Karnataka High Court
Pragath Kariappa vs Mahadeva H S on 8 January, 2021
Author: S.Sujatha And M.I.Arun
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH 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.5740/2019 c/w
M.F.A.No.4964/2018, M.F.A.No.5354/2018 &
M.F.A.No.5741/2019 (MV)
IN M.F.A.No.5740/2019:
BETWEEN :
1. PRAGATH KARIAPPA
S/O LATE M.M.KARIAPPA,
AGED ABOUT 26 YEARS.
2. PRANITH KARIAPPA M.,
D/O LATE M.M.KARIAPPA,
AGED ABOUT 22 YEARS.
BOTH ARE R/AT POLOOR VILLAGE
& POST VIA NAPOKLU,
MADIKERI, KODAGU-571 214 ...APPELLANTS
(BY SRI SYED ABDUL SABOOR, ADV.)
AND :
1. MAHADEVA H.S.,
S/O SANNAIAH, AGED 43 YEARS,
R/AT HOSAKOTE VILLAGE,
CBT COLONY POST,
KASABA HOBLI, HUNSUR-571105.
(OWNER KA-45-9511)
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2. ICICI LOMBARD GENERAL
INSURANCE CO. LTD., MUMBAI,
REP. BY ITS MANAGER,
BRANCH OFFICE AT MYTHRI ARCADE,
FIRST MAIN, SARASWATHIPURAM,
MYSORE-570009.
(OWNER KA-45-9511) ...RESPONDENTS
(BY SRI PRADEEP B., ADV. FOR R-2; R-1 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.101/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, SENIOR CIVIL
JUDGE, MYSURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.4964/2018:
BETWEEN :
M/s ICICI LOMBARD GIC LTD.,
BRANCH OFFICE AT MYTHRI ARCADE,
FIRST MAIN, SARASWATHIPURAM,
MYSURU-570 009
NOW REP BY LEGAL MANAGER,
ICICI LOMBARD GIC LTD.,
# 121, THE ESTATE BUILDING,
9TH FLOOR, DICKENSON ROAD,
BANGALORE-42 ...APPELLANT
(BY SRI PRADEEP B., ADV.)
AND :
1. M.T.BOPANNA
S/O LATE M.M.THIMMAIAH,
AGED ABOUT 27 YEARS.
2. POONAM M.T.,
D/O LATE M.M.THIMMAIAH,
AGED ABOUT 26 YEARS.
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BOTH ARE R/AT POLOOR VILLAGE
& POST VIA NAPOKLU,
MADIKERI, KODAGU-571 214
3. MADADEVA H.S.,
S/O SANNAIAH, AGED ABOUT 41 YEARS,
R/AT HOSAKOTE VILLAGE,
C.B.T.COLONY POST, KASABA HOBLI,
HUNSUR TALUK-571 105 ...RESPONDENTS
(BY SRI SYED ABDUL SABOOR, ADV. FOR R-1;
R-2 & R-3 ARE SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.103/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, SENIOR CIVIL
JUDGE AS A PRESIDING OFFICER, MACT, MYSURU, AWARDING
COMPENSATION OF Rs.7,30,000/- WITH INTEREST AT 8% P.A.
FROM THE DATE OF PETITION TILL THE REALIZATION.
IN M.F.A.No.5354/2018:
BETWEEN :
M/s ICICI LOMBARD GIC LTD.,
BRANCH OFFICE AT MYTHRI ARCADE
FIRST MAIN, SARASWATHIPURAM
MYSURU-570 009
NOW REP BY LEGAL MANAGER
ICICI LOMBARD GIC LTD.,
No.121, THE EASTATE BUILDING,
9TH FLOOR, DICKENSON ROAD,
BANGALORE-42 ...APPELLANT
(BY SRI PRADEEP B., ADV.)
AND :
1. PRAGATH KARIAPPA
S/O LATE M.M.KARIAPPA
AGED ABOUT 24 YEARS.
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2. PRANITH KARIAPPA M.,
D/O LATE M.M.KARIAPPA
AGED ABOUT 20 YEARS
BOTH ARE R/AT
POLOOR VILLAGE & POST
VIA NAPOKLU, MADIKERI
KODAGU-571 214
3. MAHADEVA H.S.,
S/O SANNAIAH,
AGED ABOUT 41 YEARS,
R/AT HOSAKOTE VILLAGE,
CBT COLONY POST,
KASABA HOBLI, HUNSURU TALUK,
OWNER KA-45-9511 ...RESPONDENTS
(BY SRI SYED ABDUL SABOOR, ADV. FOR R-1; R-3 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.101/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, SENIOR CIVIL
JUDGE, MACT, MYSURU, AWARDING COMPENSATION OF
Rs.10,78,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
IN M.F.A.No.5741/2019:
BETWEEN :
1. M.T.BOPANNA
S/O LATE M.M.THIMMAIAH,
AGED ABOUT 30 YEARS.
2. POONAM M.T.,
D/O LATE M.M.THIMMAIAH,
AGED ABOUT 29 YEARS.
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BOTH ARE R/AT
POLOOR VILLAGE & POST,
VIA NAPOKLU, MADIKERI,
KODAGU-571214 ...APPELLANTS
(BY SRI SYED ABDUL SABOOR, ADV.)
AND :
1. MAHADEVA H.S.,
S/O SANNAIAH, AGED 43 YEARS,
R/AT HOSAKOTE VILLAGE,
C.B.T. COLONY POST,
KASABA HOBLI, HUNSUR-571105
(OWNER KA-45-9511)
2. ICICI LOMBARD GENERAL
INSURANCE CO. LTD., MUMBAI,
REP. BY ITS MANAGER,
BRANCH OFFICE AT MYTHRI ARCADE,
FIRST MAIN, SARASWATHIPURAM,
MYSURU-570 009
(INSURER KA-45-9511)
...RESPONDENTS
(BY SRI PRADEEP B., ADV. FOR R-2; R-1 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC No.103/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MACT,
MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
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JUDGMENT
Since akin issues are involved in these matters
and the appeals arise out of the same accident, they are
clubbed, heard together and disposed of by this
common judgment.
2. The claimants as well as the insurer are
before this Court challenging the common judgment
and award dated 21.03.2018 passed in MVC
Nos.101/2017 and 103/2017 by the Principal Judge,
Court of Small Causes, Senior Civil Judge, Mysuru
('Tribunal' for short).
3. For the sake of convenience, the parties are
referred to as per their status before the Tribunal.
4. The claimants instituted petitions under
Section 166 of the Motor Vehicles Act, 1988 against the
respondents claiming compensation for the death of
Smt. Daizy Kariappa and Smt. M.T. Susheela @ Baby in
road traffic accident.
5. It was averred in the claim petitions that on
13.12.2016 at about 2.00 p.m. near Bilikere - Kolagatta
village on Hunsur - Mysuru main road, when both the
deceased namely Smt. Daizy Kariappa and Smt. M.T.
Susheela @ Baby were traveling in a car bearing
registration No.KA-12-P-5751 driven by Smt. Daizy
Kariappa, at that time, driver of Bulero goods vehicle
bearing registration No.KA-45-9511 (offending vehicle)
came from opposite direction in a high speed and
dashed to the said vehicle. Due to the said impact, both
Smt. Daizy Kariappa and Smt. M.T. Susheela @ Baby
sustained grievous injuries and succumbed to the same
on the spot itself.
6. It was contended that the deceased were the
only earning members of their family owning Coffee
Estate and doing business. They were earning
Rs.25,000/- each per month and maintaining their
family members. Due to the untimely death of the
deceased, claimants are put to loss of dependency etc.,.
On these set of facts and grounds, the claimants sought
for compensation.
7. In response to the notice issued, though the
respondent No.1 - owner of the offending vehicle
appeared through his counsel, no objection statement
was filed. Common statement of objection was filed by
the insurance company denying the petition averments.
The defence set up was that the accident had occurred
due to the rash and negligent driving of the deceased;
the liability, if any, is subject to the terms and
conditions of the policy, valid driving licence and permit;
the compensation and interest claimed by the claimants
is highly excessive and exorbitant. On these grounds,
they prayed for dismissal of both the petitions.
8. On the basis of the pleadings, the Tribunal
framed the following issues:-
IN MVC No.101/2017
1) Whether the petitioners prove that on
13/12/2016 at about 2.00 p.m. at
Kolaghatta village on Hunsur - Mysuru
main road when Sri.Daizy Kariappa was
proceeding in Car bearing registration
No.KA-12-P-5751, at that time the driver
of Goods vehicle bearing No.KA-45-9511
drove it in a high speed with rash and
negligent manner and dashed, as a
result of which, he succumbed to
injuries?
2) Whether the petitioners are entitle for
compensation? If so, what is the quantum
and from whom?
3) What order or award?
IN MVC No.103/2017
1) Whether the petitioners prove that on
13/12/2016 at about 2.00 p.m., at
Kolaghatta village on Hunsur - Mysuru
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main road when Smt. M.T. Susheela @
Baby was travelling in a Car bearing
registration No.KA-12-P-5751, at that
time the driver of Goods vehicle bearing
No.KA-45-9511 drove it in a high speed
with rash and negligent manner and
dashed, as a result of which, she
succumbed to injuries?
2) Whether the petitioners are entitle for
compensation? If so, what is the quantum
and from whom?
3) What order or award?
9. The claimant No1 in MVC No.101/2017 was
examined as PW.1 and got marked Exs.P1 to P14;
claimant No.1 in MVC No.103/2017 was examined as
PW.2 and got marked Exs.P15 to P21. No oral and
documentary evidence was tendered on behalf of the
respondents.
10. On appreciation of oral and ocular evidence,
the Tribunal answered issue No.1 in the affirmative;
issue No.2 partly in the affirmative and allowed the
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claim petitions in part, awarding total compensation of
Rs.10,78,000/- in MVC No.101/2017 and
Rs.7,30,000/- in MVC No.103/2017 along with interest
at the rate of 8% per annum from the date of petition till
its realisation in both the cases.
11. Being aggrieved, the insurer as well as the
claimants are before this Court.
12. Learned counsel for the insurer stoutly
argued that the tribunal committed a palpable error in
awarding compensation towards loss of dependency in
both the cases. The claimants are major children of the
deceased in both the cases. The Tribunal ought to have
awarded the compensation towards loss to estate but
not towards loss of dependency. It was further argued
that the compensation awarded under the different
heads is exorbitant. The same is not in conformity with
the evidence available on record.
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13. Learned counsel for the claimants argued
that the claimants in both the cases were not earning
members and they were entirely dependants on their
respective mothers who were maintaining the family.
The untimely death of the deceased has caused loss of
financial dependency besides loss of love and affection
etc.,
14. It is borne out from the records that the
deceased in both the cases were owning Coffee Estate
and doing business. The evidence of PW.1 and PW.2
supported by the Exs.P14 and P21 supports the same.
Claimants had lost their father earlier and they were
solely depending on their mother. Neither any defence
was taken by the insurer in the written statement nor
any rebuttal evidence has been tendered by the insurer
to impeach the credibility of the claimants' witnesses as
regards the dependency is concerned. Indeed insurer
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has not stepped into the witness box to tender any
evidence.
15. In the absence of pleadings, evidence and
adjudication, the challenge made by the insurer to the
compensation awarded under the head loss of
dependency is wholly unsustainable. On the contrary,
the material evidence on record would disclose that the
claimants were depending on the deceased. As such,
we are of the considered view that the compensation
awarded by the Tribunal under the head loss of
dependency cannot be faulted with.
16. The quantum of compensation awarded
under the head, loss of dependency appears to be on
the lower side having regard to the facts and
circumstances of the case. The Tribunal has determined
the monthly income of the deceased in both the cases at
Rs.9,000/-. Considering the same, the loss of
dependency was computed at Rs.10,08,000/-. In the
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absence of cogent evidence to establish the factum of
income, it would be safe to refer to the chart prepared
by the Karnataka State Legal Services Authority.
Considering the same, the monthly income of the
deceased in both the cases is re-determined notionally
at Rs.9,500/-. Since the deceased was aged 45 years in
MVC No.101/2017 (MFA No.5740/2019) and 55 years
in MVC No.103/2017 (MFA No.5741/2019), adding 25%
and 10% of the determined income, the monthly income
would be Rs.11,875/- and Rs.10,450/- respectively.
Applying the multiplier of 14, deducting 1/3rd of the
income towards personal and living expenses of the
deceased, loss of dependency would be Rs.13,30,000/-
(Rs.11875 x 12 x 14 x 2/3) in MFA No.5740/2019.
Applying the multiplier of 11, deducting 1/3rd of the
income towards the personal and living expenses of the
deceased, loss of dependency would work out to
Rs.9,19,600/- (Rs.10450 x 12 x 11 x 2/3) in MFA
No.5741/19. The claimants being the dependants in
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both the cases, they are entitled to compensation of
Rs.70,000/- towards the conventional heads in each
case. Thus, the total compensation is re-assessed as
under:
MFA No.5740/18 MFA No. 5741/18
Loss of dependency 13,30,000 9,19,600
Loss to estate 15,000 15,000
Funeral expenses 15,000 15,000
Loss of parental 40,000 40,000
Consortium
(unmarried daughter)
------------- -----------
Total 14,00,000 9,89,600
------------- ------------
17. As regards rate of interest, having regard to
the fall in the rate of interest in the banks and to
maintain uniformity in the order as this Court is
consistently awarding interest at the rate of 6% p.a. in
identical circumstances, we deem it appropriate to
modify the rate of interest from 9% to 6% p.a.
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18. Thus, the claimants are entitled to total
compensation of Rs.14,00,000/- and Rs.9,89,600/- in
MFA Nos.5740/2019 and 5741/2019 respectively with
interest @ 6% p.a. from the date of petition till
realization.
19. Appeals filed by the insurer i.e., MFA
Nos.5354/2018 and 4964/2018 are allowed only to the
extent of modifying the rate of interest from 8% p.a. to
6% p.a. from the date of petition till realization.
Hence, the following:
ORDER
i) The appeals are allowed in part.
ii) The total compensation awarded by the
Tribunal in MVC.No.101/2017
(MFA.No.5740/2019) is modified and
enhanced to Rs.14,00,000/- (Rupees
Fourteen lakhs only) as against
Rs.10,78,000/- with interest at the rate
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of 6% per annum from the date of the
claim petition till its realization.
iii) The total compensation awarded by the
Tribunal in MVC.No.103/2017
(MFA.No.5741/2019) is modified and
enhanced to Rs.9,89,600/- (Rupees Nine
Lakhs Eighty Nine Thousand Six
Hundred only) as against Rs.7,30,000/-
with interest at the rate of 6% per annum
from the date of the claim petition till its
realization subject to clause (IV) herein.
iv) Interest for the delayed period of 322
days in filing the appeal by the claimants
is denied in M.F.A.No.5740/2019 and
M.F.A.No.5741/2019.
v) The portion of the order of the Tribunal
inasmuch as liability, apportionment and
disbursement remains intact.
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vi) 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.
vii) The modified compensation amount shall
be apportioned and disbursed in terms of
the order of the Tribunal.
viii) Draw modified award accordingly.
ix) The Registry shall transfer the amount in
deposit along with original records to the
jurisdictional Tribunal forthwith.
x) All pending I.As. stand disposed of
accordingly.
SD/-
JUDGE
SD/-
JUDGE
PMR/Dvr:
