The Branch Manager National ... vs Narasamma W/O Sharanappa D/O ...
2022 Latest Caselaw 5627 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 29TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No.31896/2013 (MV)

Between:
The Branch Manager,
National Insurance Co. Ltd.,
Anumpam Complex, Basaveshwar Chowk,
G.G.Road, Bidar.
By its Divisional Manager.
                                               ... Appellant

(By Smt. Sangeeta Bhadrashetty, Advocate)

And:
1.     Narsamma W/o Sharnappa
       (D/o Bheemanna),
       Age about 49 years, Occ: Household,
       R/o Chandapur, Tq: Aurad B,
       Dist. Bidar-584 101.

2.     Nagshetty S/o Shernappa @
       Shamappa Rikke,
       Age: Major, Occ: Owner of the vehicle,
       R/o Alimber,
       Tq: & Dist: Bidar-584 101.
                                            ... Respondents

(Notice to R2 served;
Notice to R1 accepted)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to allow the above Misc. first
appeal and consequently be pleased to modify the
judgment and award dated 29.08.2012 passed by the Fast
Track II & Addl. MACT at Bidar in MVC No.171/2009 and
consequently be pleased to reduce the compensation
suitably.

      This appeal coming on for hearing, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) challenging the judgment and

award dated 29.08.2012 passed in MVC No. 171/2009

by the Fast Track Court-II Bidar and Addl. MACT

Bidar, (hereinafter referred to as 'the Tribunal', for

short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is respondent No.2, respondent

No.1 is claimant and respondent No.2 is respondent

No.1 before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 04.04.2008, the claimant

and other persons boarded the Maxi Cab bearing

registration No.KA-40/0046 from Chandapur and

proceeding towards Honnikeri for attending the

engagement ceremony and after attending the said

function while they were returning in the above said

maxi cab. Since the driver of the said vehicle drove

the same in a rash and negligent manner and lost

control over the vehicle, as a result the maxi cab

turned turtle and the petitioner sustained injuries. The

mother of claimant was travelling in the said maxi cab

sustained injuries and succumbed to the injuries. The

claimant being the legal representatives of deceased

Narsamma filed a claim petition under Section 166 of

M.V.Act, seeking for compensation.

4. Respondent No.2 filed written statement

denying the averments made in the petition and

denied the age, occupation and income of the

deceased. It is contended that policy does not covers

the risk for more than prescribed capacity and the

liability of the Company is restricted to the extent of

12 members only. Hence, prayed to dismiss the claim

petition.

5. There are in all 13 claim petitions and all

the club petitions were clubbed together. On the basis

of the pleadings of the parties, the Tribunal framed

the common issues and thereafter recorded common

evidence. In order to prove the claim petition,

claimant in this case examined as PW.3 and got

marked documents Exs.P1 to P87. Respondent No.2

examined its official as RW.1 and got marked

document as Ex.R1. After recording the evidence and

considering the material on record, the Tribunal partly

allowed the claim petition and awarded compensation

of Rs.2,41,000/- with interest at the rate of 6% p.a.

from the date of petition till deposit of the amount.

Being dissatisfied with the compensation awarded by

the Tribunal, the respondent No.2 has filed the

present appeal seeking to reduce the compensation

amount.

6. Though notice was served to respondents,

in spite of service of notice, none appears for the

respondents.

7. Heard the learned counsel for the

petitioner- Insurance Company.

8. Learned counsel for the petitioner submits

that married daughter was not dependant on the

deceased mother. She further submits that the

tribunal has committed an error in awarding

compensation under the head loss of dependency.

She further submits that claimant is not entitled for

compensation on head loss of dependency. In order to

buttress her arguments she placed reliance on the

judgment of the Hon'ble Apex Court in the case of

A.Manavalagan Vs. A. Krishnamurthy and

Others, reported in 2005 ACJ 992, and also

Division Bench judgment of this Court in MFA

No.1440/2016 disposed off on 04.03.2020. Hence, on

these grounds, she prays to allow the appeal.

9. Perused the records and considered the

submission of the learned counsel for the petitioner.

10. The only point that arise for consideration

is with regard to quantum of compensation.

11. It is not in dispute that deceased met with

an accident and succumbed to the injuries. The

claimant is the legal representative of deceased.

Moreover, she was not dependant on the income of

the deceased and the said issue has been answered

by the Division Bench of this Court stated supra,

wherein it has categorized them in two parts: one by

dependants and the others by the legal

representatives. While distinguishing both the

categories, the Division Bench was of the view that

where the claim is by the dependants, the basis for

award of compensation is the loss of dependency, this

is loss of what was contributed by the deceased to

such claimants. In this regard, a conventional amount

i.e. awarded towards loss of expectation of life, under

the head loss of estate and where the claim by the

legal representatives of the deceased who were not

dependants of the deceased, then the basis for award

of compensation is the loss to the estate, that is the

loss of savings by the deceased. If the claimant

happens to be the legal representative, then while

computing loss of dependency, it is the savings which

has to be taken into account.

12. Under such circumstances, the claim made

by the legal representative which is 15% of the

income of the deceased has to be taken into

consideration while determining the compensation

under the head loss of estate. The proposition held by

Division Bench of this Court is squarely applicable to

the present case in hand. In the instant case,

admittedly the claimant is a married daughter and she

was not depending on the income of the deceased.

Hence, she falls within the definition of legal

representative. Hence, she is entitled for loss of

estate, but not entitled under the head loss of

dependency.

13. The tribunal while determining the loss of

dependency has taken the income of deceased at

Rs.3,000/- per month. Since the accident has taken

place in the year 2008, the notional income has to be

taken at Rs.3,000/- p.m. as per chart. In view of the

law laid down by the Constitution Bench of the

Supreme Court in National Insurance Co., Ltd., vs.

Pranay Sethi and others reported in AIR 2017 SC

5157, to the aforesaid amount, 10% has to be added

on account of future prospects as the deceased was

aged about 60 years. Thus, the monthly income

comes to Rs.3,300/-. Out of which, it is appropriate

to deduct 1/3rd towards personal expenses and

therefore, the monthly income comes to Rs.2,200/-.

14. The tribunal has taken the age of the

deceased which is contrary to the law laid down by the

Division Bench of this Court stated supra. The tribunal

ought to have taken age of the claimant, claimant is

aged 45 years, as per the decision of Hon'ble Apex

Court in the case of SARLA VERMA (SMT) &

OTHERS VS. DELHI TRANSPORT CORPORATION

& ANOTHER, reported in (2009) 6 SCC 121, the

multiplier applied to the age group of the claimant is

14. Therefore, the claimant is entitled to a sum of

Rs.92,400/- on account of loss of estate.

15. In view of the above discussions, I proceed

to pass the following;

ORDER

(a) The appeal is allowed.

(b) The judgment and award passed by the tribunal is modified.

(c) The compensation awarded by the tribunal is Rs.2,41,000/- which is reduced to Rs.92,400/- along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization of amount.

(d) It is submitted that respondent-

            Insurance         Company          has     already
            deposited          entire          compensation
            awarded by the tribunal.

(e) The tribunal is directed to refund the excess amount of Rs.1,23,600/- in favour of respondent-Insurance Company.

Sd/-

JUDGE

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