Karnataka High Court

Amaravathi vs C Arjun Kumar on 30 May, 2022

Bench: B.Veerappa, K S Hemalekha

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30TH DAY OF MAY, 2022

                       PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                         AND

        THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

     MISCELLANEOUS FIRST APPEAL No.837/2018 (MV/D)


BETWEEN:

1.     AMARAVATHI,
       W/O LATE SUBRAMANYAM,
       AGED ABOUT 29 YEARS,

2.     PRABHU,
       S/O LATE SUBRAMANYAM,
       AGED ABOUT 11 YEARS,

3.     AISWARYA @ PRIYA,
       ADOPTED D/O LATE SUBRAMANYAM,
       AGED ABOUT 9 YEARS,

4.     PUNITH,
       S/O LATE SUBRAMANYAM,
       AGED ABOUT 7 YEARS,

       APPELLANT NO.2 TO 4 ARE MINORS,
       REP. BY THEIR MOTHER AND NATURAL
       GUARDIAN AMARAVATHI
                           2



       ALL ARE RESIDING AT,
       KANCHIBANDARLAPALLI VILLAGE,
       PES MEDICAL COLLEGE POST,
       KUPPAM TALUK,
       CHITTOOR DISTRICT,
       ANDHRA PRADESH.
                                       ...APPELLANTS

(BY SMT. NAZEEFA M MULLA., ADVOCATE FOR
    SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)


AND:

1.     C. ARJUN KUMAR,
       FATHER NAME NOT KNOWN,
       AGED BY MAJOR,
       R/AT NO.52, 1ST CROSS,
       2ND STAGE, BEML LAYOUT,
       BASAVESHWARA NAGARA,
       BENGALURU - 560 079.

2.     M/S HDFC ERGO GENERAL INSURANCE CO.LTD.,
       NO.171, B.C. ROAD,
       NETTAKALLAPPA CIRCLE,
       BASAVANAGUDI,
       BENGALURU - 560 0041.
       REP. BY ITS MANAGER.

3.     CHANGAPPA,
       S/O LATE VENKATASWAMY,
       AGED ABOUT 59 YEARS,
       R/AT KANCHIBANDARLAPALLI VILLAGE,
       PES MEDICAL COLLEGE POST,
       KUPPAM TALUK,
       CHITTOR DISTRICT,
       ANDHRA PRADESH.
                           3




4.    SUBBAMMA,
      W/O CHANGAPPA,
      AGED ABOUT 53 YEARS,
      R/AT KANCHIBANDARLAPALLI VILLAGE,
      PES MEDICAL COLLEGE POST,
      KUPPAM TALUK,
      CHITTOR DISTRICT,
      ANDHRA PRADESH.
                                    ...RESPONDENTS

(BY SRI D. VIJAYA KUMAR, ADVOCATE FOR R2 VIDE
ORDER DATED 02.09.2021. NOTICE TO R1, R3 AND R4 IS
DISPENSED WITH)
                        ****

      THIS   MISCELLANEOUS    FIRST   APPEAL   IS   FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.11.2017, PASSED IN
MVC NO.47/2015 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE AND MEMBER MACT, KOLAR. PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.


      THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR   ADMISSION,   THIS   DAY,   K.S.HEMALEKHA        J.,
DELIVERED THE FOLLOWING:
                                 4


                         JUDGMENT

Though this appeal is listed for admission, with

the consent of learned counsel on both sides, it is

taken up for final disposal.

2. The present appeal is preferred by the

claimants assailing the judgment and award dated

16/11/2017, passed in MVC.No.47/2015 on the file of

the I Additional District Judge and Motor Accident

Claims Tribunal, Kolar, (hereinafter referred to as "the

Tribunal" for short).

3. The parties herein are referred to as per

their ranking before the Tribunal for the sake of

convenience.

4. The claimants being the wife, children and

parents of deceased Subramanyam filed claim petition

under Section 166 of the Motor Vehicles Act, 1988

("the Act" for short), seeking compensation of

Rs.1,00,00,000/- (Rupees one crore only) for accident

that occurred on 27/01/2015, wherein the deceased

Subramanyam, who was walking on the left side of

NH-75 road near Basavanatta Village, was dashed by

the driver of the car bearing registration No.KA-

02/MF-4482 being driven in a rash and negligent

manner from Mulbagal side, and due to the impact of

the accident the said Subramanyam succumbed to the

injuries on spot.

5. It is contended by the claimants that the

deceased Subramanyam was hale and healthy at the

time of accident and was working as a Site Engineer in

sample unit at Adisesh Projects and was also a sub-

contractor, from which he was earning not less than

Rs.40,000/- per month. It is contended that the

claimants were solely depending upon the income of

the deceased and due to the untimely death of

Subramanya, the claimants are put to mental shock

and agony. Hence, the claimants have sought for

compensation.

6. In pursuance of the summons issued by the

Tribunal, the owner of the offending vehicle/

respondent No.1 remained ex parte. Respondent

No.2/insurance company appeared and filed

statement of objections admitting issuance of the

insurance policy to the offending vehicle and however,

contended that the driver of the offending vehicle KA-

02/MF-4482 was not possessing valid and effective

driving licence as on the date of the accident and

contended that the insurance company is not liable to

pay compensation as sought by the claimants and

prayed for dismissal of the claim petition.

6. The Tribunal, on the basis of the pleadings,

framed following issues:

1. Whether the petitioners prove that deceased Subramanyam died due to rash

and negligent driving of the car KA-02/MF- 4482 by its driver on 27.01.2015 at around 12.30 a.m., near Basavanatta Village on NH75 road?

2. Whether the petitioners prove the age, avocation and monthly income of the deceased?

3. Whether the petitioners are entitled for compensation? If so, how much and from whom?

4. What order/award?

7. In order to substantiate their case,

claimant No.1 examined herself as PW.1 and got

marked 12 documents at Exs.P-1 to P-12. On the

other hand, the insurance company did not let-in any

oral or documentary evidence on its behalf.

8. The Tribunal, on the basis of the pleadings,

evidence and the material available on record, held

that the accident occurred due to rash and negligent

driving of the car bearing registration No.KA-02/MF-

4482 and due to the impact of the accident, the said

Subramanyam succumbed to the injuries on the spot

and awarded compensation of Rs.13,04,600/-

fastening the liability upon respondent No.2/insurance

company to pay the compensation amount with

interest at the rate of 6% per annum from the date of

petition till realization.

9. Aggrieved by the quantum of compensation

awarded by the Tribunal being on the lower side, the

claimants have preferred the present appeal seeking

enhancement of compensation.

10. Heard learned counsel for the parties.

11. Ms. Nazeefa M.Mulla, learned counsel

appearing for Sri Pavanachandra Shetty H., learned

counsel for the claimants, would contend that the

deceased was working as a Site Engineer in sample

unit at Adisesh Projects and was also a sub-contract

by profession, earning a sum of Rs.40,000/- per

month, but however, the Tribunal has considered the

income at Rs.6,000/- per month without considering

the salary certificate at Ex-9 produced by the

claimants to show the income of the deceased and

that he was working as a site engineer and as such, it

is contended that the notional income taken by the

Tribunal is much on the lower side. It is further

contended that the Tribunal has not awarded

compensation under the head loss of consortium and

other conventional heads as per the dictum of the

Apex Court in the case of United India Insurance

Co. Ltd. V. Satinder Kaur alias Satwinder Kaur

and Ors. [AIR 2020 SC 3076] Magma General

Insurance Company Ltd. Vs. Nanu Ram & Others

[2018 ACJ 2782] (Magma General Insurance

Company Ltd.). On this ground, the claimants have

sought to enhance the compensation and allow the

appeal.

12. Per contra, learned counsel, Sri D.Vijaya

Kumar, appearing for respondent No.2/insurance

company appeared through video conference. It is the

contention of the learned counsel that the salary

certificate/Ex.9 produced by the claimants would no

where depicts the actual salary, which the deceased

was earning. It is further contended that the

compensation awarded by the Tribunal is just and

proper and does not call for any interference by this

Court and that the award of compensation by the

Tribunal is just and proper and thus, sought for

dismissal of the appeal.

13. Having heard learned counsel for the

parties and on perusal of the material on record, the

only point that arises for our consideration is:

"Whether the claimant has made out any case for enhancement of compensation in the facts and circumstances of the present case?"

14. The date, time and occurrence of the

accident and that the deceased Subramanyam died on

the spot are not in dispute. It is also not in dispute

that the claimants are wife, children and parents of

the deceased and are entitled for compensation

awarded by the Tribunal, and that the accident

occurred due to rash and negligent driving of the

offending vehicle. The only dispute is with regard to

the quantum of compensation awarded by the

Tribunal. It is the contention of the claimants that the

deceased was a sub-contractor by profession and was

earning a sum of Rs.40,000/- per month. In order to

substantiate their contention, they have produced

Ex.P-9, which is the salary certificate issued by the

authorized partner, but Ex.P-9 only states that the

deceased Subramanyam was an employee of Adisesh

Projects and worked for one year and was drawing a

salary of Rs.22,000/-. It is relevant to note that PW.1

in her cross-examination states that she unaware as

to who issued Ex.P-9 and the contents of the same.

In order to prove the same, the claimants have not

examined the authorized partner to prove the aspect

that the deceased Subramanyam was earning

Rs.22,000/- per month. It is also relevant to note that

the claimants have also not produced any

documentary evidence like bank passbook or the

income-tax returns to show that the deceased

Subramanyam was earning Rs.22,000/- per month as

per Ex.P-9 or Rs.40,000/- as contended by the

claimants in their claim petition. This being so, the

Tribunal has taken the notional income of the

deceased at Rs.6,000/- per month. However, the

notional income taken by the Tribunal at Rs.6,000/-

per month is much on the lower side and is contrary

to the guidelines of the Karnataka State Legal

Services Authority, Bengaluru (KSLSA), for the

accident that occurred in the year 2015, even

assuming that the claimants have failed to produce

any oral or documentary evidence to prove the actual

income of the deceased Subramanyam. The notional

income as per the guidelines of the KSLSA for the

accident that occurred on 27/01/2015 to be taken is

Rs.9,000/- per month as against Rs.6,000/- taken by

the Tribunal (adding 40% i.e., 3,600/-) as per the

dictum in the case of National Insurance Company

Limited Vs. Pranay Sethi and others [2017 ACJ

2700], it would come to Rs.12,600/- and deducting

1/4th towards personal expenses of the deceased as

the dependents are five in number, as per the dictum

of the Hon'ble Supreme Court in the case of Sarla

Verma vs. Delhi Transport Corporation [(2009)6

SCC 121], the notional income that would be arrived

at is Rs.9,450/- per month. Considering the age of the

deceased as 35 years, applicable multiplier is 16.

Thus, the loss of dependency that would be arrived is

Rs.18,14,400/-(9,450x12x16=18,14,400/-).

15. Perusal of the judgment and award of the

Tribunal depicts that the Tribunal has not awarded

compensation under the head loss of consortium. As

per the dictum of the Apex Court in the case of

United India Insurance Company Limited vs.

Satinder Kaur and others [AIR 2020 SC 3076]

and (Magma General Insurance Company Ltd.)

(supra), the claimants are entitled to spousal and filial

consortium which would come to Rs.2,00,000/- as

there are 5 dependents (Rs.40,000/-x5). Under the

head loss of estate and funeral and obsequies

ceremony, the claimants are entitled for Rs.15,000/-

each, which the Tribunal has rightly awarded. After

reassessing both oral and documentary evidence, the

just compensation is as under:

Sl. Head of Compensation Amount/Rs.

    No
    1      Loss of dependency                 18,14,400.00
    2      Loss of consortium(40,000 x 5)      2,00,000.00
    3      Loss of estate                        15,000.00
    4      Funeral and obsequies ceremony        15,000.00
                          Total               20,44,400.00

16. The Tribunal has already awarded a sum of

Rs.13,04,600/- and deducting the same out of

Rs.20,44,400/-, the claimants are entitled to

enhanced compensation of Rs.7,39,800/- with

interest at 6% per annum from the date of claim

petition till the date of realisation. Accordingly, the

point framed is partly answered in favour of the

claimants.