Karnataka High Court
The Oriental Insurance Company Ltd vs Gummanna on 4 July, 2024
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NC: 2024:KHC:25344-DB
MFA No. 8625 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH 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.8625 OF 2023 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE, 1ST FLOOR, JYOTHI SUPAR
BAZAR, THODUPUZHA, KERALA - 685 584
THROUGH ITS BENGALURU REGIONAL OFFICE
NO.44/45, 4TH FLOOR, LEO SHOPPING COMPLEX,
RESIDENY ROAD, BENGALURU - 560 025
REPRESENTED BY ITS DEPUTY MANAGER
...APPELLANT
(BY SRI. S V HEGDE MULKHAND, ADVOCATE)
AND:
Digitally signed by
REKHA R 1. GUMMANNA
Location: High Court
of Karnataka S/O CHITHAPPA,
AGED ABOUT 68 YEARS,
2. BALAMMA
W/O GUMMANNA,
AGED ABOUT 63 YEARS,
3. KARIYANNA
S/O GUMMANNA,
AGED ABOUT 33 YEARS,
4. CHANDRANNA
S/O GUMMANNA,
AGED ABOUT 30 YEARS,
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NC: 2024:KHC:25344-DB
MFA No. 8625 of 2023
5. CHITHAPPA
S/O GUMMANNA,
AGED ABOUT 28 YEARS,
6. SAROJAMMA
W/O KRISHNAPPA,
AGED ABOUT 23 YEARS,
ALL ARE R/O KARAEBALAPPANAHATTI VILLAGE,
HULIYAR HOBLI, C N HALLI TALUK,
TUMKUR DISTRICT
7. THE MANAGING PARTNER
KAVALKAT METALS,
DOOR NO.IX/413/4-11,
THRISSUR, KERALA - 680 005
...RESPONDENTS
(BY SRI. MANJEGOWDA B V, ADVOCATE FOR
SRI. CHANDRASHEKARA K A, ADVOCATE FOR R1 TO R6;
R7 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
13.10.2023 PASSED IN MVC NO.196/2020 BY THE SENIOR
CIVIL JUDGE JMFC, XIX MACT, CHIKKANAYAKANAHALLI, MADE
THERE IN BY ALLOWING THIS APPEAL AND GRANT SUCH
OTHER APPROPRIATE RELIFS AS THIS HON'BLE COURT DEEMS
FIT TO GRANT IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR THIS HEARING DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the insurance company, challenging the impugned judgment and award passed by the Tribunal, granting compensation in a sum of Rs.32,45,200/- for the -3- NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 death of one Jayanna in a motor vehicle accident dated 06.09.2019.
2. For the sake of convenience, parties are referred to by their ranks before the Tribunal.
3. Facts: Petitioner who are the parents and siblings of Jayanna filed the petition, contending that on the date of accident at 9:45 a.m Jayanna was proceeding on motorcycle bearing registration No.KA-44-U-7353 ('motorcycle' for short) on Huliyar - C.N. Halli road. Near SLR petrol bunk, in front of the tea shop of Channabasavaiah , a lorry bearing registration No.KL-08- BS-6903 came from opposite side in a rash or negligent manner and dashed against the motorcycle. As a result of the accident, Jayanna sustained grevious injuries and died on the spot. At the time of accident, deceased was rearing cows and earning Rs.25,000/- p.m. Petitioners were dependent on him. As the insurer and owner, respondents are jointly and severally liable to pay the compensation and hence the petition.
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023
4. Though duly served, before the Tribunal respondent No.2 remained absent and as such placed ex- parte.
5. Respondent No.1/insurance company appeared through counsel and filed written statement, disputing the date, time, cause of accident and the manner in which it took place. Respondent No.1 has specifically pleaded that accident occurred due to the negligence of the deceased. He was not holding a valid and effective driving license. The income of deceased and that petitioners were dependent on him is also disputed. The compensation claimed is exorbitant, fanciful and without any basis.
6. Based on the pleadings Tribunal framed necessary issues.
7. In support of the petition, petitioner No.3 is examined as PW-1 and Exs.P1 to 23 are marked.
8. Respondent No.1 has not let any oral or documentrary evidence.
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9. Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition granting compensation in sum of Rs.32,45,200/- and directed respondent No.1 to pay the same with interest at 6% p.a as detailed below:
Heads Amount
In Rs.
Loss of dependency 31,75,200
Funeral expenses 15,000
Loss of consortium 40,000
Loss of estate 15,000
TOTAL 32,45,200
10. Petitioners have not challenged the impugned judgment and award.
11. Being aggrieved by the impugned judgment and award, respondent No.1 has filed this appeal, contending that it is illegal, arbitrary and contrary to the evidence on record and principles of law laid down by the Hon'ble Supreme Court. The spot sketch shows that the accident took place on a straight road and having regard to the fact that it is a head on collision, front portion of both vehicles is damaged. It clearly shows that the accident occurred -6- NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 due to the negligence of deceased. Petitioners have not examined any independent eye witnesses to prove that accident was caused due to the sole negligence of driver of the offending vehicle. The Tribunal contrary to the principles of Res Ipsa Loquitor has fastened the entire liability on the driver of the offending vehicle. The Tribunal ought to have attributed at least 50% contributory negligence on the part of the deceased. Since deceased was a bachelor, the Tribunal ought to have deducted 50% of the income towards personal and living expenses. The Tribunal has erred in deducting only 1/4th towards his personal and living expenses. In the absence of proof of exact income, the Tribunal has erred in taking the income of the deceased at Rs.14,000/- p.m. Viewed from any angle the impugned judgment and the award is not sustainable and hence the appeal.
12. On the other hand, learned counsel representing the petitioners has supported the impugned -7- NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 judgment and award and sought for dismissal of the petition.
13. PW-1 Kariyanna is not an eye witness to the incident. Based on the information received regarding the accident, he has filed the complaint. The respondent No.1 specifically contended that the accident occurred due to the negligence of deceased or at least he has contributed to the cause of the accident. It has specifically contended that the road where the accident took place is very broad road and there was sufficient space and having regard to the fact that the accident is a head on collision, there is contributory negligence on the part of deceased. It is submitted by the learned counsel for respondent No.1 that intentionally petitioners have not chosen to produce the sketch.
14. Even though during the course of cross- examination of PW-1, it is suggested that accident occurred due to the negligence of deceased, which is denied by him, respondent No.1 has not chosen to lead -8- NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 any independent witness to prove that there was contributory negligence on the part of deceased. There was no impediment for the respondent No.1 to produce the sketch and also lead evidence to prove that there is contributory negligence by the deceased. The concerned police have filed charge sheet against the driver of the offending vehicle. Respondent No.2 being the owner of the offending vehicle has not chosen to examine the driver to prove the manner in which the accident has taken place. In Anita Sharma Vs New India Assurance Company Ltd (Anita Sharma)1, the Hon'ble Supreme Court held that if the owner-cum-driver of the offending vehicle was setting up a defence plea that accident was not as a result of his negligence, but the carelessness or rashness of driver of the other vehicle, then the onus was on him to step into the witness box and explain as to how the accident has taken place. Respondent No.1 has also not challenged the charge sheet. In the light of the above facts and 1 (2021) 1 SCC 171 -9- NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 circumstances, we are of the considered opinion that the Tribunal is justified in holding that the accident was due to the rash or negligent driving of the offending vehicle and that the respondents have failed to establish that there was contributory negligence on the part of the deceased.
15. Now coming to the quantum of compensation, in the documents placed on record, the age of the deceased is stated as 22 years. The respondent No.1 has not seriously disputed his age except suggesting that no documents are produced to evidence the said fact. Consequently, based on the material placed on record the Tribunal is justified in taking the age of the deceased as 22 years and consequently the multiplier '18' considered by the Tribunal is correct. Although the petitioners have claimed that deceased was earning Rs.25,000/- p.m, no evidence is produced to prove the same. Therefore, the Tribunal is justified in taking the income on notional basis. Since the accident is of the year 2019 based on the
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 minimum wages, the notional income taken at Rs.14,000/- p.m is also correct.
16. Since the deceased was in private employment and aged less than 40 years, the Tribunal has rightly added 40% income towards loss of future prospects. 40% of Rs.14,000 is Rs.5,600. Therefore, the income is required to be taken at Rs.19,600/-. Since the deceased was a bachelor, as per the decision of the Hon'ble Supreme Court in Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. (Sarla Verma)2, 50% of income is required to be deducted towards his personal and living expenses. It is also pertinent to note that only petitioner Nos.1 and 2 being the parents of deceased are to be held as dependent on him. Petitioner Nos.3 to 5 are the elder brothers of deceased. Petitioner No.6 is the married sister of the deceased. They cannot be considered as dependent on the deceased. Therefore, the Tribunal has erred in deducting only 1/4th of the income towards living and 2 (2009) 6 SCC 121
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 personal expenses of the deceased. With these components, the compensation under the head loss of dependency is 19,600x12x18x50%= Rs.21,16,800/- (i.e., 14,000x12x18x50%=15,12,000 + 5,600x12x18x50%= 6,04,800), as against Rs.31,75,200/- 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)3, when the substantial compensation is granted under the head loss of dependency, under the conventional head i.e, loss to estate and funeral expenses (which includes transportation charges of the dead body) and loss of consortium, a sum of Rs.15,000/- each and Rs.40,000/- respectively is required to be granted. In Magma General Insurance Co Ltd Vs. Nanu Ram Alias Chuhru Ram and others (Magma General Insurance)4, the Hon'ble Supreme Court clarified that the consortium is 3 (2017) 16 SCC 680 4 (2018) 18 SCC 130
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 of three types spousal, parental, and filial. When the spouse, viz., husband or wife of a person dies, he/she is entitled for spousal consortium. When a parent dies, child is entitled for compensation under the head parental consortium. Similarly, when a child dies, parents are entitled for filial consortium.
18. In Pranay Sethi, referred to supra it is not made clear whether Rs.40,000/- reflected under the head consortium referred to under the conventional heads is an amount to be awarded for each of the spouse, parents and/or children as the case may be or it should be an amount to be divided between all the petitioners, who are entitled for compensation under the head loss of consortium. However, in Magma General Insurance case, the Hon'ble Supreme Court granted Rs.40,000/- each to the claimants, which gives an indication that each of the claimants who come under such category are entitled for compensation under the head loss of consortium is entitled for Rs.40,000/-.
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19. In this regard, relying upon the decision of the Hon'ble Supreme Court in Shriram General Insurance Company Ltd Vs Bhagat Singh Rawat and Ors. (Shriram General Insurance)5, learned counsel for appellant/insurance company submitted that Rs.40,000/- to be paid under the head loss of consortium is to be divided between the claimants who are entitled for the compensation under the said head and each of them are not entitled for Rs.40,000/- each. In that case, the Tribunal had granted a sum of Rs.40,000/- under the head loss of consortium and again a sum of Rs.50,000/- under the head loss of love and affection. The Hon'ble Supreme Court held that the grant of such amount to each of three dependent separately was erroneous. However, in the light of the decision in Magma General Insurance, we inclined to hold that those of the petitioners who are entitled for compensation under the head loss of consortium are entitled for Rs.40,000/- each. 5 AIR Online 2020 SC 573
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023
20. In the present case, petitioner Nos.1 and 2 are parents of the deceased. We hold that each of them are entitled for compensation of Rs.40,000/- under the head filial consortium. The petitioner Nos.3 to 6 are siblings of the deceased. They are not entitled for any compensation under the head loss of consortium.
21. Thus, in all petitioners are entitled for a total compensation in a sum of Rs.22,26,800/- as against Rs.32,45,200/- granted by the Tribunal, as detailed below:
Heads Amount Amount granted by
granted by this Court
the Tribunal In Rs.
In Rs.
Loss of dependency 31,75,000 15,12,000 21,16,800
+6,04,800
(Loss of future
prospects)
Funeral expenses 15,000 15,000
(including transportation charges) Loss of filial consortium 40,000 80,000 (Loss of consortium, love and affection) Loss of estate 15,000 15,000 Total 32,45,200 22,26,800
22. One of the grounds urged by respondent No.1 is that although petitioners are entitled for interest on the
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 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 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 has relied upon the decision of Allahabad High Court in ICICI Lombard General Insurance Company Vs Smt.Seema Devi and 6 Ors (Seema Devi)6. 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 6 Neutral citation No.2024:AHC:104849 dated 24.6.2024
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 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 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
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NC: 2024:KHC:25344-DB MFA No. 8625 of 2023 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.
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.
23. Thus, the petitioners are entitled for interest at the rate of 6% p.a. on the enhanced compensation, except on Rs.6,04,800/- granted under the head loss of future prospects. In the result appeal filed by respondent No.1 succeeds and accordingly, the following:
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NC: 2024:KHC:25344-DB
MFA No. 8625 of 2023
ORDER
(i) Appeal is allowed in part.
(ii) Petitioners are entitled for compensation in
a sum of Rs.22,26,800/- as against
Rs.32,45,200/- granted by the Tribunal together with interest at 6% p.a, except Rs.6,04,800/- granted under the head loss of future prospects.
(iii) Respondent No.1 being the insurer is directed to pay the compensation together with interest at 6% p.a 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) 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.: 26