The Branch Manager vs Rathi Devi
2022 Latest Caselaw 3220 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                         BEFORE

      THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

              M.F.A. NO.10494/2010 (MV)
                          C/W
              M.F.A. NO.6135/2010 (MV-D)


M.F.A. NO.10494/2010

BETWEEN:

1.    SMT.RATHIDEVI
      W/O LATE SHANTHIRAJ PADIVAL
      AGED ABOUT 77 YEARS
      R/O "PADMA NILAYA",
      BELVAI VILLAGE AND POST
      MANGALORE TALUK
      D.K.DISTRICT.

2.    SMT.PRASADINI
      W/O A.N.PRAVEEN
      AGED ABOUT 23 YEARS
      R/O PARVTHI PARAMESHWARA NILAYA
      343/47, NITTUVALLI ROAD
      GANESH LAYOUT, DAVANGERE
                                           ... APPELLANTS

(BY SRI.K.A.CHANDRASHEKARA, ADVOCATE)


AND :

1.    LAWRENCE SEBASTIAN
      S/O JOSEPH PINTO
      AGED ABOUT 65 YEARS
      R/O "LOVCLIN VILLA"
      SANOOR VILLAGE AND POST
      KARKALA TALUK, UDUPI DISTRICT
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2.     THE BRANCH MANAGER
       THE UNITED INDIA INSURANCE COMPANY LIMITED
       KARKALA BRANCH, P.B.NO.29
       A.S. ROAD, SRINIVASA COMPLEX
       KARKALA UDUPI DISTRICT
                                       ... RESPONDENTS


(BY SRI.K.SHASHIKANTH PRASAD, ADVOCATE FOR R-1
    SRI.O.MAHESH ADVOCATE FOR R-2)


       THIS MISCELLANEOUS FIRST APPEAL NO.10494/2010
IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.05.2010 PASSED IN MVC
NO.510/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION
FOR    COMENSTAION   AND   SEEKING   ENHANCEMENT   OF
COMPENSATION.


M.F.A. NO.6135/2010

BETWEEN:

THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD
KARKALA BRANCH, POST BOX NO.29
A.S. ROAD, SRINIVAS COMPLEX, KARKALA BY
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, NO.78
KRISHNA COMPLEX, G.B.PANTH MARG
UDUPI-567 101.
                                          ...APPELLANT

(BY SR. O. MAHESH, ADVOCATE)

AND:

1.     RATHI DEVI
                            3




       AGED ABOUT 77 YEARS
       W/O LATE SRI SHANTHIRAJ PADIVAL
       R/AT " PADMA NILAYA",
       BELVAI VILLAGE AND POST
       MANGALORE TALUK

2.     PRASADINI,
       AGED ABOUT 23 YEARS
       R/AT "PARVATHI
       PARAMESHWARA NILAYA"
       NO.343/47, NITTUVALLI ROAD
       OLD S.P. OFFICE ROAD
       GANESH LAYOUT, DAVANAGERE
       REP BY HER GRANDMOTHER AND
       G.P.A. HOLDER RATHIDEVI

3.     LAWRENCE SEBASTIAN PINTO
       AGED ABOUT 65 YEARS
       S/O SRI. JOSEPH PINTO
       R/AT "LOVELIN VILLA"
       SANOOR VILLAGE AND POST.
                                         ...RESPONDENTS

(BY SRI. K.A. CHANDRASHEKAR, ADVOCATE FOR R1)
R2-SD, R3-D/W


       THIS MISCELLANEOUS FIRST APPEAL NO.6135/2010 IS
FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.05.2010 PASSED IN MVC
NO.510/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT,    KARKALA,   AWARDING     A   COMPENSATION   OF
RS.2,53,000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL REALISATION.


       THESE APPEALS COMING ON FOR FINAL HEARING,
THIS   DAY   THROUGH   VIDEO    CONFERENCING/   PHYSICAL
HEARING, THE COURT DELIVERED THE FOLLOWING :
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                          JUDGMENT

These appeals are at the instance of the Insurance

Company and the claimants calling in question correctness

of judgment and award dated 05.05.2010 in M.V.C.

No.510/2008 by Senior Civil Judge, and MACT, Karkala

(herein after referred to as Tribunal)

2. Learned Tribunal, after appreciating the

evidence and the contentions advanced on both sides has

allowed the claim petition in part and awarded a

compensation of Rs.2,53,000/- (Rupees Two lakh fifty three

thousand only) with interest thereon at 6% per annum from

the date of petition till the date of payment.

3. Learned Counsel for the appellant-Insurance

Company strongly contended that the claimants are the

widowed mother and married daughter of the deceased

Vastala Jain having their own resources. He further submits

that they were not dependents on the deceased and in that

view of the matter the liability fastened on the Insurance

Company to pay the compensation as awarded is illegal and

Insurance Company is liable to pay only a sum of

Rs.50,000/- at the most. He further submits that the appeal

is entitled to be allowed and the direction in the award

modified to the extent as above.

4. In support of the appeal filed by the claimants,

it is urged that compensation awarded is on the lower side

and it is required to be enhanced and appeal accordingly is

required to be allowed.

5. I have given my anxious consideration to the

contentions urged on both sides. I have carefully perused

the records.

6. The liability to pay the compensation has not

been questioned by the appellant-Insurance Company.

Therefore, it is not necessary to make reference to the facts

of the case.

7. There is no dispute about the fact that

deceased Vastala Jain was separated from her husband by

virtue of a Court decree. Claimant No.1 is the mother and

claimant No.2 is her married daughter. The learned Counsel

for the appellant-Insurance Company has urged that

evidence clearly shows that the claimant mother had

several other children who are gainfully employed and

therefore, she was not dependent on the deceased Vastala

Jain. His further contention is that claimant No.2 even

though, is the daughter of the deceased, she is also

married and living with her husband and therefore there is

no dependency. In so far as the above said contentions are

concerned legal position is no longer res integra.

8. The question essentially is not whether the

claimants are dependants but whether they are the legal

representatives of the deceased for whose death the claim

for compensation has been made. In view of the express

terms of Section 166(1)(c) of the Motor Vehicle Act, 1988,

Hon'ble Supreme Court in NATIONAL INSURANCE

COMPANY vs BIRENDER AND OTHERS ((2020) 11

SCC 356) has observed as follows;

"14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease

because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:- "9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.

10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.

11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a de- ceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).

12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or adminis- trators in possession of the estate of the deceased. All such persons would be covered by the expression "legal represen- tative". As observed in Gujarat SRTC v. Ramanbhai Prabhatb- hai [(1987) 3 SCC 234 a legal representative is one who suf- fers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, par- ent and child." In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act.

Nevertheless, the principle underlying the exposition in this decision would clearly

and 2 (claimants) even though they are major sons of the deceased and also earning."

9. Hon'ble Supreme Court has made it abundantly

clear that the status of the claimant regarding their

marriage or even their being able to earn some livelihood

does not alter the fact that they still continue to be the

legal representatives of the deceased and the right to

receive compensation wholly turns on claimants being the

legal representative within the meaning of Section 166 of

the M.V. Act r/w Section 2(11) of the Code of Civil

Procedure, 1908. Therefore, the contention of the learned

counsel that claimant No.2 being a married daughter is not

entitled to receive compensation is unsustainable and

accordingly the said contention is rejected.

10. Learned counsel further contended that there is

no evidence produced by the claimants that the deceased

mother was contributing anything to claimant Nos.1 and 2.

The evidence clearly shows that claimant No.2 is the only

daughter and the deceased was long separated from her

husband by a Court decree. Aside from the amount

required for her personal expenses, it is only natural that

she would contribute the rest of her earning to her only

daughter. That accords with the natural instinct and

inclination of an Indian mother. P.W.1 has denied all the

suggestions put to the effect that deceased was not

contributing any amount and P.W.1 was being looked after

by her other children and that they were paying for her

maintenance etc. In cases of this nature, much evidence

cannot be expected regarding the contribution made by

adult members of the family and regard must be had to the

natural course of affairs of life. Therefore, I do not find

much substance in the contentions of learned Counsel for

the appellant-Insurance Company.

11. The deceased as per the post-mortem report

was aged 38 years at the time of her death, therefore the

appropriate multiplier applicable is 15 for her age. Learned

Tribunal has taken her monthly income at `2,000/-

(Rupees Two thousand only) per month. The accident took

place on 14.03.2008 and therefore the notional income

fixed for the said year is `4,500/- (Rupees Four thousand

five hundred only) per month, as per the chart prepared by

the Karnataka State Legal Services Authority 1/3rd of the

notional income of the deceased is required to be deducted

towards her personal expenses. In view of the decision of

the Hon'ble Supreme Court in NATIONAL INSURANCE

CO. LTD. VS. PRANAY SETHI AND OTHERS (AIR

2017 SC 5157), 40% of the established income of the

deceased is required to be added towards loss of future

prospects. Accordingly, the loss of dependency is required

to be recomputed as follows:

Rs.4,500 - 1/3 + 40% x 12 x 15= Rs.3,78,000/-

12. A sum of Rs.80,000/- is required to be awarded

under the head of loss of filial consortium and loss of

parental consortium. Another sum of Rs.30,000/- is

required to be awarded under the conventional head.

13. The Tribunal has awarded Rs.2,53,000/- and

thus, they are entitled for enhanced compensation of

Rs.2,35,000/- (4,88,000 - 2,53,000) and it shall carry

interest at the rate of 6% per annum from the date of

petition till the date of payment. Accordingly, I pass the

following

ORDER

i. Appeal No.10494/2010 is allowed in part;

   ii.      The      Insurance        Company        appeal

            No.6135/2010 is dismissed;

   iii.     The      enhanced         compensation       of

Rs.2,35,000/- shall carry interest at the rate

of 6% per annum from the date of petition

till the date of payment.

iv. The amount in deposit shall be transmitted

to the learned Tribunal along with the

records forthwith.

v. Six weeks time is granted for depositing the

enhanced compensation before the learned

MACT from the date from the date of receipt

of certified copy of this judgment.

Sd/-

JUDGE

GVP/HDK