Mrs. Rajeshwari G Bhuyar Vs. Sindhu Travels - Court Judgment

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE4H DAY OF NOVEMBER2015PRESENT THE HON'BLE MR. JUSTICE N.K.PATIL AND THE HON’BLE MR.JUSTICE PRADEEP D. WAINGANKAR M.F.A. No.1332 of 2014(MV) Between:

1. Mrs. Rajeshwari G. Bhuyar, 2. W/o. Late Annappa Mallappa Hipparagi, Aged about 40 years. Baby Apeksha .A D/o. Late Annappa Mallappa Hipparagi, Aged about 15 years, Rep. by her natural Guardian her Mother Appellant No.1. Both are Residing At Flat No.305, Ashoka Windows, 5th Main, Malleshpalya, Bangalore – 75.

3. Mr. Mallappa Annappa Hipparagi, S/o. Late Annappa Hipparagi, Aged about 80 years.

4. Smt. Kasturi, W/o. Mallappa Annappa Hipparagi, Aged about 71 years. Appellant Nos. 3 & 4 are Residing at No.46, Sangameshwari Nagar, APMC Road, Belgaum. Presently Residing at Flat No.305, Ashoka Windows, 2 5th Main, Malleshpalya, Bangalore – 75. ... Appellants (By Shri. R. Vijaya Kumar, Advocate) And:

1. Sindhu Travels, Devabhaktuni Sridevi, No.513, 8th Block, Opp. Post Office, Koramangala, Bangalore – 560 034.

2. M/S ICICI Lombard General Insurance Co. Ltd., Prestige Croniche, No.62/1, 2nd Floor, Richmond Road, Bangalore – 560 025. Rep. by its Manager. ... Respondents (By Shri. B. Pradeep, Advocate for R2; Notice to R1 dispensed with V/o. dated 12/08/2015) This MFA is filed U/S1731) of MV Act against the Judgment and Award dated:

06. 11/2013, passed in MVC No.2553/2012, on the file of the III Additional Senior Civil Judge and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-18), partly allowing the claim petition for compensation and seeking enhancement of compensation. This MFA coming on for Admission, this day, N.K. PATIL. J., delivered the following: JUDGMENT

This appeal by the claimants is directed against the impugned judgment and award dated 6th November 2013, passed in MVC No.2553/2012, by the III Additional Senior Civil Judge and Member, Motor 3 Accident Claims Tribunal, Bengaluru (SCCH-18), (hereinafter referred to as ‘Tribunal’ for short) seeking to enhance the compensation.

2. The Tribunal by its judgment and award has awarded compensation of `87,37,145/- under different heads with interest at 8% per annum from the date of petition till the date of realization on account of death of the deceased-Annappa Mallappa Hipparagi in the road traffic accident.

3. In brief, the facts of the case are: The 1st appellant is the wife, 2nd appellant is the minor daughter, 3rd and 4th appellants are the parents of the deceased-Annappa Mallappa Hipparagi and they filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation of `6,30,00,000/- against the respondents, on account of the untimely death of the deceased-Annappa Mallappa Hipparagi in the road traffic accident. It is the case of the claimants that on 21.02.2012 at about 6.45 a.m. 4 when the deceased was going on the motor cycle bearing registration No.KA-04-EL-6937 on Varthur Main Road, Bangalore, the driver of private bus bearing registration No.KA-01-AA-9879 came at a high speed & in a rash and negligent manner and dashed against the hind portion of the motor cycle. Due to the impact, the deceased fell down and sustained grievous injuries and succumbed to the same.

4. It is further case of the appellants that the deceased was aged about 45 years & working as Section Manager at Makino India Pvt. Ltd., drawing gross salary of `90,924/- per month & he used to spend the entire sum for the welfare of the family. He was the only earning member of the family and entire family was depending upon the income of the deceased. On account of his untimely death, the wife has lost her life partner and the child has lost love and affection, guidance, inspiration and security in life. His parents are deprived to see the bright future of their son. It has also affected social, moral and economic condition of the 5 family. Therefore, they were constrained to file a claim petition against the respondents claiming compensation. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on record, allowed the claim petition in part, awarding compensation of `87,37,145/- under different heads with interest at 8% p.a., from the date of petition till the date of realization. Not being satisfied with the impugned judgment and award passed by the Tribunal, the appellants have presented this appeal on the ground that the Tribunal has erred in deducting a sum of `20,00,000/- received by the appellants/claimants towards group personal accident claim settlement benefit and also seeking enhancement of compensation and rate of interest.

5. The submission of Sri. R. Vijaya Kumar, learned counsel appearing for the appellants, at the outset is that, the Tribunal has erred in not awarding the reasonable compensation towards loss of 6 dependency and conventional heads. What is awarded is inadequate and it requires enhancement. Further, learned counsel appearing for claimants is quick to point out that the Tribunal has erred in deducting a sum of `20,00,000/- received by the claimants towards group personal accident claim settlement benefit. To substantiate his submission he has placed reliance on the judgment of this Court reported in ILR2008KAR3277in the case of Shaheed Ahmed vs Shankaranarayana Bhat and Another, wherein it is held that the amount received by the claimants under Mediclaim Policy from Sundaram Insurance Company would not come within the periphery of Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction. The Mediclaim amount received by the claimants cannot be deducted from out of the total compensation to be paid to the claimants. Therefore, insurance company is liable to pay said compensation to the claimants under the group personal accident claim settlement. Further, he 7 submitted that the deceased was getting gross salary of `90,924/- per month, out of which, admissible deductions are income tax and professional tax. Deceased was aged about 45 years at the time of the accident. The appropriate multiplier is ‘14’ & 1/4th towards personal expenses should be deducted. Further, he is quick to point out that the Tribunal has not awarded reasonable compensation towards conventional heads also such as loss of consortium, loss of estate, loss of love and affection and transportation and funeral expenses. He also submitted the in the light of the judgment of the Apex Court and this Court in host of the judgments, atleast 9% to 10% interest per annum may be awarded. Therefore, he submits to enhance the compensation and rate of interest by modifying the impugned judgment and award passed by the Tribunal.

6. Per contra, Sri. B. Pradeep, learned counsel appearing for respondent No.2-insurer, interalia, contended and substantiated that, the impugned 8 judgment and award passed by the Tribunal is just and proper. After due appreciation of the oral and documentary evidence available on record, the Tribunal is justified in awarding reasonable compensation towards loss of dependency. The Tribunal is also justified in deducting a sum of `20,00,000/- received by the claimants under group personal accident claim settlement benefit following the judgment of the Apex Court. Therefore, he submitted that interference by this Court is not called for. However, he fairly submitted that the quantum of compensation awarded under conventional heads is on the lower side & the same may be considered in accordance with law.

7. After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration in this appeal are:

1. . Whether the Tribunal is justified in deducting a sum of `20.00 lakhs received by 9 claimants towards Group Personal Accident Claim Settlement?. 2]. Whether the quantum of compensation awarded by just and reasonable?. the Tribunal is Re-Point No.1].: Occurrence of accident and the resultant death of deceased are not in dispute. It is the specific submission of the learned counsel appearing for claimants that the Tribunal is not justified in deducting a sum of `20.00 lakhs received by the claimants towards Group Personal Accident Claim Settlement. In support of the said submission, they have relied upon the decision of the learned Single Judge dated 1st April 2008 in M.F.A.No.3688/2007, wherein it is held that “the amount received by the claimant herein under Mediclaim Policy from Sundaram Insurance Company would not come within the periphery of Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction. The Mediclaim amount received by the claimant from Sundaram Insurance Company in this matter cannot be 10 deducted from out of the total compensation to be paid to the claimant. In view of the same, the deduction of `1,22,000/- (Mediclaim insurance amount) paid to claimant from the total amount of compensation is unsustainable. Therefore, the respondent No.2/insurance company is liable to pay the medical expenses spent by the claimant.

8. After critical evaluation of the entire material available on file including the impugned judgment passed by Tribunal, it emerges that, at paragraph 22, internal pages 13 and 14, even though the Tribunal has relied upon the decision of the Hon’ble Apex Court in the case of Vimal Kanwar and others Vs. Kishore Dan and others (2013) 7 SCC476or AIR2013SCW3258 has slipped into an error in deducting a sum of `20.00 lakhs received by the claimants towards Group Personal Accident Claim Settlement, which cannot be sustainable.

9. After going through the judgment of the Hon’ble Apex Court in Vimal Kanwar’s case (supra), it 11 is worth to extract paragraph 19, which reads as follows:

19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello V.Maharashtra SRTC. In the said case, this Court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a “pecuniary advantage” receivable by the heirs on account of one’s death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. The following was the observation and finding of this Court: (SC pp.111-12,para.35) 35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to 12 receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No corelation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in 13 terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured’s death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one’s death but all these have no corelation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any corelation. The insured (deceased) contributes his own money for which he receives the 14 amount which has no corelation to the compensation computed as against the tortfeasor for his negligence on account of the accident . As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor vehicles Act is statutory while the amount receivable under the life insurance policy is contractual. (emphasis supplied) In the case of Helen C. Rebello (Mrs.) and others Vs. Maharashtra State Road Transport Corporation and another [(1999) 1 Supreme Court Cases 90]., the 15 Apex Court, after taking into consideration several judgments, held that the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. Paragraph 37 of the said judgment reads thus: “37. Accordingly, we set aside the impugned judgment dated 9-9-1985 and restore the judgment of the Tribunal dated 29-9-1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The respondent concerned shall make the payment accordingly, if not already pain in terms thereof.” (emphasis supplied) Therefore, in the light of the aforesaid two judgments, it is abundantly clear that any amount received by the claimants towards provident fund, pension and life insurance on account of victim’s death is not liable for deduction from out of the compensation 16 computed under the Motor Vehicles Act. In the instant case, it is a sum of `20.00 lakhs received by the claimants towards Group Personal Accident Claim Settlement, for which admittedly, the premium is being paid by the employer of the deceased. In fact, earlier, the Division Bench of this Court, in M.F.A.No.7737/2013, disposed of on 25-06-2014, (Padmavathi and others Vs. K. Ravichandran and another), while dealing with the question as to whether a sum of `4.00 lakhs received by the widow of the deceased from the employer, to meet the educational expenses of the minor children of the deceased, is liable for deduction from out of the compensation payable under the Motor Vehicles Act, had taken a similar view that such deduction is not permissible, relying upon the aforesaid two judgments of the Hon’ble Apex Court. Paragraph 14 of the said reported Division Bench judgment reads thus:

14. After careful perusal of the aforesaid paragraphs, it is seen that, the said two Judgments are aptly applicable to 17 the facts and circumstances of the case on hand. In the instant case, the deceased died on account of accidental injuries on account of the rash and negligent driving by the driver of the offending vehicle. The wife of the deceased aged about 26 years has been given compassionate appointment by the employer of the deceased and in addition to that, having Corporation Social Responsibility, the employer has paid a sum of `4,00,000/- to meet the educational expenses of the minor children of the deceased aged about 9 years and 8 years, at the time of death of deceased. These two benefits are given by the employer only to tide over the sudden and unexpected financial crisis and to save the family from a disastrous situation and also to see that the family lives with dignity and honour. It is an ex-gratia amount which has been given by the employer, upon the sudden death of its employee and out of concern to the family of the deceased and the Insurer cannot take any shelter under this nor take any benefit of the same and its responsibility of indemnifying the award remains same and does not vary. (emphasis supplied) 18 10. Therefore, it is amply clear that the fruits of an amount received through contributions/premium made by the insured or the employer of the deceased cannot be deducted out of the amount receivable under the M.V. Act. Therefore, we answer point No.1]. in the ‘Negative’, holding that the Tribunal is not justified in deducting a sum of `20.00 lakhs received by the claimants towards Group Personal Accident Claim benefit and set aside the same. Thus, we hold that the claimants are entitled to the said sum of `20.00 lakhs. Re-Point No.2]. : Occurrence of accident at about 6:45 A.M. on 21-02-2012 and the resultant death of deceased Annappa Mallappa Hiparagi are not in dispute. Claimants are none other than the wife, aged about 39 years, minor daughter aged about 13 years and parents, aged about 78 years and 69 years, respectively, at the time of accident. It is stated that, the deceased was aged about 45 years at the time of accident, hale and healthy and working as a Section 19 Manager at Makino India Pvt. Ltd., drawing gross salary of `90,924/- per month as per Exs.P11 to P13. On account of his untimely death, the wife has lost her life partner and the child has lost love and affection, guidance, inspiration and security in life. The parents are deprived to see the bright future of their son. It has also affected social, moral and economic condition of the family.

11. The Tribunal has grossly erred in taking the actual salary of `73,126/-, after deducting the allowances, income tax and professional tax and thereafter adding 30% towards future prospects of deceased and arriving at a sum of `95,063/- as the total monthly income of the deceased. The same cannot be sustained for the reason that the claimants have not produced any credible documentary evidence to establish that they are entitled to 30% towards future prospects.

12. As rightly submitted by the learned counsel for the appellants, admissible deductions are only income 20 tax and professional tax. We accept the monthly income of the deceased at `90,924/- per month as per Exs.P11 to P13. Per annum, it works out to `10,91,088/-. Out of this, as per the income tax rules for the assessment year 2013-14, if income tax of `1,57,326/- and professional tax of a sum of `2,400/- is deducted from gross salary of `10,91,088/-, the remaining amount comes to `9,31,362/-. Out of this, as the claimants are four in number, i.e. wife, daughter and parents of deceased, if 1/4th (i.e. `2,32,840/-) is deducted towards the personal and living expenses of the deceased, the net income comes to `6,98,522/-. The deceased was aged about 45 years and the appropriate multiplier applicable is ‘14’. Accordingly, we re-determine the compensation payable towards loss of dependency at `97,79,308/- (`6,98,522/- x ‘14’) as against `1,06,47,145/- awarded by Tribunal.

13. As rightly submitted by the learned counsel for the appellants, the Tribunal has not awarded reasonable compensation towards conventional heads. 21 Having regard to the facts and circumstances of the case and the decision of the Hon’ble Apex Court and this Court in host of judgments, we deem it fit to award `1,00,000/- towards loss of consortium as against `50,000/-; `1,00,000/- towards loss of love and affection at the rate of `25,000/- to each claimant as against `20,000/-; `25,000/- towards loss of estate as against `10,000/-; and `25,000/- towards transportation and funeral expenses as against `10,000/- awarded by Tribunal. In all the appellants/claimants are entitled for a total compensation of `1,00,29,308/- as against `87,37,145/- awarded by Tribunal. Thus, there will be an enhancement of `12,92,163/-. The break-up is as follows: Towards Loss of dependency Towards Loss of consortium Towards Loss of love and affection (@ Rs.25,000/- x

4) Towards Loss of estate Towards Transportation of dead body and funeral expenses Total ` 97,79,308/- ` 1,00,000/- ` 1,00,000/- ` 25,000/- ` 25,000/- ` 1,00,29,308/- 22 14. As rightly submitted by the learned counsel for the appellants, the rate of interest awarded by the Tribunal is on the lower side. Following the judgment of the Apex Court and this Court in host of judgments, we award 9% interest per annum on the enhanced compensation from the date of petition till realization.

15. In the light of the facts and circumstances of the case as stated above, the appeal is allowed in part. The impugned judgment and award dated 6th November 2013, passed in MVC No.2553/2012, by the III Additional Senior Civil Judge and Member, Motor Accident Claims Tribunal, Bengaluru (SCCH-18), is hereby modified awarding total compensation of `1,00,29,308/- as against `87,37,145/- awarded by Tribunal, with 9% interest per annum on the enhanced compensation of `12,92,163/-, from the date of petition till the date of realisation. The respondent No.2-insurer is directed to deposit the enhanced compensation of `12,92,163/- with 23 interest at 9% p.a., from the date of petition till the date of realisation within three weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation of `12,92,163/-, `5,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized/Scheduled/Grameena Bank, in the name of the 1st appellant-Mrs. Rajeshwari G. Bhuyar, for a period of fifteen years and renewable for another fifteen years, with liberty to her to withdraw the periodical interest accrued on it. A sum of `4,00,000/- with proportionate interest shall be invested in the name of appellant No.2-Baby Apeksha in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank till she attains the age of 30 years with liberty reserved to the appellant No.1/mother and natural guardian to withdraw the periodical interest accrued on it for her welfare, till she attains the age of 21 years and thereafter from 22 years 24 to 30 years, appellant No.2 is entitled to withdraw the interest periodically. `1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized/Scheduled/Grameena Bank, in the name of the 4th appellant-mother of the deceased for a period of five years and renewable for another five years, with liberty to her to withdraw the periodical interest accrued on it. The remaining `2,92,163/- with proportionate interest shall be released in favour of the 1st, 3rd and 4th appellants, in equal proportion, immediately, on deposit by respondent No.2-insurer. Office to draw the award, accordingly. Sri. B. Pradeep, learned counsel is permitted to file vakalath for respondent No.2 within three weeks. SD/- JUDGE PMR/BMV* SD/- JUDGE