Karnataka High Court
The New India Assurance Co Ltd vs Bhanumathi R on 11 January, 2021
Author: Alok Aradhe Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.6530 OF 2015 (MV-D)
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE,
NAZRBAD, MYSURU,
THROUGH MOTOR THIRD PARTY CLAIMS HUB,
M.G. ROAD, BANGALORE-560001.
BY DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR
SRI.K.SURYANARAYANA RAO, ADVOCATE)
AND:
1. BHANUMATHI R
W/O LATE SANJEEVAKUMAR,
AGED ABOUT 52 YEARS,
RESIDING AT NO.167,
3RD CROSS, RAMANUJA ROAD,
MYSORE-570001.
2. M.D. SHIVAKUMAR
S/O DALAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.2272/3, 6TH CROSS,
2
BASAVESHWARA ROAD,
MYSORE-570001.
...RESPONDENTS
(BY SRI. P. NATARAJU, ADVOCATE FOR RESPONDENT NO.1;
SERVICE OF NOTICE TO RESPONDENT NO.2 IS HELD
SUFFICIENT VIDE COURT ORDER DATED 16.03.2020)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988
AGAINST THE JUDGMENT AND AWARD DATED 31.03.2015
PASSED IN MVC NO.117/2013 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MYSURU, IN
CONCURRENT CHARGE OF ADDITIONAL COURT OF SMALL
CAUSES, MYSURU, COURT OF ADDITIONAL JUDGE, SMALL
CAUSES AND SENIOR CIVIL JUDGE, MYSURU, AWARDING
COMPENSATION OF RS.25,93,640/- WITH INTEREST @ 9%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the insurer challenging the
quantum of compensation awarded by the Additional
Judge, Small Causes and Senior Civil Judge, Motor
Accident Claims Tribunal, Mysuru (henceforth referred to
as the 'Tribunal') in terms of the Judgment and Award
dated 31.03.2015 in MVC No.117/2013.
2. Though, this appeal is listed for admission, as
the records of the Tribunal are received, it is taken up for
final disposal with the consent of the learned counsel for
the parties.
3. The appellant herein and respondent No.2
herein will henceforth be referred to as the 'insurer' and
'rider' respectively of the scooter involved in the accident.
Respondent No.1 herein will henceforth be referred to as
the 'claimant'.
4. The claim petition discloses that the claimant is
the mother of Mr.Vijayakumar. It is stated that on
13.11.2012 at about 12:15 p.m., the said Mr.Vijaykumar
was riding pillion on a Honda Activa Scooter bearing
registration No.KA-09-EM-7424. When they reached
Ranaprathapa Simha Circle on Lalitha Mahal road, Mysuru,
the rider of the scooter who was riding it rashly, lost
control. As a result of which, the said Mr.Vijayakumar fell
on the road and sustained grievous injures on his head and
all over the body. The said Vijayakumar was shifted to
Gopalagowda Hospital, Nazarbad, Mysuru, but he died on
the way to the hospital. The claimant claimed that the
deceased was her only son and he was a whole sale
supplier of sandal wood, white wood and rose wood
handicrafts and was earning a monthly income of
Rs.40,000/- and was contributing the same to the welfare
of the family. The claimant therefore claimed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the Act') claiming compensation
of a sum of Rs.35,60,000/- from the owner and the insurer
of the Honda Scooter.
5. The owner of the scooter filed his objections
and contended that the deceased did not take proper care
and caution when he was sitting on the backside of the
scooter and that he slipped down from the pillion seat of
the scooter.
6. The insurer of the scooter filed its statement
contending that the rider of the scooter did not have any
effective licence. It also claimed that the accident was due
to the negligence on the part of the deceased himself as he
did not take proper care while riding as a pillion on the
scooter. It also contended that the claim made by the
claimant was exorbitant.
7. The claimant was examined as PW.1 and she
marked documents as exhibits P1 to 18. While the insurer
did not examine any witness, but it marked only a copy of
the insurance policy as Ex.R1.
8. The Tribunal held that the accident was due to
the negligence on the part of the rider of the scooter in
view of the complaint as well the investigation made by
the police, which resulted in a charge sheet against the
rider of the scooter. Hence, it held that the rider of the
scooter was negligent and was responsible for the accident
which resulted in the death of Mr. Vijayakumar.
9. In so far the claim for compensation is
concerned, the Tribunal noticed that the deceased was 32
years old at the time of his death. It also found from
Ex.P15 that for the assessment year 2012-2013 that the
deceased had declared a gross income of Rs.2,14,500/-.
The Tribunal therefore, held that the claimant was entitled
to loss of future prospects at 50% and considered the
income of the deceased at a sum of Rs.2,11,550/- after
deducting Rs.2,950/- which was the income tax paid. It
held that the claimant was entitled to the following
compensation:
Heads under which Amount in
compensation awarded Rupees
Loss of financial dependency 25,38,640/-
Loss of consortium Nil
Funeral expenses 25,000/-
Loss of love and affection 10,000/-
Lost to estate 10,000/-
Medicines and medical expenses Nil
Transportation of Dead body 10,000/-
Pain and suffering Nil
Total 25,93,640
The Tribunal awarded interest at 9% per annum on the
aforesaid compensation from the date of the claim petition
till the date of realization.
10. Feeling aggrieved by the quantum of
compensation determined by the Tribunal, the insurer is in
appeal and contends that the Tribunal ought not to have
considered the loss of future prospects at 50% since the
deceased did not have any permanent avocation. The
learned counsel relied upon the law declared by the Apex
Court in the case of National Insurance Company
Limited vs. Pranay Sethi and others reported in 2017
(16) SCC 680 and contended that the Tribunal ought to
have awarded loss of future prospects at 40%. The learned
counsel also contended that the Tribunal had awarded the
interest at 9% per annum which too was excessive.
11. Per contra, the learned counsel for the
claimant contended that in view of the law laid down by
the Apex Court in the case of Magma General Insurance
Co. Ltd vs. Nanu Ram Alias Chuhru Ram reported in
2018 (18) SCC 130 and in the case of United India
Insurance Co. Ltd. vs Satinder Kaur @ Satwinder
Kaur and others reported in 2020 SCC OnLine SC 410,
the Tribunal ought to have awarded loss of filial consortium
to the claimant. He also contended that the deceased had
established a handicraft manufacturing unit and was
earning substantially and that due to his death, the
claimant was in no position to run the unit. As a result,
the learned counsel for the claimant contended that the
loss to estate was enormous and therefore, the Tribunal
ought to have awarded adequate compensation under this
head. Alternatively, the learned counsel for the claimant
contended that the Judgment and Award passed by the
Tribunal may not be interfered with.
12. It is a matter of common knowledge that loss
of a loved one cannot be compensated in any manner. The
vacuum left by the deceased can never be filled up. The
Courts are always sympathetic towards the legal
representatives of the deceased and therefore, the Courts
do not expect a higher degree of proof but cases are
decided based on preponderance of probabilities. The
purpose of Section 166 of the Motor Vehicles Act, 1988 is
to award just compensation, but the Court should not be
blinded by sympathy and award compensation which is
fanciful but the compensation should be just and adequate.
With that background, if the present case is considered, as
held by the Apex Court in the case of Pranay Sethi, the
claimant was entitled to the loss of future prospects at
40% as against 50% awarded by the Tribunal. In view of
the law laid down by the Apex Court in the case of Magma
General Insurance Case (supra) and confirmed in the
case of Satinder Kaur (supra), the claimant was indeed
entitled to loss of filial consortium.
13. In that view of the matter, except the
judgment of the Tribunal awarding loss of future prospects
at 50%, all other findings recorded by the Tribunal deserve
to be confirmed. The loss of future prospects awarded by
the Tribunal at 50% is reduced to 40% and the claimant
would be entitled to compensation of Rs.23,69,360/-
(Rs.2,11,550/- + 40% of Rs.2,11,550/- = Rs.296,170/-; 50% of the same is
Rs.1,48,085/- multiplied by 16) towards loss of dependency.
14. In so far as the rate of interest payable by the
insurer is concerned, since the rate of interest on fixed
deposits for a period of one year in the year 2012 fetched
9% return, it is proper that the compensation that may be
awarded by this Court would be paid by the insurer along
with interest at 9% p.a.
15. Since the Apex Court has now held in the case
of Magma General Insurance Company (supra) and
Satinder Kaur (supra) that the dependants are entitled to
filial / parental loss of consortium, the claimant in this case
ought to have been awarded compensation to offset loss of
filial consortium at Rs.40,000/-.
16. Hence, this appeal is allowed in part and in
modification of the impugned Judgment and Award passed
by the Tribunal, the compensation awarded by the Tribunal
is reduced from Rs.25,93,640/- to a sum of
Rs.24,09,360/-, which shall be paid by the insurer along
with the interest at 9% per annum from the date of the
claim petition till the date of realization.
17. The insurer is directed to deposit the
compensation with interest as stated above within a period
of one month from the date of receipt of a certified copy of
this Judgment.
18. Upon such deposit, 50% of the amount shall
be kept in a fixed deposit in the name of the claimant in
any nationalized bank for a period of three years. The
claimant shall be entitled to withdraw the interest on such
deposit periodically.
19. The amount in deposit, if any, shall be
transmitted to the Tribunal for disbursement to the
claimant.
Sd/-
JUDGE
Sd/-
JUDGE
sma
