ROYAL SUNDARAM GENERAL INSURANCE CO., LTD. v. NONE

(BY SRI. RAJU S, ADV.,) ...APPELLANTS - 3 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 AND:

SRI. VASANTHAKUMAR M.A. S/O AMARESH .V AGED MAJOR R/AT NO.65, WARD NO.11 MARALUBAGILU DEVANAHALLI TOWN BENGALURU RURAL DISTRICT.

THE ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD., RAGHAVENDRA PLAZA GROUND FLOOR NO.186/7, HOSURU MAIN ROAD WILSON GARDEN BANGALORE - 560027 REPTD BY ITS MANAGER. ...RESPONDENTS (BY SRI. S.A. SUDHINDRA, ADV., FOR R1 SRI. RAVI S. SAMPRATHI, ADV., FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 20.04.2023 IN M.V.C.NO.150/2018 ON THE FILE OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL AND ADDL. SENIOR CIVIL JUDGE & JMFC, AT RAMANAGARA AND ENHANCED AS PRAYED WITH 12% INTEREST PER ANNUM IN THE INTEREST OF JUSTICE AND EQUITY & ETC., 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 - 4 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging the award in MVC No.150/2018 passed by the Additional MACT and Additional Senior Civil Judge & JMFC, Ramanagara, the insurer has preferred MFA No.5145/2023 and the claimants have preferred MFA No.7123/2023.

2. The appellants in MFA No.7123/2023 were the claimants, the respondent Nos.1 & 2 in the said appeal were respondent Nos.1 & 2 in MVC No.150/2018 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

The claimant Nos.1 & 2 are the father and mother of the deceased Sayantan Saha. On 04.03.2018 at 02.30.a.m. when Sayantan Saha was traveling on motorcycle bearing Reg. No.KA-51-AA-0416 along with his friend Madhumita near Madapura Gate on Bengaluru-Mysuru Road, he was allegedly hit by a Car bearing Reg. No.KA-43-7847. Sayantan Saha died on the spot. - 5 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023

The claimants filed MVC No.150/2018 against respondent Nos.1 and 2 claiming that the accident in question occurred due to actionable negligence on the part of the driver of Car No.KA-43-7847, deceased was earning Rs.50,00,000/- per year as Senior Project Engineer in Wipro Company. They further claimed that they were dependent on the income of the deceased and they claimed compensation of Rs.50,00,00,000/-. They contended that respondent Nos.1 & 2 being the owner insurer of Car No.KA-43-7847 are liable to pay compensation.

Respondent Nos.1 & 2 filed their counter to the claim petition denying the actionable negligence on the part of the driver of the Car, involvement of the Car in the accident, age, occupation, income of the deceased and their liability to pay compensation. Respondent No.2 - the insurer further contended that the claimants in collusion with the local police have planted the insured car and the petition and criminal proceedings are collusive one and sought dismissal of the petition. - 6 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023

In support of the claim of the claimants, claimant No.1 was examined as PW-1 and HR Manager of the employer of the deceased was examined as PW-2 and on their behalf Exs.P-1 to P-32 were marked. Respondent No.1 did not lead any evidence. Respondent No.2 examined RWs-1 & 2, the Private Investigator and the Investigator and got marked Exs.R-1 to R-10.

The Tribunal, on hearing the parties, by the impugned award rejecting the contentions of respondent No.2 regarding planting of vehicle, the allegation of collusion, etc., based on the police records held that the accident and consequent death occurred due to the actionable negligence on the part of driver of Car No.KA-43-7847.

The Tribunal relying on the evidence of PW-2 and Ex.P-13 - the appointment letter, considered the income of the deceased at Rs.1,08,334/- p.m, and after deducting the tax, the Tribunal considered his income at Rs.80,000/- p.m. The Tribunal based on Ex.P-8 birth certificate, considering the age of the deceased as 26 years, added 40% to the income of the deceased by way of future prospects, deducted 1/3rd from the - 7 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 from the income of the deceased and ultimately considered his contribution to the family at Rs.74,667/- p.m. The Tribunal applied 17 multiplier and awarded compensation of Rs.1,52,32,068/- on the head of loss of dependency.

The Tribunal awarded in all compensation of Rs.1,54,03,068/- on different heads as under: Sl. No. 1. Compensation towards loss Particulars Compensation awarded in Rs. 1,52,32,068/- of dependency

2. Compensation towards loss 16,500/- of estate 3. Compensation funeral ceremony expenses towards obsequies 16,500/-

4. Compensation towards 88,000/-

5. Consortium Transportation Charges Total 50,000/- 1,54,03,068/- Since the insurance was in force, the insurer was directed to indemnify the damages.

Before this Court in MFA No.5145/2023 the insurer has filed I.A.No.1/2024 seeking permission to produce the following documents: "1. Office copy of letter dated 23/08/2019 from Basker Mudaliyar - 8 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023

2. Copy of Survey Report dated 09/08/2018 by Mr.M.V.Harinath in respect of motorcycle bearing no.KA 51 AA 0416

3. Copy of motor claim form dated 30/03/2018 submitted by the owner/insured of motorcycle bearing no.KA 51 AA 0416

4. Copy of Motor (Final) Survey Report dated 09/08/2018

5. Payment voucher. "

Further, I.A.No.2/2024 is filed by the insurer in the said case seeking amendment of its written statement. The claimants have filed their counter to both the applications. By way of proposed amendment and additional documents, the insurer wants to claim that the insurer got the matter investigated through RW-2 and during the said investigation, the charge sheeted driver gave statement to the effect that he was not the driver of the car at the relevant time and one Vinod was driving the car, etc.

Submissions of Sri. Ravi S.Samprathi, learned counsel for the insurer: (i) The evidence of RWs-1 & 2 and Ex.R-1 show that Naveen Kumar, the charge sheeted driver clearly stated that the insured car was not involved in the accident and the car - 9 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 and the driver were planted with the help of police. Ex.R-1 was not disputed in the cross-examination of RWs-1 & 2. Further, the documents now sought to be produced clearly show that the owner of the bike, on which the deceased and complainant were, traveling met with an accident on 23.03.2018 and not on

04.03.2018, that demolishes the case of the claimants and the police records. Therefore, the additional evidence and amendment are required to be admitted. (ii) Sofar as the computation of loss of dependency, deceased was a bachelor therefore, the Tribunal ought to have deducted 50% of the income for his personal expenses in view of the judgment of Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 and the income tax deducted from the income of the deceased is also incorrect. The compensation awarded on the other heads is also on the higher side.

Submissions of Sri.A.K.Bhat, learned counsel for the claimants: - 10 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 On thorough investigation charge sheet was filed against one Naveen Kumar, the driver of the car. The respondents have failed to rebut the presumption available under the charge sheet. The claimants disputed the entire evidence of RWs-1 &

2. The evidence of those witnesses, more particularly RW-1 show that he has created such document at the behest of the insurance company. Even that document was created after more than two years of the incident. Neither the insurer nor the alleged driver has challenged the charge sheet. The alleged statement of Naveen Kumar is inadmissible in evidence, he was not examined before the Tribunal. The Tribunal considering all such aspects has rightly rejected the defence of the insurer that the driver and car were planted. No grounds are made out to admit the documents produced before this Court or permit the amendment. Said amendment and documents are all subsequently got up, absolutely no reasons is shown for such belated amendment or production of the documents, therefore, the applications are liable to be dismissed. The income of the deceased considered by the Tribunal is on the lower side, having regard to his past employment the Tribunal should have considered such income. Therefore, the insurer's appeal is - 11 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 liable to be dismissed and the claimants' appeal shall be allowed.

Considering the submissions of both side and on examination of the material on record, the points that arise for determination are : i. Whether the finding of the Tribunal that the accident occurred due to actionable negligence of the driver of the Car No.KA-43-7847 suffers any illegality? ii. Whether I.A.Nos.1 & 2 of 2024 in MFA No.5145/2023 deserves to be allowed? iii. Whether the compensation awarded by the Tribunal is just one? Reg. Point Nos.1 & 2:

The evidence of PW-1 and Exs.P-1 to P-7 viz., the FIR, complaint, charge sheet, spot inspection, inquest report, PM report and IMV report show that the pillion rider of the motorcycle bearing Reg. No.KA-51-AA-0416 soon after the accident filed the complaint as per Ex.P-2 before Ramanagara Traffic Police. In Ex.P-2 she alleged that herself and deceased were proceeding on motorcycle bearing Reg. No.KA-51-AA-0416 - 12 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 to go to Coorg and when they were proceeding near Madapur Gate, the driver of car No.KA-43-7847 driving the car in rash and negligent manner hit the motorcycle leading to grievous injuries and death of Sayantan Saha. Ex.P-1 FIR in Crime No.29/2018 of Ramanagar Traffic Police Station indicates that the incident took place on 04.03.2018 at about 02.45 a.m. and the FIR was registered on the same day at 10.00 a.m. against the driver of Car No.KA-43-7847. Both the deceased and the pillion rider/complainant were from West Bengal, within short time and in such traumatic condition, there would be no scope for any manipulation. The aforesaid records further show that the police on investigation, charge sheeted the driver of the car for the offence punishable under Sections 279, 337, 304A of IPC and Section 187 of Motor Vehicles Act, 1988, as long back as on 12.04.2018 i.e., within 1 month 8 days of the accident. The claim petition was filed on 21.03.2018.

The Tribunal records show that the insurer was served and appeared before the Tribunal by 14.09.2018 but Ex.R-1, the Investigation Report is purportedly submitted on

04.08.2020 i.e., after close to more than two years. According to Ex.R-1, Naveen Kumar who was charge sheeted in the - 13 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 criminal case has given a statement to the effect that respondent No.1 has sold the car to one Vinod prior to the accident and on that day himself and said Vinod were traveling towards Mysuru and when Vinod and Naveen were trying to overtake the lorry, they hit the two wheeler and he was falsely implicated in the case.

Firstly the alleged statement of Naveen Kumar in Ex.R-1 is inadmissible in evidence in view of Section 32 of Indian Evidence Act, 1872, as it then was. Secondly said Naveen was not examined before the Tribunal, he had not challenged the charge sheet. RW-1, who allegedly conducted the investigation mentioned in Ex.R-1 and recorded the statement in CD Ex.R-2, himself admits in the cross- examination that he has given such report at the behest of the insurance company. He further admits that he has not produced any authorization letter issued by the insurance company to depose on behalf of the insurance company. He further admits that he enquired as to who obtained bail in the criminal case but he has not produced that document. That goes to show that the charge sheeted driver himself has taken bail in the case. He says in the investigation, except Naveen he - 14 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 did not enquire any other witness. He admits that for such investigation he was required to examine the entire police records and the witnesses stated therein. He states that in Ex.R-1 he has not mentioned in which place he met Naveen and recorded his statement. He unequivocally admits that he is deposing before the Court at the behest of respondent No.2 - insurer. He admits that after two years of the accident, the insurance company had asked him to conduct investigation. He evades to answer the question that whether he can examine that Naveen who allegedly gave statement before him. It was suggested to RW-1 in his cross-examination that all the information in his affidavit by way of chief examination was made to help the insurance company. Such suggestion falsifies the contention of the learned counsel for the insurer that Ex.R- 1 was not disputed.

The evidence of RW-2 - the other investigator also does not inspire confidence of the Court. He claims that insurance company has filed complaint before the Police. He admits that Exs.R-5 & R-6, the alleged postal receipts for having sent complaint to the police were subsequent to he filing the chief examination affidavit. He admits that he has not - 15 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 produced the acknowledgment for having served such complaint on the police. He admits that insurance company has not challenged the investigation conducted by the police nor they have given any notice to Naveen Kumar who allegedly given statement before RW-1. He admits that Naveen Kumar was accused in the criminal case. So far as Ex.R-2 the CD allegedly containing the audio-video statement of alleged Naveen Kumar, he says he has no information about that. Ex.R-2 was totally inadmissible in evidence as the same was not accompanied by the certificate required under Section 65B of the Evidence Act. Mere marking of that document does not amount to proof.

It is also material to note that the insurance company which is a mighty organization, though alleges such a serious fraud, has not filed any complaint before the Police alleging fraud, forgery, etc. Though it is contended that a complaint was sent through post, the same was not taken to any logical end nor even complaint before the Magistrate under Section 200 of Cr.P.C. was filed. - 16 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023

The Tribunal considering all the above aspects has rightly rejected the contention of the insurer about the planting of the vehicle and the driver. In fact in Ex.R-1 the involvement of the vehicle is admitted, only the identity of the driver is disputed. So far as the amendment and producing of additional evidence is concerned, such production and amendment are highly belated and absolutely there is no explanation as to why such investigations were not conducted soon after the claim was made and such amendment was not sought before the Tribunal, though Ex.R-1 was produced before the Tribunal itself. Therefore, we do not find any merit in I.A.Nos.1 & 2 of

2024. The applications are liable to be dismissed. Thus, the finding of the Tribunal regarding the occurrence of the accident due to the actionable negligence on the part of the driver of the car bearing Reg. No.KA-43/7847 does not warrant any interference. Reg. Quantum:

According to the claimants, deceased was working as Senior Project Engineer in Wipro Company on annual package of Rs.50,00,000/-. To prove his income, they rely on the evidence of PW-2, Exs.P11 to P13 and Exs.P26 to P32. - 17 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 Though it was contended that deceased was working in Ireland on deputation by Cognizant Software Company with heavy salary package, admittedly he had left the job in the said Company at the time of the incident. The evidence of PW-2 and Ex.P13 show that the deceased was appointed in Wipro Company on 23.01.2018. Therefore, the Trial Court was justified in relying on his income proof at the time of the incident.

As per Ex.P13, the monthly salary of the deceased was Rs.1,08,334/-. Therefore, his annual salary comes to Rs.1,08,334/- x 12 = Rs.13,00,008/- rounded off Rs.13,00,000/-. Out of the said income, the income tax and surcharge as prevalent during the relevant period has to be deducted. As per the Finance Act, 2017, where the total income exceeds Rs.10,00,000/-, the basic tax was Rs.1,25,000/- + 30% for income above Rs.10,00,000/- and surcharge of 4% has to be added which comes to Rs.2,15,000/- + 8,600/- = Rs.2,23,600/-. Further, professional tax of Rs.2,400/- also has to be deducted. Therefore, total amount of Rs.2,26,000/- has to be deducted from the income. His annual income after such deduction comes to Rs.10,74,000/-. - 18 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023

Since the deceased was unmarried, as per the judgment of Hon'ble Supreme Court in Sarla Verma's case, the Tribunal ought to have deducted 50% of his income for his personal expenses instead of 1/3rd. On such deduction, his contribution to the family comes to Rs.10,74,000 X 50/100= Rs.5,37,000/- p.a. As the deceased was aged about 27 years and was not in permanent employment, as per the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi1 case, 40% has to be added to his income by way of future prospects which comes to Rs.5,37,000 X 40/100 = Rs.2,14,000/-. Therefore, his total income comes to Rs.5,37,000 + 2,14,000= Rs.7,51,800/- p.a. Applicable multiplier is 17. Therefore, the compensation under the head of loss of dependency comes to Rs.7,51,800/- x 17 = Rs.1,27,80,600/-. As per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case and Magma General Insurance Company Ltd., v. Nanu Ram alias Chuhru Ram2, the claimants are entitled to compensation on the head 1 2017 (16) SCC 680 2 AIRONLINE 2018 SC 1249 - 19 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 of consortium at the rate of Rs.40,000/- each with escalation of 10% which comes to Rs.88,000/-.

As per the judgment of Hon'ble Supreme Court in Pranay Sethi's case, claimants are entitled to compensation of Rs.15,000/- and Rs.15,000/- under the heads of funeral expenses and loss of estate with 10% escalation which comes to Rs.16,500/- and Rs.16,500/-, respectively. The Tribunal has awarded Rs.50,000/- on transportation charges though there was no evidence to show that the dead body was shifted to Kolkata and cremated there. The, just compensation payable is as follows: Sl. No. 1. 2. 3. 4. Particulars Loss of dependency Loss of consortium Funeral expenses Loss of estate Total Compensation awarded in Rs. 1,27,80,600/- 88,000/- 16,500/- 16,500/- 1,29,01,600/- Rs.1,54,03,068/- awarded by the Tribunal is on higher side, same has to be reduced to Rs.1,29,01,600/-. The same is payable with 6% interest p.a. The award has to be modified accordingly. Hence, the following: ORDER (i) MFA No.7123/2023 is hereby dismissed. - 20 - NC: 2024:KHC:41618-DB MFA No.5145/2023 C/W MFA No.7123/2023 (ii) MFA No.5145/2033 is allowed-in-part. (iii) The claimants are entitled to compensation Rs.1,29,01,600/- with interest thereon at 6% p.a. from the date of petition till its realization. (iv) Respondent No.2 insurer shall deposit the said compensation before the Tribunal within four weeks from the date of this order on adjusting the amount already deposited, if any. On such deposit, the Tribunal shall release the amount to the claimants forthwith. (v) The order of the Tribunal with regard to apportionment is maintained. (vi) Registry shall transmit the amount in deposit, if any, and the TCRs to the Tribunal forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/RV List No.: 2 Sl No.: 1