Karnataka High Court

The Branch Manager, National vs Jagadevi And Ors on 10 January, 2022

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

                               1


         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

    DATED THIS THE 10TH DAY OF JANUARY 2022

                        PRESENT

   THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                              AND

     THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

              MFA NO.201987/2018
                      C/W
            MFA No.202490/2018 (MV)

IN MFA NO.201987/2018:

BETWEEN:

The Branch Manager
National Insurance Co. Ltd.
2nd floor, D.No.10-135/1A
Veerbhadreshwar Chamber
Opp: Nehru Stadium, Bidar
Represented herein by
The Divisional Manager
National Insurance Co. Ltd.
Divisional Office
Bilgundi Mansion
Opp: Mini Vidhana Soudha
Station Road, Kalaburagi
                                      ... Appellant

(By Sri Shivanand Patil, Advocate)
                               2


AND:

1.     Jagadevi W/o Late Jaganath
       Age: 46 years, Occ: Household
       R/o Halhalli-K, Tq: Bhalki
       Dist: Bidar, now at Yellaling Colony
       Naubad, Bidar - 585 401

2.     Veeresh S/o Late Jaganath
       Age: 24 years, Occ: Student
       R/o Halhalli-K, Tq: Bhalki
       Dist: Bidar now at Yellaling Colony
       Naubad, Bidar - 585 401

3.     Sarvesh S/o Late Jaganath
       Age: 21 years, Occ: Student
       R/o Halhalli-K, Tq: Bhalki
       Dist: Bidar now at Yellaling Colony
       Naubad, Bidar - 585 401

4.     Nagamma W/o Late Madivalappa
       Age: 77 years, Occ: Nil
       R/o Halhalli-K, Tq: Bhalki
       Dist: Bidar, now at Yellaling Colony
       Naubad, Bidar - 585 401

5.     Smt. Asifa Sultana W/o Abdul Hafeez
       Age: Major, Occ: Business
       R/o H.No.4-1-114, Noorkhan
       Taleem, Bidar - 585 401
                                              ... Respondents

(Sri Sandeep Vijaykumar, Advocate for R1 to R4;
 V/O Dtd. 17.11.2020, notice to R5 dispensed with)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside or
modify the judgment and award dated 19.07.2018 in MVC
                               3


No.716/2016 on the file of the Principal District & Sessions
Judge & Principal MACT, Bidar as against the appellant by
allowing the appeal.

IN MFA NO.202490/2018:

BETWEEN:

1.     Jagadevi W/o Late Jaganath
       Age: 46 years, Occ: Household

2.     Veeresh S/o Late Jaganath
       Age: 24 years, Occ: Student

3.     Sarvesh S/o Late Jaganath
       Age: 21 years, Occ: Student

4.     Nagamma W/o Late Madivalappa
       Age: 77 years, Occ: Nil

       All are R/o Halhalli-K, Tq: Bhalki
       Dist: Bidar, now at Yellaling Colony
       Naubad, Bidar
                                              ... Appellants

(By Sri Sandeep Vijaykumar, Advocate)

AND:

1.     Miss. Asifa Sultana W/o Abdul Hafeez
       Age: Major, Occ: Business
       R/o H.No.4-1-114, Noorkhan Taleem
       Didar, Dist: Bidar - 585 326
       (Owner of vehicle)

2.     The Branch Manager
       National Insurance Co. Ltd.
       Near 2nd Floor, D.No.8-10-135/1A
                              4


      Veerbhadreshwara Chamber
      Opp: Nehru Stadium, Bidar - 585 401
                                            ... Respondents

(Sri Shivanand Patil, Advocate for R2;
 V/O Dtd. 27.03.2019, notice to R1 is dispensed with)

      This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award dated 19.07.2018 passed in MVC
No.716/2016     before the Court of     Principal District &
Sessions Judge and Principal MACT, Bidar and allow this
Appeal by enhancing the compensation amount from
Rs.24,63,520/- to Rs.45,36,480,/- only as claimed by the
appellants before the Tribunal.


      These appeals coming on for final hearing this day,
S.R.Krishna Kumar J., delivered the following:


                          JUDGMENT

Both these appeals arise out of the impugned

judgment and award dated 19.07.2018 passed in MVC

No.716/2016 by the Principal District & Sessions Judge and

Principal MACT, Bidar (hereinafter referred to as 'the

Tribunal' for short). By the impugned judgment and award,

the Tribunal has partly allowed the claim petition filed by

the claimants, who are mother, brothers and grand mother

of the deceased Nagesh S/o Jaganath Tugave, who was

aged about 26 years at the time of his death in a fatal road

traffic accident that occurred on 08.09.2016 and awarded

a compensation of Rs.24,63,520/- together with interest at

6% p.a. from the date of the claim petition till reaslisation.

2. MFA No.201987/2018 is filed by the insurance

company assailing the impugned judgment and award. So

also, MFA No.202490/2018 is filed by the claimants

seeking enhancement of the compensation.

3. Heard the learned counsel for the insurance

company and the learned counsel for the claimants.

4. Learned counsel for the insurance

company/appellant in MFA No.201987/2018 submits that

the Tribunal committed a grave and serious error of law

and fact in awarding compensation in favour of claimant

No.4-Nagamma, the grand mother of the deceased as well

as claimants Nos.2 and 3, who are the brothers of the

deceased Nagesh without appreciating that claimants

Nos.2 to 4 were not dependents and consequently they

were not entitled to any compensation to be awarded in

their favour and the only claimant, who was entitled to

compensation would Smt. Jagadevi, who was the mother

of the deceased Nagesh. It is further contended that the

deceased Nagesh was undisputedly a bachelor at the time

of his death and consequently 50% out of his salary ought

to have been deducted towards his personal expenses and

not 1/3rd as wrongly held by the Tribunal. It is also

contended that the quantum of compensation awarded by

the Tribunal is excessive and exorbitant and the same

deserves to be reduced by this Court in the present

appeal.

5. Per contra, learned counsel for the

claimants/appellants in MFA No.202490/2018, in addition

to supporting the impugned judgment and award submits

that the Tribunal was fully justified in deducting only 1/3 rd

out of the income of the deceased towards his personal

expenses instead of 50% in view of the undisputed fact

that claimant No.1-Jagadevi was his widowed mother and

in terms of the decision of the Hon'ble Apex Court in Smt.

Sarla Verma & others Vs. Delhi Transport

Corporation and another reported in 2009 ACJ 1298,

the deduction of 1/3rd out the income of the deceased is

just and proper. It is also submitted that in the light of the

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

N. Jayasree and Others vs. Cholamandalam MS

General Insurance Company Ltd. reported in 2021

SCC OnLine SC 967, the brothers of the deceased as well

as his grand mother also have been treated as dependents

and the said finding does not warrant interference by this

Court in the present appeal. It is further contended by the

learned counsel for the claimants that the Tribunal has

committed an error in not awarding any compensation

towards 'loss of future prospects' and 'loss of consortium'

insofar as the brothers and the grand mother of the

deceased are concerned. It is therefore contended that

apart from upholding the findings on all other issues

rendered by the Tribunal, the quantum of compensation

awarded by the Tribunal deserves to be enhanced by this

Court.

6. We have given our anxious consideration to

the rival submissions and perused the material on record.

7. Insofar as the contention urged by the learned

counsel for the insurance company that the Tribunal ought

to have deducted 50% out of the income of the deceased

towards his personal expenses since he was a bachelor is

concerned, it is opposite to state that in Sarla Verma's

case supra, the Hon'ble Apex Court held that, in the cases

where the deceased leaves behind a family comprising of

younger siblings and other non earning family members

including a widowed mother, the Tribunal would be

justified in deducting only 1/3rd towards personal expenses

instead of 50%. In the facts of the instant case, the

material on record clearly indicate that the deceased

Nagesh, who was aged about 26 years at the time of his

death was the sole breadwinner of the family and apart

from him, he had 4 dependents viz., widowed mother,

widowed grand mother and two younger brothers and

consequently, in the light of the decision of the Hon'ble

Apex Court in Sarla Verma's case supra, we are of the

considered opinion that the Tribunal was justified in

coming to the correct conclusion that only 1/3rd has to be

deducted towards personal expenses and not 50% out of

the income of the deceased.

8. Insofar as the contention urged by the learned

counsel for the insurance company that the brothers of the

deceased are not dependents is concerned, in the light of

the decision of the Hon'ble Apex Court in N. Jayasree's

case supra, we are of the considered opinion that the said

contention cannot be accepted; in this context, it is also

pertinent to note that two younger brothers of the

deceased were aged about 19 years and 22 years at the

time of the death of the deceased Nagesh and

consequently, it cannot be said that the said younger

brothers of the deceased were not dependent upon him for

their livelihood, particularly in the absence of any contra

material to establish and indicate that whether the said

two younger brothers, who are claimant Nos.2 and 3 were

also earning members contributing to the family.

Accordingly, this contention urged by the learned counsel

for the insurance company cannot be accepted.

9. Insofar as the quantum of compensation is

concerned, as rightly contended by the learned counsel for

the claimants, the impugned judgment and award without

taking into consideration the 'loss of future prospects' as

mandatorily required in motor vehicle accidents cases as

held by the Hon'ble Apex Court in National Insurance

Company Limited vs. Pranay Sethi and others

reported in (2017) 16 SCC 680, apart from the fact that

the Tribunal has not awarded any compensation towards

'loss of filial consortium' as held by the Hon'ble Apex Court

in Satinder Kaur @ Satwinder Kaur & Ors. v. United

India Insurance Co. Ltd. reported in AIR 2020 SC

3076 and in Magma General Insurance Company

Limited vs. Nanu Ram Alias Chuhru Ram and others

reported in (2018) 18 SCC 130 requires to be modified.

Hence, we are of the considered opinion that the

compensation payable needs to be reworked by this Court.

10. Insofar as the compensation towards 'loss of

dependency' is concerned, the Tribunal has come to the

correct conclusion that the monthly income of the

deceased, who was veterinary doctor at the time of his

death should be quantified as Rs.17,820/- per month.

Adding 50% to the said amount towards 'future prospects',

the monthly income comes to Rs.26,730/-. Deducting 1/3 rd

of it towards personal expenses of the deceased as stated

supra, the income for the purpose of quantifying

compensation towards loss of dependency comes to

Rs.17,820/- per month. Consequently, the total loss of

dependency would be to Rs.36,35,280/- (Rs.17,820 x 12 x

17).

11. In view of our finding above that all the

claimants are dependents, each of them are entitled to

Rs.40,000/-, i.e., Rs.1,60,000/- in total, towards 'loss of

consortium'. So also, the claimants are entitled to

Rs.15,000/- towards loss of estate and Rs.15,000/-

towards funeral expenses.

12. Thus, in all, the claimants are entitled for total

compensation of Rs.38,25,280/- under the various heads

as under:

    1.         Loss of dependency                        Rs.36,35,280/-
    2.         Loss of consortium                        Rs.1,60,000/-
    3.         Loss of estate                            Rs.15,000/-
    4.         Funeral expenses                          Rs.15,000/-
               Total                                     Rs.38,25,280/-


         The    Tribunal       has     already     awarded     a   sum     of

Rs.24,63,520/-. Hence, after deducting the same, the

claimants would be entitled for an additional enhanced

compensation of Rs.13,61,760/- (Rs.38,25,280/- less

Rs.24,63,520/-) with interest at 6% per annum from the

date of petition till realization.

13. In view of the aforesaid discussion, we pass

the following:

ORDER

i) MFA No.201987/2018 filed by the insurance

company is hereby dismissed.

ii) MFA No.202490/2018 filed by the claimants is

partly allowed.