Sri Manjunatha vs The Principal
2022 Latest Caselaw 5652 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                          BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

                 M.F.A.NO.5092/2017 (MV)
BETWEEN:

1.     SRI MANJUNATHA,
       S/O CHANNIGIRIAYPPA,
       AGED ABOUT 30 YEARS,
       R/AT SAMUDRAKONDA,
       NITTUR HOBLI,
       GUBBI TALUK,
       TUMKUR DISTRICT - 572 101

2.     SRI. KALLESH,
       S/O LATE NAGAPPA,
       AGED ABOUT 49 YEARS,
       R/O K.B.ROAD,
       WARD NO.7,
       TARIKERE TOWN,
       CHIKKAMAGALORE DISTRICT - 577 228
                                           ... APPELLANTS
(BY SRI SUNIL K.N., ADVOCATE FOR
    SRI K.R.RAMESH, ADVOCATE)
AND:

1.     THE PRINCIPAL,
       CHANNABASAWESHWARA
       INSTITUTE OF TECHNOLONY.
       N.H.206 ROAD,
       GUBBI, TUMKUR DISTRICT - 572 102

2.     THE UNITED INDIA INSURANCE
       COMPANY LTD.,
       JAYADEVA COMPLEX, B.H.ROAD,
                                 2


     TUMKUR - 572 101,
     R/BY ITS BRANCH MANAGER.
                                                  ...RESPONDENTS
(SRI. M.ARUN PONAPPA, ADVOCATE FOR R2;
      R1 IS SERVED & UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
9/12/2016 PASSED BY THE I ADDITIONAL DISTRICT JUDGE &
MACT AT TUMKUR IN MVC NO.307/2016, BY ENHANCING THE
COMPENSATION AWARDED BY THE COURT BELOW.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
03.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

Not being satisfied with the compensation granted by

the Tribunal, petitioners who are the husband and father of

deceased have come up with this appeal seeking

enhancement of compensation.

2. For the sake of convenience, the parties are

referred to by their rank before the Tribunal.

3. It is the case of the petitioners that on

07.11.2015 at 8.30 a.m on NH-206, in front of RTO Office,

Tumakuru city, deceased Kavya was crossing the road. At

that point of time, college bus bearing registration No.KA

06/D 0450 (hereinafter referred to as offending vehicle)

belonging to respondent No.1, being driven by its driver in

a rash or negligent manner came from SS Circle, Tumakuru

and proceeding towards Batawadi, dashed against Kavya.

As a result of the accident, Kavya sustained fatal injuries.

Immediately she was shifted to Vinayaka hospital,

Tumakuru and after first aid she was taken to General

hospital, Tumakuru. While undergoing treatment, she died

on 09.12.2015 at 10.05 p.m.

4. Being the husband and father of the deceased,

petitioners are entitled for compensation in a sum of

Rs.18,00,000/-.

5. Respondent No.1 appeared and filed written

statement stating that originally deceased hails from

Arasikere taluk. She was given in marriage to one person of

Samudrakote Village, Gubbi Taluk. However, due to

domestic violence, she left the company of her husband and

also filed cases against him and his family members and the

said cases are pending adjudication. She was living

separately in a hostel at Tumakuru. During her

hospitalisation neither the petitioners nor anyone took care

of her. Petitioners denied her any care and she died in the

hospital. Consequently, petitioners are not entitled for any

compensation. They have filed this petition to make

wrongful gain.

6. The vehicle in question was insured with

respondent No.2. At the time of alleged accident, the driver

of the vehicle was holding a valid and effective driving

license. In the event of granting any compensation,

respondent No.2 is liable to pay the same.

7. Respondent No.2 admit that the vehicle was

covered by policy issued by it. However, it has denied that

the accident was due to the rash or negligent driving by the

driver of the offending vehicle. It has also disputed the age,

occupation, income of the deceased and also that

petitioners were dependent on her. Being the husband and

father of the deceased and able bodied persons, petitioners

were never dependent on the deceased and as such they

are not entitled for compensation for loss of dependency.

8. Based on these pleadings, the Tribunal has

framed the issues.

9. During the enquiry, petitioners got themselves

examined as PW.1 and 2 and relied upon Ex.P1 to P8.

10. On behalf of respondents no oral and

documentary evidence is placed on record.

11. Vide the impugned judgment and award, the

Tribunal has partly allowed the petition and granted

compensation in a sum of Rs.9,04,000/- and ordered that

petitioner No.1 is entitled for 60% and petitioner No.2 is

entitled for 40% of the compensation as detailed below;

                   Heads                       Amount
                                                In Rs.
     Towards loss of dependency                   8,64,000
     Towards funeral expenses and                   20,000
     conveyance
     Towards loss of love and                      20,000
     affection
     TOTAL                                      9,04,000

12. Being aggrieved by the impugned judgment and

award, petitioners have filed this appeal contending that the

Tribunal has erred in taking the notional income of the

deceased as Rs.6,000/- instead of Rs.8,000/- and loss of

future prospects is not granted.

13. On the other hand the learned counsel

representing the respondent No.2 argued that since the

petitioners have not proved that the deceased was

employed and earning, they are not entitled for any

compensation under the head loss of future prospects.

Interest granted at the rate of 8% is on the higher side and

it has to be restricted to 6%.

14. Heard the arguments and perused the records.

15. Respondent No.2 has taken up the specific

contention that being the husband and father of the

deceased, petitioners were never dependent on her and as

such they are not entitled for compensation under the head

loss of dependency. As evident from the claim petition,

petitioner No.1 is aged 30 years whereas petitioner No.2 is

aged 49 years. Admittedly, petitioners are able bodied

persons. They have not pleaded that they are not earning

and they were entirely dependant on the income of the

deceased. Moreover, they have failed to prove that

deceased was employed and was getting any income and

they were dependent on her.

16. It is relevant to note that in the written

statement, respondent No.1 has specifically contended that

deceased was not at all living with petitioners and she was

staying in Tumakuru in a hostel; she had filed matrimonial

cases against respondent No.1; and in fact they have not at

all taken care of her while she was undergoing treatment

due to the accidental injuries. To show that deceased was

living with them, petitioners have not produced any

documents, including medical bills to show that when

deceased was undergoing treatment due to the accidental

injuries, they took care of her. This fact also supports that

contention of respondents that petitioners were not

dependent on the deceased.

17. According to the petitioners, deceased was

employed in a garment factory and earning Rs.12,000/-

p.m. As rightly observed by the Tribunal, they have not

produced any document to evidence the said fact. If at all

she was working in a garment factory, they could have

produced some documents such as employment order,

employment card, salary slip, etc. In the absence of the

same, the Tribunal has taken her income on notional basis.

When the petitioners have failed to prove that the deceased

was employed and was earning and consequently, they

have also failed to prove that they were dependent on her.

As noted earlier, they have also failed to plead and prove

that for whatever reason, they are not at all earning and

were totally dependent on the deceased.

18. When once, it is held that the petitioners are not

dependant on the deceased, the next question would be

whether they are entitled for any compensation under the

head loss of dependency. If not, whether the petitioners are

entitled for any compensation under any other head would

be the question that would fall for consideration of this

Court.

19. Similar question arose before the Division Bench

of this Court in ILR 2004 KAR 32681. In that case

petitioner was husband and he sought for compensation on

account of death of his wife aged 37 years, a highly

A.Manavalagan Vs. A. Krishnamurthy and Others

qualified person working as Senior Lecturer in Zoology at

Chikkanna Government Arts College, Tirupuru. The

petitioner was also working as Assistant Manager in a Milk

Dairy. The Tribunal held that petitioner and his wife were

financially independent of each other and therefore

petitioner is not entitled for compensation on the basis of

loss of dependency. However, the Tribunal proceeded to

grant compensation on the premise that on account of

death of his wife, the petitioner has suffered loss of estate

which he would have enjoyed, but for the untimely death of

his wife.

20. Upholding the order of the Tribunal that the

petitioner is entitled for compensation under the head loss

of estate, the Division Bench of this Court observed that

"law contemplates two categories of damages on the death

of a person - the first is the pecuniary loss sustained by the

dependent members of his family - the second is the loss

caused to the estate of the deceased. In the first category,

the action is brought by the legal representatives, as

trustees for the dependents beneficially entitled. In the

second category the action is brought by the legal

representatives on behalf of the estate of the deceased and

the compensation when recovered, forms part of the assets

of the estate. In case of compensation granted under the

head loss of dependency, the Tribunal may also specify how

it should be distributed. However, where the compensation

is granted for loss of estate no such adjustments or

alteration of shares is permissible and the entire amount

has to be awarded to the benefit of the estate. In case of

compensation granted on account of loss of dependency, a

conventional amount is awarded towards loss of expectation

of life under the head loss to estate. However, where the

compensation awarded is under the second category i.e,

loss to estate i.e. on account of loss of savings by the

untimely death, a conventional sum for loss of expectation

of life is to be added".

21. At paragraph No.16 of the above referred

judgment the Division Bench observed that "when the

petitioner is not dependent on the deceased, obviously, the

question of awarding any amount under the head loss of

dependency would not arise, as there was no financial

dependency. In such a case, the main head of

compensation will be loss to estate under Section 2 of Fatal

Accidents Act, 1855. The claim petition becomes one on

behalf of the estate of the deceased and the compensation

received becomes part of the assets of the estate.

Consequently, what is to be awarded under the head loss of

dependency under Section 1-A of Fatal Accidents Act, 1855,

would be nil as there is no real pecuniary loss to the

members of the family".

22. At paragraph No.19 while summarizing the

principles enunciated, at (iv) the Division Bench held that

"procedure for determination of loss to estate is broadly the

same as the procedure for determination of loss of

dependency. Both involve ascertaining the multiplicand and

capitalizing by multiplying it by an appropriate multiplier.

But the significant difference is in the figure arrived at as

multiplicand in cases where petitioners who are dependents

claim loss of dependency and in cases where petitioners

who are not dependents claim loss to estate. The annual

contribution to the family constitutes the multiplicand in

case of loss of dependency, where as the annual savings of

the deceased becomes the multiplicand in case of loss to

estate. The method of selection of multiplier is however the

same in both cases".

23. At paragraph No.20 the Division Bench observed

and held that "though the quantum of savings will vary

from person to person, there is a need to standardize the

quantum of savings for determining the loss to estate

(where the petitioners are not dependents) in the absence

of specific evidence to the contrary. The quantum of

savings can be taken as 1/3rd of income of the deceased

where the spouses are having a common establishment and

1/4th where the spouses are having independent

establishment. The above will apply where the family

consists of non-dependent spouse/children/parents. Where

the petitioners are non-dependent brothers/sisters claiming

on behalf of the estate, the savings can be taken as 15% of

the income. The above percentages is of course subject to

any specific evidence to the contrary lead by the

petitioners".

24. Keeping in mind, the above principles the just

compensation which the petitioners are entitled is to be

determined. As discussed earlier, since the petitioners are

the husband and father of the deceased and able bodied

persons, they cannot be treated as dependents on the

deceased and therefore, as held by the Hon'ble Division

Bench of this Court Manavalagan's case, referred to

supra, 15% of the earnings of deceased is considered as

basis for calculating the loss of estate.

25. Loss of estate: Petitioners claim that the

deceased was aged 21 years. Before the Tribunal, the

petitioners have not produced any document to prove the

age of the deceased. Therefore, based on the PM Report,

the Tribunal has held the age of the deceased as 21 years.

Therefore, the 18 multiplier taken by the Tribunal is correct.

In the absence of document to prove her income, the

Tribunal has taken the notional income of deceased as

Rs.6,000/-. Since, the accident is of the year 2016, as per

the Lok Adalath chart which is based on minimum wages,

the notional income is required to be taken at Rs.8,000/-

p.m.

25.1 In the light of the decision of the Hon'ble

Supreme Court in Pranay Sethi's case which is reiterate in

Magma General Insurance case, in order to calculate loss

of dependency/loss to estate as the case may be, future

prospects are to be added. Since the income of the

deceased is taken on notional basis and as she was aged 21

years i.e., less than 40 years, 40% of the notional income is

to be added to the monthly income to arrive at the basis for

calculating the compensation. 40% of Rs.8,000/- comes to

Rs.3,200/-. Therefore, the notional income of deceased is

to be calculated as Rs.11,200/- per month. As per

Manavalagan's decision referred to supra 15% of the

income of the deceased is to be taken as basis for

calculating loss to the estate. Taking the income as

Rs.11,200/- and 18 as the multiplier, the loss of estate at

15% of her income would be 11,200 x 12 x 18 x 15% =

Rs.3,62,800/-.

26. Loss of consortium: The Tribunal has granted

compensation in a sum of Rs.20,000/- under the head loss

of love and affection. However, as per Pranay Sethi's

case, in case of parents, spouse and children, compensation

is required to be granted at the rate of Rs.40,000/- each

under the head loss of consortium. Since, petitioners are

husband and father, they are entitled for compensation at

the rate Rs.40,000/- each under this head.

27. Funeral expenses: Under this head, the Tribunal

has granted compensation in a sum of Rs.20,000/-.

However, as per the decision of Pranay Seti's case, when

major compensation is granted under the head loss of

dependency/loss to estate, under the conventional head a

sum of Rs.15,000/- is to be granted towards funeral

expenses, which also includes transportation charges and

therefore, compensation under this head is restricted to

Rs.15,000/-.

28. Loss of expectation of life: As held in the

Manavalagan's case referred to supra, since the major

compensation is granted under the head loss to estate,

under the conventional head petitioners are entitled for

compensation in a sum of Rs.15,000/- under the head loss

of expectation of life.

29. Thus, as per the above calculations, the

petitioners are entitled for compensation in a sum of

Rs.4,72,800/- only. However, the compensation granted by

the Tribunal in a sum Rs.9,04,000/- is higher than what is

determined by this Court. As the respondent No.2

Insurance company has not challenged the impugned

judgment and award, the compensation granted by the

Tribunal cannot be reduced and therefore the same is

maintained. However, petitioners are not entitled for any

enhancement.

30. The Tribunal has granted interest at 8% p.a.

without any basis. Therefore, the same is restricted to 6%.

In the result, I proceed to pass the following:

ORDER

(a) The impugned judgment and award granting

compensation in a sum of Rs.9,04,000/- is

maintained. However, the interest is reduced 6%

p.a.

(b) Accordingly, appeal by petitioners for

enhancement is dismissed.

Sd/-

JUDGE

RR