Karnataka High Court
The Branch Manager vs Surappa And Ors on 21 June, 2022
Bench: Sreenivas Harish Kumar, S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JUNE 2022
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
MFA.No.200909/2018
C/W
MFA.NO.201840/2017 (MV)
IN MFA.NO.200909/2018
BETWEEN:
01. SURAPPA S/O DANAPPA SHIRANAL
AGE: 54 YEARS OCC: NIL
02. SUGALABAI W/O SURAPPA SHIRANAL
AGE: 53 YEARS OCC: HOUSEHOLD WORK
03. ANITA @ SUNANDA W/O PARASARAM SHIRANAL
AGE: 28 YEARS OCC: HOUSEHOLD WORK
04. LAXMI D/O PARASARAM SHIRANAL
AGE: 05 YEARS
M/G BY APPELLANT NO.3,
ALL ARE R/O: HONAGANAHALLI
TQ: & DIST: VIJAYAPURA-586 101.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
2
01. RESHAM SINGH
AGE: 44 YEARS OCC: BUSINESS
R/O: G/2/2/01,
SEC.NO.10, KALAMBOLI
DIST: RAIGAD
MAHARASHTRA-416 416.
02. THE BRANCH MANAGER,
RELIANCE GENERAL INSURANCE
COMPANY LIMITED
2ND FLOOR, V.A. KALABURAGI SQUARE,
DESHPANDE NAGAR,
DESAI CROSS,
HUBBALLI-29.
...RESPONDENTS
(NOTICE TO R1 IS DISPENSED WITH,
BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
M.V. ACT, PRAYING TO ALLOW THIS APPEAL AND ENHANCE
THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION
BY MODIFYING THE JUDGMENT AND AWARD DATED
24.07.2017 PASSED BY THE COURT OF 1 ADDITIONAL
SENIOR CIVIL JUDGE AND MACT NO.VI, AT VIJAYAPURA IN
MVC.NO.1857/2014.
IN MFA.NO.201840/2017
BETWEEN:
THE BRANCH MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
2ND FLOOR, V.A. KALBURAGI SQUARE,
DESHPANDE NAGAR,
DESAI CROSS,
HUBLI-29.
(NOW REPRESENTED BY AUTHORIZED SIGNATORY, HUBLI)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
3
01. SURAPPA S/O DANAPPA SHIRANAL
AGE: 53 YEARS OCC: NIL
02. SUGALABAI W/O SURAPPA SHIRANAL
AGE: 52 YEARS OCC: HOUSEHOLD WORK
03. ANITA @ SUNANDA W/O PARASARAM SHIRANAL
AGE: 27 YEARS OCC: HOUSEHOLD WORK
04. LAXMI D/O PARASARAM SHIRANAL
AGE: 04 YEARS
M/G BY RESPONDENT NO.3,
ALL ARE R/O: HONAGANAHALLI
TQ: & DIST: VIJAYAPURA-586 101.
05. RESHAM SINGH
AGE: 43 YEARS OCC: BUSINESS
R/O: G/2/2/01,
SEC.NO.10, KALAMBOLI-410218
DIST: RAIGAD
MAHARASHTRA
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE FOR R1
TO R3
R4 IS MINOR R/BY R3
VIDE ORDER DATED 10.07.2019 NOTICE TO R5 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
M.V. ACT, PRAYING TO CALL FOR THE RECORDS AND
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 24.07.2017 IN
MVC.NO.1857/2014 PASSED BY THE IST ADDL. SENIOR
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL
NO.VI, VIJAYAPURA.
THESE MFAS ARE COMING ON FOR FINAL HEARING,
THIS DAY, S. RACHAIAH J., DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals are disposed of by a common
judgment as they have arisen out of a common judgment
and award dated 24.07.2017 in MVC.No.1857/2014 on
the file of the I Additional Senior Civil Judge and MACT
No.VI, at Vijayapura.
02. MFA.No.200909/2018 and MFA.No.201840/
2017 are filed by the claimants and insurance company
respectively. The claimants seeking enhancement of the
compensation and the insurance company challenging the
award passed by the Tribunal on the ground of liability
and quantum awarded having been given as excess.
IN MFA.No.200909/2018
03. Heard Sri. Sanganagouda V. Biradar, learned
counsel for the appellants - claimants. He submits that
this appeal is filed by the legal representatives of the
deceased seeking enhancement of compensation on the
ground that the Tribunal has failed to consider the income
of the deceased as `.15,000/- per month and also failed to
consider the suitable multiplier by taking into
consideration the age of the deceased. Further, he submits
that the Tribunal should have awarded fair compensation
on higher side towards love and affection, consortium and
loss of estate etc., Further, he submits that the Tribunal
has committed an error in not awarding the future
prospects, which ought to have been awarded in terms of
the judgment of the Hon'ble Supreme Court in the case of
Pranay Sethi. With these submissions, he sought to allow
the appeal and modify the award passed by the Tribunal.
IN MFA.No.201840/2017
04. Heard, Smt. Preeti Patil Melkundi, learned
counsel for the appellant - insurance company. She
contended that the Tribunal committed an error by
fastening the entire liability upon the insurance company
by over-looking the fact that the deceased has not
produced the driving license. Further, she submits that
the monthly income of the deceased, as taken by the
Tribunal is `.10,000/-, which is on higher side, it ought
not to have been considered. This is absolutely of no basis
and no valid reasons. Hence, it is required to be modified
as the claimants have not produced any documents to
show that the monthly income of the deceased was
`.10,000/- and odd. Further, she submits that the
Tribunal erred in considering the deduction for personal
and living expenditure as 1/4th instated of 1/3rd. While
deducting the personal expenditure, the father of the
deceased should not have been considered as dependent,
this also requires to be modified. Further, she submits
that the Tribunal has committed an error in awarding the
interest at the rate of 9% p.a. which is also requires to be
modified. As such, the insurance company filed this
appeal challenging the award on the ground of liability
and quantum.
05. Having heard both the counsel in both the
appeals and after perusing the documents, the points
which arise for our consideration are:-
I. Whether the claimants in
MFA.No.200909/2018 have made out grounds
to enhance the compensation under the
conventional heads?
II. Whether the appellant - insurance company in
MFA.No.201840/2017 have made out grounds
that the Tribunal has awarded the
compensation erroneously by not considering
the documents on record?
III. What order?
06. Point No.1 :- It is the case of the claimants in
MFA.No.200909/2018 that on 31.05.2014 at about
08.00 p.m. the deceased - Parasaram was proceeding in
his motorcycle bearing its Reg.No.KA-28-L-7242 near
Zalaki village on Ballolli - Zalaki road. He was proceeding
towards Zalaki in a slow and cautious manner. At that
time a Trailer vehicle bearing its Reg.No.MH-43-E-6084
came from opposite direction in a rash and negligent
manner, dashed the motorcycle. As a result, he was killed
in the accident. The claimants filed the claim petition
before the Tribunal. The Tribunal awarded compensation
a sum of `.19,45,000/-. Being not satisfied by the award
passed by the Tribunal, the claimants filed appeal by
seeking enhancement of compensation.
07. As regards the loss of dependency is
concerned, the Tribunal has taken `.10,000/- per month
as the income of the deceased, without referring any
guidelines or judgments of the Hon'ble Supreme Court.
Hence, it is liable to be set-aside. The Tribunal should
have considered the chart prepared by the Karnataka
State Legal Services Authority. As per chart the notional
income for the year 2014 is `.7,500/- per month. Taking
into consideration the income as `.7,500/-p.m. and if the
personal expenditure is deducted as ¼, the amount would
be `.5,625/-. In the present case, the Tribunal failed to
award any amount towards future prospects. The
deceased was aged 25 years as on the date of accident. As
per the judgment of the constitution Bench in the case of
National Insurance Company Ltd., Pranay Sethi
reported in (2017) 16 SCC 680, future prospects @ 40%
is to be awarded for computing the compensation payable
to the claimants. Thus, reckoning `.5,625/- as monthly
income, the age of the deceased was 25 years as on the
date of accident and applying the multiplier 18 and also
adding 40% of future prospects to the income, the total
amount payable to the claimants is `.7,500/- - 1/4th =
`.5,625 + 40% = `.7,875/- x 12 = `.94,500/- x 18 =
`.17,01,000/-.
08. The next conventional head is the loss of
estate. The Tribunal has awarded `.1,00,000/- towards
the loss of estate, which requires to be modified in terms
of the dictum of the Hon'ble Supreme Court in the case of
Pranay Sethi (supra). The claimants are entitled for
`.15,000/- under this head. Hence, it is modified
accordingly.
09. As regards the loss of love and affection, the
Hon'ble Supreme Court in the case Magma General
Insurance Company Ltd., vs. Nanu Ram @ Chuhru
Ram and others reported in (2018) 18 SCC 130, held
that, the loss of love and affection is comprehended in loss
of consortium. The award of compensation under
consortium, which is legitimate conventional head. There
is no justification to award compensation towards loss of
love and affection as separate head. Accordingly, we are of
the opinion that the claimants are not entitled for
compensation towards loss of love and affection.
10. As regards the loss of consortium is
concerned, the Tribunal has awarded `.1,00,000/-
towards the loss of consortium. In terms of Magma
General Insurance Company Ltd., (supra), the Hon'ble
Supreme Court gave a comprehensive interpretation to
consortium to include spousal consortium, parental
consortium, as well as filial consortium. The amount
awarded by the Tribunal, should be enhanced to
`.1,60,000/- (`.40,000/- x 4) by taking into consideration
the number of dependants. Accordingly, it is modified.
11. As regards the funeral expenditure is
concerned, the award under this conventional head be
given `.15,000/- as per the judgment stated supra.
However, the Tribunal has awarded `.25,000/-, it is to be
reduced to `.15,000/-. Hence, it is modified accordingly.
12. Thus, the compensation awarded and
enhanced by this Court is as shown in the chart given
below:-
Sl. Heads Tribunal Amount
No.
01. Loss of dependency `.16,20,000/- `.17,01,000/-
02. Loss of estate `.01,00,000/- `.00,15,000/-
03. Loss of love and affection `.01,00,000/- -
04. Loss of consortium `.01,00,000/- `.01,60,000/-.
05. Loss of funeral expenses `.00,25,000/- `.00,15,000/-.
and transportation
Total `.19,45,000/- `.18,91,000/-
13. In MFA.No.201840/2017, as regards the
liability of the insurance company is concerned, the
insurance company has raised objection that the deceased
had no valid driving license at the time of accident. It was
the burden of the insurance company to prove that the
deceased had no valid driving license at the time of
accident. However, as could be seen from the records that
no such efforts have been made by the insurance
company to show that the deceased had no valid driving
license at the time of accident. Mere denial is not
sufficient to prove that the deceased had no valid driving
license at the time of accident. Hence, submission of
learned counsel for the insurance company is liable to be
rejected.
14. The quantum of the award challenged by the
insurance company is answered supra. Hence, the appeal
filed by the insurance company is deserves allowed in
part.
15. In view of the observation made above, we
answer the point No.1 in the negative and point No.2 in
the affirmative and point No.3 as per final order.
16. Accordingly, we pass the following;
ORDER
i. The appeal filed by the claimants in
MFA.No.200909/2018 is dismissed.
ii. The appeal filed by the insurance company in
MFA.No.201840/2017 is allowed in part.
iii. The judgment and award dated 24.07.2017
passed by the Tribunal in MVC.No.1857/2014
is hereby modified and reduced.
iv. The appellants - claimants are entitled for
compensation of `.18,91,000/- with interest at
the rate of 6% p.a. from the date of petition till
its realization, as against the compensation of
`.19,45,000/- awarded by the Tribunal.
v. The Insurance Company is directed to deposit
the modified compensation within 04 weeks
from the date of receipt of certified copy of this
judgment.
vi. The Registry is directed to transmit the record
along with the statutory deposit, if any, to the
Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KJJ
