Karnataka High Court
Smt. Chandravathi vs Sri. Mutthaiah on 20 January, 2021
Author: S.Sujatha And M.I.Arun
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.5768/2019 (MV)
BETWEEN :
1. SMT.CHANDRAVATHI
W/O LATE PANCHAKSHARI @ RAJU
AGED ABOUT 47 YEARS
2. SRI LOKESH
S/O LATE PANCHAKSHARI @ RAJU
AGED ABOUT 27 YEARS
BOTH ARE PRESENTLY R/AT No.5/253
GUNDURAO BADAVANE
SHANIVARASANTHE
SOMAVARAPETE TALUK
KODAGU DISTRICT
PREVIOUSLY THEY WERE
R/AT C/O ANNAIAH
ECHALABEEDU VILLAGE,
YASLURU HOBLI,
SAKALESHPURA TALUK
3. SRI PRASHANTHA
S/O LATE PANCHAKSHARI @ RAJU
AGED ABOUT 35 YEARS
R/O SHIRANGALA VILLAGE
-2-
SHANIVARASANTHE HOBLI,
SOMAVARPETE TALUK
KODAGU DISTRICT ...APPELLANTS
(BY SRI YESHU MISHRA, ADV.)
AND :
1. SRI MUTTHAIAH
S/O KOMARAIAH, MAJOR,
R/AT HEMMANE VILLAGE
SHANIVARASANTHE HOBLI,
SOMAVARPETE TALUK
KODAGU DISTRICT
2. REGIONAL MANAGER
CHOLAMANDALAM M.S.GENERAL
INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, No.165,
HARINIVAS TOWERS, 2ND FLOOR,
THAMBUCHETTI STREET,
PARIS CORNER, CHENNAI-1,
REP BY MANAGER
CHOLAMANDALAM M.S.GENERAL
INSURANCE COMPANY LTD.,
135/15, 15TH CROSS, 2ND FLOOR,
J.P.NAGARA, 3RD FLOOR,
BENGALURU ...RESPONDENTS
(BY SRI H.S.LINGARAJU, ADV. FOR R-2;
VIDE COURT ORDER DATED 20.01.2021 NOTICE TO R-1 IS
DISPENSED WITH.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
31.12.2018 PASSED IN MVC No.1592/2017 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC AND MACT,
SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment and
award dated 31.12.2018 passed in MVC No.1592/2017
by the Senior Civil Judge and JMFC and MACT,
Sakaleshpur ('Tribunal' for short).
2. The claimants instituted the petition under
Section 166 of the Motor Vehicles Act, 1988 claiming
compensation for the death of Panchakshari @ Raju in
the road traffic accident.
3. It was averred in the claim petition that on
08.04.2017 at about 12.45 p.m., when the deceased -
Panchakshari @ Raju was traveling in an auto-rickshaw
bearing registration No.KA-12-B-0624 (offending
vehicle), in front of the house of Chandregowda at
Shattiganahalli village, the auto-rickshaw toppled to the
left side of the road due to the rash and negligent
driving of the driver of the said vehicle. As a result, the
deceased sustained grievous injuries. Immediately, he
was taken to the hospital at Shanivarasanthe. After
giving first-aid treatment, for further treatment he was
shifted to the Government Hospital, Hassan. However,
the deceased succumbed to the injuries at about 4.00
p.m. on the said day.
4. It was contended that the deceased was aged
about 52 years at the time of the accident and was
earning Rs.30,000/- per month by doing cooking and
agricultural work. The claimants being the widow and
children of the deceased are suffering from loss of
dependency, loss of affection etc., On these set of facts
and grounds, the claimants sought for compensation.
5. In response to the notice issued by the
Tribunal, the respondents appeared through their
respective counsel and filed their respective objections
contesting the claim. The respondent No.1 denying the
petition averments contended that on the date of the
accident, the offending vehicle was insured with
respondent No.2 and the insurance policy was in force
and accordingly he was not liable to pay compensation.
Hence, prayed to dismiss the petition.
6. The respondent No.2 - insurer denying the
petition averments contended that the petition deserves
to be dismissed for non-joinder of necessary parties as
the driver of the auto-rickshaw was not arrayed as party
to the proceedings. It was contended that the person
driving the offending vehicle had no driving licence as
on the date of the accident to drive the same.
7. On the basis of the pleadings, issues were
framed and answered as per the reasons recorded in the
impugned judgment allowing the petition in part
awarding total compensation of Rs.4,66,000/- with
interest at the rate of 9% per annum from the date of
the petition till its realization.
8. Being aggrieved, the claimants have
preferred the present appeal.
9. Learned counsel for the
appellants/claimants argued that the Tribunal has
failed to consider the material evidence on record in a
right perspective. The monthly income of the deceased
determined by the Tribunal notionally at Rs.6,000/- is
on the lower side. The Tribunal grossly erred in
deducting 50% of the income of the deceased towards
his personal and living expenses despite he was a
married person and has left the family depending on
him, consisting of his widow and children. It was
further argued that the compensation awarded under
the different heads is on the lower side and the same
requires to be enhanced substantially.
10. Learned counsel for the insurer submitted
that claimant Nos.2 and 3 were major sons, as such the
sole dependant is considered for the purpose of
reckoning loss of dependency. Deduction of 50%
towards personal and living expenses of the deceased is
justifiable. It was contended that the income determined
by the Tribunal as well as the compensation awarded
under the different heads is just and proper and there is
no scope for further enhancement of compensation.
11. We have carefully considered the rival
submissions of the learned counsel appearing for the
parties and perused the material on record.
12. The Tribunal has determined the monthly
income of the deceased at Rs.6,000/- notionally in the
absence of proof of income. In such circumstances, this
Court is consistently referring to the chart prepared by
the Karnataka State Legal Services Authority,
determining the monthly income of the victim of the
road traffic accident. Referring to the same, the
monthly income of the deceased could be safely re-
determined at Rs.11,000/-. As the deceased was aged
about 52 years, 10% of the same requires to be added
towards future prospects. Thus, the total monthly
income would be Rs.12,100/-.
13. It is not in dispute that the deceased was
married and he died leaving behind his widow and two
major children. Even assuming the two major children
were not dependant on the deceased, the widow was
certainly dependant on the deceased. Having not
considered the same, the Tribunal proceeded to deduct
50% of the income towards personal and living expenses
of the deceased, which in our opinion is untenable. It is
unrealistic to expect the married person having
responsibility of maintaining the family would spent
50% of the income towards his personal and living
expenses. Such person cannot be treated on par with
bachelor. In 'SARLA VERMA AND OTHERS vs. DELHI
TRANSPORT CORPORATION AND ANOTHER', reported
in [2009] 6 SCC 121, the Hon'ble Apex Court has laid
down the guidelines regarding the deduction of the
income towards personal and living expenses at 50% in
respect of the bachelor. Hence, we disagree with the
finding of the Tribunal on this aspect. We find it
appropriate to deduct 1/3rd of the income of the
deceased towards his personal and living expense.
14. Applying the multiplier of '11' since the
deceased was aged about 52 years and deducting 1/3rd
of the income towards personal and living expenses of
the deceased, the loss of dependency would work out to
Rs.10,64,800/- (12,100 x 12 x 11 x 2/3).
15. In terms of the dictum of the Hon'ble Apex
Court in National Insurance Company Limited Vs.
Pranay Sethi and others reported in (2017) 16 SCC
680 and New India Assurance Company Limited v/s.
Somwati and others reported in (2020) 9 SCC 644,
the claimants are entitled to Rs.40,000/- towards loss
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of spousal consortium; Rs.15,000/- towards loss of
estate and Rs.15,000/- towards funeral expenses.
16. For the reasons aforesaid, the total
compensation awarded by the Tribunal is re-assessed
as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 10,64,800/-
Loss of spousal
2. 40,000/-
consortium
3. Loss of estate 15,000/-
Towards funeral
4. 15,000/-
expenses
Total 11,34,800/-
Thus, the claimants shall be entitled to total
compensation of Rs.11,34,800/- with interest at the
rate of 6% per annum on the enhanced compensation
amount from the date of the claim petition till the date
of realization.
17. Hence, the following:
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ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the
Tribunal is modified and enhanced to
Rs.11,34,800/- (Rupees Eleven Lakhs
Thirty Four Thousand Eight Hundred
only) as against Rs.4,66,000/- with
interest at the rate of 6% per annum on
the enhanced compensation amount from
the date of the claim petition till its
realization.
iii) The portion of the order of the Tribunal
inasmuch as liability, apportionment and
disbursement remains intact.
iv) The insurance company shall deposit the
amount determined as aforesaid before
the Tribunal within 90 days from the date
of receipt of the certified copy of the
judgment and order.
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v) The modified compensation amount shall
be apportioned and disbursed in terms of
the order of the Tribunal.
vi) Draw modified award accordingly.
vii) All pending I.As. stand disposed of
accordingly.
SD/-
JUDGE
SD/-
JUDGE
PMR
