Karnataka High Court
The Divisional Manager vs V Jayalaxmi Shetty on 6 January, 2021
Author: S.Sujatha And M.I.Arun
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
MFA NO.968 OF 2018 C/W
MFA NO.3047 OF 2018 (MV)
IN MFA NO.968 OF 2018
BETWEEN:
THE DIVISIONAL MANAGER
CHOLAMANDALAM, GIC LTD.
BRANCH OFFICE, 1ST FLOOR
S.R.COMPLEX, DARE HOUSE
2 NSC BOSE ROAD
CHENNAI - 01, NOW REP. BY
ITS LEGAL MANAGER
SR. MANAGER - CLAIMS
CHOLAMANDALAM MS GIC LTD.
NO.1/2, GOLDEN HEIGHTS
6TH FLOOR, 59TH C CROSS
4TH M BLOCK, RAJAJINAGAR
BENGALURU - 560 010 ... APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)
AND:
1. V. JAYALAXMI SHETTY
W/O N. BHOJARAJA SHETTY
NOW AGED ABOUT 44 YEARS
2. VIDYALAKSHMI
D/O LATE BHOJARAJA SHETTY
NOW AGED ABOUT 22 YEARS
2
3. N.BHOJARAJA SHETTY
S/O LATE SHIVARAMASHETTY
NOW AGED ABOUT 53 YEARS
ALL ARE R/AT HOUSE NO.10
BATTEMALLAPPA
ALGERIMANDRI (ASLI)
HOSANAGARA TALUK
SHIVMOGGA DISTRICT-577 243
4. MUNIRATHNA B.
S/O VENKATA SWAMI
NOW AGED ABOUT 48 YEARS
R/O REDDY CAMP
SOGANE POST, SHIVAMOGGA
PIN - 577 432 ... RESPONDENTS
(BY SRI. NAGARAJA HEGDE, ADV. FOR R1 TO R3;
NOTICE TO R4 IS DISPENSED WITH
VIDE COURT ORDER DATED 22.04.2019)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 04.10.2017 PASSED IN MVC NO.653/2015
ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA),
KUNDAPURA, AWARDING A COMPENSATION OF
RS.31,99,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF PAYMENT.
IN MFA NO.3047 OF 2018
BETWEEN:
1. SMT. V. JAYALAXMI SHETTY
W/O N. BHOJARAJA SHETTY
NOW AGED ABOUT 44 YEARS
2. VIDYALAKSHMI
D/O N. BHOJARAJA SHETTY
NOW AGED ABOUT 22 YEARS
3. SRI. N.BHOJARAJA SHETTY
S/O LATE SHIVARAM SHETTY
NOW AGED ABOUT 53 YEARS
ALL ARE R/AT HOUSE NO.110
3
BATTEMALLAPPA
ALGERIMANDRI (ASLI)
HOSANAGARA TALUK
SHIVAMOGGA DISTRICT ... APPELLANTS
(BY SRI. NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI MANIRATHNA B.
S/O VENKATA SWAMI
AGED ABOUT 48 YEARS
R/O REDDY CAMP
SOGANE, SOGANE POST
SHIVAMOGGA
2. CHOLAMANDALAM M. S.
GENERAL INSURANCE CO. LTD.
BRANCH OFFICE, 1ST FLOOR
S.R.COMPLEX,
MANGALORE
HEAD OFFICE: DARE HOUSE
2ND FLOOR, NO.2 NSC
BOSE ROAD
CHENNAI - 600 001
REP. BY ITS BRANCH MANAGER ... RESPONDENTS
(BY SRI. B.PRADEEP, ADV. FOR R2;
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 04.10.2017 PASSED IN MVC NO.653/2015
ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA)
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, M.I.ARUN J., DELIVERED THE FOLLOWING:
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JUDGMENT
Aggrieved by the judgment and award dated
04.10.2017 passed by the Additional Motor Accidents
Claims Tribunal, Udupi, Kundapura (for short 'the
Tribunal') in MVC No.653/2015, respondent no.2-
Insurance Company has preferred MFA No.968/2018
and the petitioners therein have preferred MFA
No.3047/2018.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Tribunal.
3. The brief facts of the case are that on 19.05.2015,
at about 3.20 p.m., the deceased Sukumar Shetty was
riding his motorcycle bearing registration No.KA-15/K-
1502 from Hosangadi towards Siddapura side. When he
reached near Mattiberu of Siddapura village, Kundapura
Taluk, at that time, a lorry bearing registration No.KA-
16/A-3776 belonging to respondent no.1 and insured
with respondent no.2 being driven by the rider
in a rash and negligent manner
dashed against the said motorcycle. Due to
the said impact, the deceased Sukumar Shetty sustained
severe injuries and died on the spot. Hence, the
petitioners preferred MVC No.653/2015 and claimed a
compensation of Rs.41,25,000/-.
4. Petitioner no.1 is the mother, petitioner no.2 is the
sister and petitioner no.3 is the father of the deceased
Sukumar Shetty.
5. After service of summons, respondent no.1 did not
appear before the Tribunal and was placed
ex parte. Respondent no.2-Insurance Company
appeared before the Tribunal through its Counsel, filed
its written statement, denied liability and prayed for
dismissal of the claim petition.
6. The petitioners got examined two witnesses and
got marked Exs.P1 to P17. The respondents did not
examine any witness but got marked one document as
Ex.R1.
7. Based on the pleadings and the evidence let in,
the Tribunal has awarded a compensation of
Rs.31,99,000/- along with interest @ 6% per annum to
the petitioners. Aggrieved by the same, respondent
no.2-Insurance Company has filed MFA No.968/2018.
Not satisfied by the award, the petitioners have filed
MFA No.3047/2018.
8. We have heard learned counsel for the parties.
9. It is the contention of respondent no.2-Insurance
Company that there was contributory negligence on the
part of the deceased which has not been taken into
consideration by the Tribunal. Similarly, the income of
the deceased has been arrived at Rs.20,000/- per month
without any basis. That the Tribunal has taken future
prospects at 50% when the deceased had no stable and
a permanent job. The Tribunal committed an error by
deducting 1/3rd towards his personal expenses instead of
50% as the deceased was a Bachelor.
10. The petitioners have contended that the
compensation awarded by the Tribunal is on the lower
side and sought for enhancement of the same.
11. It is noticed that the accident is of the year 2015.
The age of the deceased was 24 years at the time of the
accident. The Tribunal based on the certificate- Ex.P13
issued by one Kalyani Motors Pvt. Ltd., Bengaluru, which
states that the deceased was employed with Kalyani
Motors Pvt. Ltd. as a Senior Officer and his monthly
salary was Rs.23,900/-, has considered his income at
Rs.20,000/- per month. It has further added 50% under
the head of future prospects and has deducted 1/3rd
towards his personal expenses and considered the age
of petitioner no.1, mother of the deceased and adopted
a multiplier of 14 and arrived at Rs.30,24,000/- under
the head of loss of dependency. It has further awarded
Rs.50,000/- towards loss of estate, Rs.1,00,000/-
towards loss of love and affection and Rs.25,000/-
towards transportation and funeral expenses. Thus, it
has awarded a sum of Rs.31,99,000/- as compensation
to the petitioners. We find that the evidence relied
upon, the multiplier adopted by the Tribunal and the
compensation awarded under conventional heads to be
erroneous and not in conformity with the law laid down
by the Hon'ble Supreme Court in various cases.
12. Ex.P13 is the certificate issued by the General
Manager, Administration of Kalyani Motors Pvt. Ltd.
But, the author of the certificate has not been examined
nor any other document has been produced relating to
the income of the deceased. Mere production of
certificate alone is not sufficient to determine the income
of the deceased in the absence of other corroborating
evidence. However, it is found that the deceased was a
diploma holder in Mechanical Servicing (Automobile).
Taking into consideration his technical qualification, we
are inclined to hold his income as Rs.15,000/- per
month. The deceased was a Bachelor and was aged
about 24 years at the time of his death. The multiplier
needs to be considered as per the law laid down by the
Hon'ble Supreme Court in Sarla Verma vs. D.T.C
[2009(6) SCC 121]. Based on the age of the
deceased and not that of his mother and for
the age of 24, the multiplier applicable is 18.
Similarly, when the deceased was a Bachelor, 50% of
his salary has to be deducted towards his personal
expenses. The petitioners have not been able to
establish that he was in a stable and permanent job.
Under the said circumstances, as per the law laid down
by the Apex Court in National Insurance Co.Ltd. v.
Pranay Sethi (2017) 16 SCC 680, 40% has to be
added to the income of the deceased towards loss of
future prospects. Further, as per the law laid down by
the Hon'ble Supreme Court in New India Assurance
Co.Ltd. v. Somwati [(2020)9 SCC 644], petitioner
nos.1 and 3 are entitled to Rs.40,000/- each towards
loss of consortium and a sum of Rs.30,000/- towards
loss of estate and funeral expenses. Thus, in all, the
petitioners would be entitled to the following
compensation:
1. Loss of dependency Rs.22,68,000/-
[Rs.15,000/- + 40% X 12 X 18 X ½]
2. Loss of consortium Rs.80,000/-
3. Loss of estate and funeral
expenses Rs.30,000/-
Total Rs.23,78,000/-
13. Though respondent no.2-Insurance Company has
contended that there was contributory negligence on
the part of the deceased, there is nothing on record to
show the same. Ex.P9 is the spot sketch which shows
that negligence was on the part of the offending lorry
driver and not the deceased. Hence, the said contention
of the Insurance Company is rejected.
14. The petitioners have not made out any ground as
to why the compensation needs to be enhanced.
15. Hence, the following:
ORDER
i] Appeal filed by the insurer in MFA
No.968/2018 is allowed in part. Appeal filed
by the claimants in MFA No.3047/2018
stands dismissed.
ii] The compensation awarded by the Tribunal is
modified and reduced to Rs.23,78,000/- as
against Rs.31,99,000/- which shall carry
interest at the rate of 6% per annum from
the date of the claim petition till its
realization.
iii] The insurance company shall deposit the
compensation amount before the Tribunal
within 90 days from the date of receipt of the
certified copy of the judgment and order.
iv] The portion of the order of the Tribunal
inasmuch as liability, apportionment and
disbursement remains intact.
v] The modified compensation shall be
disbursed in terms of the order of the
Tribunal.
vi] Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
hkh.
