Karnataka High Court
The New India Assurance Ltd vs Kiran S/O. Vidyadhar Sharma on 7 January, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
MISCELLANEOUS FIRST APPEAL No.101200/2014(MV)
C/w.
MISCELLANEOUS FIRST APPEAL No.102470/2016(MV)
IN MFA NO.101200/2014
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
THROUGH ITS DIVISIONAL OFFICE,
CLUB ROAD, BELAGAVI.
(INSURER OF INNOVA CAR NO.GA-06/D-9963
VIDE POLICY NO.11130031110100010379
VALID WITH EFFECT FROM
24-03-2012 UP TO 23-03-2013)
REPRESENTED BY ITS
REGIONAL MANAGER, MOTOR THIRD PARTY HUB
SRINATH COMPLEX, NEW COTTON MARKET HUBLI.
... APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND:
1. MR.KIRAN, S/O.VIDYADHAR SHARMA,
AGE: 30 YEARS, OCC: SERVICE,
R/O: MADAGAON-GOA.
2. MISS KAVITA, D/O. VIDYDHAR SHARMA,
AGE: 28 YEARS, OCC: STUDENT,
R/O: MADAGAON-GOA.
2
3. MR.PRASANNA VASUDEO GHOTAGE,
AGE: MAJOR, OCC: BUSINESS,
R/O: NO.1088/B, PRERANA HOMMES,
RANADE COLONY,
HINDAWADI-BELAGAVI.
(OWNER OF INNOVA CAR
NO.GA-06/D-9963.
... RESPONDENTS
(BY SRI. CHANDRASHEKHAR M. HOSAMANI, ADVOCATE FOR R1 & R2;
R3 - SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED:25.01.2014,
PASSED IN MVC.NO.2552/2012 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING
COMPENSATION OF `5,75,000/- WITH INTEREST AT THE RATE
OF 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
REALIZATION.
IN MFA No.102470/2016
BETWEEN:
1 . MR.KIRAN, S/O. VIDYADHAR SHARMA,
AGE: 32 YEARS, OCC: SERVICE,
R/O: MADAGAON- GOA.
2 . MISS KAVITA, D/O. VIDYADHAR SHARMA,
AGE: 30 YEARS, OCC: STUDENT,
R/O: MADAGAON-GOA.
...APPELLANTS
(BY SRI. ASHOK A. NAIK, ADVOCATE)
AND:
1. MR.PRASANNA VASUDEO GHOTAGE,
AGE: MAJOR, OCC: BUSINESS,
R/O: NO.1088/B, PRERANA HOMMES,
RANADE COLONY, HINDAWADI-BELAGAVI.
(OWNER OF INNOVA CAR NO.GA-06/D9963.
3
2. THE NEW INDIA ASSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL OFFICE,
CLUB ROAD, BELAGAVI.
(INSURER OF INNOVA CAR NO.GA-06/D-9963
VIDE POLICY NO.1110100010379
VALID WITH EFFECT FROM
24-03-2012 UP TO 23-03-2013)
...RESPONDENTS
(BY SRI. G. N. RAICHUR, ADVOCATE FOR R2; R1 - SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED:25.01.2014,
PASSED IN MVC.NO.2552/2012 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arise out of the judgment and
award dated 25.01.2014 passed in MVC
No.2552/2012 by the Court of II Additional Senior
Civil Judge and Additional MACT, Belagavi
(hereinafter referred to as the 'Tribunal', for brevity).
2. Though the matters are posted for
admission, with the consent of learned counsel
appearing on both sides, the same are taken up for
final disposal.
3. The parties to these appeals are referred to
by their ranking before the Tribunal, for the sake of
convenience.
4. The brief facts of the case that would be
relevant for the purpose of disposal of these appeals
are:
The claimants, who are the children of deceased
Smt.Uma Vidyadhar Sharma, had filed a claim
petition in MVC No.2552/2012 before the Tribunal
claiming compensation of `5,00,000/- towards the
death of Smt.Uma Vidyadhar Sharma, who died in a
road traffic accident that had taken place on
16.08.2012. It is the case of the claimants that, on
16.08.2012, the deceased was traveling in a Innova
car bearing No.GA-06/D-9963 from Madagaon
towards Kolhapur and when the said vehicle reached
near Katwa factory on Belgaum - Khanapur road at
about 5.45 p.m., the driver of the Innova car dashed
the vehicle against a roadside tree and as a result,
the inmates of the car suffered injuries. Smt.Uma
Vidyadhar Sharma and her husband, who was driving
the vehicle, succumbed to the injuries sustained by
them in the accident. It is under these
circumstances, the claimants, who are the son and
daughter of the deceased Smt.Uma Vidyadhar
Sharma, have filed a petition under section 166 of
the Motor Vehicles Act, 1988 claiming compensation.
The Tribunal on appreciation of the oral and
documentary evidence available on record, partly
allowed the claim petition granting compensation of
`5,75,000/- to the claimants with interest at 9% per
annum from the date of petition till realisation and
the liability was fixed jointly on respondents 1 and 2.
Being aggrieved by the same, second respondent -
Insurer of the Innova car, has preferred MFA
No.101200/2014, while the claimants have filed MFA
No.102470/2016 seeking enhancement of
compensation.
5. Learned counsel Sri. G. N. Raichur
appearing for the Insurer, submits that, the ground
driver of the Innova vehicle was not holding a valid
driving license at the time of accident is no more
available to the Insurer having regard to the
judgment of the Full Bench of this Court in the case
of New India Assurance Co. Ltd. Vs. Yallavva and
Another reported in 2020 ACJ 2560. He submits
that the Tribunal, however, has erred in entertaining
the claim petition filed by the children of the
deceased, since both claimants were majors and they
were not dependents of the deceased. He further
submits that, the compensation awarded by the
Tribunal is on the higher side and so also the rate of
interest. He relies upon the judgment of the Hon'ble
Apex Court in the case of Sarla Verma and Others
Vs. Delhi Transport Corporation and Another
reported in (2009) 6 SCC 121 and contends that the
Tribunal ought to have deducted ½ of the income of
the deceased towards her personal expenses as
against 1/3. He therefore prays to allow the
Insurer's appeal.
6. Per Contra, learned counsel appearing for
the claimants submits that the accident is of the year
2012 and therefore the notional income of the
deceased ought to have been taken at `6,500/- per
month instead of `5,000/- per month on the basis of
the chart maintained by the Karnataka State Legal
Services Authority for the purpose of disposing the
motor vehicle accident cases in the Lok Adalath. He
submits that the compensation awarded under the
conventional heads is also on the lower side and
accordingly prays to allow the appeal filed by the
claimants.
7. I have carefully considered the rival
arguments and also perused the material on record.
8. Insofar as the contention of the Insurer
that the claim petition is not maintainable for the
reason that the claimants are the major children of
the deceased Smt.Uma Vidyadhar Sharma and
therefore they are not entitled to maintain the
petition is concerned, a perusal of the cause title
would go to show that the first claimant is said to be
in service and the second claimant is a student. It is
not in dispute that both the claimants are unmarried.
Having regard to the fact that the first claimant - son
was admittedly in service, he cannot be considered
as a dependent of the deceased. Insofar as the
second claimant is concerned, it is not in dispute that
she was unmarried at the time of filing the claim
petition and in the cause title it is stated that she
was a student. The respondent has not produced any
material before the Tribunal to dispute the fact that
the second claimant was a student or that she had an
income of her own and she was not dependent on the
deceased as on the date of accident. Therefore, the
claim petition filed by the second respondent is
maintainable.
9. The deceased was aged about 56 years at
the time of her death. As rightly contended by the
learned counsel for the claimants, the notional
income of the deceased is required to be considered
as `6,500/- having regard to the date of death.
Further 10% of the income is required to be added
towards future prospects. Out of the said income,
1/3 r d of the said income has to be deducted towards
the personal expenses of the deceased. Though the
learned counsel for the Insurer has relied upon the
judgment of the Hon'ble Supreme Court in Sarla
Varma case (supra) and contended that 50% of the
income has to be deducted towards personal
expenses, a reading of Para 14 of the judgment in
Sarla Varma's case would show that the Hon'ble
Supreme Court has not specifically said that in the
case of one dependent, the deduction should be 1/2,
whereas it is stated that in the case of 2-3
dependents, the deduction should be 1/3 r d towards
personal expenses. The learned Division Bench of this
Court considering the judgment of the Hon'ble
Supreme Court in the case of Sarla Varma in MFA
No.100859/2016, has held that in case of a married
person, 1/3 r d of the amount has to be deducted
towards personal expenses even if he is survived by
one dependent.
10. The Division Bench of our Hon'ble High
Court in MFA No.100859/2016 disposed off on
07.12.2016 has specifically held that, in cases of
death of married person who is survived by one
dependent, the deduction towards personal expenses
should be 1/3 r d . Therefore, following the Division
Bench judgment of this Court, I am of the considered
view that, in the present case, the deduction towards
personal expenses of the deceased should be 1/3 r d of
the income and not 1/2 as contended by the learned
counsel for the insurer. 10% of the monthly income
has to be added towards loss of future prospectus.
The applicable multiplier in the case on hand having
regard to the age of the deceased would be '9'.
Therefore, the claimant would be entitled for a total
compensation of `5,14,836/- (`6,500 + 650 x 1/3 x
12 x 9) towards loss of estate.
11. Insofar as the compensation to be awarded
under the conventional heads is concerned, the
claimants being the unmarried son and daughter of
the deceased, they are entitled for a sum of
`40,000/- each towards loss of filial love and
affection and accordingly the same is awarded to
them. In addition to the same, 2 n d claimant is also
entitled for a sum of `30,000/- towards funeral and
other expenses. Therefore, under the conventional
heads, the claimants are entitled totally for a sum of
`1,10,000/-. The total amount of compensation that
the claimants are entitled for would therefore be
`6,24,836/- as against `5,75,000/- awarded by the
Tribunal.
12. As rightly contended by the learned counsel
for the Insurer, the Tribunal has erred in awarding
the interest at the rate of 9% per annum on the
compensation amount. The Hon'ble Supreme Court as
well as this Court have been consistently awarding
the interest at 6% per annum on the compensation
amount awarded in the motor vehicle accident cases.
Therefore, even in the present case, the rate of
interest awarded by the Tribunal is modified from 9%
to 6% per annum. Accordingly, the following:
ORDER
i. The appeals are allowed in part.
ii. The claimants are entitled for a total
compensation of `6,24,836/- as against
`5,75,000/- awarded by the Tribunal.
However the said compensation
amount shall carry interest at 6% per
annum from the date of petition till
realization.
iii. The finding of the Tribunal that the
Insurer is entitled to pay and recover
the compensation amount from the
owner of the vehicle stands
undisturbed.
iv. Since the vehicle was validly insured at
the time of accident, the Insurance
Company is directed to deposit the
compensation amount before the
Tribunal within a period of six weeks
from the date of receipt of certified
copy of the order.
v. The amount in deposit in MFA
No.101200/2014 shall be transferred
to the Tribunal for the purpose of
disbursement.
Sd/-
JUDGE
gab/CLK
