IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.5740/2019 c/w
M.F.A.No.4964/2018, M.F.A.No.5354/2018 &
M.F.A.No.5741/2019 (MV)
IN M.F.A.No.5740/2019:
BETWEEN :
1. PRAGATH KARIAPPA
S/O LATE M.M.KARIAPPA,
AGED ABOUT 26 YEARS.
2. PRANITH KARIAPPA M.,
D/O LATE M.M.KARIAPPA,
AGED ABOUT 22 YEARS.
BOTH ARE R/AT POLOOR VILLAGE
& POST VIA NAPOKLU,
MADIKERI, KODAGU-571 214 ...APPELLANTS
(BY SRI SYED ABDUL SABOOR, ADV.)
AND :
1. MAHADEVA H.S.,
S/O SANNAIAH, AGED 43 YEARS,
R/AT HOSAKOTE VILLAGE,
CBT COLONY POST,
KASABA HOBLI, HUNSUR-571105.
(OWNER KA-45-9511)
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2. ICICI LOMBARD GENERAL
INSURANCE CO. LTD., MUMBAI,
REP. BY ITS MANAGER,
BRANCH OFFICE AT MYTHRI ARCADE,
FIRST MAIN, SARASWATHIPURAM,
MYSORE-570009.
(OWNER KA-45-9511) ...RESPONDENTS
(BY SRI PRADEEP B., ADV. FOR R-2; R-1 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.101/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, SENIOR CIVIL
JUDGE, MYSURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.4964/2018:
BETWEEN :
M/s ICICI LOMBARD GIC LTD.,
BRANCH OFFICE AT MYTHRI ARCADE,
FIRST MAIN, SARASWATHIPURAM,
MYSURU-570 009
NOW REP BY LEGAL MANAGER,
ICICI LOMBARD GIC LTD.,
# 121, THE ESTATE BUILDING,
9TH FLOOR, DICKENSON ROAD,
BANGALORE-42 ...APPELLANT
(BY SRI PRADEEP B., ADV.)
AND :
1. M.T.BOPANNA
S/O LATE M.M.THIMMAIAH,
AGED ABOUT 27 YEARS.
2. POONAM M.T.,
D/O LATE M.M.THIMMAIAH,
AGED ABOUT 26 YEARS.
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BOTH ARE R/AT POLOOR VILLAGE
& POST VIA NAPOKLU,
MADIKERI, KODAGU-571 214
3. MADADEVA H.S.,
S/O SANNAIAH, AGED ABOUT 41 YEARS,
R/AT HOSAKOTE VILLAGE,
C.B.T.COLONY POST, KASABA HOBLI,
HUNSUR TALUK-571 105 ...RESPONDENTS
(BY SRI SYED ABDUL SABOOR, ADV. FOR R-1;
R-2 & R-3 ARE SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.103/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, SENIOR CIVIL
JUDGE AS A PRESIDING OFFICER, MACT, MYSURU, AWARDING
COMPENSATION OF Rs.7,30,000/- WITH INTEREST AT 8% P.A.
FROM THE DATE OF PETITION TILL THE REALIZATION.
IN M.F.A.No.5354/2018:
BETWEEN :
M/s ICICI LOMBARD GIC LTD.,
BRANCH OFFICE AT MYTHRI ARCADE
FIRST MAIN, SARASWATHIPURAM
MYSURU-570 009
NOW REP BY LEGAL MANAGER
ICICI LOMBARD GIC LTD.,
No.121, THE EASTATE BUILDING,
9TH FLOOR, DICKENSON ROAD,
BANGALORE-42 ...APPELLANT
(BY SRI PRADEEP B., ADV.)
AND :
1. PRAGATH KARIAPPA
S/O LATE M.M.KARIAPPA
AGED ABOUT 24 YEARS.
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2. PRANITH KARIAPPA M.,
D/O LATE M.M.KARIAPPA
AGED ABOUT 20 YEARS
BOTH ARE R/AT
POLOOR VILLAGE & POST
VIA NAPOKLU, MADIKERI
KODAGU-571 214
3. MAHADEVA H.S.,
S/O SANNAIAH,
AGED ABOUT 41 YEARS,
R/AT HOSAKOTE VILLAGE,
CBT COLONY POST,
KASABA HOBLI, HUNSURU TALUK,
OWNER KA-45-9511 ...RESPONDENTS
(BY SRI SYED ABDUL SABOOR, ADV. FOR R-1; R-3 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.101/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, SENIOR CIVIL
JUDGE, MACT, MYSURU, AWARDING COMPENSATION OF
Rs.10,78,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
IN M.F.A.No.5741/2019:
BETWEEN :
1. M.T.BOPANNA
S/O LATE M.M.THIMMAIAH,
AGED ABOUT 30 YEARS.
2. POONAM M.T.,
D/O LATE M.M.THIMMAIAH,
AGED ABOUT 29 YEARS.
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BOTH ARE R/AT
POLOOR VILLAGE & POST,
VIA NAPOKLU, MADIKERI,
KODAGU-571214 ...APPELLANTS
(BY SRI SYED ABDUL SABOOR, ADV.)
AND :
1. MAHADEVA H.S.,
S/O SANNAIAH, AGED 43 YEARS,
R/AT HOSAKOTE VILLAGE,
C.B.T. COLONY POST,
KASABA HOBLI, HUNSUR-571105
(OWNER KA-45-9511)
2. ICICI LOMBARD GENERAL
INSURANCE CO. LTD., MUMBAI,
REP. BY ITS MANAGER,
BRANCH OFFICE AT MYTHRI ARCADE,
FIRST MAIN, SARASWATHIPURAM,
MYSURU-570 009
(INSURER KA-45-9511)
...RESPONDENTS
(BY SRI PRADEEP B., ADV. FOR R-2; R-1 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.103/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MACT,
MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
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JUDGMENT
Since akin issues are involved in these matters and the appeals arise out of the same accident, they are clubbed, heard together and disposed of by this common judgment.
2. The claimants as well as the insurer are before this Court challenging the common judgment and award dated 21.03.2018 passed in MVC Nos.101/2017 and 103/2017 by the Principal Judge, Court of Small Causes, Senior Civil Judge, Mysuru ('Tribunal' for short).
3. For the sake of convenience, the parties are referred to as per their status before the Tribunal.
4. The claimants instituted petitions under Section 166 of the Motor Vehicles Act, 1988 against the respondents claiming compensation for the death of -7- Smt. Daizy Kariappa and Smt. M.T. Susheela @ Baby in road traffic accident.
5. It was averred in the claim petitions that on 13.12.2016 at about 2.00 p.m. near Bilikere - Kolagatta village on Hunsur - Mysuru main road, when both the deceased namely Smt. Daizy Kariappa and Smt. M.T. Susheela @ Baby were traveling in a car bearing registration No.KA-12-P-5751 driven by Smt. Daizy Kariappa, at that time, driver of Bulero goods vehicle bearing registration No.KA-45-9511 (offending vehicle) came from opposite direction in a high speed and dashed to the said vehicle. Due to the said impact, both Smt. Daizy Kariappa and Smt. M.T. Susheela @ Baby sustained grievous injuries and succumbed to the same on the spot itself.
6. It was contended that the deceased were the only earning members of their family owning Coffee Estate and doing business. They were earning -8- Rs.25,000/- each per month and maintaining their family members. Due to the untimely death of the deceased, claimants are put to loss of dependency etc.,. On these set of facts and grounds, the claimants sought for compensation.
7. In response to the notice issued, though the respondent No.1 - owner of the offending vehicle appeared through his counsel, no objection statement was filed. Common statement of objection was filed by the insurance company denying the petition averments. The defence set up was that the accident had occurred due to the rash and negligent driving of the deceased; the liability, if any, is subject to the terms and conditions of the policy, valid driving licence and permit; the compensation and interest claimed by the claimants is highly excessive and exorbitant. On these grounds, they prayed for dismissal of both the petitions. -9-
8. On the basis of the pleadings, the Tribunal framed the following issues:-
IN MVC No.101/2017
1) Whether the petitioners prove that on 13/12/2016 at about 2.00 p.m. at Kolaghatta village on Hunsur - Mysuru main road when Sri.Daizy Kariappa was proceeding in Car bearing registration No.KA-12-P-5751, at that time the driver of Goods vehicle bearing No.KA-45-9511 drove it in a high speed with rash and negligent manner and dashed, as a result of which, he succumbed to injuries?
2) Whether the petitioners are entitle for compensation? If so, what is the quantum and from whom?
3) What order or award?
IN MVC No.103/2017
1) Whether the petitioners prove that on
13/12/2016 at about 2.00 p.m., at Kolaghatta village on Hunsur - Mysuru
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main road when Smt. M.T. Susheela @ Baby was travelling in a Car bearing registration No.KA-12-P-5751, at that time the driver of Goods vehicle bearing No.KA-45-9511 drove it in a high speed with rash and negligent manner and dashed, as a result of which, she succumbed to injuries?
2) Whether the petitioners are entitle for compensation? If so, what is the quantum and from whom?3) What order or award?
9. The claimant No1 in MVC No.101/2017 was examined as PW.1 and got marked Exs.P1 to P14; claimant No.1 in MVC No.103/2017 was examined as PW.2 and got marked Exs.P15 to P21. No oral and documentary evidence was tendered on behalf of the respondents.
10. On appreciation of oral and ocular evidence, the Tribunal answered issue No.1 in the affirmative; issue No.2 partly in the affirmative and allowed the
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claim petitions in part, awarding total compensation of Rs.10,78,000/- in MVC No.101/2017 and Rs.7,30,000/- in MVC No.103/2017 along with interest at the rate of 8% per annum from the date of petition till its realisation in both the cases.
11. Being aggrieved, the insurer as well as the claimants are before this Court.
12. Learned counsel for the insurer stoutly argued that the tribunal committed a palpable error in awarding compensation towards loss of dependency in both the cases. The claimants are major children of the deceased in both the cases. The Tribunal ought to have awarded the compensation towards loss to estate but not towards loss of dependency. It was further argued that the compensation awarded under the different heads is exorbitant. The same is not in conformity with the evidence available on record.
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13. Learned counsel for the claimants argued that the claimants in both the cases were not earning members and they were entirely dependants on their respective mothers who were maintaining the family. The untimely death of the deceased has caused loss of financial dependency besides loss of love and affection etc.,
14. It is borne out from the records that the deceased in both the cases were owning Coffee Estate and doing business. The evidence of PW.1 and PW.2 supported by the Exs.P14 and P21 supports the same. Claimants had lost their father earlier and they were solely depending on their mother. Neither any defence was taken by the insurer in the written statement nor any rebuttal evidence has been tendered by the insurer to impeach the credibility of the claimants' witnesses as regards the dependency is concerned. Indeed insurer
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has not stepped into the witness box to tender any evidence.
15. In the absence of pleadings, evidence and adjudication, the challenge made by the insurer to the compensation awarded under the head loss of dependency is wholly unsustainable. On the contrary, the material evidence on record would disclose that the claimants were depending on the deceased. As such, we are of the considered view that the compensation awarded by the Tribunal under the head loss of dependency cannot be faulted with.
16. The quantum of compensation awarded under the head, loss of dependency appears to be on the lower side having regard to the facts and circumstances of the case. The Tribunal has determined the monthly income of the deceased in both the cases at Rs.9,000/-. Considering the same, the loss of dependency was computed at Rs.10,08,000/-. In the
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absence of cogent evidence to establish the factum of income, it would be safe to refer to the chart prepared by the Karnataka State Legal Services Authority. Considering the same, the monthly income of the deceased in both the cases is re-determined notionally at Rs.9,500/-. Since the deceased was aged 45 years in MVC No.101/2017 (MFA No.5740/2019) and 55 years in MVC No.103/2017 (MFA No.5741/2019), adding 25% and 10% of the determined income, the monthly income would be Rs.11,875/- and Rs.10,450/- respectively. Applying the multiplier of 14, deducting 1/3rd of the income towards personal and living expenses of the deceased, loss of dependency would be Rs.13,30,000/- (Rs.11875 x 12 x 14 x 2/3) in MFA No.5740/2019. Applying the multiplier of 11, deducting 1/3rd of the income towards the personal and living expenses of the deceased, loss of dependency would work out to Rs.9,19,600/- (Rs.10450 x 12 x 11 x 2/3) in MFA No.5741/19. The claimants being the dependants in
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both the cases, they are entitled to compensation of Rs.70,000/- towards the conventional heads in each case. Thus, the total compensation is re-assessed as under:
MFA No.5740/18 MFA No. 5741/18
Loss of dependency 13,30,000 9,19,600
Loss to estate 15,000 15,000
Funeral expenses 15,000 15,000
Loss of parental 40,000 40,000
Consortium
(unmarried daughter)
------------- -----------
Total 14,00,000 9,89,600
------------- ------------
17. As regards rate of interest, having regard to the fall in the rate of interest in the banks and to maintain uniformity in the order as this Court is consistently awarding interest at the rate of 6% p.a. in identical circumstances, we deem it appropriate to modify the rate of interest from 9% to 6% p.a.
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18. Thus, the claimants are entitled to total compensation of Rs.14,00,000/- and Rs.9,89,600/- in MFA Nos.5740/2019 and 5741/2019 respectively with interest @ 6% p.a. from the date of petition till realization.
19. Appeals filed by the insurer i.e., MFA Nos.5354/2018 and 4964/2018 are allowed only to the extent of modifying the rate of interest from 8% p.a. to 6% p.a. from the date of petition till realization.
Hence, the following:
ORDER
i) The appeals are allowed in part.
ii) The total compensation awarded by the
Tribunal in MVC.No.101/2017
(MFA.No.5740/2019) is modified and
enhanced to Rs.14,00,000/- (Rupees
Fourteen lakhs only) as against
Rs.10,78,000/- with interest at the rate
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of 6% per annum from the date of the claim petition till its realization.
iii) The total compensation awarded by the Tribunal in MVC.No.103/2017 (MFA.No.5741/2019) is modified and enhanced to Rs.9,89,600/- (Rupees Nine Lakhs Eighty Nine Thousand Six Hundred only) as against Rs.7,30,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization subject to clause (IV) herein.
iv) Interest for the delayed period of 322 days in filing the appeal by the claimants is denied in M.F.A.No.5740/2019 and M.F.A.No.5741/2019.
v) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
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vi) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
vii) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
viii) Draw modified award accordingly.
ix) The Registry shall transfer the amount in deposit along with original records to the jurisdictional Tribunal forthwith.
x) All pending I.As. stand disposed of accordingly.
SD/-
JUDGE SD/-
JUDGE PMR/Dvr: