Karnataka High Court
The Manager M/S Shriram General ... vs Shashikala on 21 December, 2021
Bench: P.S.Dinesh Kumar, P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
M.F.A. NO.592/2021(MV-D)
C/W
M.F.A. NO.6709/2021(MV-D)
IN MFA NO. 592/2021:
BETWEEN:
THE MANAGER
M/s SHRIRAM GENERAL INSURANCE COMPANY LTD.,
NO 10003-E-8, ECIP, RICO INDUSTRIAL AREA
SEETHAPURA, JAIPUR
RAJASTHAN - 302022
NOW REPRESENTED BY ITS
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD.,
NO 3/5 3RD FLOOR, S V ARCADE
BILEKAHALLI MAIN ROAD
OFF BANNERUGHATTA ROAD,
IIM POST
BANGALORE - 576302
REP BY ITS MANAGER LEGAL
...APPELLANT
(BY SRI. B C SHIVANNE GOWDA, ADVOCATE)
AND:
1. SHASHIKALA
W/O LATE LOKESH T B
AGE 44 YEARS
2. CHARAN RAJ T L
S/O LATE LOKESH T B
AGE 27 YEARS
2
BOTH ARE R/AT
HONSHETTI PARK, AKKOLA ROAD
BEHIND PARVATHI CORNER
NIPPANI RURAL, NIPPANI
CHIKKODI TALUK
BELAGAVI DISTRICT
PRESENTLY R/AT
THIMMANAHALLI VILLAGE
SALAGAME HOBLI
HASSAN TALUK AND DISTRICT
3. JOY JOSEPH RODRIGES
S/O THOMAS RODRIGES, MAJOR
R/O H, NO 3/283-A-1 BOLLAJE HOUSE
3RD BLOCK, KATIPALLA
MANGALORE - 575014
... RESPONDENTS
(BY SRI. CHETAN.B., ADVOCATE FOR R1 AND R2;
R3-SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.08.2020 PASSED IN
MVC NO.667/2016 ON THE FILE OF THE MEMBER,
ADDITIONAL M.A.C.T., PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL M.A.C.T., HASSAN, AWARDING
COMPENSATION OF RS. 18,48,400/- WITH INTEREST AT 9
PERCENT P.A. FROM THE DATE OF PETITION TILL
REALIZATION OF ENTIRE AMOUNT.
IN MFA NO.6709/2021:
BETWEEN:
1. SHASHIKALA
W/O LATE LOKESH T B
AGE 44 YEARS
2. CHARAN RAJ T L
S/O LATE LOKESH T B
AGE 27 YEARS
BOTH ARE R/AT
HONSHETTI PARK, AKKOLA ROAD
BEHIND PARVATHI CORNER
3
NIPPANI RURAL , NIPPANI
CHIKKODI TALUK
BELAGAVI DISTRICT
PRESENTLY R/AT
THIMMANAHALLI VILLAGE
SALAGAME HOBLI
HASSAN TALUK
HASSAN DISTRICT-573201.
...APPELLANTS
(BY SRI. CHETAN.B, ADVOCATE)
AND:
1. JOY JOSEPH RODRIGES
S/O THOMAS RODRIGES
MAJOR
H, NO 3/283-A-1 BOLLAJE HOUSE
3RD BLOCK, KATIPALLA
MANGALORE - 575014
2. THE MANAGER
M/s SHRIRAM GENERAL INSURANCE COMPANY LTD.,
NO 10003-E-8, ECIP, RICO INDUSTRIAL AREA
SEETHAPURA, JAYAPUR
RAJASTHAN - 302022
... RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R1 & R2;
VIDE ORDER DATED 21.12.2021 NOTICE TO R1
DISPENSED WITH (MEMO FILED K/B)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.08.2020 PASSED IN
MVC NO.667/2016 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND MEMBER M.A.C.T., HASSAN, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON
FOR ADMISSION, THROUGH VIDEO CONFERENCING/
PHYSICAL HEARING THIS DAY, KRISHNA BHAT J,
DELIVERED THE FOLLOWING:
4
JUDGMENT
These 2 appeals are at the instance of claimants
and the insurance company calling in question the
correctness of the judgment and award dated
24.08.2020 passed in MVC No.667/2016 passed by
the Principal Senior Civil Judge and Additional MACT,
Hassan.
2. The brief facts are; on 23.03.2016 at about
9.30 a.m. deceased Lokesh T.B. was proceeding in
Omni Car bearing registration No.KA-23-M-5884 on
Hassan - Arasikere Road near Belavathalli Forest and
at that time, a tanker lorry bearing registration No.KA-
19-B-7876 came from Arasikere in a rash and
negligent manner and dashed against the Omni Car
and on account of impact injuries, Lokesh died on the
same day. The claimants are the widow and son of
said deceased Lokesh.
3. Before the learned Tribunal respondent No.1
insured by name Sri.Joy Joseph Rodriges remained
exparte. The insurance company which is one of the
appellants before this Court has filed a detailed written
statement denying the material averments in the claim
petition.
4. During trial, claimant No.1 has examined
herself as PW1 and she examined an eye witness as
PW2 and a tax consultant as PW3. Exs.P-1 to P-22
were marked. Respondent did not examine any
witness and no documents were marked on their
behalf.
5. Learned Tribunal on hearing the learned
counsel appearing for the parties of both sides and on
consideration of the evidence placed before it, allowed
the claim petition in part and awarded a compensation
of Rs.18,14,400/- with interest thereon at 9% p.a.
from the date of petition till the date of realization.
6. Learned counsel for the insurance company
in support of his appeal contended that award granted
by the learned Tribunal is excessive. It was his
contention that as per the case of the claimants
deceased Lokesh was running a bakery and on account
of his death, no 'loss of dependency' has actually taken
place as the bakery is being run by the claimants
uninterruptedly. According to his further contention
the 'loss of dependency' taken by the learned Tribunal
on the footing of monthly income of the deceased at
Rs.22,860/- is unrealistic and on the higher side. He
further contended that the only loss which family has
suffered is by way of loss of services of a person who
was supervising the business and nothing more. He
therefore contended that his appeal is liable to be
allowed by reducing the quantum of the compensation
awarded.
7. Learned counsel for the claimants, per
contra, submitted that even though deceased Lokesh
had left behind a widow and a son, learned Tribunal
has incorrectly deducted 50% of the income of
deceased towards his personal expenses. He
submitted that as per the various decisions of the
Hon'ble Supreme Court, when the deceased has left
behind a widow and a son, the deduction towards
personal expenses should be 1/3rd of the income of the
deceased. He further submitted that learned Tribunal
has committed a serious error in not adding 25% of
the established income of the deceased towards 'loss
of future prospects'. He also contended that learned
Tribunal after considering Exs.P-17 to P-22 and Exs.P-
12 and P-13, has correctly come to the conclusion that
deceased was earning Rs.22,800/- per month and
therefore, there is no warrant for interfering with the
same. He submitted that his appeal is entitled to be
allowed and the compensation is required to be
suitably enhanced.
8. We have given serious consideration to the
submissions made on both sides and we have carefully
perused the records.
9. There is no dispute about the fact that
deceased Lokesh was running bakery in Hassan Town.
Learned Tribunal has arrived at a finding that deceased
was earning income of Rs.22,800/- per month on
consideration of Exs.P-17 to P-22, which were proved
through the tax consultant - PW3. After detailed
discussion and considering the average income of the
deceased during the years 2012 to 2015, the learned
Tribunal has come to the conclusion that deceased was
earning a monthly income of Rs.22,800/-. In that view
of the matter, there is absolutely no warrant for
interference with the finding recorded by the learned
Tribunal regarding monthly income of the deceased,
which is fully supported by evidence. Therefore, we
affirm the same.
10. Further, contention of the learned counsel
for the insurance company is that even though monthly
income of the deceased were to be taken at
Rs.22,800/-, 'loss of dependency' cannot be calculated
on the said basis. In the facts and circumstances of
this case and also on the evidence placed, we are not
in a position to agree with the same. The basis of the
arguments made by the learned counsel for the
insurance company is that bakery is continued to be
run and therefore the only loss claimants have suffered
on account of the death of Lokesh was the loss of a
supervisor and in that view of the matter, there is no
'loss of dependency' as the business is still being
continued. There is no dispute about the fact, and
learned counsel for the insurance company has not
been able to point out to the contrary, that deceased
was running a proprietary concern with couple of
branches in the town of Hassan. Documents produced
through the tax consultant showed that he was earning
by his exertions an average monthly income of
Rs.22,800/-. In a business of this nature, personal
goodwill and the personal touch in the running of
business is extremely essential. Therefore, it cannot be
said that the only loss that dependants have suffered
on account of death of Lokesh is loss of a supervising
person.
11. Further, learned counsel for the insurance
company submitted that since claimant No.2 is a young
man, he could run the business with equal efficiency
and profit and therefore there was no 'loss of
dependency'. Claimant No.2, who is the son of
deceased is obviously a young man who is stated to be
still a student. Success of a proprietary business
depends, in large measure, on the personal network
built by the person who has been running it for long.
Moreover, the son of the deceased being very young,
there is nothing on record to show that he has training,
experience or aptitude for the business at the time of
the death of Lokesh. In that view of the matter, we
agree with the learned Tribunal that 'loss of
dependency' has to be calculated on the footing that
deceased was earning Rs.22,800/- and his abrupt
death on account of the accident has caused 'loss of
dependency' to the said extent.
12. Learned counsel for the insurance company
asserts that since the deceased has left behind only 2
dependants, 50% of the income of the deceased
should be deducted towards personal expenses. Whole
premise for deducting 50% of personal income in case
of bachelors is on account of their spendthrift
proclivities on their youthful exuberance as opposed to
the more responsible approach of married persons
towards their finances. Deceased was a married man
with wife and son whom he had the responsibility to
settle. Insurance company has not produced any
evidence to show that deceased was a spendthrift or
he had any inclination other than that of a caring and
responsible husband and a devoted father. Therefore,
appropriate deduction to be made in the facts and
circumstances of this case is 1/3rd of the income of
deceased.
13. The deceased was aged 47 years at the
time of his death, therefore, appropriate multiplier
applicable is '13'. Learned Tribunal has committed a
serious error in deducting 50% of the deceased
towards his personal expenses when he has left behind
widow. In view of the decision of the Hon'ble Supreme
Court in NATIONAL INSURANCE COMPANY vs.
BIRENDER1, claimant No.2 is also required to be
taken as a dependent on the deceased notwithstanding
the fact that he was aged 22 years.
14. Further 25% of the income of the deceased
should be added to his income towards 'loss of future
prospects' in view of NATIONAL INSURANCE CO.
LTD vs. PRANAY SETHI2. Accordingly, 'loss of
dependency' is required to be recomputed as follows:
Rs.22,800/- + 25% (i.e., Rs.5,700/-) = Rs.28,500/-
Less:1/3rd of Rs.28,500/- - Rs.9,500/- = Rs.19,000/-
Rs.19,000/- x 12 x 13 = Rs.29,64,000/-
15. Since deceased has left behind a widow and a
son, Rs.80,000/- (Rs.40,000/- each) is required to be
(2020) 11 SCC 356
(2017) 16 SCC 680
awarded towards 'loss of consortium'. Another sum of
Rs.30,000/- is required to be awarded under conventional
head for 'loss of estate and funeral expenses'.
16. Thus, learned Tribunal has already awarded a
sum of Rs.18,48,400/- and the reworked compensation
comes to Rs.30,74,000/-. Therefore, award passed by the
learned Tribunal in MVC No.667/2016 dated 24.08.2020 by
the Principal Senior Civil Judge and Additional MACT,
Hassan, is modified by enhancing the compensation at
Rs.12,25,600/- with interest thereon @ 6% p.a. from the
date of petition till the date of payment.
Hence, the following:
JUDGMENT
(1) Insurance company appeal - MFA
No.592/2021 is dismissed and
claimants appeal - MFA No.6709/2021 is
allowed in part.
(2) Compensation awarded in MVC
No.667/2016 is enhanced by
Rs.12,25,600/- with interest at 6% p.a.
from the date of petition till the date of
realization.
(3) Amount in deposit shall be transmitted to
the learned Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
DR
