Smt. Parveen Banu and Mohmed Sohil Golageri and Mohammed Salman V. Reliance Gen. Ass. Co. Ltd. and Sri. V. Selvaraju

MFA/4185/2022

AI Insights

The case involves two appeals related to a motor vehicle accident that resulted in the death of Muktum Sab Golageri. The accident occurred when a lorry, insured by Reliance General Insurance Co. Ltd., collided with Golageri's motorcycle. The claimants, Golageri's family, sought compensation for their loss, alleging negligence on the part of the lorry driver. The tribunal initially awarded Rs. 31,06,000 in compensation, which the claimants found inadequate, and the insurer contested on various grounds including the negligence claim and the compensation amount. The High Court's decision adjusted the compensation based on a reassessment of the deceased's income and dependency, and addressed procedural aspects of the appeals.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 798552 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 15-03-2023
• Assessment Year: misc
• Other Referred Cases: National Insurance Company Limited vs. Pranay Sethi
• Laws Referred To: MV Act, IPC
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: D KUMAR
• Assessee Lawyers: PRAKASH H
• Keywords: Compensation; Insurance; Motor vehicle accident; Negligence; Dependents
• Section: 279; 304A; 173(1)

Judgement Text

" - 1 - MFA No. 4185/2022 C/W MFA No. 3735/2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2023 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR MISCELLANEOUS FIRST APPEAL NO. 4185/2022 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO. 3735/2022 (MV-D) IN MFA NO.4185/2022: BETWEEN: 1. SMT PARVEEN BANU W/O LATE MUKTUM SAB AGED 45 YEARS 2. MOHMED SOHIL GOLAGERI D/O LATE MUKTUM SAB AGED 24 YEARS 3. MOHAMMED SALMAN S/O LATE MUKTUM SAB AGED 22 YEARS ALL ARE R/AT NO 19 MUNESHWARA LAYOUT HOSAHALLI, GOLLARAPALYA VISWANEEDAM BANGALORE - 560 091. …APPELLANTS (BY SRI. PRAKASH M H, ADVOCATE) Digitally signed by A K CHANDRIKA Location: High Court of Karnataka - 2 - MFA No. 4185/2022 C/W MFA No. 3735/2022 AND: 1. RELIANCE GEN. ASS. CO. LTD. NO 28, 5TH FLOOR, EAST WING CENTENARY BUILDING, M.G. ROAD BENGALURU-560 001. REP BY ITS MANAGER. 2. SRI. V. SELVARAJU, S/O VENAKTACHALAM, AGED: MAJOR R/AT NO 20, 2ND MAIN ROAD KPN EXTENSION, BANGALORE-560 067. …RESPONDENTS (BY SRI. D. VIJAYA KUMAR, ADVOCATE FOR R1, V/O/DTD 09.02.2023 NOTICE TO R2 IS D/W) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.03.2022 PASSED IN MVC NO.1831/2020 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU SCCH-14, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.3735 /2022: BETWEEN: 1. RELIANCE GENERAL INSURANCE CO. LTD. NO.28, 5TH FLOOR, EAST WING CENTENARY BUILDING, M.G. ROAD BENGALURU-560 001. REP. BY ITS MANAGER LEGAL …APPELLANT (BY SRI. D. VIJAYA KUMAR, ADVOCATE) - 3 - MFA No. 4185/2022 C/W MFA No. 3735/2022 AND: 1. SMT. PARVEEN BANU W/O MUKTUM SAB AGED ABOUT 45 YEARS 2. MOHMED SOHIL GOLAGERI S/O MUKTUM SAB AGED ABOUT 24 YEARS 3. MOHAMMED SALMAN S/O MUKTUM SAB AGED ABOUT 22 YEARS ALL ARE R/AT: NO.19, MUNESHWARA LAYOUT HOSAHALLI, GOLLARAPALYA VISWANEEDAM, MAGADI ROAD BENGALURU-560 091. 4. MR. V. SELVARAJU S/O VENKATACHALAM (MAJOR) R/AT NO.20, 2ND MAIN ROAD KPN EXTN., BENGALURU-560 067. (EXPARTE) …RESPONDENTS (BY SRI. PRAKASH .M.H., ADVOCATE FOR R1 TO R3, V/O/DTD.09.02.2023 NOTICE TO R4 IS D/W) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.03.2022 PASSED IN MVC NO.1831/2020 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU SCCH-14, AWARDING COMPENSATION OF RS.31,06,000/- WITH INTEREST AT 7 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION. - 4 - MFA No. 4185/2022 C/W MFA No. 3735/2022 THESE APPEALS, COMING ON FOR HEARING, THIS DAY, K.S.MUDAGAL.J, DELIVERED THE FOLLOWING: JUDGMENT Challenging the award in M.V.C.No.1831/2020 passed by the MACT and XVI Additional Judge Small Causes Court, SCCH-14, Bangalore, the claimants have preferred MFA No.4185/2022 and the Insurer has preferred MFA No.3735/2022. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal. 2. Claimant No.1 is the wife, Claimant Nos.2 & 3 are the sons of deceased-Muktum Sab Golageri. On 09.03.2020 at about 7.10 p.m. when deceased- Muktum Sab Golageri was proceeding on his motor bike No.KA-02-KE-2769, the said motor cycle met with accident near Railway underpass, Devinagara Cross ring road, Bangalore. In the accident Muktum Sab Golageri suffered grievance injuries. He was shifted to M.S.Ramaiah Hospital Bangalore, but he succumbed to the injuries on his way to the hospital. - 5 - MFA No. 4185/2022 C/W MFA No. 3735/2022 3. Regarding the accident one Mallikarjun son of Girimallappa filed complaint before Hebbal Traffic police station alleging that the driver of the lorry bearing No.KA-03-C-0408 drove the lorry in rash and negligent manner so as to endanger the human life, hit the scooter of Muktum Sab Golageri and caused the accident. Based on such complaint, the Hebbal Traffic Police registered FIR as per Ex.P1 in Cr.No.45/2020 against the driver of lorry No.KA-03-C-0408. After investigation, the said police filed charge sheet against the driver of the lorry for the offences punishable under Section 279 and 304A of IPC. At the relevant time, respondent Nos.1 & 2 were the Insurer and registered owner of lorry No.KA-03-C-0408. 4. The claimants filed MVC No.1831/2020 before the tribunal against the respondents claiming that they were dependent on the income of the deceased. They claimed that the accident occurred due to the actionable negligence of the driver of the lorry and due to the death of Muktum Sab Golageri they have suffered damages. They claimed compensation of Rs.70,00,000/- from the respondents. - 6 - MFA No. 4185/2022 C/W MFA No. 3735/2022 5. Respondent No.2 did not contest the petition. Respondent No.1 alone contested the petition denying the occurrence of the accident due to the actionable negligence of the driver of the lorry, involvement of the said lorry in the accident, age, occupation and income of the deceased and his liability to pay the compensation. 6. To substantiate their claim, claimant No.1 was examined as PW1 and the HR manager of the employer of the deceased was examined as PW2. On behalf of the claimants Exs.P1 to P21 were marked. The respondents did not adduce any evidence. 7. The tribunal on hearing the parties by the impugned award held that the accident occurred due to the actionable negligence on the part of the driver of the lorry. The Tribunal considering the evidence of PW.2 and the documents produced by him assessed income of the deceased at Rs.30,000/- per month, age of the deceased as 51 years, added 15% to the same of by way of future prospects, deducted 1/3rd for the personal expenses of the deceased, applied 11 multiplier and awarded the compensation of Rs.30,36,000/- on the head of - 7 - MFA No. 4185/2022 C/W MFA No. 3735/2022 loss of dependency. The tribunal in all awarded the compensation of Rs.31,06,000/- on different heads as per the table below: Sl. No. Particulars Compensation awarded in Rs. 1. Loss of dependency 30,36,000/- 2. Medical expenses ------ 3. Transportation of dead body and Funeral Expenses 15,000/- 4. Filial consortium 40,000/- 5. Loss of estate 15,000/- Total 31,06,000/- Challenging the adequacy of the compensation awarded to them, the claimants have preferred MFA No.4185/2022. Challenging the award on all grounds the Insurer has preferred MFA No.3735/2022. Submissions of Sri. Prakash M.H. learned counsel for the claimants. 8. When the evidence of PW2 shows that salary of the deceased was Rs.56,620/-, the Tribunal was not justified in considering the same as Rs.30,000/-. The tribunal committed error in deducting the sums of voluntary deductions of the - 8 - MFA No. 4185/2022 C/W MFA No. 3735/2022 deceased in the salary income. The compensation awarded on the head of consortium is on the lower side. Submissions of Sri.D.Vijay Kumar, learned counsel for Insurer 9. The tribunal committed error in arriving at the conclusion that the accident occurred due to the actionable negligence on the part of the driver of the lorry based on Exs.P1 to P6 the police records. The said records are self contradictory and create doubt about the occurrence of the accident in the manner alleged. The charge sheet is not the conclusive proof of the involvement of the insured vehicle in the case. So far as income of the deceased, the evidence of PW.2 is not acceptable. Claimant Nos.2 and 3 were not the dependents of the deceased. Therefore, the deduction under the personal expenses at the rate of 1/3rd is erroneous. The compensation awarded on all the heads is on the higher side. 10. Considering the submissions of both side and materials on records, the questions that arise for determination are: (i) Whether the findings of tribunal that the accident occurred due to the actionable - 9 - MFA No. 4185/2022 C/W MFA No. 3735/2022 negligence on the part of the driver of the lorry No.KA-03-C-0408 is sustainable one? (ii) Whether the compensation awarded is just? Reg. the occurrence of accident: 11. According to the claimants on 09.03.2010 at 7.10 p.m., when the deceased-Muktum Sab Golageri was proceeding on his motor cycle near Railway underpass Devinagar Cross ring road, Bangalore, the lorry bearing No.KA- 03-C-0408 hit his vehicle and caused grievous injuries which lead to his death. To prove the said contention, the claimants relied on the evidence of PW.1 and Exs.P1 to P6 i.e., FIR, Spot Mahazar with Sketch, IMV Report, Inquest Mahazar, PM Report and the charge sheet. It is no doubt true that PW.1 was not an eyewitness. 12. It was contended by the learned counsel for Insurer that as per the address shown in Ex.P1, the complainant was residing at a distance of 20 kms from the scene of occurrence. The accident occurred at 7.10 p.m., and the complaint was filed at 8.00 p.m. How he traveled 20 kms, went to the police and filed the complaint within one hour is not explained. That itself - 10 - MFA No. 4185/2022 C/W MFA No. 3735/2022 goes to show that Ex.P1 was concocted. In the compliant nowhere the complainant has said that at the time of accident he was in his residence. He only says that he received the information of the accident and came to the hospital and from hospital he went to file the complaint. 13. Based on complaint, on investigation the charge sheet was filed. Under Section 114(e) of the Evidence Act, the official acts are presumed to be performed regularly. Under such circumstances, Ex.P6 has some evidentiary value. By Exs.P1 to P6 the claimants discharged their initial burden of proving the occurrence of the accident involving the insured lorry. Therefore, burden was on the Insurer to rebut the same. 14. The owner of the lorry himself did not contest the matter denying the involvement of the lorry. It was argued that the charge sheet is the out come of the fraud. It is settled position of law that whenever a party comes before the Court alleging fraud, the particulars of the fraud have to be pleaded and the same have to be proved. If there was fraud the same should have been pleaded in the statement of objections. So also the Insurer could not have kept quiet without conducting - 11 - MFA No. 4185/2022 C/W MFA No. 3735/2022 any internal enquiry. The Insurer did not even examine any of its Officials to whisper about any fraud. Under the circumstances, the tribunal was justified in accepting Exs.P1 to P6 and holding that the occurrence of the accident involving the insured lorry was proved. Reg. Quantum: 15. According to the claimants, the deceased was employed in Federal Mogal Goetze India Ltd. as technical staff and he was earning Rs.50,000/- per month. To prove his employment and income, the claimants relied on the evidence of PW2, the Senior Executive HR of Federal Mogal Goetze India Ltd. According to the evidence of the said witness, the deceased was employed in the Federal Mogal Goetze India Ltd as Skilled II at pistan machine shop. According to him, at the relevant time, gross salary of the deceased was Rs.42,583/-. To substantiate the said contention PW2 produced Exs.P17 to P21 the copies of ID card, appointment letter, pay slips for December 2019 to February - 2020, copy of the tax return form for 2019-20, Form No.12BA. 16. As per the evidence of PW2, Ex.P20 is Form No.16 submitted by the employer to the income tax department for - 12 - MFA No. 4185/2022 C/W MFA No. 3735/2022 the assessment year 2019-20 that was submitted on 29.06.2020. Even as per the said document his gross income was Rs.4,63,494/- p.a. out of that 10% has to be deducted towards income tax and Rs.200/- per month has to be deducted towards professional tax which comes to Rs.46,349/- +2400=Rs.48,749. Therefore, his gross annual income can be taken as Rs.4,14,745/- (Rs.4,63,494-Rs.48,749/-) 17. Since the deceased was in private employment and was undisputedly aged 51 years, as per the judgment of Supreme Court in National Insurance Company Limited vs. Pranay Sethi1 15% has to be super added to his income which comes to (Rs.4,14,745/-x15%) Rs.62,211.75 rounded to Rs.62,212. Therefore, his annual income comes to (Rs.4,14,745+ Rs.62,212) Rs.4,76,957/-. 18. As per the claim petition itself, claimant Nos.2 & 3 were the major sons. It was disputed that they were the dependents of the deceased. To claim that they were the dependents of the deceased they did not enter the witness box. Even PW.1 did not whisper anything about they being 1 AIR 2017 SC 5157 - 13 - MFA No. 4185/2022 C/W MFA No. 3735/2022 dependant on the income of the deceased or they not having any income. Therefore, only claimant No.1 has to be treated as dependant and 50% of the income has to be deducted for his personal expenses which comes to (Rs.4,76,957/- x 50%) = Rs.2,38,478.50/- rounded to Rs.2,38,479/-. The applicable multiplier is 11. Therefore, the loss of dependency comes to (Rs.2,38,479X11)=Rs.26,23,269/-. 19. As per the judgment of Supreme Court in Pranay Sethi’s case referred to supra claimants are entitled to consortium of Rs.40,000/- each with escalation of 10%. Thus, the compensation payable under the head of consortium comes to Rs.1,32,000/-. 20. As per the judgment of Supreme Court in Pranay Sethi’s case, under conventional heads, the claimants are entitled to compensation of Rs.15,000/- towards funeral expenses and 15,000/- towards of loss of estate with escalation of 10%. Thus, the compensation payable on both heads comes to Rs.33,000/-. Therefore, just compensation payable is as follows: - 14 - MFA No. 4185/2022 C/W MFA No. 3735/2022 Sl.No. Particulars Compensation awarded in Rs. 1. Loss of dependency Rs.26,23,269/- 2. Loss of consortium Rs.1,32,000/- 3. Loss of estate and funeral expenses Rs.33,000/- Total Rs.27,88,269/- Hence, appeal of the claimants is liable to be dismissed and the insurer’s appeal deserves to be allowed in part. Hence the following: ORDER 1) MFA No.4185/2022 is hereby dismissed. 2) MFA No.3735/2022 is allowed in part. 3) The impugned award is modified as follows. i. The claimants are entitled for compensation of Rs.27,88,269/- with interest thereon at the rate of 6% per annum from the date of petition till its realization. ii. Insurer shall deposit the said amount before the tribunal on adjusting the amount already deposited if any, within four weeks from the date of receipt of copy of this order. iii. The compensation awarded on the head of consortium alone shall be released to claimant Nos.2 & 3. Out of the balance amount 50% shall be invested in FD in - 15 - MFA No. 4185/2022 C/W MFA No. 3735/2022 the name of claimant No.1 for a period of three years and remaining 50% shall be released to her. iv. Registry shall transmit the amount in deposit if any and the TCRs to the tribunal forthwith. Sd/- JUDGE Sd/- JUDGE DS List No.: 1 Sl No.: 2 "