Karnataka High Court

Smt. Bharathi vs Bharathi Axa General Insurance ... on 24 May, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24TH DAY OF MAY 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

               MFA No.657/2018(MV)
             C/W MFA.CROB NO.117/2019

IN MFA No.657/2018

BETWEEN:

LEGAL MANAGER
BHARATHI AXA GIC LTD,
1ST FLOOR, FERNS ICON,
SURVEY NO.28, DODDANEKUNDI,
K.R PURAM HOBLI,
BANGALORE 560037
                                         ...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)

AND:

1.     SMT. BHARATHI
       W/O LATE RAMAKRISHNAPPA,
       NOW AGED ABOUT 34 YEARS

2.     KUM. NANDINI
       D/O LATE RAMAKRISHNAPPA,
       NOW AGED ABOUT 17 YEARS

3.     MASTER SANTHOSH
       S/O. LATE. RAMAKRISHNAPPA,
       NOW AGED ABOUT 14 YEARS
                         2



4.   MR. MADANAGIRIYAPPA
     @ MADANAGIRIYANNA
     S/O LATE PAPAIAH
     NOW AGED ABOUT 77 YEARS

     SINCE RESPONDENTS NO.2 AND 3
     ARE MINORS
     REPRESENTED BY NATURAL GUARDIAN
     RESPONDENT NO.1

     ALL ARE RESIDENTS AT
     DINNAHALLI VILLAGE AND POST
     MALUR TALUK
     KOLAR DISTRICT-563162.

5.   MR. PRASANNA KUMAR N
     S/O. NARALA PELLAPPA,
     NOW AGED ABOUT 38 YEARS
     R/AT HOSAMANEGALU VILLAGE,
     DINNAHALLI POST,
     MALUR TALUK,
     KOLAR DISTRICT -563 162.
                                    ...RESPONDENTS

(BY SRI GOPAL KRISHNA.N, ADVOCATE FOR R1 TO R4;
    NOTICE TO R5 SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 19.10.2017 PASSED
IN MVC NO.8069/2016 ON THE FILE OF THE 19TH
ADDITIONAL SMALL CAUSE JUDGE, MACT & XLI ACMM,
BENGALURU,      AWARDING       COMPENSATION      OF
RS.16,29,000/- WITH INTEREST AT 7.5% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
                         3




IN MFA.CROB NO.117/2019

BETWEEN:

1.   SMT BHARATHI
     W/O LATE RAMAKRISHNAPPA,
     NOW AGED ABOUT 35 YEARS

2.   KUM. NANDINI
     D/O LATE RAMAKRISHNAPPA,
     NOW AGED ABOUT 17½ YEARS

3.   MASTER SANTHOSH
     S/O. LATE. RAMAKRISHNAPPA,
     NOW AGED ABOUT 15 YEARS

4.   SRI. MADANAGIRIYAPPA
     @ MADANAGIRIYANNA
     S/O LATE PAPAIAH
     NOW AGED ABOUT 78 YEARS

     2ND AND 3RD MINOR
     CROSS-OBJECTORS ARE
     REPRESENTED BY
     NATURAL GUARDIAN/MOTHER
     1ST CROSS OBJECTOR HEREIN.

     ALL ARE RESIDING AT
     DINNAHALLI VILLAGE AND POST
     MALUR TALUK, KOLAR DISTRICT.

                                ...CROSS OBJECTORS

(BY SRI GOPAL KRISHNA.N, ADVOCATE)
                          4




AND:

1      BHARATHI AXA GENERAL INSURANCE CO. LTD,
       1ST FLOOR, FERMS ICON
       SURVEY NO. 28
       DODDA NEKKUNDI
       KR PURAM HOBLI
       BENGALURU - 560037
       BY ITS MANAGER

2.     SRI PRASANNA KUMAR N
       S/O NARALA PELLAPPA,
       NOW AGED ABOUT 39 YEARS
       R/AT HOSAMANEGALU VILLAGE,
       DINNAHALLI POST,
       MALUR TALUK,
       KOLAR DISTRICT- 563130
                                      ...RESPONDENTS
(BY SRI B.PRADEEP, ADVOCATE FOR R1;
    NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA.CROB IN MFA NO. 657/2018 FILED UNDER
ORDER XLI RULE 22 OF THE CPC AGAINST THE JUDGMENT
AND AWARD DATED 19.10.2017 PASSED IN MVC NO.
8069/2016 ON THE FILE OF THE XIX ADDITIONAL SMALL
CAUSES JUDGE, MACT AND XLI ACMM, MOTOR ACCIDENT
CLAIMS TRIBUNAL, BENGALURU (SCCH-17), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA A/W MFA.CROB COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                            5



                      JUDGMENT

MFA No.657/2018 has been filed by the

Insurance Company and MFA CROB.No.117/2019 has

been filed by the claimants under Section 173(1) of

the Motor Vehicles Act, 1988 (hereinafter referred to

as 'the Act', for short) being aggrieved by the

judgment dated 19.10.2017 passed by the Motor

Accident Claims Tribunal, Bengaluru in

MVC No.8069/2016.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 15.03.2016 at about 06.00

P.M. when the deceased riding the bicycle near

Dinnahalli-Kothiguttahalli road, Malur Taluk, at that

time, a motorcycle bearing Registration No.KA-08/Q-

2589 being ridden by its rider came from opposite

direction in a rash and negligent manner, lost control

and dashed to the deceased motorcycle. 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

Nos.1 and 2 being the owner and insurer of the

offending vehicle have appeared through counsel and

filed a separate written statement in which the

averments made in the petition were denied.

It was pleaded by the owner of the offending

vehicle that the petition itself is false and frivolous in

the eye of law. He admits the ownership over the

motorcycle. He further pleaded that the offending

vehicle is duly insured with the Insurance Company

and the policy was in force and the rider possessed a

valid driving licence, as such the liability if any has to

be indemnified by the Insurance Company.

It was pleaded by the Insurance Company that

the accident was taken place due to negligence on the

part of the deceased himself and not on the part of

rider of the offending vehicle. The rider of the

offending vehicle did not possess valid driving licence

as on the date of the accident. The liability is subject

to terms and conditions of the policy. The age,

occupation and income of the deceased are denied. It

was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, they sought for dismissal of the petition.

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 as PW-1

and got exhibited documents namely Ex.P.1 to

Ex.P.14. On behalf of respondents, neither examined

any witness nor exhibited any document on their

behalf. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent riding of the

offending vehicle by its rider, 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.16,29,000/-

along with interest at the rate of 7.5% per annum and

directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. Sri B. Pradeep, learned counsel appearing

for the Insurance Company has raised the following

counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.15,000/- per month, the

same is not established by the claimants by producing

any document. The Tribunal has erred in considering

the notional income of the deceased as Rs.12,000/-

per month which is on the higher side. He further

contended that the compensation awarded by the

Tribunal under the 'Conventional Heads' is on higher

side which is contrary to the judgment of the Hon'ble

Supreme Court in the case of NATIONAL INSURANCE

CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017

SC 5157].

Secondly, since the claimants have not

established the income of the deceased, they are not

entitled for compensation towards 'future prospects'.

Lastly, in view of judgment of the Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the claimants are entitled for 6% interest

but the Tribunal has granted 7.5% interest is on the

higher side. Hence, he sought for allowing the appeal

filed by the Insurance Company.

7. On the other hand, Sri Gopal Krishna.N,

learned counsel for the claimants has raised the

following contentions:

Firstly, the claimants claim that the deceased

was aged about 44 years at the time of the accident

and he was earning Rs.15,000/- per month by

working as Mason. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.12,000/- which is on lower side.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of 'PRANAY SETHI'

(Supra) in case the deceased was self-employed or on

a fixed salary, an addition of 25% of the established

income towards 'future prospects' should be the

warrant where the deceased was aged between the

age group from 40-50 years. The same may be

considered.

Thirdly, at the time of the accident, the deceased

was aged about 45 years. The Tribunal instead of

adopting '14' multiplier applicable to the age group of

the deceased, has adopted '13'.

Lastly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled for

compensation under the head of 'loss of love and

affection and consortium'. Hence, he prays for

allowing the appeal filed by the claimants.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that Ramakrishnappa

died in the road traffic accident occurred due to rash

and negligent riding of the offending vehicle by its

rider.

The claimants have not produced any evidence

or documents with regard to the income of the

deceased. Therefore, the notional income has to be

assessed as per the guidelines issued by the

Karnataka State Legal Services Authority. Since the

accident has taken place in the year 2016, the

notional income has to be taken at Rs.9,500/- p.m.

To the aforesaid amount, 25% has to be added on

account of future prospects in view of the law laid

down by the Constitution Bench of the Supreme Court

in 'PRANAY SETHI' (supra). Thus, the monthly income

comes to Rs.11,875/-. Since there are four

dependents, it is appropriate to deduct 1/4th of the

income of the deceased towards 'personal expenses'.

Thus, the monthly income comes to Rs.8,906/-. The

deceased was aged about 45 years at the time of the

accident and multiplier applicable to his age group is

'14'. Thus, the claimants are entitled to compensation

of Rs.14,96,208/- (Rs.8,906*12*14) on account of

'loss of dependency'.

In addition, the claimants are entitled to

Rs.15,000/- on account of 'loss of estate' and

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), claimant No.1, wife of the deceased is

entitled for compensation of Rs.40,000/- under the

head of 'loss of spousal consortium'. claimant Nos.2

and 3, children of the deceased are entitled for

compensation of Rs.40,000/- each under the head of

'loss of parental consortium' and claimant No.4, father

of the deceased is entitled for compensation of

Rs.40,000/- under the head 'loss of filial consortium' .

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under              Amount in
           different Heads                (Rs.)
       Loss of dependency                14,96,208
       Funeral expenses                     15,000
       Loss of estate                       15,000
       Loss of spousal                      40,000
       consortium
       Loss of Parental                       80,000
       consortium
       Loss of Filial consortium             40,000
                       Total             16,86,208

11. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.16,86,208/-.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the interest

awarded by the Tribunal 7.5% is scale down to 6%.

Since the Bharathi Axa General Insurance

Company is merged with ICICI Lambard General

Insurance Company, ICICI Lambard Insurance

Company is directed to deposit the entire

compensation along with interest from the date of