Karnataka High Court
Chandrakala vs Dilipkumar M A on 2 July, 2024
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NC: 2024:KHC:24750-DB
MFA No. 1662 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND 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.1662 OF 2023 (MV-D)
BETWEEN:
1. CHANDRAKALA
W/O LOKESH
D/O GANGASHANIAH
AGED ABOUT 27 YEARS,
2. VISHALAMMA
S/O GANGASHANIAH
AGED ABOUT 50 YEARS,
BOTH ARE R/AT OLD RESIDENTS OF
GATTIPURA, MAGADI TALUK
Digitally signed by
REKHA R
Location: High
BOTH ARE PRESENTLY RESIDING AT
Court of Karnataka SATHYAMANGALA
TUMKURU TALUK
TUMKURU DISTRICT - 572 101
...APPELLANTS
(BY SRI. M.B.RYAKHA, ADVOCATE)
AND:
1. DILIPKUMAR M A
S/O AMASAIAH,
AGED ABOUT 33 YEARS,
R/AT MADENTURE AT POST
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MFA No. 1662 of 2023
SHANTHIGRAMA HOBLI,
HASSAN TALUK
HASSAN DISTRICT - 571 231
2. THE MANAGER
TATA AIG GEN, INSURANCE CO. LTD.,
OFFICE AT NO 1ST FLOOR, NO.612
KORAMANGALA, BENGALURU - 560 034
...RESPONDENTS
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
26.11.2021 PASSED IN MVC NO.382/2019 ON THE FILE OF THE
VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU,
ENHANCE THE COMPENSATION BY ALLOWING THE APPEAL, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR THIS HEARING DAY,
J.M.KHAZI J., THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Not being satisfied with the quantum of compensation granted by the Tribunal for the death of Lokesh respectively - the brother and son of petitioners, in a motor vehicle accident dated 08.12.2018, they have filed this appeal under Section 173(1) of Motor Vehicles Act, seeking enhancement.
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 petitioners that on 08.12.2018, Lokesh was traveling as a pillion rider on motor cycle bearing registration No.KA-13-EE-7819 ('offending vehicle' for short). It was ridden by respondent No.1 in a rash or negligent manner, as a result of which at about 11.00 p.m, when they were near the garden land of Mahalingappa, respondent No.1 lost control and dashed the offending vehicle against mud hump formed on account of construction work and both Lokesh and respondent No.1 fell down. In the said accident, Lokesh sustained grievous injuries. Despite treatment at Koratagere and Tumakuru Government Hospitals, ESI Hospital and Udbhava Hospital, Bengaluru, Lokesh succumbed to the injuries on 13.12.2018 at 3.30 p.m. 3.1 At the time of accident, deceased was working as Manager, Gramina Koota Bank, Dabaspete Branch and earning Rs.30,000/- p.m. As the sister and mother, petitioners were dependent on deceased Lokesh. As the owner/rider and insurer of the offending vehicle, -4- NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 respondent Nos. 1 and 2 are jointly and severally liable to pay the compensation.
4. Respondent No.1 filed written statement denying that accident occurred due to his rash or negligent driving. At the time of accident, he was holding a valid driving license. Since the offending vehicle was insured with respondent No.2, it is liable to pay the compensation.
5. Respondent No.2 filed written statement, disputing that offending vehicle is involved in the accident. It may be a case of hit and run. There is inordinate delay of 6 days in filing the complaint. Respondent No.2 also disputed the cause of accident, age, occupation and income of the deceased. Though coverage is admitted, its liability is subject to the terms and conditions of the policy. The compensation claimed is highly exorbitant, fanciful, and without any basis and sought for dismissal of the petition against it.
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6. Based on the pleadings Tribunal framed necessary issues.
7. In support of petitioners' case, petitioner No.2 is examined as PW-1, one witness as PW-2 and Exs.P1 to 21 are marked.
8. On behalf of respondent No.2, one witness is examined as RW-1 and Exs.R1 to 4 are marked.
9. Vide the impugned judgment and award the Tribunal partly allowed the claim petition and granted compensation in a sum of Rs.9,88,000/- together with interest at 6% p.a and directed respondent No.2 to pay the same. The details of the compensation granted are as under:
Heads Amount
In Rs.
Loss of dependency 9,18,000
Love and affection 40,000
Loss of estate 15,000
Funeral expenses 15,000
TOTAL 9,88,000
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MFA No. 1662 of 2023
10. Respondents have not challenged the impugned judgment and award.
11. Not being satisfied with the quantum of compensation, petitioners have filed the appeal, contending that the impugned judgment and award is contrary to the fact and probabilities of the case. Despite production of proof of salary certificate, the Tribunal has erred in taking the income of the deceased on notional basis. The loss of future prospects are not added. The compensation granted under the other heads is on the lower side and prays to allow the appeal.
12. On the other hand, learned counsel for respondent No.2 submits that in the absence of proof of exact income, income taken on notional basis is correct. Petitioners are not entitled for interest on the compensation that may be granted under the head loss of future prospects. The compensation granted under the other heads are correct and prays to dismiss the appeal. -7-
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13. We have heard arguments of both sides and perused the records.
14. Having regard to the fact that respondents have not challenged the impugned judgment and award, the findings of the Tribunal that accident occurred due to the rash or negligent driving of the offending vehicle and in the said accident, Lokesh sustained injuries and died and being the insurer, respondent No.2 is liable to pay compensation has attained finality.
15. Based on the Aadhar card, the Tribunal has correctly taken the age of deceased as 26 years and multiplier '17'. Ex.P9 is the appointment letter dated 09.04.2018 issued by Credit access gramin Ltd (formerly known as Gramine Koota Financial Services Pvt.Ltd). Ex.P10 is the pay slip for the month of November 2018. As per Ex.P9, deceased was appointed as Trainee Kendra Manager (TKM), Grade - B1, on the job training for a period of 4-6 months, with a condition that his performance would be monitored by supervisors during -8- NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 the said period. The training period may be extended by another 3 months for valid reasons, based on the feedback by the supervisors. The TKM will not be allowed to continue as trainee beyond 9 months in case he is not able to meet performance expectations and/or do not submit the required documents to complete the reference verification/background verification. The accident is dated 08.12.2018 i.e., within 8 months of the training. The petitioners have not produced any documents to show that the job of deceased was confirmed. Consequently, the Tribunal is justified in not taking into consideration Exs.P9 and 10 and calculating the compensation based on notional income.
16. Since the accident is of the year 2018, the notional income ought to have been taken at Rs.12,500/- instead of Rs.9,000/-. Admittedly, the Tribunal has not added loss of future prospects while calculating loss of dependency. Since income is taken on notional basis, deceased is rightly considered as coming under the -9- NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 category of private/self employee and since he was below the age of 40 years, as per the decision of Hon'ble Supreme Court in Magma General Insurance Co Ltd Vs. Nanu Ram Alias Chuhru Ram and others (Magma General Insurance)1, 40% of income is required to be added towards loss of future prospects. 40% of Rs.12,500 is Rs.5,000/-. Therefore, the compensation under the head loss of dependency is 17,500x12x17x50%=17,85,000/- (i.e.,12,500x12x17x50%=12,75,000 + 5,000x12x17x50% = 5,10,000/-) as against Rs.9,18,000/- granted by the Tribunal.
17. As held by the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others (Pranay Sethi)2 and Magma General Insurance, the mother, only petitioner No.2 is entitled for compensation under the head loss on consortium which the Tribunal has granted under the head "loss of love and affection". Similarly, under the head loss of estate and funeral 1 (2018) 18 SCC 130 2 (2017) 16 SCC 680
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NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 expenses, the Tribunal has rightly granted compensation in a sum of Rs.15,000/- each which also requires no interference.
18. Thus, in all the petitioners and respondent No.3 are entitled for a total compensation in a sum of Rs.18,55,000/- as against Rs.9,88,000/- granted by the Tribunal as detailed below:
Heads Amount Amount granted by this granted by Court the Tribunal In Rs.
In Rs.
Loss of dependency 12,75,000
9,18,000 + 5,10,000 i.e. 17,85,000
(Loss of future
prospects)
Loss of consortium 40,000 40,000
(Loss of love &
affection)
Loss of estate 15,000 15,000
Funeral expenses 15,000 15,000
TOTAL 9,88,000 18,55,000
19. One of the grounds urged by respondent No.1 is that although petitioners are entitled for interest on the compensation granted from the date of petition till realization, no interest is to be allowed on the portion of the compensation granted under the head loss of future
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NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 prospects, as there would be no delay in payment of the same and since it would become due at a point of time which has not yet arisen.
19.1 In this regard, he relied upon the decision of Allahabad High Court in ICICI Lombard General Insurance Company Vs Smt.Seema Devi and 6 Ors (Seema Devi)3. In this decision, placing reliance on the decisions in Khusboo Chirania @ Kanta Chirania Vs Kamal Kumar Sovasaria (Khusboo), National Insurance Company Ltd Vs. Mst. Aisha Bano and Ors dated 14.07.2023 (Aisha Bano) and Smt. Kalpana Madhu Gavali and Ors Vs Maharashtra State Road Transport Corporation dated 21.09.2023 (Kalpana), it was held that the compensation granted under the head loss of future prospects should not have been subjected to payment of any interest.
19.2 In Aisha Bano, it was held that future prospects is relatable to an income to be received in the 3 Neutral citation No.2024:AHC:104849 dated 24.6.2024
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NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 future and as such there could not be any loss to the claimants for the payment of future prospects at the time the deceased met with the accident. The reason for awarding interest on the compensation amount minus the future prospects is due to the fact that though the loss of dependency starts from the date of the accident, the compensation amount is computed on the date of award of the Tribunal. Interest is awarded to compensate the loss of money value on account of lapse of time, such as the time taken for the legal proceedings and for the denial of right to utilise the money when due. However, future prospects is with regard to probable income to be received in the future and as such there is no requirement to grant interest on the amount awardable towards future prospects, as the future is yet to happen. Further, future prospects is given for the entire future and as such, the claimant is getting compensation in the lump sum prior to the occurrence of future events.
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NC: 2024:KHC:24750-DB MFA No. 1662 of 2023 19.3 We are in the complete agreement with the above decisions. Since the amount due under the head loss of future prospects is yet to become due, it would be illogical and illegal to direct the insurance company to pay interest on loss of future prospects. Therefore, out of the total compensation payable, the respondent No.1 is not liable to pay any interest on the compensation under the head loss of future prospects. However, so far as the remaining compensation, respondent No.1 is liable to pay interest at the rate of 6% p.a. as directed by the Tribunal.
20. Thus, petitioners are entitled for interest at the rate of 6% p.a. on the enhanced compensation, except on Rs.5,10,000/- granted under the head loss of future prospects.
21. In the result, appeal is allowed in part and accordingly, the following:
ORDER
(i) Appeal is allowed in part.
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(ii) Petitioners are entitled for compensation in a sum of Rs.18,55,000/- as against Rs.9,88,000/- granted by the Tribunal together with interest at 6% p.a. on the enhanced compensation, except Rs.5,10,000 granted under the head loss of future prospects.
(iii) Respondent No.2 being the insurer is directed to pay the compensation together with interest at 6% p.a on the enhanced 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.
(iv) As per order dated 15.03.2023, petitioners are not entitled for interest for the delayed period on the enhanced compensation.
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(v) 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.: 21