Karnataka High Court
Cholamandalam M S General vs N Bhagya on 3 December, 2021
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE P.N. DESAI
MFA NO. 8768/2015 (MV)
BETWEEN:
CHOLAMANDALAM M S GENERAL
INSURANCE COMPANY LIMITED
CHAMARAJANAGAR TOWN
CHAMARAJANAGAR DISTRICT
HAVING ITS R.O. AT UNIT NO.04
6TH FLOOR, GOLDEN HEIGHTS COMPLEX
59TH 'C' CROSS, INDUSTRIAL SUBURB
4TH 'M' BLOCK, RAJAJINAGAR
BENGALURU - 560 010
BY ITS MANAGER
... APPELLANT
(BY SRI. H.S. LINGARAJ, ADVOCATE)
AND:
1 . N BHAGYA
NOW AGED ABOUT 44 YEARS
W/O H M NANJUNDASWAMY
2 . H M NANJUNDASWAMY
NOW AGED ABOUT 49 YEARS
S/O MADAIAH
BOTH RESIDING AT DOOR NO 238/C
2
21ST CROSS, 2ND STAGE
VIJAYANAGARA, MYSURU - 570 001
3 . MAHADESHA
NOW AGED ABOUT 38 YEARS
S/O LATE NANJUNDASWAMY
R/A NO 1050, 11TH CROSS, BOGADI VILLAGE
MYSURU TALUK - 570 001
4 . R. D. RAJUKARTHIKEYAN MAJOR
S/O LATE RAJU
R/A NO. 7/11, SRI MAHADESHWARA COLLEGE ROAD
KOLLEGAL TOWN, KOLLEGALA - 571 440
CHAMARAJANAGAR DISTRICT
... RESPONDENTS
(BY SRI. MURTHY D.L, ADVOCATE FOR R1 & R2,
R3- V/O DT.10.11.2021 NOTICE D/W,
R4- SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.07.2015
PASSED IN MVC NO.96/2014 ON THE FILE OF THE ADDITIONAL
COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE, MACT AT
MYSURU. THE PETITIONERS ARE ENTITLED FOR
COMPENSATION OF RS 8,92,312/- WITH INTEREST AT THE
RATE OF 6% P.A FROM THE DATE OF PETITION
TILL ITS REALIZATION AND ETC.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by the Cholamandalam MS General
Insurance Company (for short, 'Insurance Company') against
the judgment and award dated 17.07.2015 passed by the Motor
Accidents Claims Tribunal and Additional Court of Small Causes,
Mysuru (for short, 'Tribunal') in MVC No.96/2014, whereby the
Tribunal has awarded of compensation of Rs.8,92,312/-
together with interest at 6% p.a., from the date of petition till
the date of deposit. The appellant was the 3rd respondent
before the Tribunal.
2. The Respondent Nos. 1 & 2 being the parents of the
deceased Raghu have filed the said claim petition claiming
compensation for the death of their son Raghu in a Road Traffic
Accident occurred 06.09.2013.
3. The case of claimants in brief is that, on 06.09.2013
at 2.30 p.m., the deceased was proceeding on a motor cycle
bearing No. KA.09.EE.6502 from as a pillion rider, which was
ridden by one Ramakrishna Murthy on T. Narasipura - Mysuru
Road. When they reached near T. Narasipura 22 KM Stone, a
bus bearing Registration No. KA.10.5055 came from
T. Narasipura towards Mysuru, came in high speed and in a
rash and negligent manner endangering human life, dashed to
the said motor cycle. As a result, the pillion rider fell down
from the motor cycle and sustained grievous injuries and died
on the spot. The deceased was aged 21 years and he was hale
and healthy as on the date of the alleged accident. Hence, the
parents of the deceased have filed a claim petition claiming
compensation of Rs.44,70,000/-, as they were depending upon
the income of the deceased.
4. Before the Tribunal, in the said claim petition, the
driver, owner and Insurer of the offending bus were arrayed as
Respondent Nos.1, 2 and 3 respectively. The Respondent No.2
remained ex-parte and the claim petition against Respondent
No.1 was dismissed, and Respondent No.3-Insurance Company
has appeared through its counsel and filed its written
statement. It is admitted that the said offending bus was duly
insured by Respondent No.2-owner with Respondent No.3-
Insurance Company. But, the respondent No.3-Insurance
Company took a contention that the accident took place due to
rash and negligent riding of the said motor cycle and therefore,
there was contributory negligence on the part of the rider of the
motor cycle. So it is contended by respondent No.3-Insurance
Company that, the liability of the Insurance Company is subject
to the proof of compliance of the terms and conditions of the
policy and hence, prayed to dismiss the petition.
5. Before the Tribunal, the petitioner No.1-Smt.
N.Bhagya, who is the mother of the deceased, got herself
examined as PW.1 and she got marked Eleven documents as
Ex.P1 to Ex.P11 which consists of FIR, Mahazar, Inquest
Mahazar, MVI Report, Post-Mortem Report, Charge sheet,
Death Certificate, SSLC Marks Card, Certified copy of Ration
Card, Salary Certificate, and copy of spot-sketch. On behalf of
Respondent No.3-Insurance Company one Sri. Sunil Ramesh
was examined as RW.1. But, no documents were produced and
marked on its behalf.
6. On the basis of the pleadings of the parties, the
Tribunal has framed the following issues for consideration:-
i) Whether the petitioners prove that the deceased
Sri. N. Raghu died on account of the road traffic
accident arising out of use of vehicle bearing
Registration No. KA.10.5055, occurred on
06.09.2013 at about 2.50 p.m., due to the
actionable negligence of its driver?
ii) Whether the petitioners are entitled for any
compensation? If so, at what quantum and
what proportion?
iii) What order or relief?
7. After appreciation of the oral and documentary
evidence produced before it, the Tribunal while considering the
above issues, has awarded compensation of Rs.8,92,312/-
under the following heads:-
Sl.No. Particulars Amount (Rs.)
1 Loss of dependency 8,22,312.00
2 Loss of love and affection 20,000.00
3 Loss to estate 25,000.00
4 Funeral Expenses 25,000.00
Total 8,92,312.00
8. Being aggrieved by the quantum of compensation
awarded by the Tribunal under different heads, the Insurer of
the offending bus, has filed this appeal on the following
grounds:-
i) The judgment passed by the Tribunal is not in
accordance with the principles of law and evidence
on record and the same is contrary to the law
laid-down by the Hon'ble Apex Court.
ii) The assessment of monthly income of the
deceased is on the higher side and calculation of
future prospects of the deceased and the loss of
dependency is improper;
iii) The multiplier adopted is also not correct, as in
the case of the death of a bachelor in a road
traffic accident, the age of the younger parent
should have been taken into consideration, which
is the sole criteria for adoption of the multiplier.
9. Heard Sri. H.S. Lingaraj, the learned counsel for the
appellant-Insurance Company and Sri. Murthy D.L., the learned
counsel appearing for Respondent No.1 and 2.
10. The learned counsel for the appellant reiterated the
grounds urged in the appeal memorandum and on the above
noted grounds, the appellant contended that the compensation
awarded by the tribunal is on the higher side and hence the
same may be modified by awarding appropriate compensation
and prayed to allow the appeal by modifying the quantum of
compensation awarded by the Tribunal.
11. Learned counsel for Respondents No.1 & 2 has
sought to justify the impugned judgment and award passed by
the Tribunal contending that the accident in question is only
due to rash and negligent driving of the driver of the offending
bus and there is no negligence on the part of the rider of the
alleged motor cycle. Therefore, the Tribunal has awarded the
above compensation only after consideration of the oral and
documentary evidence produced before it and has rightly
fastened the liability solely on the Insurance Company and
hence, prayed to dismiss the appeal.
12. It is noticed that, the claimants/Respondents No.1
& 2 herein have not filed any appeal against the impugned
judgment and award, seeking enhancement of compensation
awarded by the Tribunal.
13. Having heard the learned counsels appearing on
both sides and on perusal of the records, the following points
would arise for my consideration in this appeal:-
i) Whether the future prospects considered by the
Tribunal for calculating the loss of dependency
is in accordance with the law laid down by the
Hon'ble Apex Court;
ii) Whether the multiplier applied by the Tribunal
is just and proper;
iii) Whether the impugned judgment is contrary to
the evidence on record and needs any
interference by this Court.
14. The fact of death of the deceased Raghu in a Road
Traffic Accident on 06.09.2013 involving the bus in question
bearing No.KA.10.5055, is not disputed by the appellant-
Insurance Company. On the other hand, the Tribunal after
considering the evidence on record and also the post-mortem
report and charge sheet, has come to the conclusion that the
accident is wholly due to the rash and negligent driving of the
offending bus and accordingly, answered Issue No.1 in the
affirmative.
15. It is evident from the records that, though PW.1
i.e., the mother of the deceased, has stated that his deceased
son was aged about 22 years and was working in a private
Company and was getting salary of Rs.9,000- per month, but
as per the salary certificate of the deceased produced and
marked as Ex.P10, the deceased was working in Shanthu
Employment Private Limited and his gross salary was
Rs.5,077/-. Therefore, as per the said material evidence, the
Tribunal has considered the monthly income of the deceased at
Rs.5,077/- and after adding 50% of the said income, as per the
principle laid down by the Hon'ble Apex Court in Rajesh and
Others Vs. Rajbir Singh and others (2013 ACJ 1403), has
assessed the monthly in come of the deceased at Rs.7,615/-
(Rs. 5,077/2=Rs.2,538+Rs.5,077), and further, as the
deceased was a bachelor as on the date of accident, after
deduction of 50% of his monthly income towards his personal
expenditure, has assessed loss of monthly income of the
deceased at Rs,3,807/- and as the deceased was of 22 years of
age as on the date of the accident, by adopting the multiplier
'18' has calculated the loss of dependency at Rs.8,22,312/-
(Rs.3,807X12X18).
16. It also evident that, though the Tribunal has relied
on the decision of the Hon'ble Apex Court reported in the case
of Rajesh and Others Vs. Ranbir Singh and others
(supra), has considered that, since the deceased was below 40
years of age, addition of 50% to the actual income to be added
while calculating loss of dependency. Of course, as per the
decision of Constitutional Bench of Hon'ble Supreme Court in
National Insurance Company Limited Vs. Pranay Sethi
and others reported in (2017) 16 SCC 680, has observed
that, 'Taking into consideration the cumulative factors, namely,
passage of time, the changing society, escalation of prce, the
change in price index, the human attitude to follow a particular
pattern of life, etc., an addition of 40% of the established
income of the deceased towards future prospects and where
the deceased was below 40 years, an addition of 25% where
the deceased was between the age of 40 to 50 years would be
reasonable. Further, the Apex Court, at Paragraph-59.3 has
observed that, "While determining the income, an addition of
50% of actual salary to the income of the deceased towards
future prospects, where the deceased had a permanent job
and was below the age of 40 years, should be made". In the
instant case, though it is stated by PW.1 in her evidence that
the deceased was working in a private company and drawing
salary of Rs.9,000/-, but, based on the Salary Certificate
produced, which show that the deceased was getting salary of
Rs.9,000/- p.m., the Tribunal has assessed his gross salary at
Rs.5,077/- based on Ex.P10- Salary Certificate and it is too
meager considering the year of accident as 2013. Of course,
the claimants have not filed any appeal seeking enhancement
of compensation. But, keeping in mind the settled principles of
law for assessing the income of the deceased, the future
prospects calculated by the Tribunal needs no interference.
17. Admittedly, the deceased was aged about 22 years.
So the appropriate multiplier would be '18' as per the decision
of the Hon'ble Apex Court in the case of Smt. Sarla Verma
and Others Vs. Delhi Transport Corporation and Another
reported in AIR 2009 SC 3104. Therefore, the contention of
the learned counsel for the appellant-Insurer that, while
applying the multiplier, the age of the younger parent has to be
taken into consideration, does not hold good, in view of the
authoritative pronouncement of the Hon'ble Supreme Court in
subsequent decisions. Since except these two grounds no
other grounds are urged, in my considered view, the appeal
being devoid of merit, is liable to be dismissed. Accordingly, I
pass the following:
ORDER
i) The appeal is dismissed.
ii) If any amount is deposited before this Court in
respect of this case, the same shall be
transmitted to the Tribunal for the purpose of
disbursement in accordance with the order of
apportionment made by the Tribunal, in the
impugned judgment and award.
Sd/-
JUDGE
KGR*
