GOURA DAS CHOUDHURY @ GOUR CHOUDARY v. M/S. LOMBARDO GENERAL INSURANCE CO. LTD

(BY SRI. B.C. SHIVANNE GOWDA, ADV.,) AND:

1. GOURA DAS CHOUDHARY @ GOUR CHOUDHARY S/O LATE RABINDRA DAS CHOUDHARY AGED ABOUT 59 YEARS.

2. MRS. MOUSHUMI DAS CHOUDHARY W/O GOURA DAS CHOUDHARY @ GOUR CHOUDHARY AGED ABOUT 51 YEARS.

3. MRS. SREYA DAS CHOUDHARY D/O GOURA DAS CHOUDHARY @ GOUR CHOUDHARY AGED ABOUT 16 YEARS. RESPONDENT NO.3 IS MINOR REPT. BY NATURAL GUADIAN I.E., 1ST RESPONDENT. ALL ARE R/AT SOURA NILAYA HOUSING COMPLEX BLOCK-N, FLAT NO 3A, 3RD FLOOR I-KAILASH GHOUSH ROAD BARISHA, KOLKATA-700008.

4. SUBRAMANI .K R/AT MUNESHWARA NAGARA - 4 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 REPUENA AGRAHARA HOSUR MAIN ROAD BAGNALORE-560068.

5. R. LOKESH S/O RADHAKRISHNA R/AT. NEAR HOSKOTE BUS STAND KURUBARA BEEDI, HOSKOTE BANGALORE DISTRICT-562114. ...RESPONDENTS (BY SRI. A.K. BHAT, ADV., FOR R1 TO R3 V/O DTD:04.03.2024 APPEAL AGAINST R4 & R5 IS DISMISSED) THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT AND AWARD DATED 27.04.2014, PASSED BY THE COURT OF SMALL CAUSES AND MOTOR ACCIDENT CLAIMS TRIBUNAL AT BANGALORE, IN MVC NO.3823/2014 AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) The above appeals arise out of the judgment and award in MVC.No.3823/2014 passed by the MACT and X Additional Judge, Court of Small Causes, Bengaluru. - 5 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017

2. The appellants in MFA.No.7591/2017 were claimant Nos.1 to 3 and respondents in the said case were respondent Nos.1 to 3 in MVC.No.3823/2014. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the tribunal.

3. Claimant Nos.1 and 2 are the parents and claimant No.3 is the younger sister of the deceased Gaurav Das Choudhury. On 25.12.2013 at 1:00 p.m., when Gaurav Das Choudhury was travelling in auto rickshaw bearing Reg. No. KA-05/5574 along with his two colleagues near Elcia Pump House within the limits of electronic city traffic police station, Honda Dio motor scooter bearing Reg. No. KA-51-EE-7963 hit the said auto rickshaw. Due to the impact auto rickshaw went and hit the road side tree. In the accident Gaurav Das Choudhury suffered grievous injuries and died. Respondent No.2 was the owner of the scooter and respondent No.3 was the owner of auto rickshaw. Respondent No.1 was the insurer of scooter No. KA-51-EE-7963. - 6 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017

4. Claimants filed MVC.No.3823/2014 before the tribunal claiming compensation of Rs.90,00,000/- contending that the accident occurred due to the actionable negligence on the part of the driver of the auto rickshaw and scooter, deceased was earning Rs.52,355/- per month and they were all dependent on his income. Therefore, the respondents are liable to pay the said compensation.

5. Respondent Nos.2 and 3 did not contest the petition. Respondent No.1 alone contested the petition denying the actionable negligence on the part of the rider of the scooter, age, occupation and income of the deceased and its liability to pay the compensation. Respondent No.1 also contended that drivers of both scooter and auto rickshaw were negligent and accident occurred due to the composite negligence of both the drivers.

6. Before the tribunal, in support of the case of the claimants, claimant No.1 was examined as PW1, - 7 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 representative of the employer of the deceased was examined as PW2 and eye witness/complainant in the criminal case was examined as PW3 and Exs.P1 to P33 were marked. On behalf of respondent No.1 its legal manager was examined as RW1 and insurance policy was marked as Ex.R1.

7. The tribunal on hearing both side, by the impugned judgment and award relying on the evidence of the claimants and Ex.P4-spot sketch, held that the accident occurred due to the actionable negligence on the part of the rider of the scooter. The tribunal considered the income of the deceased as Rs.45,609/- per month, added 50% to the same by way of future prospects, considering his age as 22 years deducted 50% for the personal expenses of the deceased, applied 18 multiplier and awarded compensation of Rs.73,88,496/- on the head of loss of dependency. The tribunal in all awarded compensation at Rs.76,28,496/- on different heads as follows: - 8 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 Head of Compensation Amount/Rs Sl. No.

1. Loss of dependency 73,88,496-00

2. Loss of estate 50,000-00

3. Loss of love and affection 1,00,000-00

4. Loss of expectancy of life 50,000-00

5. Funeral transportation 40,000-00 expenses Total 76,28,496-00

8. Out of the aforesaid amount, the tribunal deducted Rs.2,50,000/- on the ground that the employer had reimbursed the same under the insurance policy and awarded compensation of Rs.73,78,496/- with interest at 9% per annum. Challenging the said judgment and award, the insurer has preferred MFA.No.7875/2017 and the claimants have filed MFA.No.7591/2017. Submission of Sri. B.C.Shivannegowda, learned counsel for the insurer:

9. Claimants in the pleading contended that the accident occurred due to negligence of the rider/driver of - 9 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 both the vehicles, even the charge sheet was filed against rider/driver of both the vehicles. The claimants own records show that the auto rickshaw driver was carrying 5 persons along with him and that has caused the accident. Therefore, the tribunal was in error in passing the entire negligence to the driver of the auto rickshaw. The tribunal committed error in adding 50% to the income of the deceased by way of future prospects, the compensation awarded on all the heads is on the higher side. Interest awarded is also on the higher side. Submisssion of Sri. A.K. Bhat, learned counsel for the claimants:

10. Insurer itself in its pleading contended that the accident occurred due to the composite negligence of both the drivers. Further, Ex.P4-sketch shows that the rider of the scooter who was coming from the opposite side has proceeded completely on the wrong side and dashed against the auto rickshaw and that has led to auto rickshaw hitting the tree. If auto rickshaw was carrying more than permitted passengers, at the most that entails - 10 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 criminal prosecution of the driver, but negligence cannot be attributed to the driver of the auto rickshaw. The tribunal was in error in considering the net salary of the deceased in assessing the compensation, even the deduction of 50% for the personal expenses is wrong as the deceased had minor sibling i.e. claimant No.3. The compensation awarded on the other heads is also on the lower side.

11. Considering the submissions of both side and on examining the material on record, the points that arise for determination of the Court are: i) Whether the finding of the tribunal that the accident occurred solely due to the negligence of the rider of the scooter No. KA-51-EE-796 is sustainable? ii) Whether the compensation awarded justified? - 11 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 ANALYSIS Reg. Negligence:

12. The fact that on 25.12.2013 at 1:00 p.m., when Gaurav Das Choudhury was travelling in auto rickshaw No. KA-05/5574, there was an accident between the said auto rickshaw and Honda Dio motor scooter No. KA-51-EE-7963 and he suffered injuries in the accident and died, is not in dispute. The counsel for insurer of the said scooter relying on the charge sheet contends that auto rickshaw driver was carrying more than prescribed passengers and that has contributed to the accident.

13. Though the charge sheet has the presumptive value, it is settled law that it is not the conclusive proof. To substantiate their contention that the accident occurred due to the actionable negligence of the rider of the scooter. The claimants relied on the evidence of PW3-eye witness and Ex.P4-sketch of scene of the incident. PW3 being the complainant/eye witness is not in dispute. He deposed that the rider of the scooter came from the - 12 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 opposite direction in high speed and rash and negligent manner without following traffic rules and hit the auto rickshaw. Therefore, auto rickshaw driver lost control and hit the road side tree leading to the injuries and death of Gaurav Das Choudhury. In his cross examination, he denies the suggestion that the auto rickshaw driver was not properly driving the auto rickshaw and he was uncontrollable.

14. Ex.P4-sketch of scene of offence shows that the auto rickshaw was proceeding on the left border of the road and the scooter was coming from the opposite direction. The rider of the scooter should have been left side of his road but he has proceeded on extreme right side in a wrong direction and hit the auto rickshaw. According to the claimants, due to that impact, the auto rickshaw lost control and gone to its left side and hit road side tree.

15. It is no doubt true that the records show that the driver of the auto rickshaw was carrying earlier three - 13 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 passengers i.e., PW3, deceased and their colleagues later picked up two more persons and they were sitting on the side of the driver in his seat. To impute that factor as a cause of the accident, there should be a direct nexus between such overloading in the auto rickshaw and the accident. As per the records such carrying more than prescribed limit was not the cause of the accident. Had the scooter not hit the auto rickshaw, the auto rickshaw probably could not have went out of road and hit the tree. Such action of the driver of the auto rickshaw in carrying more than the prescribed passenger may entail his criminal prosecution. But that itself does not constitute the cause of accident. Therefore, the said contention was rightly rejected by the tribunal. Having regard to Ex.P4 and the evidence of PW3, it cannot be said that the finding of the tribunal regarding actionable negligence on the part of the rider of the scooter is incorrect. Thus, that has to be upheld. - 14 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 Reg. Quantum:

16. The evidence of PW2, the Manager - HR in Department Of Telecommunication Union of India coupled with Exs.P22 to 30, the offer of appointment letter, acceptance of appointment, joining report, appointment order, pay slips, Form No.16 etc., show that the deceased was working in the Telecom Department as Research Engineer on the pay scale of Rs.15,600/- to Rs.39,100/- with effect from 1.08.2013. It is also not disputed that he was B.tech degree holder. Pay slips of the month of September to November 2013 are together marked at Ex.P12. Out of them his last month salary has to be taken as his income. The salary slip for the month of November 2013 shows that his gross monthly salary was Rs.52,355/- . Therefore, his annual salary comes to Rs.6,28,260/- (52,355 x 12). As per the Finance Act, 2013 the tax payable on the said annual income was Rs.55,652/- and professional tax of Rs.2,400/- has also been deducted from his income. Therefore, his annual contribution to his - 15 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 family comes to Rs.5,70,208/- (6,28,260 – 58,052). The deceased was aged 22 years. As per judgment of the Hon'ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi1 40% has to be added to his income towards future prospects. Therefore, his total income comes to Rs.7,98,291/- [5,70,208 + 2,28,083 (future prospects)] rounded to Rs.7,98,300/-.

17. Learned counsel for the claimants contends that the deceased had a minor sibling, therefore for his personal income 1/3rd should have been deducted. But the evidence of PW1 i.e., the father of claimant No.3 and the deceased shows that he was working as Deputy manager at Kolkata Gas Supply Corporation Ltd., and his monthly salary was between Rs.60,000/- to Rs.70,000/-. Therefore, claimant No.3 cannot be considered as the dependent of the deceased. Hence, the tribunal was justified in deducting 50% of the income of the deceased for his personal expenses. On such deduction his annual 1 2017 (16) SCC 680 - 16 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 income comes to Rs.3,99,150/-. For his age, applicable multiplier is 18. Therefore, compensation payable on the head of loss of dependency comes to Rs.71,84,700/- (3,99,130 x 18).

18. As per the judgment of the Supreme Court in Sebastiani Lakra v. National Insurance Company Ltd.,2 any benefit received from the employer of the deceased due to the employment conditions cannot be deducted from the compensation payable. Such deduction by the tribunal is erroneous. As per the judgment of the Hon'ble Supreme Court in case of Pranay Sethi referred supra and Magma General Insurance Company Limited v. Nanu Ram & Others3, on the head of loss of consortium each of the claimants are entitled compensation of Rs.40,000/- with escalation at 10% for every three years. Similarly, the claimants are entitled to compensation of Rs.15,000/- under the head of loss of funeral expenses and Rs.15,000/- under the head of loss 2 AIR 18 SCC 5034 3 (2018) 18 SCC 130 - 17 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 of estate with escalation at 10% for every 3 years which comes to Rs.36,000/-. Therefore, the just compensation payable is as follows:

4. Loss of dependency Rs.71,84,700/- Loss of consortium (48,000 x 3) Rs. 1,44,000/- Loss of funeral expenses Rs. 18,000/- Loss of estate Total Rs, 18,000/- Rs.73,64,700/-

19. For the aforesaid reasons claimants appeal is liable to be dismissed and the insurer’s appeal deserves to be allowed. Hence, the following: ORDER i) MFA.No.7591/2017 is dismissed. ii) MFA.No.7875/2017 is allowed in part. iii) The impugned award is modified as follows: a. The MVC.No.3823/2014 partly allowed. - 18 - NC: 2024:KHC:41851-DB MFA No.7591/2017 C/W MFA No.7875/2017 b. The claimants are held entitled to compensation of Rs.73,64,700/- with interest thereon at 6% p.a. from the date of the petition till its realization. c. Respondent No.1 - insurer shall deposit the said amount before the tribunal within four weeks from the date of the receipt of this order, on adjusting the amount already deposited if any. d. The order of the tribunal with regard to apportionment of the award and investment is maintained. e. Amount in deposit if any and TCRs shall be transmitted to the tribunal forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 2 Sl No.: 1