Karnataka High Court
The Divisional Manager vs Smt Bhagya on 1 July, 2024
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MFA No. 1055 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.1055 OF 2023
BETWEEN:
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.
DIVISIONAL OFFICE, MALLAPPA COMPLEX,
B.H.ROAD, SHIVAMOGGA,
REP BY DEPUTY MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
MAHALAKSHMI CHAMBERS,
2ND FLOOR, NO.9, M.G.ROAD,
BENGALURU - 560 001.
...APPELLANT
(BY SRI. P B RAJU, ADVOCATE)
AND:
Digitally signed by
REKHA R
Location: High Court of
1. SMT. BHAGYA
Karnataka W/O LATE JAYASHANKAR,
AGED ABOUT 48 YEARS,
HOUSE WIFE,
R/O MUGULUVALLI VILLAGE AND POST,
CHIKKAMAGALURU TALUK AND DISTRICT.
2. ABHILASH S
S/O SURESH,
AGED ABOUT 27 YEARS,
R/O GONGALAKATTE, KRISHNAPURA,
KALLATTIPURA POST,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT.
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MFA No. 1055 of 2023
3. THE PROPRIETOR,
VINAY GAS DISTRIBUTORS
BASAPPA COMPLEX BH-206,
KODI CAMP,
TARIKERE TOWN AND TALUK.
...RESPONDENTS
(BY SRI. K R LINGARAJU, ADVOCATE FOR R1;
R2 AND R3 ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT PRAYING TO a) SET ASIDE THE JUDGMENT AND AWARD
DATED 15.11.2022 PASSED IN MVC NO.76/2022 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL COURT I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU AND TO EXONERATE THE LIABILITY UPON
THE APPELLANT INSURANCE COMPANY; b) GRANT COST; c)
GRANT SUCH OTHER RELIEF OR RELIEF'S AS THIS HON'BLE
COURT MAY DEEM FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 173(1) of Motor Vehicles Act, respondent No.3 - Insurance Company has challenged the quantum of compensation granted by the Tribunal for the death of one Jayashankar in a motor vehicle accident dated 09.09.2021.
2. For the sake of convenience, parties are referred to by their ranks before the Tribunal. -3-
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3. Facts: It is the case of the petitioner that she is the mother of deceased Rakshitha M.J. On 09.09.2021 at about 12.30 p.m, Rakshitha M.J was riding TVS XL motor cycle bearing registration No.KA-18-EJ-2736 ('motor cycle' for short) from Pillenahalli towards Muguluvalli along with her father M.C.Jayashankar as a pillion rider. When they were near Kadekaluve, a lorry bearing registration No.KA- 66-0117 ('offending vehicle' for short), being driven by its driver in a high speed, in a rash or negligent manner came from the opposite side and dashed against the motorcycle. In the said accident, both of them died on the spot. At the time of accident, deceased Rakshitha M.J was studying in B.Com-II Year at IDSG College, Chikkamagaluru. She was also serving as computer operator in Janaspandana Development Society, Chikkamagaluru and earning Rs.18,000/- p.m. Being the mother, petitioner was dependent on deceased. As driver, owner and insurer, respondent Nos.1 to 3 are jointly and severally liable to pay the compensation and hence they laid a petition for compensation.
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NC: 2024:KHC:24691-DB MFA No. 1055 of 2023 4. Before the Tribunal, respondent Nos.1 and 2 remained ex-parte.
5. Respondent No.3 filed written statement, admitting the coverage of the offending vehicle, but its liability was subject to the terms and conditions of the policy. It has denied the entire case of the petitioner, including the allegations with regard to the accident, death due to accidental injury, income of the deceased and that the petitioner was dependent on her. Since deceased was a student, she had no income. The compensation claimed was highly exorbitant and fanciful. The accident occurred due to the negligence of the deceased. The driver of the offending vehicle was not possessing valid and effective driving license.
6. Based on the pleadings Tribunal framed necessary issues.
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7. In support of the petition, including the petitioner 2 witnesses were examined as PW-1 and 2 and Exs.P1 to 19 were marked.
8. No oral evidence was led by respondent No.3, but it got marked copy of the policy as Ex.R1.
9. Vide the impugned judgment and award, the Tribunal partly allowed the claim petition granting compensation in sum of Rs.30,01,000/- with interest at 6% p.a. and directed respondent No.3 to pay the same as detailed below:
Heads Amount
In Rs.
Loss of dependency 29,16,000
Funeral expenses 20,000
Loss of consortium, love and 40,000
affection
Loss of estate 25,000
TOTAL 30,01,000
10. Petitioner has not challenged the impugned judgment and award.
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11. During the course of arguments, learned counsel for respondent No.3 submitted that the impugned judgment and award is opposed to law, facts, probabilities of the case and liable to be set aside. As a temporary employee, deceased was not entitled for HRA, TA and conveyance. The compensation granted is on the higher side.
12. On the other hand learned counsel representing the petitioner supported the impugned judgment and award and sought for dismissal of the appeal.
13. We have heard elaborate arguments of both sides and perused the records.
14. In respect of the accident, a case was registered in Cr.No.122/2021 for the offences punishable under Sections 279, 304-A I.P.C. and Section 187 of IMV Act. Based on the oral and documentary evidence placed on record, the Tribunal has rightly held that accident occurred due to the rash or negligent driving of the -7- NC: 2024:KHC:24691-DB MFA No. 1055 of 2023 offending vehicle and in the said accident, the daughter and husband of petitioner died at the spot.
15. At the time of accident, deceased was studying in B.Com II Year. Petitioner has claimed that she was working as Data entry operator in Janaspandana Development Society, Chikkamagaluru and earning Rs.18,000/- p.m. On this aspect she has relied upon salary slip for the month of August 2021. The Tribunal has accepted this document and held her income as Rs.18,000/- p.m.
16. Petitioner has not produced the order appointing the deceased as Data entry operator. It is not clear whether she was in permanent employment or temporarily engaged. Ex.P9 is the service letter dated 10.08.2022 issued on behalf of Janaspandana Development Society. It is stated that deceased worked from 10.04.2020 to 06.09.2021 and she was drawing consolidated salary of Rs.18,000/- p.m. The date of accident is 09.09.2021. Ex.P10 is the salary slip. Petitioner -8- NC: 2024:KHC:24691-DB MFA No. 1055 of 2023 has not proved Ex.P9 and 10 by examining the concerned official of Janaspandana Development Society. No documents are produced to show the disbursement of salary to the deceased. At least petitioner could have produced the account statement of deceased to prove the disbursement of salary into her account. Therefore, Ex.P9 and 10 cannot be taken into consideration and the loss of dependency is required to be ascertained by considering the income of deceased on notional basis.
16. Based on the school records, the Tribunal has rightly held that at the time of accident, deceased was aged 20 years and therefore '18' multiplier considered by the Tribunal is correct. Since the accident is of the year 2021, the notional income is required to be taken at Rs.15,000/- p.m. The Tribunal has not added any amount towards loss of future prospects. As per the decision of Hon'ble Supreme Court in Magma General Insurance Co Ltd Vs. Nanu Ram Alias Chuhru Ram and others (Magma -9- NC: 2024:KHC:24691-DB MFA No. 1055 of 2023 General Insurance)1, loss of future prospects is required to be added. Since deceased was held to be still a student and below the age of 40 years, 40% is required to be added towards loss of future prospects. 40% of Rs.15,000/- is Rs.6,000. Therefore, income is required to be taken at Rs.21,000/-.
17. Deceased was not married. It is relevant to note that in the same accident, the father of deceased i.e., the husband of petitioner also died. Therefore, strictly speaking petitioner cannot be treated as dependent on the deceased. Anyhow, having regard to the fact that deceased was not married, 50% of notional income is required to be deducted towards her personal and living expenses. The balance of 50% is to be taken into consideration for calculating loss of dependency. With the income at Rs.21,000/- and multiplier '18', the loss of dependency is Rs.21,000x12x18x50%=Rs.22,68,000/- as against Rs.29,16,000/- granted by the Tribunal. 1 (2018) 18 SCC 130
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18. As per the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others (Pranay Sethi)2 and Magma General Insurance (stated supra) when substantial compensation is granted under the head loss of dependency, under the conventional head a sum of Rs.70,000/- is required to be granted, viz., under the head loss of consortium Rs.40,000/-, loss to estate Rs.15,000/- and funeral expenses (which includes transportation charges) Rs.15,000/-.
19. Thus, in all petitioner is entitled for a total compensation in a sum of Rs.23,38,000/- together with interest at 6% per annum as detailed below:
Heads Amount granted Amount granted by the Tribunal by this Court In Rs. In Rs.
Loss of dependency 29,16,000 22,68,000
Funeral expenses 20,000 15,000
(including transportation charges) Loss of consortium 40,000 40,000 (Loss of consortium, love and affection) Loss of estate 25,000 15,000 Total 30,01,000 23,38,000 2 (2017) 16 SCC 680
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20. To this extent, the impugned judgment and award is required to be modified and accordingly the following:
ORDER
(i) Appeal is allowed.
(ii) Respondent is entitled for compensation in a sum of Rs.23,38,000/- as against Rs.30,01,000/- granted by the Tribunal together with interest at 6% p.a. on the enhanced compensation.
(iii) Appellant being the insurer is directed to pay the compensation together with interest at 6% p.a on the compensation from the date of petition till realization (minus the amount already paid/deposited, if any) within a period of six weeks from the date of this order.
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(iv) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE RR List No.: 1 Sl No.: 17