Shriram General Insurance Co Ltd. Now v. Anthoniyamma
2020-09-09
JYOTI MULIMANI, S.SUJATHA
body2020
DigiLaw.ai
JUDGMENT S. Sujatha, J. - This appeal is filed by the insurance company challenging the judgment and award passed by the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru-SCCH-15 ('Tribunal' for short) in MVC No.5210/2014 dated 29.01.2016 whereby the claim petition filed by the legal representatives of the deceased Sri.S. Infant Toni has been allowed in part awarding compensation of Rs.18,78,000/- with interest at 9% per annum from the date of petition till its realization. 2. A claim petition was instituted under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) claiming compensation on account of death of S. Infant Toni by his mother and younger sister. It was alleged that the accident in question occurred owing to the actionable negligence of the driver of the Tata Sumo bearing Registration No.KA-02 AA-9337 (offending vehicle) duly insured with the appellant-insurer. It was contended that on 08.10.2014 at about 7.00 a.m., while the deceased was proceeding on his Discovery Bike bearing Registration No.KA-01-EY-80 along with pillion rider by name Sujith following the traffic rules on Bengaluru - Magadi main road, near Thippagondanahalli Bridge, Tavarekere Hobli, Bengaluru South Taluk, the driver of the offending vehicle came with high speed in a rash and negligent manner on the wrong side of the road and dashed to the bike, as a result of which, both the riders fell down and suffered severe injuries and the deceased succumbed to the fatal injuries on the spot itself. Accordingly, compensation was sought from the R.C. owner and the insurer-appellant herein, jointly and severally. 3. In response to service of notices, the owner of the offending vehicle remained ex-parte. The insurer has put its appearance through its counsel and filed its objections denying the petition averments. However, the policy and its operation as on the date of the accident was admitted. It was contended that its liability, if any, is subject to the terms and conditions of the policy such as driving licence and vehicular documents. 4. On the aforesaid pleadings of the parties, the Tribunal has framed four issues. To substantiate the contentions, Claimant No.1 has entered into witness box as PW-1, employer of PW-1 was examined as PW-2 and Deputy Manager of Kotak Mahendra Bank (ING Vysya Bank) as PW-3. 16 documents got exhibited. No oral evidence was let in by the appellant. 5.
4. On the aforesaid pleadings of the parties, the Tribunal has framed four issues. To substantiate the contentions, Claimant No.1 has entered into witness box as PW-1, employer of PW-1 was examined as PW-2 and Deputy Manager of Kotak Mahendra Bank (ING Vysya Bank) as PW-3. 16 documents got exhibited. No oral evidence was let in by the appellant. 5. After analyzing the material evidence on record, the Tribunal answered the issues as recorded in the impugned judgment and award holding that the claimants are entitled for compensation amount of Rs.18,78,000/- with interest at 9% per annum from the date of petition till realization in its entirety from the appellant. 6. Being aggrieved, the appellant is before this Court challenging the impugned judgment and award mainly on four grounds. Firstly, the Tribunal committed a serious error in determining the income of the deceased at Rs.8,000 per month. Secondly, the Tribunal added 50% of the determined income towards future prospects when the deceased had no permanent/stable employment. Thirdly, rate of interest awarded at 9% p.a. is on the higher side and fourthly, the compensation awarded under different conventional heads is exorbitant and not in conformity with the settled law. 7. Learned counsel for the appellant elaborating the arguments on these points contended that no evidence was placed on record by the claimants to establish the factum that the deceased was holding a permanent job as a Teli Caller (Customer Support Executive) at AEGIS Limited, St. John's Road, Bengaluru, and drawing the income of Rs.8,125/- per month. The Tribunal determined the notional monthly income of the deceased at Rs.8000/- in an arbitrary manner. Further adding 50% of the said income towards the future prospects is unjust. Placing reliance on Section 149(1) [amended Section 150(1)] r/w Section 171 of the Act and Section 34 of Code of Civil Procedure, learned counsel argued that 6% p.a. would be the reasonable interest which deserves to be awarded on the amount of compensation determined by the Tribunal from the date of the claim petition till realization. 8. Learned counsel appearing for the claimants/respondents contended that the Tribunal analyzing the material evidence on record has awarded just and reasonable compensation which requires to be confirmed without any reduction.
8. Learned counsel appearing for the claimants/respondents contended that the Tribunal analyzing the material evidence on record has awarded just and reasonable compensation which requires to be confirmed without any reduction. It is submitted that even in terms of the notional income of the deceased determined as per the chart of the Karnataka Legal Services Authority for Lok Adalath, inasmuch as the accident of the year 2014, Rs.8,500/- would be appropriate. As such, monthly income of Rs.8,000/- determined by the Tribunal at any stretch of imagination, cannot be held to be unjustifiable. Similarly 50% of future prospects added to the said determined monthly income requires to be approved along with interest at 9% p.a. as awarded by the Tribunal. 9. We have carefully considered the rival submissions made by the learned counsel for the parties and perused the material on record. 10. The factum of accident and the death of the Sri.S.Infant Toni owing to the accidental injuries which took place on 08.10.2014 at 7.00 a.m. on Bangalore- Magadi main road, Thippagondanahalli Bridge, Tavarekere Hobli, Bengaluru, are not in dispute. As regards the challenge made by the appellant with regard to the income, addition of future prospects, rate of interest and compensation under conventional heads, it would be apt to refer to the Exhibits P7 salary certificate, P13 true copy of appointment letter and P14 notarized copy of employee ID. The relevant paragraph of Ex.P13, the appointment letter reads as under: " Compensation and Benefits - Your position will carry a gross compensation (Cost to Company) valued at Rs.96,000/-. A model brake-up of compensation is enclosed as annexure. The Company reserves the right to change the structure from time to time. You will be entitled to benefits such as Provident Fund and Gratuity in accordance with the laws of the country and/or as per company policy. Your individual remuneration is purely a matter between yourself and the Company and has been arrived on the basis of your job, skills specific background and professional merit. You will be expected to maintain this information and any changes made therein from time to time as personal and confidential. All forms of compensation referred to in this letter are subject to TDS as per law. Retirement - Retirement from the services of the Company will be on the last day of the month of completion of the age of 58 years.
All forms of compensation referred to in this letter are subject to TDS as per law. Retirement - Retirement from the services of the Company will be on the last day of the month of completion of the age of 58 years. You may be retired earlier if found medically unfit. General Any revision to the terms of employment including change in any benefits, perquisites, compensation and entitlements will only be valid and effective by way of a written communication (including emails) from the appointing authority of the Company. Verbal communication will not have any binding effect on the Company." 11. Ex.P13(A) establishes that the deceased was drawing House Rent Allowance, Education Allowance, Other Allowance, Advance Bonus, PF (Employer Contribution), ESI (Employer Contribution) totally amounting to Rs.8,000/- per month. This structure of salary was amenable to change from time to time. 12. The appointment letter shows that the deceased was appointed with effect from April 11, 2014 as an Executive in Band 5 in Operations Department. Revision to the terms of employment including change in the benefits, perquisites, compensation and entitlements was inbuilt in the terms and conditions of the appointment letter. It is significant to note that the material evidence on record establishes that the deceased was drawing a monthly salary of Rs.8,000/- at the time of the accident which indeed was amenable to revision. The notional monthly income determined at Rs.8,500/- would not be applicable to the facts and circumstances of the case since the documentary and oral evidence placed on record clearly establishes that the deceased was drawing salary of Rs.8,000/- per month at the time of the accident reserving revision to the terms of employment including change in any benefits, perquisites, compensation and entitlements. Hence, monthly income of the deceased determined by the Tribunal at Rs.8,000/- per month cannot be faulted with. 13. Merely for the reason the deceased would have been terminated from services by one calendar month notice or basic salary in lieu of notice, it cannot be held that the said job was temporary ignoring the retirement age of 58 years found in the terms and conditions of appointment. In support of this document, PW-2 has tendered evidence which remains unrebutted.
In support of this document, PW-2 has tendered evidence which remains unrebutted. Hence, we are of the considered opinion that 50% of future prospects added to the salary determined by the Tribunal at Rs.8,000/- per month is in conformity with the judgment of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 . 14. Appyling the multiplier of 18, deducting 50% towards personal and living expenses of the deceased, loss of dependency would work out to Rs.12,000/- x 12 x 18 x 1/2=Rs.12,96,000/-. 15. In terms of judgment of the Hon'ble Apex Court in Pranay Sethi , supra., the claimants are entitled to total compensation of Rs.70,000/- under different conventional heads viz., Loss of Estate - Rs.15,000/- Funeral expenses - Rs.15,000/- Filial consortium - Rs.40,000/- Rs.70,000/- 16. In the light of Section 149(1) [amended section 150(1)] read with Section 171 of the Act and Section 34 of the Code of Civil Procedure, considering the prevailing rate of interest during the relevant time, this Court deems it appropriate to award interest @ 6% per annum from the date of claim petition till realization. 17. For the reasons aforesaid, the compensation awarded by the Tribunal is re-assessed as under: Sl.No. Particulars Amount [in Rs.] 1. Loss of dependency 12,96,000/- 2. Filial consortium 40,000/- 3. Loss of Estate 15,000/- 4. Funeral expenses 15,000/- Total 13,66,000/- 18. Hence, the following ORDER (i) Appeal is allowed in part. (ii) Total compensation is re-assessed and reduced to Rs.13,66,000/- as against Rs.18,78,000/- awarded by the Tribunal with interest at 6% per annum from the date of the petition till the date of realization. (iii) The order of the Tribunal inasmuch as apportionment and disbursement remains intact. Accordingly, the modified compensation determined shall be disbursed and apportioned in terms of the order of the Tribunal. (iv) Amount in deposit shall be transmitted to the jurisdictional Tribunal for disbursement. (v) Draw modified award accordingly.