Karnataka High Court
P Jagadish vs Ulaganathan V on 14 July, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.1445 OF 2018 (MV)
C/W
M.F.A.NO.1763 OF 2018 (MV)
IN M.F.A.NO.1445 OF 2018
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
D.O.3, NO.9/2,
MAHALAKSHMI CHAMBERS,
2ND FLOOR, M G ROAD,
BENGALURU - 560 001
BY ITS DULY CONSTITUTED ATTORNEY
... APPELLANT
(BY SRI. C.R. RAVISHANKAR, ADVOCATE)
AND:
1. SRI. P JAGADISH
AGED ABOUT 67 YEARS,
S/O SRI PARTHASARATHY
2. SMT J VASANTHI
AGED ABOUT 54 YEARS,
W/O SRI P JAGADISH
BOTH ARE RESIDING AT NO.19,
PERUMAL NILAYA, 21ST CROSS,
SRIRAMA TEMPLE ROAD,
BEHIND HOLY CHRIST SCHOOL,
EJIPURA, VIVEKNAGAR,
BENGALURU - 560 047
2
3. SRI ULAGANATHAN V
AGED MAJOR,
S/O SRI VANGILI
R/AT No.1/90-A-1, SUBAILLAM
SEMBARIPUDUR, MARUPATTY P.O
MADURPATTY, NAMKKAL
TAMIL NADU - 637 001
...RESPONDENTS
(BY SRI. N.GOPALKRISHNA, ADVOCATE FOR
SRI. A.SREENIVASAIAH, ADVOCATE FOR R1 AND R2;
R3 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS IN
MVC NO.1992/2016 PASSED BY THE IX ADDITIONAL SMALL
CAUSES AND ADDL. MACT, BENGALURU (SCCH-7), PERUSE THE
SAME AND SET ASIDE/MODIFY THE JUDGMENT AND AWARD
DATED 26.09.2017 REDUCING THE COMPENSATION/
EXONERATING THE LIABILITY FIXED ON THE APPELLANT
INSURANCE COMPANY TO PAY COMPENSATION AND PASS SUCH
OTHER ORDER/S AS DEEMED FIT IN THE CIRCUMSTANCES OF
THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A. NO.1763/2018
BETWEEN:
1. P JAGADISH
S/O PARTHASARATHY
AGED ABOUT 67 YEARS
2. J. VASANTHI
W/O JAGADISH
AGED ABOUT 54 YEARS
BOTH ARE RESIDING AT
NO.19, PERUMAL NILAYA,
21ST CROSS, SRIRAMA TEMPLE ROAD,
BEHIND HOLY CHRIST SCHOOL,
3
EJIPURA, VIVEKNAGAR,
BENGALURU - 560 047.
... APPELLANTS
(BY SRI. N. GOPALKRISHNA, ADVOCATE
FOR SRI.A. SREENIVASAIAH, ADVOCATE)
AND:
1. ULAGANATHAN V
S/O VANGILI
NO.1/90-A-1, SUBAILLAM
SEMBARIPUDUR
MARUPATTY P.O., MARUPATTY
NAMAKKAL, T.N.- 637 001.
2. THE MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
D.O:3, NO.9/2, MAHALAKSHMI CHAMBERS,
2ND FLOOR, M.G. ROAD,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR R2;
VIDE COURT ORDER DATED 22.11.2018, NOTICE TO R1
IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 26.09.2017 PASSED BY THE IX
ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF
SMALL CAUSES, MEMBER, MACT-7, BENGALURU IN MVC
NO.1992/2016 AND ENHANCE COMPENSATION FROM
Rs.12,68,000/- TO Rs.25,00,000/- WITH COST AND INTEREST,
IN THE INTEREST OF JUSTICE AND EQUITY.
THESE MFAs HAVING BEEN HEARD AND RESERVED ON
28.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals are arising out of judgment and award
dated 26.09.2017 in MVC.No.1992/2016.
2. While MFA.No.1445/2018 is filed by respondent No.2
- Insurance company challenging the liability fixed on it or in the
alternative to reduce the compensation granted,
MFA.No.1763/2018 is filed by the petitioners seeking
enhancement.
3. For the sake of convenience the parties are referred
to by their rank before the Tribunal.
4. FACTS: The facts leading to the filing of the claim
petition are that petitioners are parents of deceased J.Vivek. On
20.02.2016, at about 6.35 p.m, deceased J.Vivek was
proceeding on his motor cycle bearing registration No.KA-03-HF-
4802 towards Bengaluru. When he reached HMG Granite factory
on Hosur-Bengaluru Road, Attibele, a lorry bearing registration
No.TN-28-AE-8669 (hereinafter referred to as offending vehicle),
driven by its driver in a rash or negligent manner came in a high
speed. As a result of it, the driver lost control over the offending
vehicle and dashed against the motor cycle of deceased from
behind. In the said accident, J.Vivek sustained grievous injuries
and died on the spot.
5. At the time of accident, deceased was aged 21
years. He had completed BBM course and was working in I.G.
Associates, BTM Layout, Bengaluru. He was getting salary of
Rs.20,000/-p.m. He worked from 04.04.2014 to 10.10.2015 and
for better prospects, he took new job as Business Development
Executive at Just dial company on the monthly salary of
Rs.30,000/-p.m. However, on account of accident, he could not
join the duty on 22.02.2016. Apart from it, he was also doing
web designing as a part time job and earning Rs.15,000/-p.m.
As parents petitioners were dependent on him. As the owner and
insurer of the offending vehicle, respondent Nos.1 and 2 are
jointly and severally liable to pay the compensation.
6. Befor the Tribunal, inspite of due service of notice,
respondent No.1 failed to appear and as such he was placed Ex-
parte.
7. Respondent No.2 appeared and filed written
statement stating that petitioner No.1 being the father is a
earning person and heads the family. He was not dependent on
the deceased at the time of accident. It is denied that the
accident occurred due to the rash or negligent driving by the
driver of the offending vehicle and that in the said accident,
J.Vivek sustained grievous injuries and died on the spot. The
accident was a result of gross or negligence on the part of the
deceased who was driving the motor cycle in a high speed. He
was not holding a driving license. After loosing balance,
deceased collided with another truck and came under the wheels
of the offending vehicle. Therefore, the driver of the offending
vehicle is not liable and consequently, respondent No.2 is not
liable to indemnify respondent No.1.
7.1 Though the offending vehicle was covered by a policy
issued by respondent No.2, it liability is subject to the terms and
conditions of the policy. Respondent No.2 has disputed the age,
occupation, income of the deceased. The compensation claimed
is highly exorbitant fancible and without any basis. In the event
of granting compensation, interest shall be confined to 6% and
has sought for dismissal of the petition against it.
8. Based on the pleadings, the Tribunal has framed
necessary issues.
9. In support of petitioners' case, petitioner No.2 is
examined as PW-1 and Ex.P1 to 19 are marked.
10. On behalf of respondent No.2, RWs-1 and 2 are
examined and Ex.R1 to 6 are marked.
11. Vide the impugned judgment and award, the
Tribunal has granted compensation in a sum of Rs.12,68,000/-
with interest at 9% p.a. and directed respondent No.2 to pay the
same by indemnifying respondent No.1. The details of the
compensation granted are as under:
Heads Amount in Rs.
For love and affection 50,000
For funeral, obsequies and 30,000
conveyance expenses
For loss of dependency 11,88,000
TOTAL 12,68,000
12. During the course of arguments, the learned counsel
for respondent No.2 submitted that as evident from the
testimony of RW-2 the Police Inspector, at the time of accident,
deceased was not wearing helmet and thereby violated Rule 230
of Karnataka Motor Vehicles Rules and Section 129 of the MV
Act. Therefore, the deceased contributed towards the accident
and to that extent compensation is required to be reduced. In
the absence of proof of income, the notional income at
Rs.11,000/- considered by the Tribunal is incorrect. As per the
minimum wages, the notional income should have been
Rs.8,000/- p.m. Since the father of the deceased is an earning
person and petitioner No.2 being his wife is dependent on him,
both the petitioners are not dependent on the deceased. The
compensation granted under other heads is also exorbitant. The
grant of interest at 9% is without any basis and prays to allow
the appeal.
13. On the other hand, learned counsel appearing for
petitioners argued and submitted that the income of the
deceased ought to have taken at Rs.30,000/- as Business
Development Executive and additional sum of Rs.15,000/- p.m.
as a web designer i.e., in all it should have been taken as
Rs.45,000/-. The compensation granted under remaining heads
is also required to be modified and prays to allow the appeal.
14. Heard arguments and perused the record.
15. Thus, respondent No.2 has challenged impugned
judgment and award contending that at the time of accident
deceased was not wearing helmet and therefore, he has also
contributed towards the accident. The other ground urged is that
the income taken at Rs.11,000/-p.m. is on the higher side. On
the other hand, petitioners have challenged the impugned
judgment and award contending that the compensation granted
is on the lower side and there is scope for enhancement.
16. So far as the contention of respondent No.2 that at
the time of accident, deceased was not wearing helmet is
established by the evidence of PW-2 the Investigating Officer.
This fact is not disputed by the petitioners. However, in this
regard the learned counsel representing the petitioners has
relied upon the decision of the Division Bench of this Court in
MFA.No.3972/2019 c/w MFA.No.Crob.114/2020 wherein it is held
that mere not wearing of helmet cannot be treated as
contributing towards the accident. It may at the most constitute
an offence under the Act. Therefore, the contention of
respondent No.2 that the compensation should have been
reduced towards contributory negligence of the deceased cannot
be accepted.
17. Now coming to the quantum of compensation.
Though the petitioners have contended that at the time of
accident, deceased was earning Rs.45,000/-p.m., they have not
produced any documentary evidence to establish the said fact.
Prior to the accident, deceased was working with I.G Associates
as per the letter of appointment dated 02.04.2014. However,
admittedly he has resigned from the said post on 10.09.2015.
The petitioners have relied upon Ex.P19 - a letter of offer
received by the deceased from Just dial. It is dated 15.12.2015.
Admittedly, as per the offer given in this letter at Ex.P19,
deceased has not joined the said company. Unfortunately, he
died before joining the said company. Therefore, this document
cannot be taken into consideration for calculating the income of
the deceased. Moreover, in these documents there is no
reference to any income which the petitioner was getting or
proposed to be getting from new job.
17.1 Under these circumstances, the Tribunal is justified
in considering the income of the deceased as Rs.11,000/-p.m. It
is true that during the year 2016, the minimum wages would
have been Rs.9,000 to 9,500/-. However, having regard to the
fact that petitioner was working in Information Technology field,
it would be reasonable to expect that he was getting income of
Rs.11,000/-p.m.
17.2 Since the deceased was a bachelor, the Tribunal has
rightly held that 50% of his income is required to be deducted
towards his personal and living expenses. However, as per the
decision of Hon'ble Supreme Court in Magma General
Insurance Co.Ltd case, for calculating the loss of dependency,
loss of future prospects is required to be added. The Tribunal has
not done so. On the other hand, it has made an observation that
instead of deducting 50% towards the personal and living
expenses, the Tribunal is going to consider the entire
Rs.11,000/- as the notional income. However, while calculating
the loss of dependency, once again it has reduced the notional
income to 50% i.e., Rs.5,500/- and based on it calculated the
compensation. On that aspect, the Tribunal has erred.
17.3 Admittedly, the deceased was aged 21 years at the
time of accident. Therefore, the multiplier 18 taken by the
Tribunal is correct. Since the deceased was aged less than 40
years at the time of accident and he was in a private
employment, 40% of income is required to be added to the
notional income. 40% of Rs.11,000/- comes to Rs.4,400/-.
Therefore, together the notional income is to be taken as
Rs.15,400/-. With the multiplier 18 and 50% towards the loss of
dependency, the total compensation payable under the head loss
of dependency is 15,400 x 12 x 18 x 50% = Rs.16,63,200/- as
against Rs.11,88,000/- granted by the Tribunal.
17.4 Since the petitioners are the parents of deceased, as
per the decisions of Hon'ble Supreme Court in Pranay Sethi
and Magma General Insurance Co.Ltd. cases, under the head
loss of filial consortium, each of them are entitled for
compensation in a sum of Rs.40,000/- i.e., together Rs.80,000/-
under the head loss of consortium. When the major
compensation is granted under the head loss of dependency,
under the conventional head of loss of estate and funeral
expenses, petitioners are entitled for Rs.15,000/- each.
Therefore, the compensation under the head funeral, obsequies
conveyance and expenses in a sum of Rs.30,000/- is reduced to
Rs.15,000/- and additional sum of Rs.15,000/- is granted under
the head loss of estate.
18. Thus, in all petitioners are entitled for compensation
in a sum of Rs.17,73,200/- as against Rs.12,68,000/- granted by
the Tribunal as detailed below:
Heads Amount granted by the Amount granted
Tribunal by this Court
In Rs. In Rs.
For loss of dependency 11,88,000 16,63,200
Loss of consortium 50,000 80,000
(For love and affection) (Loss of
consortium)
Loss of estate - 15,000
Funeral expenses 30,000 15,000
(For funeral, obsequies
and conveyance
expenses)
TOTAL 12,68,000 17,73,200
19. Of course petitioners are entitled for interest at the
rate of 6% p.a. To this extent, appeal filed by petitioners
succeed. However, appeal filed by respondent No.2 fails and
accordingly, I proceed to pass the following:
ORDER
(i) MFA.No.1445/2018 filed by respondent No.2 is
dismissed.
(ii) MFA.No.1763/2018 filed by petitioners is
allowed in part.
(iii) The petitioners are entitled for compensation in
a sum of Rs.17,73,200/- as against
Rs.12,68,000/- granted by the Tribunal
together with interest at 6% p.a.
(iv) Respondent No.2 shall deposit the
compensation amount together with interest
(minus the amount if any already
paid/deposited) within a period of six weeks
from the date of this order.
(v) The registry is directed to transmit the amount
in deposit to the Tribunal.
(vi) The registry is directed to transmit the trial
Court record along with the copy of this order
to the Tribunal forthwith.
Sd/-
JUDGE
RR
