 2008 would have no bearing in the determination of the compensation payable to the claimants because he was not employed for the period of almost of one and half years prior to the date of11 accident. The assessment of the income at USD 30,000/- per annum is presumptive and unsubstantiated. 11. Thirdly, the Tribunal has erred in applying multiplier of 16' and also in providing for accretion at the rate of 50% of such income towards future prospects. Sri Prakash Patil was born on 28.02.1969, and he was therefore aged above 40 years. The appropriate multiplier would be 14'. The Tribunal should have taken only notional income of Rs.5,000 - Rs.6,000/- per month and provided for accretion towards future prospects accordingly. In any event the accretion towards future prospects should have been at the rate of 25% as per the decision of the Constitutional Bench in Pranay Shethi s case, (2017) 16 SCC 680 . 12. Fourthly, the Tribunal could not have awarded amounts towards loss of love and affection and also towards consortium to the claimant No.1 in a sum of Rs.1,00,000/- under each of such heads. Similarly, award of Rs.1,00,000/- towards loss of expectancy of life is also unjustified.
12. Fourthly, the Tribunal could not have awarded amounts towards loss of love and affection and also towards consortium to the claimant No.1 in a sum of Rs.1,00,000/- under each of such heads. Similarly, award of Rs.1,00,000/- towards loss of expectancy of life is also unjustified. It is settled law that the claimants in a death case would be entitled for a total sum of Rs.70,000/- towards the conventional heads, including towards loss of consortium and loss of love and affection, funeral expenses in view of the law declared by the Constitutional Bench in Pranay Sethi's case. 13. On the other hand, the learned counsel for the claimants contended that the claimants have furnished the entire academic records, which indubitably establish the academic credentials of Sri Prakash Patil. Further, the claimants have produced Ex.P.9, a Certificate issued by M/s. Delottee, a renowned accountancy firm, enclosing the Income Tax Deduction Card for the year 2007 issued by the Kenya Revenue Authority. These enclosures, which are in the13 prescribed Forms, establish that Sri Prakash Patil was employed in Kenya with M/s. Asiaguard Float Glass Ltd. These documents, in conjunction with Ex.P.17, establish that the M/s. Asiaguard Float Glass Ltd, . was paying Sri Praksh Patil salary in US Dollars and he had an offer to re-join on an annual salary of USD 33,240. Therefore, the Tribunal was justified in taking the income of Sri Prakash Patil at USD 30,000 per annum. Further, the learned counsel for the claimants contended that the amount awarded by the Tribunal even under the other heads was justified in the facts and circumstances of the case. 14. In the light of the rival submissions, the questions that arise for consideration are: (a) Whether the Tribunal is justified in awarding the sum of Rs.2,50,15,200/- towards loss of dependency taking the income of Sri Prakash at USD 30,000 and in applying the multiplier of 16',14 (b) Whether the Tribunal has justified in awarding a sum Rs.5,55,220/- under the conventional heads, and (c) If the Tribunal has erred in granting the amounts as aforesaid, what would be the just and reasonable compensation that the claimants would be entitled. 15. It is oft reiterated that the Courts have to grant just and reasonable compensation as contemplated under Section 168 of M.V. Act 1988, and Courts are also repeatedly cautioned against granting amounts that would be a bonanza.
15. It is oft reiterated that the Courts have to grant just and reasonable compensation as contemplated under Section 168 of M.V. Act 1988, and Courts are also repeatedly cautioned against granting amounts that would be a bonanza. The compensation awarded by the Courts also cannot be a pittance. The determination of just and reasonable compensation, which is neither a bonanza nor a pittance, is based on the appropriate multiplicand and multiplier under the capitalization method. The Courts determine the appropriate multiplicand based on the evidence on record as regards the vocation of the concerned, his/her income and future prospects and the number of persons dependant on the concerned. The multiplier is entirely a function of the age of the concerned, although earlier it could have been a function of the age of a parent if the concerned was a bachelor/spinster. If the Courts err in assessing the evidence on record as regards any of the above, the determination of the multiplicand or the choice of multiplier would be wrong resulting either in a bonanza or a pittance both of which are to be eschewed. 16. The Insurer's first grievance is that the Tribunal has taken a higher and exaggerated multiplicand. The Tribunal has taken an unjustifiable amount of UDS 30,000 per annum as the income of Sri Prakash Patil. Sri Prakash Patil was not employed as on date of the accident, and therefore, his income could only be taken notionally. The appropriate notional income would be either Rs. 5000/- or Rs. 6000/-. Further, if Sri Praksh Patil was employed with M/s. Asiaguard Float Glass Ltd., Kenya till July 2008, that would not be relevant. Sri Praksh Patil was not employed as on the relevant date, the date of accident viz.,21.12.2009. Therefore, the essential canvass on behalf of the Insurer is that the income of Sri Prakash Patil should be determined de hors the employment track record of Sri Prakash Patil and on the premise that he was unemployed as on the date of accident. 17. It is indisputable that some of those who are employed abroad could take a sabbatical from work to attend to personal matters because of their prolonged stay away from their family.
17. It is indisputable that some of those who are employed abroad could take a sabbatical from work to attend to personal matters because of their prolonged stay away from their family. In cases where it is established that the deceased/claimant was qualified and was gainfully employed for a long time, and if from the circumstances of the deceased/claimant it could be reasonably inferred that the deceased/claimant could have taken a sabbatical from work, the Courts cannot take a hyper technical or pedantic approach and conclude that the deceased/claimant was unemployed as on the date of the accident and that deceased/claimant's employment track record would17 not be relevant for the purposes of computation of loss of dependency/future income. Of course, there cannot be a straight-jacketed approach, and each case will have to be decided on its own merits with the underlying purpose of granting just and reasonable compensation. 18. The claimants have produced the SSLC marks card of Sri Prakash Patil, and according to this indisputable document, he had only crossed 40 years as on date of the accident. The academic credentials, as per the undisputed documents marked, are that Sri Prakash Patil was an engineering graduate with post graduation in Business Administration. Further, Sri Praksh Patil was initially employed in Gujarat, and later with a private limited company in Kenya. In proof of his employment in Kenya, Income Tax details forwarded by M/s Delottee are marked. As per the Income Tax payment records Sri Prakash Patil was paid in Kenya Shillings and his Gross Income was kshs 25,95,421.00 for the months between January 2007 and December 18, 2007 and he paid a Tax of kshs 7,05,915.00 for such income. The Insurer has not disputed the authenticity of these documents either in this appeal or in the proceedings before the Tribunal, except for a suggestion in the cross examination of PW.1, the Claimant No.1, that these documents are got up for the purposes of the case. But, that itself does not defeat the credentials of these documents. 19. The ocular evidence is that Sri Prakash Patil returned to India because of a matrimonial dispute between his sister and her husband. In fact, the sister has filed an application to come on record in this appeal, contending that after she is estranged from her husband, she is dependent on her deceased brother, especially after the demise of her father.
The ocular evidence is that Sri Prakash Patil returned to India because of a matrimonial dispute between his sister and her husband. In fact, the sister has filed an application to come on record in this appeal, contending that after she is estranged from her husband, she is dependent on her deceased brother, especially after the demise of her father. Only she and Sri Prakash Patil survived their parents. Of course, this Court has rejected this application on 5.9.2017. There is nothing in the cross examination to disbelieve that Sri Prakash Patil had indeed returned to India on a19 sabbatical from work to attend to personal difficulties. The aforesaid circumstances viz., the age of Sri Prakash Patil as on the date of accident, his academic credentials, his employment track record and the circumstances of the family, in the considered opinion of this Court, establish that Sri Prakash Patil could have taken a sabbatical from work for personal reasons as spoken to by claimant No.1. 20. Further, it is borne out by evidence on record, that Sri Prakash Patil was working in Kenya with M/s Asiaguard Float Glass Ltd. for about five years from 2003 before his return to India in the month of July 2008. Sri Prakash Patil in the intervening period of one and a half years between the time of his return to India and the date of accident, was not employed because he was attending to personal difficulties. But, given that Sri Prakash Patil was aged just above 40 years as on date of the accident, and in circumstances discussed above, the break of one and a half years is20 not too long a period. In these circumstances, this Court cannot reasonably conclude that Sri Prakash Patil would have remained unemployed through out his life or discard the income/salary that he was earning when he was employed with M/s Asiaguard Float Glass Ltd in Kenya for the purpose of determination of loss of dependency to the claimants. As such, it would be just and reasonable to conclude that Sri Prakash Patil could have been re-employed with similar income as he was earning with M/s Asiaguard Float Glass Ltd in Kenya. The loss of dependency, therefore, will have to be computed based on his income with M/s Asiaguard Float Glass Ltd in Kenya. 21.
As such, it would be just and reasonable to conclude that Sri Prakash Patil could have been re-employed with similar income as he was earning with M/s Asiaguard Float Glass Ltd in Kenya. The loss of dependency, therefore, will have to be computed based on his income with M/s Asiaguard Float Glass Ltd in Kenya. 21. The Tribunal has concluded that Sri Prakash Patil was being paid in US dollars by his employer, M/s Asiaguard Float Glass Ltd in Kenya and that there was a gradual escalation in his income. As such, it would be appropriate to take the income of Sri Prakash Patil at US dollars 30,000 per annum for the purposes of21 computation of loss of dependency. However, the only document which mentions that Sri Prakash Patil was being paid in US dollars is Ex.P.17. But, this Ex. P.17 is not on the letterhead of M/s Asiaguard Float Glass Ltd., Kenya and the circumstances in which it is issued are also not placed on record. Further, this Letter vide Ex.P.17 is also not corroborated howsoever. In the absence any corroboration, Ex.P.17 does not inspire confidence. Therefore, the Tribunal could not have relied upon Ex.P.17 or taken the income at USD 30,000.00 per annum for the purposes of determination of loss of dependency. 22. The claimants have filed application under Order XLI Rule 27 of CPC seeking leave to produce photocopies of certain Bank Statements to bolster their case that Sri. Prakash Patil was receiving income in US Dollars. These documents, in the absence of any evidence, or even explanation, as regards the contract to pay income in US Dollars and regular remittance of22 income in US Dollars with necessary details being filed with the Keniyan authorities, cannot have precedence over the income tax details filed with the keniyan Income Tax authorities. As such, there is no reason to allow such application even under Order XLI Rule 27(b) of CPC. This Court is of the considered view that, in the facts and circumstances of this case and for the reasons discussed above, the salary paid to Sri Prakash Patil as per Ex. P9 (the income Tax details filed with the Keniyan Authorities) should be taken for the purposes of determining the appropriate multiplicand. 23. Sri Prakash Patil's Gross Income as per Ex.P9 for the months between January and December 2007 was Kshs 25,95,421.20 and 705815.40 was paid as taxes.
P9 (the income Tax details filed with the Keniyan Authorities) should be taken for the purposes of determining the appropriate multiplicand. 23. Sri Prakash Patil's Gross Income as per Ex.P9 for the months between January and December 2007 was Kshs 25,95,421.20 and 705815.40 was paid as taxes. As such, the Net Annual income of Sri Prakash Patil for the year 2007 was Kshs 18,89,605.00. The exchange rate of Kenya shillings in Indian rupees, as on date of the petition viz.,08.08.2011 would be Rs.0.48 according to the Historical Exchange Rate/Currency Converter Websites. Therefore, the annual net income in Indian currency would be (18,89,605.00 X 0.48) Rs.9,07,010.84. Accordingly, the monthly net income in Indian currency would be (Rs.9,07,010.84/12) Rs. 75,584.00. 24. Sri Prakash Patil, born on 28.2.1969, had completed 40 years as of the date of accident but was yet to complete 41 years as of the date of the accident in the month of December 2009. The Hon'ble Supreme Court in Pranay Sethi s case, (2017) AIR SC 5157) has held addition towards future prospects, in cases where the deceased was aged below 40 years and in permanent employment should be 50% of the income, and in case the deceased is between 40 years and 50 years and in permanent employment, the addition must be 30%. This prescription is to ensure that there is adherence to principles of standardization for reasons of consistency and uniformity. The undisputed evidence is that Sri Prakash Patel was in permanent employment abroad through out, and though it is contended that he was being paid US dollars, the same is not accepted on the ground that it does not inspire confidence and there cannot be appropriate guesstimate without necessary credible evidence. If the question of addition towards future prospects is examined in this light, and the fact that Sri Prakash Patil was over 40 years as of the date of accident by 10 months, this Court is of the considered opinion that the addition towards future prospects must be at 50%. This in the facts and circumstances of the case would enable this Court to award just and reasonable compensation. 25. The deduction towards personal expenses will have to be 1/3rd because there were three dependants.
This in the facts and circumstances of the case would enable this Court to award just and reasonable compensation. 25. The deduction towards personal expenses will have to be 1/3rd because there were three dependants. If the loss of dependency is computed with the multiplicand thus determined applying the multiplier of 15' because the deceased was about 2 months short of 41 years as on date of the accident, the claimants would be entitled for Rs. Rs.1,13,37,636/- towards loss of dependency as per the following tabulation: Net Income per month Rs. 75,584/- Addition at the rate of 50% towards Future Prospects Rs. 37,792/- Monthly Income Rs. 1,13,376/- After Deduction of 1/3rd towards personal expenses Rs. 75,584/- Loss of Dependency with the multiplier of 15' (75,584x12x15) Rs. 136,05,120/- 26. Further, the claimants would be entitled for a total sum of Rs. 70,000/- towards the conventional heads after the decision of the Hon'ble Supreme Court in Pranaya Shetti's case. In appropriate cases additional amounts could be awarded towards the loss of parental consortium as held by the Hon'ble Supreme Court in the later decision in Mayama General Insurance Co. Ltd., vs. Nanu Ram @ Chanu Ram and other, (2018) 18 SCC 130. The claimants No.2 and 3 were minor children when they lost their father, and in fact, as of the date of the petition they were aged 9 and 5 years respectively. Their father was educated and employed abroad. He had come back to India taking sabbatical from work to assist his sibling because she was facing marital discord. This conduct bears testimony to a loving and caring person attuned to his responsibilities. He would have certainly encouraged his children to pursue education with love and affection. With the demise of the father, the claimant No. 2 and 3 have lost such encouragement, love and affection. Therefore, it would be appropriate, in the considered opinion of this Court to grant additional sum of Rs.2,00,000/-to each of these minor claimants - respondents towards loss of parental consortium. In which event, the claimants would be entitled for a total sum of Rs.1,40,75,120/- detailed as follows: Loss of Dependency Rs. 1,36,05,120/- Towards Conventional Heads Rs. 70,000/- Loss of Consortium at the rate of Rs.2,00,000/- to each of the claimant No. 2 and 3 Rs. 4,00,000/- Total Rs. 1,40,75,120/- 27.
In which event, the claimants would be entitled for a total sum of Rs.1,40,75,120/- detailed as follows: Loss of Dependency Rs. 1,36,05,120/- Towards Conventional Heads Rs. 70,000/- Loss of Consortium at the rate of Rs.2,00,000/- to each of the claimant No. 2 and 3 Rs. 4,00,000/- Total Rs. 1,40,75,120/- 27. For the foregoing, the questions formulated as regards the grant of Rs.2,50,15,200/- towards loss of dependency and a sum Rs.5,55,220/- under the conventional heads are held in favour of the appellant concluding that the Tribunal has erred in granting such amounts. The just and reasonable compensation that the claimants would be entitled to receive from the appellant is Rs. 1,40,75,120/-. 28. The Tribunal has awarded 8% interest per annum. The Tribunal has assigned cogent reasons in Para-29 of the judgment for awarding interest at 8% per annum. Therefore, we are inclined to retain interest at 8% per annum as awarded by the Tribunal. As such, the impugned judgement and award are modified both as regards the quantum of compensation and the rate of interest as aforesaid. Therefore, the following:- ORDER (a) The appeal in MFA No. 100162/2014 is allowed in part. The impugned judgement and award dated 19th March 2013 in MVC No.1863/2011 on the file the 5th Additional District Judge and 6th Additional MACT, Belgaum is modified. The claimants - respondents are awarded a total sum of Rs. 1,40,75,120/- along with interest at the rate of 8% per annum from the date of the petition till the date of deposit. (b) The appellant - Insurance Company shall deposit the compensation as aforesaid along with interest within a period of eight weeks from the date of receipt of a certified copy of this judgement, and (c) The amount in deposit in this appeal, if any, shall be transmitted to the 29 Tribunal. The disbursement and apportionment amongst the claimants shall be as per the Tribunal's judgement and award in that regard. No Costs. In view of the disposal of the above appeal, the applications- IA Nos.2 and 3 of 2017 do not survive for consideration and they are disposed of accordingly.