Smt. Radhamma vs The Legal Manager
2022 Latest Caselaw 3672 Kant

                            1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF MARCH, 2022

                       BEFORE

   THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

             M.F.A.No.6704/2019(MV)

BETWEEN:
1. SMT.RADHAMMA
W/O LATE MANJUNATHA S.V.,
AGE ABOUT 34 YEARS

2. KUM.S.M.MONIKA
D/O LATE MANJUNATHA S.V.,
AGED ABOUT 11 YEARS,

3. KUM.S.M.HARSHITHA
D/O LATE MANJUNATHA S.V.,
AGED ABOUT 07 YEARS,

APPELLANTS NO.2 AND 3 ARE
MINORS REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER
SMT.RADHAMMA

ALL ARE RESIDING AT
SATHANDLAHALLI VILLAGE
KALLUR POST,
SRINIVASAPURA TALUK,
KOLAR DISTRICT-563 135.         ..APPELLANTS

(BY SRI.RAGHAVENDRA K., ADVOCATE)

AND:

1. THE LEGAL MANAGER
                           2


M/s.ICICI LOMBARD
GENERAL INSURANCE CO. LTD.,
THE ESTATE, 9TH FLOOR,
DICKENSON ROAD,
M.G.ROAD,
BANGALORE -560 042.

2. MR.RAKHESH
S/O MUNISWAMY
AGED MAJOR
RESIDING AT NO.1137
ANTHONY SWAMY MAIN ROAD
RIGHT SIDE,
MARIYANNAHA PALYA
BANGALORE -560 024.               ..RESPONDENTS

(BY SRI.B.PRADEEP, ADVOCATE FOR R-1,
 SRI.SANGAMESH R.B., ADVOCATE FOR R-2)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.06.2019
PASSED IN MVC NO.1436/2018 ON THE FILE OF THE VI
ADDITIONAL SMALL CAUSES JUDGE AND XXXI ACMM, MACT,
BENGALURU (SCCH-2), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

               JUDGMENT

This appeal is by the claimants who are the wife

and children of deceased late S.V.Manjunatha. The

claimants lay a challenge to the Judgment and award

dated 24.06.2019 passed by the VI Additional Small

Causes Judge and XXXI ACMM, MACT, Bengaluru

(SCCH-2) in MVC No.1436/2018 wherein the Tribunal

had awarded a total compensation of Rs.18,30,000/-

with interest at the rate of 9% p.a. from the date of

petition till realization of entire amount. This appeal is

founded on the ground of inadequacy of compensation.

2. Brief facts of the case:

On 06.08.2017 when deceased S.V.Manjunatha

was driving autorickshaw bearing registration

No.KA-07-A-7145 along with passengers cautiously

from Shidlaghatta to Chintamani at 3.15 P.M., a Maruti

Swift VDI car bearing registration No.KA-50-M-5080

driven by its driver in a rash and negligent manner

dashed against the autorickshaw driven by deceased

S.V.Manjunatha from behind. As a result of the said

accident, the autorickshaw got over turned and

consequently the driver and inmates of the

autorickshaw sustained serious injuries. The driver of

autorickshaw- S.V.Manjunatha was shifted to

Government hospital, Chintamani and thereafter to

Sri.Devaraj Urs Medical College Hospital (R.L.Jalappa

Hospital), Kolar, wherein despite treatment

S.V.Manjunatha succumbed to the injuries. It is the

case of the claimants that deceased S.V.Manjunatha

was the sole bread winner of the family and by driving

autorickshaw and doing dairy farming along with

agricultural activities in his own land and was earning

an income of Rs.50,000/- per month and was

contributing his earnings to the welfare of his family.

In view of the sudden death of S.V.Manjunatha due to

the accident caused by rash and negligent driving by

driver of the Maruti Swift car, the claimants who are

legal dependents of deceased S.V.Manjunatha have

suffered unbearable loss and dependency monetarily

apart from love and affection towards minor children.

Hence, the claimants preferred a claim petition seeking

compensation of Rs.30,00,000/- at 12% p.a. interest.

3. After service of notice, the respondents filed

statement of objections. Respondent No.2 owner of

Maruti Swift VDI car took up the defence that the entire

negligence is due to autorickshaw driven by

S.V.Manjunatha and no negligence on his part. Whereas

respondent No.1 before the Tribunal i.e., insurer took

up a plea that the driver of Maruti car did not have a

valid driving licence and that the accident had not

occurred due to the rash and negligent driving of the

car in question and but due to more number of

passengers being seated in the autorickshaw that was

involved in the accident which was solely responsible

for the cause of accident. Interalia other grounds were

also urged.

4. Based on the pleadings, the Tribunal framed issues.

In order to prove the case, the claimant No.1 examined

herself as PW-1 and got marked documents Exhibits P-

1 to P-24 in support of her case. The respondent No.1

examined its legal Manager as RW-1. But however no

documents were produced and marked as exhibits.

5. After consideration of material evidence both oral

and documentary, Tribunal awarded a total

compensation of Rs.18,30,000/- with future interest at

9% p.a. from the date of petition till realisation along

with other regular conditions. Being unsatisfied with

the amount of compensation awarded, the claimants

are before this court seeking enhancement.

6. It is the contention of the learned counsel appearing

for the claimants that the Judgment and award passed

by the Tribunal is inadequate, grossly insufficient and

disproportionate to the actual income and damage

caused to the claimants. He further contends that the

Tribunal has passed an erroneous award contrary to the

evidence and facts and circumstances of the case.

Learned counsel further contends that the Tribunal has

erred in not considering proper income despite the

production of Exhibits P-17 to P-24 wherein the

Tribunal has erred in not considering income drawn by

deceased S.V.Manjunatha from out of the agricultural

activities and dairy farming which is arbitrary and

therefore has caused miscarriage of justice to the

claimants who are the dependents of deceased

S.V.Manjunatha. It is further contended by the learned

counsel for the claimants that on the above grounds

urged by him, the Tribunal has grossly erred in

awarding meager compensation to the claimants and

hence he prays for enhancement of compensation.

7. Per contra, learned counsel Sri.B.Pradeep,

appearing on behalf of respondent No.1-insurer, who

was fastened with the liability vehemently contends

that the Judgment and award of the Tribunal is in

accordance with the rules, regulations and

commensurate with the income and the documents

produced by the claimants. Learned counsel further

contends that the computation of compensation on

several heads awarded by the Tribunal is in accordance

with law and the Judgments passed by Hon'ble Apex

Court. He contends that there is no illegality in the

Judgment and award passed by the Tribunal. Therefore

he prays that the appeal filed by the claimants is devoid

of merits and the same deserves to be dismissed.

8. Having heard the learned counsel for the

appellants/claimants and learned counsel for the

respondent-insurer, the point that arises for

consideration is:

"Whether the claimants are entitled for enhancement of compensation and whether the same requires interference by this court?"

9. I am of the view that on hearing the arguments of

the learned counsel for claimants as well as learned

counsel for respondent-insurer and on perusal of the

material documents both oral and documentary

produced by the learned counsel for claimants marginal

indulgence is required to be granted in favour of the

appellants/claimants for enhancement of compensation

with regard to the income aspect which has been on the

lower side awarded by the Tribunal.

10. It is not in dispute that on 06.08.2017 when

deceased S.V.Manjunatha was driving autorickshaw

bearing registration No.KA-07-A-7145 along with other

passengers cautiously from Shidlaghatta to Chintamani,

a Maruti Car driven by its driver came in a very high

speed in a rash and negligent manner and dashed

against the autorickshaw from behind. It is also not in

dispute as a result of the accident the autorickshaw

over turned and driver of the autorickshaw along with

passengers sustained serious injuries and later

S.V.Manjunatha succumbed to the injuries in the

hospital while taking treatment. It is seen from the

records that the claimants produced Exhibits P-1 to P-

10 which are all the police records which would go to

show that a complaint came to be registered as against

the driver of the offending car in Crime No.286/2017

for the offences under Sections 279, 337 and 304A of

IPC and Section 187 of Indian Motor Vehicles Act, 1988.

11. The registration of criminal case against the driver

of the Maruti car and thereafter charge sheet having

not been filed by investigating agency is not challenged

by either of the respondents and no material has been

placed by the respondents before this court disputing

occurrence of accident or negligence as against

deceased S.V.Manjunatha. Therefore on the basis of

these police records it can be safely concluded that

there is no challenge to criminal case registered against

the driver of the Maruti car. Hence, on the basis of

these documents produced at Exhibits P-1 to P-9 it can

be safely concluded that the driver of the Maruti car

was responsible for rash and negligent driving and

cause of the accident leading to the death of

S.V.Manjunatha.

12. Though the claimants have pleaded and adduced

oral evidence to the effect that S.V.Manjunatha was

running an autorickshaw and along with which he was

doing agricultural activities and dairy farming in his own

land and earning a sum of Rs.50,000/- per month. No

documents of the said income has been produced

before the Tribunal or before this court. The claimants

have produced certain documents at Exhibits P-18 to P-

24 which are bills and receipts for having supplied

certain vegetables namely tomatoes to the Agricultural

Produce Market Committee, Chintamani and Milk to the

Milk Federation Co-operative Society. Since no

evidence with regard to income of the deceased

S.V.Manjunatha was produced regarding income

derived from driving autorickshaw, the Tribunal has

arrived at a notional income of Rs.12,000/- per month.

The accident having occurred in the year 2017 as per

the Notional Income chart by the High Court Legal

Services Authority, Bengaluru it has prescribed

Rs.11,000/- to be the notional income, the Tribunal has

adopted the present case to be at Rs.12,000/- per

month.

13. On careful perusal of the exhibits produced by the

claimants it is not in dispute that the deceased

S.V.Manjunatha was the owner of autorickshaw which

was involved in the accident and to prove the same he

has produced Exhibit P-15. It is also not in dispute

deceased S.V.Manjunatha was driving the autorickshaw

on the date of the accident and he had obtained the

insurance policy for the autorickshaw which is produced

at Ex.P-16. It is the vehement contention of the

learned counsel for the claimants that the Tribunal has

ignored the income derived from the agricultural

activities including dairy farming while assessing the

income of the deceased S.V.Manjunatha. I have

perused Exhibits P-15 to P-24. As stated earlier, there

is no dispute with regard to deceased S.V.Manjunatha

being owner of the autorickshaw and driving

autorickshaw by himself and obviously he would be

making some income by driving the autorickshaw.

Though certain bills have been produced by the

claimants at Exhibits P-18 to P-24, which are the

income derived by the deceased S.V.Manjunatha same

has not been considered by the Tribunal while

assessing overall income of deceased S.V.Manjunatha.

However, the Tribunal has taken Rs.1,000/- more than

the notional income prescribed in the chart by the High

Court Legal Services Authority, Bengaluru, which in my

opinion is also on the lower side as the Tribunal has not

considered agricultural income from both the supply of

tomatoes and supply of milk to the Milk Federation Co-

operative Society and to the Agricultural Produce

Market Committee. There is no contrary evidence

produced by the respondent -insurer with regard to

such income not being derived by deceased

S.V.Manjunatha.

14. It is the contention of the learned counsel for

respondent -insurer that agricultural activities which

were performed in the land belonging to deceased

S.V.Manjunatha has not diminished and so also the

crop grown in the agricultural land and supply of milk

does not get diminished by the unfortunate death of

S.V.Manjunatha and hence, same cannot be taken as

income deprived to the claimants. Though the

arguments of learned counsel for respondent-insurer at

the first blush looks attractive, I am not inclined to

accept the same for the reasons mentioned herein

below.

15. In the present case on hand, admittedly deceased

S.V.Manjunatha was owning an autorickshaw and

driving it by himself. It is also not in dispute Exhibit P-

17-RTC extract in the name of deceased

S.V.Manjunatha so also Exhibits P-18 to P-23 are the

bills showing income from the crop of tomatoes which

has been sold at the Agricultural Produce Market

Committee and Exhibit P-24 is towards supply of milk

to the Milk Federation Co-operative Society,

Srinivasapura Taluk, Kolar District. This has not been

seriously disputed by the respondents except by saying

produce cannot get diminished by the death of

deceased S.V.Manjunatha. What has to be kept in

mind for consideration of income in this case is that

though the agricultural activities and/or agricultural

crop neither get diminished nor production of the milk.

However, it is to be taken into account that the

deceased S.V.Manjunatha is survived by his wife and

two minor children aged 11 years and 7 years

respectively. The minor children would certainly be

attending school at that young age and the agricultural

activities of the crop being grown in the land belonging

to deceased S.V.Manjunatha has to be either done by

himself or his wife, the claimant No.1 herein. Therefore

it cannot be construed that there was no involvement of

the deceased S.V.Manjunatha in the income that is

being generated from out of the agricultural crop and

the production of milk. For which the claimants have

produced necessary bills at Exhibits P-18 to P-24.

Hence, I am of the opinion that it can be safely

concluded that there was involvement of deceased

S.V.Manjunatha in assisting in the cultivation of crop

and in production of milk and supply of the same to the

Milk Federation which generated certain income. Now

the question is what is the income that would have

been generated. The same is not forthcoming clearly in

the documents produced by the claimants. However,

this court will have to draw some guess work in

assessing the income of the deceased for the purpose

of computation. The Tribunal has taken notional

income of Rs.12,000/- per month. It is more by

Rs.1,000/- from the stipulated chart of notional income

of High Court Legal Services Authority, Bengaluru.

16. On careful examination of the documents at

Exhibits P-18 to 24, it is seen that there is some income

generated from agricultural activities as mentioned

above. I am of the opinion that income can be

assessed at Rs.14,000/- per month instead of

Rs.12,000/- per month adopted by the Tribunal as

notional income by taking into consideration the income

from out of the agricultural activities which would be

just and reasonable for awarding compensation in the

present case where claimants have lost a sole bread

winner of the family which will have to be now taken

care by young widow and her two minor children.

17. It is not in dispute that the deceased was aged 41

years as on the date of the accident. Accordingly, in

view of the considered Judgment in the case of

National Insurance Company Limited Vs Pranay

Sethi and others reported in 2017 ACJ 2700 (SC)

future prospects of 25% will have to be added to the

income so arrived at by this court which would be

Rs.17,500/- (Rs.14,000x25%= 3,500/-).

18. It is also not in dispute that the claimant No.1 is

the wife of the deceased S.V.Manjunatha and claimants

2 and 3 are minor daughters of deceased

S.V.Manjunatha. As there are three members in the

family, 1/3rd of the income will have to be deducted

towards personal expenses. Therefore on deduction of

1/3rd of personal expenses to the deceased the

expenses towards family would be Rs.11,667/-. As per

the Judgment of the Apex Court in the case of Sarla

Verma and others Vs Delhi Transport Corporation

and anr reported in 2009 ACJ 1298 the appropriate

multiplier applicable in the present case wherein the

age of the deceased is 41 years would be `14' which is

rightly taken by the Tribunal. Therefore applying

multiplier of `14', the `loss of dependency' to the

claimants for the death of S.V.Manjunatha is

Rs.11,667x12x14 =Rs.19,60,056/- as against

Rs.16,80,000/- awarded by the Tribunal.

19. The Tribunal has awarded Rs.40,000/- as loss of

consortium to the claimant No.1- wife and loss of filial

consortium to claimants 2 and 3 at Rs.40,000/- each.

Therefore, totally under the head `loss of consortium'

the Tribunal has awarded Rs.1,20,000/-. I do not find

any illegality or legal infraction in the same as the same

is in consonance with the Judgment of the Hon'ble Apex

Court in the case of Pranay Sethi which has been

subsequently followed in the case of United India

Insurance Co. Ltd., Vs Satinder Kaur and others

reported in 2020 ACJ 2131. The Tribunal has also

awarded funeral and obsequies ceremonies,

conveyance charges to the extent of Rs.15,000/- and

loss of estate at Rs.15,000/- which also do not call for

any interference by this court. Therefore only

interference this court finds is with regard to `loss of

dependency' awarded by the Tribunal being on the

lower side which is recomputed as mentioned above.

20. On the overall consideration of the submissions

made by the learned counsel for appellants/claimants

and on perusal of the material evidence both oral and

documentary and in view of the discussions made

above it is to be seen that while awarding

compensation in a motor vehicle accident claim for the

death of victim, the court will have to keep in mind the

overall income generated by the deceased to award

compensation. It also has to be kept in mind that the

very act itself is a social welfare legislation where the

benefit of doubt will always go to the deceased and

claimants or legal representatives of the deceased. In

the present facts and circumstances of the case, the

Tribunal has erred in not considering the income that

was generated from out of the agricultural activities

both by the growth of crop (tomatoes) and supply of

milk which are evident in exhibits P-18 to P-24. I deem

it appropriate to enhance the compensation as

discussed above and the point is answered affirmatively

in favor of claimants accordingly.

Accordingly, I pass the following:

ORDER

(i) Appeal is partly allowed.

(ii) Award of Tribunal in MVC No.1436/2018

dated 24.06.2019 is modified enhancing the

compensation from Rs.18,30,000/- to

Rs.21,10,056/-(Rs.19,60,056+1,50,000/-)

(Rs.21,10,056-Rs.18,30,000=enhancement

Rs.2,80,056/-) and other terms and

conditions of the Tribunal shall stand intact.

(iii) The respondents shall pay interest for the

enhanced compensation at the rate of 6%

p.a. from the date of petition.

(iv) The respondent-insurer shall deposit

enhanced compensation amount within a

period of six weeks from the date of receipt

of certified copy of this Judgment.

(v) The enhanced compensation shall be

released in terms of the stipulations made by

the Tribunal.

Sd/-

JUDGE

SBN