Karnataka High Court
Mr Krishnappa vs Karnataka Government Insurance ... on 10 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8234 OF 2019 (MV)
BETWEEN:
1. MR. KRISHNAPPA
S/O. LATE. SANJEEVAIAH,
AGED ABOUT 48 YEARS,
R/AT: KADAJAKKASANDRA,
GOTTIGEHALLI POST,
HAROHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
2. SMT. NARASAMMA
D/O. LATE. VENKATAMMA
@ ACHAMMA,
AGED ABOUT 46 YEARS,
R/AT: GANALUDODDI VILLAGE,
GIRENAHALLI POST,
HAROHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT
...APPELLANTS
(BY SRI. GIRIMALLAIAH, ADVOCATE)
2
AND:
1. KARNATAKA GOVERNMENT
INSURANCE DEPARTMENT
VIDHANA VEEDHI,
BENGALURU-560 001.
2. CHIEF MEDICAL OFFICER
GENERAL HOSPITAL,
KANAKAPURA TOWN,
RAMANAGARA DISTRICT-562 117.
...RESPONDENTS
(BY SMT. K. SHOBHA, HCGP FOR R1
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED.02.04.2019 PASSED IN MVC NO. 4223/2018
ON THE FILE OF THE XXI A.C.M.M AND XXIII A.S.C.J.,
MOTOR ACCIDENT CLAIM TRIBUNAL, COURT OF
SMALL CAUSES, BENGALURU (SCCH-25), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) has been filed by the claimants being
aggrieved by the judgment dated 02.04.2019 passed
by the Motor Accident Claims Tribunal, Court of Small
Causes, Bengaluru in MVC No.4223/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 22.04.2018, when the
deceased Smt. Venkamma @ Achamma was
proceeding by the side of NH-209 road near Harohalli
Tank Bund Road, Harohalli, Kanakapura Taluk, at that
time, ambulance bearing registration No.KA-42-G-
0943, which was being driven in a rash and negligent
manner, dashed against the deceased. As a result of
the aforesaid accident, the deceased sustained
grievous injuries and succumbed to the injuries.
3. The claimants filed a petition under Section
166 of the Act seeking compensation for the death of
the deceased along with interest.
4. On service of summons, the respondent
No.1 appeared through counsel and filed written
statement in which the averments made in the
petition were denied.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 Krishnappa
as PW-1 and another witness as PW-2 and got
exhibited documents namely Ex.P1 to Ex.P15. On
behalf of respondents, neither any witnesses were
examined nor any documents were produced. The
Claims Tribunal, by the impugned judgment, inter alia,
held that the accident took place on account of rash
and negligent driving of the offending vehicle by its
driver, as a result of which, the deceased sustained
injuries and succumbed to the injuries. The Tribunal
further held that the claimants are entitled to a
compensation of Rs.1,30,000/- along with interest at
the rate of 8% p.a. and directed the respondent No.1-
Insurer to deposit the compensation amount along
with interest. Being aggrieved, this appeal has been
filed.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, the claimants claim that the deceased
was aged about 70 years at the time of the accident
and she was earning Rs.9,000/- per month by working
as Coolie. But the Tribunal is not justified in taking
the monthly income of the deceased as merely as
Rs.8,000/-.
Secondly, he contended that even though the
claimants are major and not depending upon the
income of the deceased, as per the law laid down by
the Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- BIRENDER AND
OTHERS [AIR 2020 ACJ 759], has held that the
claim of the claimants cannot be limited to
conventional head even though they are not fully
depending upon the deceased. But the Tribunal is
erred in not granting the compensation under the
head of 'loss of dependency'.
Thirdly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ
2782], each of the claimants are entitled for
compensation of Rs.40,000/- under the head of 'loss
of love and affection and consortium'.
Fourthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. Hence, he prays for allowing the appeal.
7. Smt. K. Shobha, learned HCGP is directed
to take notice for respondent No.1-Insurer and has
raised the following counter-contentions:
Firstly, she contends that the claimants are
major son and married daughter. Hence, they are not
depending upon the income of the deceased.
Therefore, the Tribunal has rightly held that the
claimants are entitled for compensation only under the
head of 'loss of estate'.
Secondly, she contended that at the time of the
accident, deceased was aged about 70 years.
Considering her age the notional income assessed by
the Tribunal is just and reasonable.
Lastly, she contended that the interest awarded
by the tribunal at 8% is on higher side, contrary to
the judgment of a Division Bench of this Court in the
case of JOYEETA BOSE -V- UNITED INSURANCE
CO. Hence, she sought for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that deceased Smt.
Venkatamma @ Achamma died on 30.042018 due to
the road traffic accident occurred on 22.04.2018, due
to rash and negligent driving of the offending vehicle
by its driver.
The claimants claim that deceased was earning
Rs.9,000/- per month. But they have not produced
any documents to prove the income of the deceased.
In the absence of proof of income, the notional income
has to be assessed. As per the guidelines issued by
the Karnataka State Legal Services Authority, for the
accident taken place in the year 2018, the notional
income of the deceased has to be taken at
Rs.12,500/-p.m. Since the claimants have claimed
monthly income of the deceased as Rs.9,000/- p.m.
has to be considered.
The Apex Court in case of BIRENDER AND
OTHERS (supra) has held the following:
" 10. The former appeal is preferred
by the appellant on the ground that the
High Court ought to have deducted the
entire amount of financial assistance under
the 2006 Rules, instead of deducting 50 per
cent thereof. Reliance was placed on the
judgment of this Court in Reliance General
Insurance Co. Ltd. v. Shashi Sharma, 2016
ACJ 2723 (SC). It is urged that claim for
loss of dependency is unavailable to the
respondent Nos. 1 and 2 in the facts of the
present case, they being major sons of the
deceased who were married and also
gainfully employed. Reliance is placed on
Manjuri Bera v. Oriental Insurance Co. Ltd.,
2007 ACJ 1279 (SC). It is urged that the
respondent Nos. 1 & 2 may be entitled only
to compensation under conventional heads
as held in National Insurance Co. Ltd. v.
Pranay Sethi, 2017 ACJ 2700 (SC).
15. It is thus settled by now that the
legal representatives of the deceased have
a right to apply for compensation. Having
said that, it must necessarily follow that
even the major, married and earning sons
of the deceased being legal representatives
have a right to apply for compensation and
it would be the bounden duty of the
Tribunal to consider the application
irrespective of the fact whether the
concerned legal representative was fully
dependant on the deceased and not to limit
the claim towards conventional heads only.
The evidence on record in the present case
would suggest that the claimants were
working as agricultural labourers on
contract basis and were earning meagre
income between Rs.1,00,000/- and
Rs.1,50,000/- per annum. In that sense,
they were largely dependant on the
earnings of their mother and in fact, were
staying with her, who met with an accident
at the young age of 48 years.
By reading the above said judgment it is clear
that it would be incumbent on the Tribunal to consider
the claim petition not withstanding concerned legal
representatives and not fully depending upon the
deceased. Considering the above Apex Court
judgment, the Division Bench of this Court in
MFA.No.7318/2015 disposed of on 23.10.2020 has
held that 50% of the income of the deceased has to
be considered for compensation under the head of
'loss of estate'. In view of the above, 50% of the
income of the deceased has to be considered for 'loss
of estate'. The deceased was aged about 70 years at
the time of the accident and multiplier applicable to
her age group is '5'. Thus, the claimants are
entitled to compensation of Rs.2,70,000/-
(Rs.9,000/-*12*50%*5) on account of 'loss of estate'.
In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'funeral
expenses'.
In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL
INSURANCE' (supra), claimants, children of the
deceased are entitled for compensation of Rs.40,000/-
each under the head of 'loss of parental consortium'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of estate 2,70,000
Funeral expenses 15,000
Loss of Parental 80,000
consortium
Total 3,65,000
11. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimants are entitled to a total
compensation of Rs.3,65,000/- as against
Rs.1,30,000/- awarded by the Tribunal.
In view of the law laid down by a Division Bench
of this Court in JOYEETA BOSE (supra), enhanced
compensation carries interest at 6% p.a.
The Insurance Company is directed to deposit
the compensation amount along with interest at 8%
p.a. (enhanced compensation shall carry interest at
6% per annum) from the date of filing of the claim
petition till the date of realization, within a period of
six weeks from the date of receipt of copy of this
judgment.
Learned HCGP is permitted to file memo within
four weeks from today.
Sd/-
JUDGE
JY
