Karnataka High Court
The New India Assurance Company ... vs Smt Poornima Acharya on 6 July, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.6727 OF 2016 (MV-D)
BETWEEN:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
BRANCH AT 3RD FLOOR,
RAM BHAVAN COMPLEX,
KODIALBAIL,
MANGALOORU - 575003,
REPRESENTED
BY THE MANAGER
REGIONAL OFFICE (MOTOR TP HUB),
THE NEW INDIA ASSURANCE COMPANY LIMITED,
2ND FLOOR, MAHALAKSHMI CHAMBERS
NO.9, M G ROAD,
BENGALURU - 560 001. ...APPELLANT
(BY SRI B.R.VENKATESH KAMATH, ADV.)
AND:
1. SMT POORNIMA ACHARYA
AGED ABOUT 42 YEARS,
2. KUM YASHASWINI Y ACHARYA,
AGED 15 YEARS,
3. KUM TEJASWINI Y AHCARYA,
AGED ABOUT 11 YEARS,
4. SMT SARASWATHI,
WIFE OF SHRI NARAYANA ACHARYA,
AGED ABOUT 73 YEARS,
2
1ST RESPONDENT IS THE WIFE,
RESPONDENTS 2 AND 3 ARE THE DAUGHTERS
AND THE 4TH RESPONDENT IS THE MOTHER,
RESPECTIVELY, OF SHRI YASHAWANTHA ACHARYA
RESPONDENTS 2 AND 3, BEING MINORS
ARE REPRESENTED BY THEIR MOTHER/NATURAL
GUARDIAN - 1ST RESPONDENT
SMT.POORNIMA ACHARYA
ALL THE FOUR RESPONDENTS ARE
RESIDING AT NO.SN.11/1,
SHIVANAGAR, KODEKAL,
ALAPE VILLAGE,
MANGALOORU TALUK - 570007.
5. SHRI P P SURESHBABU,
SON OF SHRI BALAN,
MAJOR,
RESIDING AT SURABHI,
RAYARANGOTH POST,
VATAKARA MADAPALLI COLLEGE
CALICUT,
KERALA - 673102. ...RESPONDENTS
(BY SRI GURUPRASAD B.R, ADV. FOR R1 TO R4
(R2 AND R3 ARE MINORS REPRESENTED BY R1),
SRI A.K.LAKSHMANNAN, ADV. FOR R5)
----
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.06.2016 PASSED IN MVC
NO.1308/2014 ON THE FILE OF THE I ADDITIONAL DISTRICT &
SESSIONS JUDGE, MACT-II, MANGALORE, D.K., AWARDING
COMPENSATION OF Rs.17,68,200/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
3
JUDGMENT
This appeal is filed by the insurer questioning the
quantum of compensation awarded in MVC No.1308/2014
on the file of the I Additional District Judge and II
Additional MACT, Mangalore (DK) in terms of the judgment
and award dated: 30.06.2016.
2. For the sake of convenience, parties are
referred to as per their rank before the Tribunal.
3. Heard the learned advocate for the
appellant/insurer and the learned advocate for
respondents No.1 to 4/claimants.
4. The claim petition is filed by the dependents
who are the wife, children and mother of deceased
Yashwantha Acharya, who died in a motor vehicle accident
which took place on 26.06.2014 at 5.30 p.m., near a tyre
retail shop at Naguri Mangaluru Taluk when deceased was
riding his TVS motor cycle bearing Registration
No.KA.19/W.8732 from Alape Padil Towards Pumpwell. The
rider of the motorcycle bearing Registration bearing
No.KL.18/K.9473 rode in a rash and negligent manner and
dashed the motorcycle of Yashwant. Due to the said
accident, Yashavantha Acharya sustained grievous injuries
and he succumbed to injuries and died while undergoing
treatment in the hospital. The deceased was self-
employed. The date of birth of the deceased is
01.07.1958, which is not disputed. The Tribunal has taken
the income of the deceased at Rs.16,000/- per month and
15% is added towards prospects. Monthly income of the
deceased is arrived at Rs.18,400/-. The applicable
multiplier is 11. After deducting 1/3 rd towards the
personal expenses of the deceased, the Tribunal has
awarded the compensation as under:-
1 Loss of dependency Rs. 16,19,200/-
2 Loss of Consortium Rs. 50,000/-
3 Loss of love and affection and Rs. 50,000/-
estate
4 Funeral and obsequies Rs. 25,000/-
5 Medical expenses Rs. 24,000/-
Total Rs.17,68,200/-
5. The insurer/appellant aggrieved by the
impugned judgment and award has preferred this appeal
questioning the quantum of compensation.
6. The learned advocate for the appellant would
submit that the Tribunal has committed an error in taking
11 as the proper multiplier as the deceased had completed
55 years of age as on the date of the accident. Since the
date of birth of the deceased on 01.07.1958, as on the
date of the accident he was aged 55 years 11 months 25
days, the proper multiplier would be 9 as per the ratio laid
down in the case of Sarla Verma (SMT) and Others
V/s. Delhi Transport Corporation and Another
reported in (2009) 6 SCC 121.
7. The learned advocate for the appellant has
accepted the date of birth of the deceased on 01.07.1958.
The Tribunal has erred in holding that the deceased was
aged 57 years and taking 11 as the multiplier.
8. Learned advocate for the respondents would
submit that the Tribunal has erred in assessing the income
of the deceased, even though the claimants have furnished
the income tax returns of the deceased of two years prior
to the accident. The income tax returns which are marked
at Ex.P12 and Ex.P13 would reveal that the average
income of the deceased is shown as Rs.2,03,851/- per
annum. The learned advocate for the respondents would
submit that if 10% is added towards future prospects, the
income of the deceased per annum would be
Rs.2,03,851+Rs.20,385=Rs.2,24,236/-.
9. The learned advocate for the respondents
would submit that the Tribunal has considered less income
and there is scope for enhancement by taking appropriate
income of the deceased.
10. Learned advocate for the insurer/appellant
would submit that no cross objection or appeal is filed, as
such claim for enhancement of the compensation under
the head of loss of income does not arise.
11. There is no doubt that the claimants have not
filed a cross objection or any appeal, nevertheless this
Court can exercise its power for determining the just
compensation payable to the deceased. The whole exercise
under Section 166 of the Motor Vehicles Act 1988 is to
determine the just compensation. Order 41 Rule 33 CPC
would enable the Court to undertake such exercise even in
the absence of cross objection or appeal. If error in
assessing the just compensation is apparent, the appellate
court would step in to rectify the error.
12. On perusal of the material placed on record,
the exact income of the deceased would be Rs.2,24,236.00
It is also noticed that the deceased is survived by four
dependents. The Tribunal erred in taking 1/3rd towards
personal expenses of the deceased. As per Sarla
Verma's case, supra as the deceased is having four
dependents, 1/4th income of the deceased is to be
deducted towards the personal expenses of the deceased.
Accordingly, compensation under the head of loss of
dependency would be Rs.2,03,851+20,385X9%X¾
=Rs.15,13,593/-.
13. It is also noticed that compensation awarded
under the head of the consortium, loss of estate and
funeral expenses is to be granted following the ratio laid
down by the Hon'ble Apex Court in (2017) 16 SCC 680 in
the case of National Insurance Company Limited V/s.
Pranay Sethi and others and the same needs to be
recalculated.
14. There are four dependents, and Rs.40,000/-
has to be awarded to each of the claimants towards the
loss of the consortium. Tribunal has awarded Rs.50,000/-
towards loss of consortium which needs to be enhanced to
Rs.1,60,000/-. Tribunal has awarded Rs.50,000/- under
the head of loss of estate and Rs.25,000/- under the head
of funeral expenses. Same is to be reduced to Rs.15,000/-
for each head, as per the ratio in Pranay Sethis's case
supra.
15. The compensation awarded under the head of
medical expenses does not require any modification.
16. Thus, the claimants are entitled to
compensation as under:-
1 Loss of dependency Rs. 15,13,593/-
2 Loss of consortium Rs. 1,60,000/-
4 Loss of love and affection & Rs. 15,000/-
Estate
5 Funeral and obsequies Rs. 15,000/-
6 Medical expenses Rs. 24,000/-
Total Rs.17,27,593/-
17. Hence, the following:-
ORDER
(i) Appeal is allowed in part. The impugned judgment
and award dated 30.06.2016 passed by the I Additional
District Judge and II Additional MACT, Mangalore (DK) in
MVC No.1308/2014 is modified.
(ii) The claimants are entitled to Rs.17,27,593/- as
against Rs.17,68,200/- awarded by the Tribunal.
(iii) Registry is directed to transmit the amount to the
Tribunal forthwith.
(iii) The Excess amount if any deposited, be released in
favour of the appellant/insurer.
(iv) Registry is directed to send back the records to the
Tribunal forthwith.
(v) In all other aspects, the judgment and award of the
Tribunal stand affirmed.
Sd/-
JUDGE
HD
