Karnataka High Court

Baba Saheb And Ors vs Shaik Fayaz And Anr on 9 February, 2022

Bench: S.R.Krishna Kumar, K S Hemalekha

                            1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 9TH DAY OF FEBRUARY-2022
                        PRESENT
     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
                          AND
      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
             MFA No.200493/2020 (MV)
BETWEEN:
1.     Baba Saheb S/o Mohan Rao Ukhande,
       Age: 35 years, Occ: Labour,
       R/o Masoom Pasha Colony, Gunj Bhalki,
       Dist: Bidar-584101.
2.     Savita D/o Mohan Rao Ukhande W/o Late Shivajirao,
       Age: Major, Occ: Household,
       R/o Masoom Pasha Colony, Gunj Bhalki,
       Dist: Bidar-584101.
3.     Ganesh S/o Baba Saheb Ukhande,
       Age: 22 Years, Occ: Student,
       R/o Masoom Pasha Colony, Gunj Bhalki,
       Dist: Bidar-584101.
4.     Mayur S/o Baba Saheb Ukhande,
       Age: 20 years, Occ: Student,
       R/o Masoom Pasha Colony, Gunj Bhalki,
       Dist: Bidar-584101.
5.     Meera W/o Baba Saheb Ukhande,
       Age: Major, Occ: Household,
       R/o Masoom Pasha Colony, Gunj Bhalki,
       Dist: Bidar-584101.
                                               ... Appellants
(By Sri.Babu H.Metagudda, Advocate)
                               2


AND:

1.     Shaik Fayaz S/o Shaik Khaja Miyan,
       Age: 45 years, Occ: Business,
       R/o. Sharada Nagar, Joshi Galli Degloor,
       Tq: Udgir-584101.
       (Owner of Lorry No.MH-14/C-4395)

2.     The Manager,
       Shriram General Insurance Co. Ltd,
       Represented by its Branch Manager,
       No.302, 3rd Floor Sales Corner Building,
       Plot No.48, Hospital Road, Shivaji Nagar,
       Bangalore-01.
                                             ... Respondents
(By Smt. Sangeetha Bhadrashetty, Advocate for R2;
Notice to R1 is dispensed v/o dated 15.03.2021)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to call for the
records in MVC No.648/2015 on the file of the Addl. MACT
& Addl. District & Sessions Judge at Bidar (Sitting at
Bhalki).   Allow this appeal and modify the judgment and
award dated 19.07.2019 passed in MVC No.648/2015 by
the Addl. MACT & Addl. District & Sessions Judge at Bidar
(Sitting at Bhalki). And enhancing the compensation from
Rs.2,10,000/- with 6% interest to Rs.41,00,000/- with
12% interest. Grant such other and further relief's as this
Hon'ble Court deems fit, in the circumstances of the case,
in the interest of justice and equity.
       This appeal coming on for admission this day,
K.S. Hemalekha J, delivered the following:
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                      JUDGMENT

Though the matter is listed for admission, with

the consent of learned counsel for the parties, the

same is taken up for final disposal.

2. The present appeal is preferred by the

claimant assailing the judgment and award dated

19.07.2019 in MVC.No.648/2015 on the file of the

Additional MACT & Additional District & Sessions

Judge, Bidar sitting at Bhalki ("the Tribunal" for

short), seeking enhancement of compensation.

3. The claimants filed the claim petition under

Section 166 of the Motor Vehicles Act, 1988 ("the Act"

for short) seeking compensation of Rs.41,00,000/-

with interest on account of death of one Ambadas,

who succumbed to the injuries sustained in a road

traffic accident on 26.04.2015. The claimant Nos.1

and 2 are the brother and sister of the deceased and

claimant No.5 is the wife of claimant No.1 and

claimant Nos.3 and 4 are the children of claimant

No.1. The accident occurred on 26.04.2015 when the

deceased was travelling on his motorcycle bearing

registration No.AP-29/N-0230 along with the pillion

rider one Dayanand and when they reached near

Bedkunda Cross, Kushnoor road, a lorry bearing

registration No.MH-14-CP-4395 came in a rash and

negligent manner and dashed against the motorcycle,

due to which he fell down on the road and succumbed

to the injuries while in treatment. The deceased was

hale and healthy at the time of accident and was aged

about 23 years working in a hotel of one

M/s.Kushnoor Reddy Wine Shop and was earning a

monthly salary of Rs.15,000/- per month and in

addition, he was earning a sum of Rs.3,000/- by

attending to the work of the contractor. The

claimants contended that the deceased was living with

the claimants and they are depending upon the

income of the deceased.

4. In pursuance of the notice issued by the

Tribunal, respondent Nos.1 and 2 appeared and filed

their written statement.

5. Respondent No.1 contended that the driver

of the offending lorry did not possess valid permit and

the lorry driver did not possess valid and effective

driving licence as on the date of the accident. It is

also contended that the deceased also did not possess

valid and effective driving licence to ride the

motorcycle and that the accident occurred due to the

sole rash and negligent driving of the deceased

himself and to fasten the liability on the deceased.

6. The Tribunal, on the basis of the rival

pleadings of the parties, framed the following:

ISSUES

1. Whether the petitioners prove that deceased Ambadas S/o Mohanrao Ukhande who died in the motor vehicle accident that occurred on 26.04.2015 while returning to Bhalki from Balath-B village when they reached near Bedkunda cross, Sangam Kushnoor road and died on 27.05.2015 at about 8.45 p.m. that has caused on account of the rash and negligent driving of Lorry bearing Reg.No.MH-14 CP-4395 by its driver?

2. Whether petitioners prove that they are entitled for compensation? To what extent and from whom?

3. What order or decree?

7. In order to substantiate their claim,

claimant No.1 as PW.1 and got marked 6 documents

at Exs.P-1 to P-6. On the other hand, respondent

No.2 examined the RTO as RW.1 and the legal officer

as RW.2 and got marked 4 documents at Exs.R-1 to

R-4.

8. The Tribunal, on the basis of the pleadings,

evidence and material on record held that the

petitioner Nos.1 and 2 are entitled for compensation

of Rs.2,10,000/- with interest at 6% per annum from

the date of claim petition till the date of realization

and held that the accident occurred due to the rash

and negligent driving of the lorry bearing registration

No.MH-14-CP-4395 and fastened the liability upon the

insurance company.

9. Being unsatisfied with the award of

quantum of compensation awarded by the Tribunal,

the claimants are in appeal.

10. Heard learned counsel for the appellants

and learned counsel for the respondent

No.2/insurance company.

11. Learned counsel Sri. Babu H. Metagudda,

appearing for the appellants would contend that the

Tribunal holding that petitioner Nos.1 and 2 are only

entitled for compensation on account of deceased

Ambadas son of Mohanrao, without considering the

fact that petitioner Nos.3 to 5 were also depending

upon the income of the deceased. The Tribunal fell in

error in not awarding the compensation to the

petitioners under the head loss of dependency and

loss of estate. Insofar as quantum of compensation is

concerned, it is contended that the Tribunal has not

awarded compensation as per the dictum of the

Hon'ble Apex Court in the case of National

Insurance Company Limited vs. Pranay Sethi

[(2017)16 SCC 680] (Pranay Sethi) and Magma

General Insurance Company Limited vs. Nanu

Ram [(2018) 18 SCC 130] (Magma General

Insurance Company Limited), and thus sought for

enhancement of compensation. Learned counsel for

the appellants has also relied on the judgments of the

Apex Court in N. Jayasree & others vs.

Cholamandalam Ms General Insurance Company

Limited [AIR 2021 SC 5218] (Cholamandalam Ms

General Insurance Company Limited) and National

Insurance Company Limited vs. Birender &

others [(2020)11 SCC 356] (Birender).

12. Per contra, learned counsel, Smt.

Sangeetha Bhadra Shetty, appearing for the

respondent No.2/insurance company would contend

that the Tribunal has rightly awarded compensation to

petitioner Nos.1 and 2 and non-granting of

compensation to petitioner Nos.3 to 5 is on the ground

that they are not depended on the deceased. Insofar

as quantum of compensation is concerned, it is

contended that the Tribunal has awarded fair, just and

proper compensation and the same does not require

any interference at the hands of this Court.

13. To substantiate her contention, learned

counsel for the insurance company has relied on the

judgment of the Hon'ble Apex Court in the case of

A.Manavalagan vs. A Krishnamurthy & others

[ILR 2004 Kar. 3268] (A.Manavalagan).

14. Having heard learned counsel for the

parties, and having given our anxious consideration to

the rival contentions and having perused the material

on record, the points that arise for our consideration

are:

(i) Whether the Tribunal was justified in holding that petitioner Nos.1 and 2 are entitled for compensation and rejecting compensation to petitioner Nos.3 to 5?

(ii) Whether the judgment and award passed by the Tribunal requires any interference insofar as quantum of compensation is concerned?

Point No.1:

15. Petitioner No.1 is the brother and petitioner

No.2 is the sister of the deceased and petitioner Nos.3

and 4 are the sons of petitioner No.1 and petitioner

No.5 is the wife of petitioner No.1. The Tribunal has

held that petitioner Nos.1 and 2 are entitled for

compensation. In the case of Cholamandalam Ms

General Insurance Company Limited the Hon'ble Apex

Court has held in paragraph Nos.9 to 13 as under:

"9. In view of the above, the questions for consideration before us are: (I) whether the High Court was justified in precluding the mother-in-law of the deceased (appellant no.4) as his legal representative? (II) whether the High Court was justified in applying a split multiplier? (III) based on the findings on the preceding questions, what is the amount of compensation that should be awarded to the appellants?

(I) whether the High Court was justified in precluding the mother-in-law of the deceased (appellant no.4) as his legal representative?

10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives

paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma1, this Court has laid down as under:

"16. ..."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."

11. In Sarla Verma1 it was further held that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is between 2 and 3, one-fourth (1/4th) where the number of dependent family members is between 4 and 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

12. In the instant case, the appellants have contended that the mother-in-law of the deceased was staying with the deceased and his family members since a long time. Taking into consideration the number of dependents of the deceased including his mother-in-law (four in number), the MACT had deducted one fourth (1/4th) of the income towards his personal expenses. However, the High Court has held that appellant no.4 being the mother-in-law of the deceased, cannot be reckoned as a dependent of the deceased. The High Court, therefore, determined the

number of dependents as 3 and accordingly deducted one-third (1/3rd) of the income of the deceased towards his personal expenses.

13. Section 166 of the MV Act provides for filing of an application for compensation. The relevant portion of the said Section is as under:

"166. Application for compensation. -- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(d) by any agent duly authorised by the person injured or all or any of the legal

representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application."

16. The definition of "legal representative"

cannot be in a wider sense to include the wife and the

children of the brother of the deceased who are not

depending upon the deceased. The legal

representative may include any person who

intermeddles with the estate of the deceased. In the

present case, there is no single document to show

that petitioner Nos.3 to 5 were intermeddling with the

estate of the deceased and they were dependents

upon the deceased. In the case of Birender, the Apex

Court has held at paragraph Nos.20 and 21 as under:

"20. Similarly, the High Court despite having taken note of the submission made by the respondent Nos. 1 and 2 that the deduction for personal expenses of the deceased should be reckoned only as one-third (1/3rd) amount for determining loss of dependency, maintained the deduction of 50% towards that head as ordered by the Tribunal. This Court in Pranay Sethi5, in para 37, adverted to the dictum of this Court in Sarla Verma v.

DTC11 with approval, wherein it is held that if the dependant family members are 2 to 3, as in this case, the deduction towards personal and living expenses of the deceased should be taken as one-third (1/3rd). In other words, the deduction towards personal expenses to the extent of 50% is excessive and not just and proper considering the fact that respondents 1 and 2 alongwith their respective families were staying with the deceased at the relevant

time and were largely dependant on her income.

21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under:

"26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensation."

The High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/- per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation."

17. Thus, in the case of Birender the Apex

Court has held that the legal representatives of the

deceased have a right to apply for compensation,

having said that it must necessarily follow even major

married and earning sons of the deceased being the

legal representatives of the deceased and it would be

the bounden duty of the Tribunal to consider the

application, irrespective of the fact, whether the

concerned is fully dependent upon the deceased and

limit the claim towards conventional heads only. In

the present case, the contention of the claimants is

that petitioner Nos.3 to 5 being the children and wife

of brother of the deceased who is claimant No.1 can

be termed as the legal representative of the deceased

Ambadas and cannot be held that they were fully

dependent upon the deceased is not acceptable as the

question of legal representatives of the brother's wife

and children cannot be termed as dependent upon the

deceased.

18. Considering the cases of Cholamandalam,

Birender and A.Manavalagan, the contention of the

claimant that petitioner Nos.3 to 5 are the legal

representatives of the deceased cannot be accepted

as per the principle laid down in the case of

A.Manavalagan. Petitioner Nos.3 to 5 were not

financially dependents upon the deceased. The

relevant portion in paragraph No.19 in the case of

A.Manavalagan which reads as under:

"19. We may summarise the principles enunciated, thus:

(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a

widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.

(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.

(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.

A conventional sum for loss of expectation of life, is added.

(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of

selection of multiplier is however the same in both cases.

19. To summarize the case, we are of the

considered view that the contention of the claimants

that petitioner Nos.3 to 5 being the wife and children

of brother of the deceased were also dependent upon

the deceased is not acceptable for the reasons stated

supra. Accordingly, we answer point No.1 in the

affirmative and hold that petitioner Nos.3 to 5 are not

entitled for compensation and the Tribunal was

justified in granting compensation only to petitioner

Nos.1 and 2.

20. Insofar as quantum of compensation is

concerned, the Tribunal has not awarded

compensation under the head loss of dependency.

Taking into consideration the year of the accident to

be 2015 and no documents were produced to show

the actual income of the deceased. Taking into

consideration as per the guidelines of Karnataka State

Legal Services, the notional income of the deceased is

taken at Rs.8,000/-. Adding 40% to it, a sum of

Rs.11,200/- is awarded towards future prospects.

(8,000 + 40% i.e., 3,200 = 11,200/-) in view of the

dictum of the Hon'ble Apex Court in the case of

Pranay Sethi. Since the deceased was a bachelor,

50% of income has to be deducted, which comes to

Rs.5,600/- and multiplier 18 is applied considering the

age of the deceased as 23 years, the amount of

compensation under the head loss of dependency

would come to Rs.12,09,600/- (Rs.5,600 x 12 x 18).

21. In view of United India Insurance

Company Limited vs. Satinder Kaur and others

[(2020) ACJ 3076] (Satinder Kaur) and Magma

General Insurance Company Limited vs. Nanu

Ram [(2018) 18 SCC 130] (Magma General

Insurance Company Limited), the dependents are two

in number and hence, (Rs.40,000/- each x 2) it would

come to Rs.80,000/- under the head loss of

consortium. Under the head loss of estate and funeral

expenses, the claimants are entitled to Rs.15,000/-

each. In all, the total compensation would come to

Rs.13,19,600/-, which the claimants are entitled to is

under the following heads:

Loss of dependency : Rs. 12,09,600/-

Loss of consortium : Rs. 80,000/-

 Loss of estate                     :   Rs.    15,000/-

 Funeral expenses                   :   Rs.    15,000/-

               Total                :   Rs. 13,19,600/-

22. The Tribunal has already awarded a sum of

Rs.2,10,000/- in the claim petition and after deducting

the same from the compensation awarded

(Rs.13,19,600/- less Rs.2,10,000/-) it would

come to Rs.11,09,600/-. Hence, the claimants are

entitled for an enhanced compensation of

Rs.11,09,600/- with interest at the rate of 6% per

annum from the date of petition till the date of

realization. As a result, we answer point No.2 in the

affirmative.

23. In the result, we pass the following:

ORDER