Karnataka High Court

The Oriental Insurance Co Ltd vs Sri. Somachari on 14 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.2731 OF 2018(MV)

BETWEEN:

THE ORIENTAL INSURANCE CO LTD
D NO.137-A 25/27
ASAF ALI ROAD NEW DELHI
MYSURU BRANCH AT
THEJUS COMPLEX SAYYAJI RAO ROAD
MYSURU
NOW REPRESENTED BY ITS
REGIONAL MANAGER
LEO SHOPPING COMPLEX
44/45 RESIDENCY ROAD
BANGALORE-560025.
                                    ...APPELLANT

(BY SMT. HARINI SHIVANANDA, ADV.)

AND

1.    SRI. SOMACHARI
      S/O LATE SINGACHARI
      AGED ABUT 58 YEARS
      R/AT DOOR NO.478
      BELAVATHA GRAMA R.B.I. POST
      MYSURU-570003.
                         2



2.   SRI PUTTASWAMYCHARI
     S/O LATE SINGACHARI @ NARASAPPA
     AGED ABOUT 64 YEARS
     R/O NO.379 GIRIDARSHINI LAYOUT
     ALANAHALLI BADAVANE
     MYSURU-570028.

3.   NISHA K V
     D/O VENKATESHWARAN
     AGED ABOUT 29 YEARS
     PRESENTLY R/AT DOOR NO.102
     1ST FLOOR 1ST STAGE 3RD CROSS
     GANGOTHRI LAYOUT
     MYSURU CITY-570006.

     PERMANENT ADDRESS
     NO.204, POTTIPADU ROAD
     BESIDE OLIVIA HIGH SCHOOL
     GOPAVARAM CUDDAPAH
     ANDHRA PRADESH-516360
                                  ...RESPONDENTS

(BY SRI.SRINIVASA D.C., ADV. FOR R1 & R2:
R3 IS SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:
11.01.2018 PASSED IN MVC NO.1010/2016 ON THE
FILE OF THE PRINCIPAL JUDGE AND SENIOR CIVIL
JUDGE, COURT OF SMALL CAUSES, AS A PRESIDING
OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MYSURU,      AWARDING      COMPENSATION      OF
RS.3,80,000/- WITH INTEREST AT 8% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
                             3



     THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the Insurance Company

being aggrieved by the judgment dated 11.1.2018

passed by the Motor Accident Claims Tribunal, Mysuru

(Court of Prl. Judge, Small Causes and Senior Civil

Judge, Mysuru) in MVC 1010/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 13.4.2016 the deceased

Smt.Ningamma was proceeding by walk in front of

Manasa Keelu Moole Hospital, Gangothri Layout,

Mysuru, at that time, scooter bearing registration

No.KA-09-HC-2670 which was being ridden in a rash

and negligent manner, dashed against the deceased.

As a result of the aforesaid accident, the deceased

sustained grievous injuries and succumbed to the

injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondents

appeared through counsel and filed written statements

in which the averments made in the petition were

denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and got exhibited documents namely Ex.P1 to Ex.P11.

On behalf of respondents, no witness was examined

and got exhibited document namely Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver,

as a result of which, the deceased sustained injuries

and succumbed to the injuries. The Tribunal further

held that the claimants are entitled to a compensation

of Rs.3,80,000/- along with interest at the rate of 8%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 67 years at the time of the accident

and she was earning Rs.8,000/- per month by doing

flower vending business. But they have not produced

any documents to prove the income of the deceased.

In the absence of proof of income, the Tribunal is not

justified in taking the monthly income of the deceased

at Rs.7,500/-, which is on the higher side.

Secondly, the claimants are major sons of the

deceased and they were not depending on the income

of the deceased. They are entitled for compensation

only under the head of 'loss of estate'. But the

Tribunal has erred in awarding compensation under

the head of 'loss of dependency'.

Thirdly, the compensation awarded by the

Tribunal under the conventional heads is on the higher

side.

Fourthly, considering the age and avocation of

the deceased, the overall compensation awarded by

the Tribunal is on the higher side.

Fifthly, the interest awarded by the Tribunal at

8% p.a. on the compensation amount is on the higher

side. Hence, she prays for allowing the appeal.

7. On the other hand, the learned counsel for

the claimants has raised the following counter-

contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.8,000/- per month, but the

Tribunal is not justified in taking the monthly income

of the deceased as merely as Rs.7,500/-.

Secondly, even though the claimants are major

sons of the deceased, they were depending on the

income of the deceased for their livelihood.

Considering the evidence of PW-1, the Tribunal has

rightly held that claimants were depending on the

income of the deceased and awarded compensation

under the head of 'loss of dependency'.

Thirdly, considering the age and avocation of the

deceased, the Tribunal has awarded just and

reasonable compensation. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that deceased

Smt.Ningamma died in the road traffic accident

occurred due to rash and negligent driving of the

offending vehicle by its driver.

The claimants claim that deceased was earning

Rs.8,000/- per month. But they have not produced

any documents to prove the income of the deceased.

In the absence of proof of income, the notional income

has to be assessed. As per the guidelines issued by

the Karnataka State Legal Services Authority, for the

accident taken place in the year 2016, the notional

income of the deceased has to be taken at Rs.9,500/-

p.m. Since the claimants have admitted that the

deceased was earning Rs.8,000/- p.m., the monthly

income of the deceased has to be taken at Rs.8,000/-.

The claimants are major sons of the deceased

and they are not depending on the income of the

deceased. Hence, they are not entitled for

compensation under the head of 'loss of dependency'.

But, however, they are entitled for compensation

under the head of 'loss of estate'. The Division Bench

of this Court in MFA 7318/2016 disposed of on

23.10.2020 by following the judgment of the Apex

Court in the case of National Insurance Company -v-

Vinish Jain and others (2018) 3 SCC 619 has

considered the 'loss of estate' by taking 50% of the

income of the deceased and deducting 50% towards

personal expenses of the deceased.

After deducting 50% of the income towards

personal expenses of the deceased, the monthly

income comes to Rs.4,000/- (Rs.8,000*50%). The

deceased was aged about 67 years at the time of the

accident and multiplier applicable to his age group is

'5'. Thus, the claimants are entitled to compensation

of Rs.2,40,000/- (Rs.4,000*12*5) on account of 'loss

of dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'funeral

expenses'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimants, children of the

deceased are entitled for compensation of Rs.40,000/-

each under the head of 'loss of parental consortium'.

10. Thus, the claimants are entitled to the

following compensation:

          Compensation under             Amount in
             different Heads               (Rs.)
         Loss of estate                     240,000
         Funeral expenses                    15,000
         Loss of Parental                    80,000
         consortium
                        Total                335,000

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.335,000/- as against

Rs.380,000/- awarded by the Tribunal.

In view of the Division Bench decision of this in

the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020),

the interest granted by the Tribunal at the rate of 8%

p.a. on the compensation amount is reduced to 6%

p.a.