Karnataka High Court
Smt Joseph Mary vs Icici Lombard Gen Ins Co Ltd on 18 January, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
M.F.A. NO. 9 OF 2020 (MV-D)
BETWEEN:
1. SMT.JOSEPH MARY
W/O LATE JAPASTANAPPA
AGED ABOUT 63 YEARS
2. MS.LEENA MARAGARET JAPASTANAPPA
D/O LATE JAPASTANAPPA
AGED ABOUT 30 YEARS
3. MS.MARY VANITHA J
@ SISTER VANITHA
D/O LATE JAPASTANAPPA
AGED ABOUT 32 YEARS
ALL ARE R/AT HAROBELE VILLAGE
UYYAMBALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT - 562117
PREVIOUSLY 2ND APPELLANT
R/AT NO.32, NOTRE DAME ACADEMY
PATLIPUTRA COLONY, PATNA
BIHAR - 800 013
PREVIOUSLY 3RD APPELLANT
R/AT: NO.2/78, AGRAR HOLY SAVIOUR
CURCH, B AGRAR POST
BANTVAL
DAKSHIN KANNADA DISTRICT - 574211
... APPELLANTS
(BY MISS/SMT.NITHYA V, ADVOCATE FOR
SRI.PRAKASH M.H, ADVOCATE)
2
AND
1. ICICI LOMBARD GEN. INS. CO. LTD.,
NO.121, THE ESTATE BUILDING
9TH FLOOR,
DICKENSON ROAD
BENGALURU - 560 001
REP. BY ITS MANAGER
2. SRI.SHIVAMADAIAH H.E
S/O ERAMADAIAH
MAJOR
R/AT NO.90, 7TH CROSS
SRIDEVI NAGARA,
AREHALLI
SUBRAMANYAPURA POST
BENGALURU - 560 061
... RESPONDENTS
(BY SRI. LAKSHMINARASAPPA, ADVOCATE
FOR SRI.A.M.VENKATESH, ADVOCATE FOR R.1;
NOTICE TO R.2 IS D/W/V/O/D 16.07.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 04.10.2019 PASSED IN
MVC NO.5420/2018 ON THE FILE OF THE VIII ADDITIONAL
JUDGE AND ACMM, MEMBER, MACT, BENGALURU (SCCH-5),
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
3
JUDGMENT
The present appeal is filed by the claimants aggrieved
by the judgment and award dated 04.10.2019 passed in MVC
No.5420/2018 on the file of VIII Additional Small Causes
Judge and ACMM (SCCH-5), Bengaluru (hereinafter for short,
'the Tribunal').
2. The brief facts leading up to filing of this appeal
are that:
On 04.08.2018, the deceased Japastanappa, as a
pedestrian was moving on the extreme left side of the
Kodihalli - Mallapura Road. At that time, rider of the Star City
Motor Cycle bearing registration No.KA-05-JY-5025 riding the
same in a rash and negligent manner dashed against the
deceased and caused accident. Due to the impact, the
deceased sustained severe injuries all over the body and
succumbed to the same during the treatment at NIMHANS
Hospital, Bengaluru.
There upon, the appellants/claimants being the wife and
two unmarried daughters filed the claim petition under
Section 166 of the Motor Vehicles Act, seeking compensation
of Rs.25 lakhs on the premise that the deceased was aged
about 65 years earning Rs.20,000/- per month from
agricultural, Sericulture activities and also from milk vending
and he was contributing the entire income for the
maintenance of the family. That the untimely death of the
deceased had caused severe emotional and financial distress
to the appellants/claimants. Hence, sought for compensation.
3. Upon service of notice, respondent Nos.1 and 2
appeared. Respondent No.1 did not file statement of
objections, respondent No.2 in its statement of objections
admitted the Insurance Policy having been issued in respect
of the offending vehicle, however, contended that rider of the
bike did not have valid and effective driving license and that
liability of the insurance company is subject to terms and
conditions of the policy.
4. Based on the pleadings, the Tribunal framed
issues and recorded evidence. Claimant No.1 examined
herself as PW1 and one Rayappa was examined as PW.2,
exhibited 15 documents as Exs.P1 to P.15. No evidence has
been led in on behalf of the respondents.
5. The Tribunal based on the material evidence held
that the accident resulting in death of the deceased was
caused on account of rash and negligent riding of the
motorcycle by its rider and consequently, held claimants are
entitled for total compensation of Rs.5,10,000/- with interest
9% p.a from the date of petition till the date of realization
and directed the insurance company to pay compensation
within 60 days from the date of receipt of certified copy of
this order. Aggrieved by the same, the claimants are seeking
for enhancement of compensation.
6. Learned counsel for the appellants/claimants
reiterating the grounds urged in the appeal memo submitted
that the Tribunal grossly erred in not assessing the income of
the deceased as Rs.20,000/-, instead assessed the notional
income at Rs.9,000/- per month. The Tribunal has not
awarded any amount under the conventional heads. Hence,
sought for enhancement of compensation.
7. Learned counsel for respondent No.1 - insurance
company justifying the order passed by the Tribunal
submitted that the award of compensation by the Tribunal, in
the absence of any material evidence with regard to income
of the deceased is just and proper, warranting no
interference. Hence, sought for dismissal of the appeal.
8. Heard learned counsel for the parties and perused
the records.
9. On thoughtful consideration of the rival
submission made by the learned counsel for the parties, the
only point that would arise for consideration is:
Whether the claimants have made out
grounds for enhancement of compensation?
10. The accident in question resulting in death of the
deceased Sri Japastanappa is not in dispute. The claimants
who contended that the deceased was earning Rs.20,000/-
per month from his agricultural, sericultural activities and
milk vending, have produced Ex.P11 - Sericulture Pass book
and also Ex.P12 - Cacoon Bid Slips ( 27 in Nos.). The Tribunal
at paragraph No.26 of its judgment though has taken note of
Ex.P.11 - Sericulture passbook and Ex.P12 - Cacoon Bid Slips
has declined to take the same into consideration for the
purpose of determination of income of the deceased and has
assessed income of the deceased at Rs.9,000/- per month.
11. Learned counsel for the appellants/claimants
vehemently submits that question of notional income would
arise only if claimants had not produced any evidence with
regard to the income or source of income of the deceased. In
the instant case, Ex.P11 - sericulture pass book reflects the
name of the deceased and details of property held by him and
also cocoon bid slips (27 in Nos.) for the period between
February 2017 to July 2017 reflects the name of the deceased
and the income earned by the deceased. In the light of the
availability of these documents, she submits that the Tribunal
grossly erred in holding no material evidence produced by the
claimants. There is considerable force in the submission being
made by the learned counsel for the claimants in this regard.
Notional income can be taken only if there are no material
evidence produced by the claimants in justification of the
income of the victim of road traffic accident. In the instant
case, Ex.P11 and 12 being sericulture pass book and Cocoon
reflecting the name of the deceased would suggest that the
deceased had a source of incomeand are dated proximate to
the date of death. The appellants/claimants have contended
the deceased was earning Rs.20,000/- per month. Even as
per the Chart prepared by the Karnataka State Legal Services
Authority, the notional income of the victim of road traffic
accident in respect of the year 2018, is fixed at Rs.12,500/-.
Taking into consideration of Ex.P11 and Ex.P12 and reading it
along with the Chart, this Court is of the considered view that
a sum of Rs.15,000/- would be assessed in the facts and
circumstances of the present case as income of the deceased.
12. Taking into consideration the age of the deceased
being 65 years at the time of death, the proper multiplier
would be '5'. Since there are 3 dependents, it is appropriate
to deduct 1/3rd income of the deceased towards his personal
and living expenses. Thus, the appellants/claimants are
entitled for compensation under the head of 'loss of
dependency as follows:
(1/3rd of Rs.15,000/-= Rs.5,000/-
(Rs.15,000/- - Rs.5,000/- = Rs.10,000/-)
Rs.10,000x12x5 = Rs.6,00,000/-
13. Since the deceased died leaving behind the
appellants/claimants being his wife and two unmarried
daughters as dependents, they would be entitled for a sum of
Rs.40,000/- each towards "Loss of spousal consortium" and
"Loss of parental consortium" respectively. In addition, they
are also entitled for Rs.30,000/- towards 'Loss of estate' and
"Funeral expenses". Hence, the claimants are entitled for
enhanced compensation of Rs.7,50,000/- as follows:
Heads By Tribunal By this Court
Loss of dependency Rs.3,60,000/- Rs.6,00,000/-
Loss of consortium Rs.40,000/- Rs.40,000
Claimant No.1
Loss of parental Rs.80,000/- Rs.80,000
Consortium
(Claimant No.2 & 3)
Loss of estate Rs.15,000/- Rs.15,000/-
Funeral Expenses Rs.15,000/- Rs.15,000/-
Total Rs.5,10,000/- Rs.7,50,000/-
14. The Tribunal has awarded interest at 9%. The
Insurance Company has not preferred any appeal. However,
this Court is of the view that on the enhanced portion of the
compensation, i.e., Rs.2,40,000/- (Rs.7,50,000/- -
Rs.5,10,000/-), the claimant is entitled for interest at 6% per
annum from the date of claim petition till realization. The
above point is answered accordingly. Hence, the following
order is passed:
ORDER
a. The appeal filed by the
appellants/claimants is allowed-in-part and the
judgment and order of the Tribunal in MVC
MVC.No.5420/2018 is modified.
b. The appellants/claimants are entitled
for enhanced compensation of Rs.7,50,000/-
instead Rs.5,10,000/- awarded by the Tribunal.
c. The appellants/claimants would be
entitled for interest at 6% per annum with
enhanced portion of the compensation from the
date of petition till its realization.
d. The respondent No.2 - insurance
company is directed to pay the compensation
within eight weeks from the date of receipt of a
certified copy of this judgment.
Sd/-
JUDGE
nms
