Karnataka High Court

M/S Royal Sundaram Alliance vs Sri Ramesh on 30 May, 2022

Bench: B.Veerappa, K S Hemalekha

                                                   -1-




                                                                MFA No. 8115 of 2016
                                                            C/W MFA No. 6454 of 2016




                            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. 8115 OF 2016 (MV)
                                                   C/W
                        MISCELLANEOUS FIRST APPEAL NO. 6454 OF 2016 (MV)

                       IN MFA No.8115/2016
                       BETWEEN:


                       1.   SRI. RAMESH
                            S/O NANJUNDAIAH,
                            AGED ABOUT 39 YEARS,

                       2.   N. R. VISHWAS GOWDA,
                            S/O RAMESH,
                            AGED ABOUT 10 YEARS,

                       3.   N. R. ACHYUTH GOWDA,
Digitally signed by
USHA                        S/O RAMESH,
NAGENAHALLI
SHANMUKHAPPA                AGED ABOUT 8 YEARS,
Location: High Court
of Karnataka
                            SL. No.2 AND 3 ARE MINORS
                            THEY ARE REPRESENTED BY THEIR
                            FATHER AND NATURAL GUARDIAN
                            SRI RAMESH,

                            ALL ARE RESIDING AT NO.171,
                            SHREYAS NILAYA, 4TH BLOCK,
                            -2-




                                       MFA No. 8115 of 2016
                                   C/W MFA No. 6454 of 2016




     7TH MAIN, NEAR GANAPATHI TEMPLE,
     NANDINI LAYOUT,
     BANGALORE-560096.
                                               ...APPELLANTS
(BY SRI. CHANDRA KUMAR R., ADVOCATE)
AND:
1.   THE LAKSHMI VENKATESHWARA ENTERPRISES
     PROPRIETOR, SRI RAMESH,
     S/O MUDALAGIRIYAPPA,
     MAJOR,
     R/AT NO.33, KEMPANAHALLI VILLAGE,
     MAYAGANAHALLI POST,
     RAMANAGARA TALUK AND DISTRICT-562120,
     (R.C OWNER OF TIPPER LORRY
     BEARING NO. KA-42-A-6999)
     (PLACED EX-PARTE)

2.   ROYAL SUNDARAM ALLIANCE INS. CO. LTD.,
     # 186/7, RAGHAVENDRA COMPLEX,
     OPP.HINDUSTAN GRANITES & MARBLES,
     HOSUR MAIN ROAD, WILSON GARDEN,
     BENGALURU-560027.
     (POLICY NO.VGC0326156000101)
                                          ...RESPONDENTS
(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2;
R1 IS SERVED BUT UNREPRESENTED)

                          *****

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE IMPUGNED JUDGMENT AND AWARD DATED 16.06.2016 PASSED IN MVC NO.2847/15 BY THE FILE OF THE 21ST ADDITIONAL SMALL CAUSE JUDGE & 19TH ACMM, MEMBER,MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

IN MFA No.6454/2016 BETWEEN:

M/S ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., NO.186/7, RAGHAVENDRA COMPLEX, OPPOSITE TO HINDUSTAN GRANITES & MARBLES, HOSUR MAIN ROAD, WILSON GARDEN, BANGALORE-560 027.

REPRESENTED BY MANAGER ..APPELLANT (BY SRI RAVI S. SAMPRATHI, ADVOCATE)

AND:

1. SRI RAMESH, S/O NANJUNDAIAH, AGED ABOUT 39 YEARS,

2. MASTER N.R.VISHWAS GOWDA, S/O SRI RAMESH, AGED ABOUT 10 YEARS,

3. MASTER N.R.ACHYUTH GOWDA, D/O SRI RAMESH, AGED ABOUT 8 YEARS,

RESPONDENT NO.2 AND 3 ARE MINORS REPRESENTED BY RESPONDENT No.1 AS FATHER AND NATURAL GUARDIAN SRI RAMESH,

ALL ARE RESIDING AT NO.171, SHREYAS NILAYA, 4TH BLOCK, 7TH MAIN, NEAR GANAPATHI TEMPLE, NANDINI LAYOUT, BENGALORE-560 096.

4. SRI LAKSHMI VENKATESHWAR ENTERPRISES NO.33, KEMPANAHALLI VILLAGE,

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

MAYAGANAHALLI POST, RAMANAGARA TALUK & DISTRICT-562120, REPRESENTED BY RAMESH-PROPRIETOR ...RESPONDENTS (BY SRI R. CHANDRAKUMAR, ADVOCATE FOR R1; R2 AND R3 ARE MINORS, REPRESENTED BY R1; V/O DATED 13.03.2017 NOTICE TO R4 IS DISPENSED WITH)

**** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE IMPUGNED JUDGMENT AND AWARD DATED 16.06.2016 PASSED IN MVC NO.2847/15 BY THE FILE OF THE 21ST ADDITIONAL SMALL CAUSE JUDGE & 19TH ACMM, BENGALURU, AWARDING COMPENSATION OF RS.20,96,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.

THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

J U D GM E N T

Miscellaneous First Appeal No.8115/2016 is filed the

claimants for enhancement and Miscellaneous First Appeal

No.6454/2016 is filed by the Insurance Company for reduction of

the compensation awarded by the impugned judgment and

award dated 16.6.2016 made in MVC No.2847/2015 by XXI

Additional Small Causes Judge and the Motor Accident Claims

Tribunal (SCCH-23), Bengaluru, awarding total compensation of

Rs.20,96,000/- with interest at the rate of 6% per annum from

the date of the petition till the date of realization.

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

2. It is the case of the claimants, who are husband and

children of the deceased Smt. Geetha H., that they filed a claim

petition claiming compensation of Rs.50,00,000/- contending

that on 26.2.2015 at about 11.45 a.m. when the deceased Smt.

Geetha was riding her Honda Activa Scooter bearing Registration

No. KA 02 H 5900 from Marur towards Kudur by following traffic

rules and was on the extreme left side of the road, near

Plegamma Temple, one Tipper Lorry bearing Registration No.KA-

42-A-6999 coming behind without following the traffic rules and

regulations in a rash and negligent manner, dashed against the

Honda Activa Scooter from behind, due to which, the deceased

fell on the road and the Tipper lorry ran over her body causing

her death at the spot. Immediately, the body was shifted to the

Government General Hospital, Nelamangala, postmortem was

conducted and thereafter, the dead body was handed over to the

claimants, who had spent an amount of Rs.50,000/- towards

transportation of the dead body, cremation, funeral and

obsequies ceremonies and other customary rites.

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

3. The contention of the claimants-appellants before the

Tribunal is that the deceased was aged about 30 years, prior to

the accident she was hale and healthy and by doing tailoring

work was earning a sum of Rs.15,000/- per month; She was the

bread earner of the family and was contributing the entire

income to the claimants; because of the said demise, claimant

No.1 being the husband has lost his wife and claimant Nos.2 and

3 being children have lost their mother's love and affection at

their childhood and are suffering from mental shock and agony.

It was further contended that because of the rash and negligent

driving of the driver of the offending vehicle, the owner and

insurer of the offending vehicle bearing Reg.No.KA-42-A 6999

are jointly and severally liable to pay the compensation of

Rs.50,00,000/- with interest and cost.

4. In pursuance of service of notice, owner of the

offending vehicle has not put his appearance and as such, he

was placed exparte. The Insurance Company filed his written

statement stating that they had issued the policy bearing

No.VGCO326156000101 against the alleged lorry bearing

registration No.KA-42-A-6999 valid from 2.9.2014 to 1.9.2015.

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

The liability of the 2nd respondent would be subject to the terms

and conditions of the policy. The accident had occurred due to

the negligence of the deceased person, who was not having valid

vehicle documents. The driver of the insured vehicle was not

having valid and effective driving license as on the date of the

accident and hence, sought to dismiss the claim petition.

5. Based on the aforesaid pleadings, the Tribunal framed

the following issues for consideration:

"1. Whether the petitioners prove that the deceased Smt. Geetha H., died in a road traffic accident that occurred on 26.02.2015 at about 11.45 a.m., on Marur-Kudur Road, near Plegamma Temple, while riding Honda Activa Scooter bearing registration No.KA-02-H-5900, due to rash and negligent act of driving of the Tipper Lorry vehicle driver, vehicle bearing registration No.KA-42-A-6999 as alleged in the petition?

2. Whether the petitioners prove that they are the legal representative of deceased and they are depending on the income of the deceased?

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

3. Whether the petitioners are entitled for compensation from whom?

4. What order or award?"

6. In order to prove the case of the claimants, claimant

No.1-husband of the deceased examined himself as P.W.1, and

an eye witness as P.W.2 as well as got marked the documents

Exs.P.1 to 11. The owner and Insurance Company of the

offending vehicle neither adduced any evidence nor produced

any records.

7. The Tribunal considering both oral and documentary

evidence on record recorded a finding that the claimants have

proved that the deceased Smt. Geetha H., died in a road traffic

accident that occurred on 26.2.2015 at about 11.45 a.m. on

Marur-Kudur Road, near Plegamma Temple, while riding Honda

Activa Scooter bearing registration No. KA-02-H-5900, due to

rash and negligent driving of the driver of Tipper Lorry Vehicle

bearing registration No.KA-42-A-6999 and also the claimants are

the legal representatives of the deceased, who are dependants

on the income of the deceased and as such, they were entitled

for the compensation. Accordingly, by the impugned judgment

MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

and award, awarded a total compensation of Rs.20,96,000/-

(Rupees Twenty Lakhs Ninety Six Thousand only) with interest at

the rate of 6% per annum from the date of petition till deposit of

the amount to the claimants. Hence, the present Miscellaneous

First Appeal No.6454/2016 is filed by the Insurance Company for

reduction and Miscellaneous First Appeal No.8115/2016 is filed

by the claimants for enhancement of compensation awarded by

the Tribunal.

8. We have heard the learned Counsel for the parties.

9. Sri R. Chandra Kumar, learned Counsel for the

claimants contended with vehemence that the impugned

judgment and award passed by the Tribunal awarding total

compensation of Rs.20,96,000/- (Rupees Twenty Lakhs Ninety

Six Thousand only) with interest at the rate of 6% per annum

from the date of petition till deposit of the amount to the

claimants is meager and contrary to the material on record and

as such, is liable to be modified by enhancing the compensation

as prayed for in the claim petition. He would further contend

that the deceased was aged about 30 years and was earning

Rs.15,000/- per month by doing tailoring work, but the Tribunal

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

erred in taking the monthly income of the deceased at

Rs.9,000/- per month ignoring the evidence of P.W.1 and as

such, in the absence of contra evidence, the Tribunal ought to

have taken the income of the deceased at Rs.15,000/- per

month. He would further contend that the Tribunal erred in

awarding interest at the rate of 6% instead of 12% per annum

and taking into consideration the age of the deceased at 30

years, who was hale and healthy prior to the accident having

husband and two children, who have lost her love and affection

at their childhood. Therefore, sought to allow miscellaneous first

appeal filed by the claimants .

10. Per contra, Sri Ravi S. Samprithi, learned Counsel for

the Insurance Company contended that the claimants have not

produced any material documents before the Tribunal to prove

that the deceased was earning a sum of Rs.15,000/- per month

by doing tailoring work and as such, in the absence of same, the

Tribunal was justified in taking the notional income of the

deceased as per the chart prepared by the Legal Services

Authority at Rs.9,000/-. He would further contend that the

Tribunal also erred in taking the future prospects at the rate of

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

50% instead of 40% in view of the decision of the Hon'ble

Supreme Court in the case Pranay Sethi and as such, he sought

to dismiss the miscellaneous first appeal filed by the claimants.

11. Having heard the learned Counsel for the parties, the

points that arises for our consideration are:

"i) Whether the claimants have made out a case for enhancement of compensation awarded by the Tribunal in the facts and circumstances of the present case? and

ii) Whether the insurance company has made out a case to reduce the compensation awarded by the Tribunal in the light of the judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd -vs- Pranay Sethi reported in (2017) 16 SCC 680 in the facts and circumstances of the present case?."

12. We have given our thoughtful consideration to the

arguments advanced by the learned Counsel for the parties and

perused the entire material on record including the original

records carefully.

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

13. It is an admitted fact that the deceased Smt. Geetha

H., is none other than the wife of claimant No.1 and mother of

claimant Nos.2 and 3, who died at the young age of 30 years in

a road traffic accident that occurred on 26.2.2015 at 11.45 a.m.

on Marur-Kudur Road, near Plegamma Temple while proceeding

on Honda Activa Scooter bearing registration No.KA-02=H-5900

due to rash and negligent driving of the driver of Tipper Lorry

bearing registration No.KA-42-A-6999 as is evidenced by the

material documents - Ex.P.1 FIR with complaint, Ex.P.5 - Charge

Sheet and Ex.P.6 - IMV report filed against the driver of the

offending vehicle of the deceased. Admittedly, neither the owner

of the vehicle nor the Insurance Company has challenged the

finding of fact recorded by the Tribunal that the accident

occurred due to rash and negligent driving of the driver of the

offending vehicle and thereby the rash and negligent driving on

the part of the driver of the Tipper Lorry due to which the Smt.

Geetha died in the said accident is not in dispute. Even the

insurance policy of the offending vehicle was in force as on the

date of the accident.

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

14. The claimants filed the claim petition stating that the

deceased was earning the monthly salary of Rs.15,000/- and

P.W.1 in his cross-examination has deposed that the Geetha was

aged about 30 years, hale and healthy, and was earning a sum

of Rs.15,000/- per month by doing tailoring work; He being the

husband of the deceased is unemployed; claimants Nos.2 and 3

are his school going children and the deceased Geetha was the

only bread earner and was contributing her entire income to

their family; The entire family was dependent on her income

and because of the untimely death of the deceased, the

claimants are suffering from mental shock and agony. Claimant

Nos.2 and 3 have lost their mother's lover and affection at their

childhood. In the cross-examination, a suggestion was made to

P.W.1 that the deceased was not doing tailoring work, but the

same was denied by P.W.1 stating that she was doing tailoring

work and earning a sum of Rs.15,000/- per month.

15. The Insurance Company has neither adduced any

contra evidence nor has produced any material except denying

that the deceased was not working as tailor. Thereby, the

Tribunal ignoring the evidence of P.W.1 - the husband of the

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

deceased, has proceeded to take the notional income at

Rs.9,000/- per month as per the chart prepared by the

Karnataka State Legal Services Authority as on the date of

accident. Even as per the chart of the Karnataka State Legal

Services Authority, for the accident that occurred in the year

2016,Rs.9,500/- per month has to be taken as the notional

income in the absence of any document to show the actual

income. Therefore, the Tribunal was not justified in taking the

income of the deceased at Rs.9,000/- and the compensation has

to be calculated taking the notional income of the claimant at

Rs.9,500/- per month.

16. Admittedly in the present case, though claimant No.1

is the husband of the deceased has not produced any material

document to prove that the deceased was a tailor. The fact

remains that except his evidence about the income of the

deceased, no contra material is produced. In the absence of any

contra material produced by the Insurance Company, we are of

the considered opinion that the Tribunal ought to have taken the

income of the deceased at Rs.10,000/- per month instead of

Rs.9,000/- per month as fixed by the National Legal Services

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

Authority. When there is absolutely no evidence, then only the

notional income can be adopted. Considering the fact that the

deceased was aged about 30 years, in the interest of justice, it is

just and proper to take the income of the deceased at

Rs.10,000/- per month though P.W.1-claimant has deposed that

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

17. Though the learned Counsel for the Insurance

Company contended that as per the Voter Indentity Card -

Ex.P.8, the deceased was born on 3.12.1982 and as on the date

of accident i.e., on 26.2.2015, the age of the deceased is 33

years and not 30 years. The fact remains that as per the

postmortem report Ex.P.3, the deceased was aged about 30

years. The FIR, Inquest Report and Charge Sheet reflect the age

of the deceased as 30 years. When the official documents

especially postmortem report clearly depicts that the age of the

deceased as 30 years, the Tribunal was justified in taking the

age of the deceased as 30 years and therefore, the contention of

the learned Counsel for the Insurance Company that the age of

the deceased was 33 years as on the date of the accident,

cannot be accepted.

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

18. The accident is not in dispute. It is also not in dispute

that the insurance policy of the offending vehicle was in force as

on the date of the accident.

19. Taking into consideration the notional income of the

deceased at Rs.10,000/- and as the deceased was self

employed, 40% of the actual income has to be added towards

future prospects of the deceased in view of the dictum of the

Hon'ble Supreme Court in the case of National Insurance Co.

Ltd. -vs- Pranay Sethi reported in (2017)16 SCC 680 i.e.,

Rs.10,000/- + 40% = Rs.14,000/-. Considering the fact that the

deceased was aged about 30 years, married and claimants are

three in numbers, after deducting "1/3" towards her personal

expenses, the income would be Rs.9,334/- per month. With

regard to the multiplier to be applied, in view of dictum of the

Hon'ble Supreme Court in the case of Sarla Verma and Others -

vs- Delhi Transport Corporation and Another reported in

(2009)2 SCC (crl) 1002, the appropriate multiplier would be '17'.

Therefore, loss of dependency would come to (Rs.10,000/- +

40% ( future prospects)-1/3rd (Personal expenses) X 12 X 17)

Rs. 9,334 x 12 x 17 = Rs.19,04,136/-.

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

20. Though it is submitted by the claimants that they have

spent an amount of Rs.50,000/- towards transportation of dead

body and funeral expenses, in view of the dictum of the Hon'ble

Supreme Court in the case of Magma General Insurance

Company Limited vs. Nanu Ram @ Chuhru Ram and Others

reported in (2018) 18 SCC 130 affirmed in United India

Insurance Company Ltd., Vs. Satinder Kaur @ Satwinder Kaur &

Others, reported in AIR 2020 SC 3076, each of the claimants

(Rs.40,000/- each) are entitled for a sum of Rs.40,000/- and as

such, they are entitled to a sum of Rs.1,20,000/- towards loss

of consortium. The Hon'ble Supreme Court in Pranay Sethi

(supra) has held that award towards loss of estate and funeral

expenses are to be at Rs.15,000/- each and there cannot be

award towards love and affection. Therefore, the Tribunal has

erred in awarding only Rs.10,000/- each towards 'loss of estate'

and 'funeral expenses'. Hence, compensation awarded towards

'Loss of love and affection to claimant Nos.2 and 3' is set aside.

The amount awarded towards 'Loss of Estate' and 'Funeral

Expenses' is enhanced to Rs.15,000/- each (Rs.30,000/- in

total).

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

21. The Hon'ble Supreme Court in the case of National

Insurance Co. Ltd. -vs- Pranay Sethi reported in (2017)16 SCC

680 stated supra at paragraph-59.8 has held as under:

"59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

22. Admittedly, in the present case, the accident occurred

on 26.2.2015 and since 7 years have elapsed, if we enhance the

compensation awarded under conventional heads namely, loss of

estate, loss of consortium and funeral expenses enhanced at the

rate of 10% in every three years, it would come to Rs.17,521/- .

23. For the reasons stated above, we answer point No.1 in

the negative holding that the claimants have not made out any

case for enhancement of compensation and the point No.2 in the

affirmative holding that the Insurance Company has made out a

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

case for reduction of the compensation amount of Rs.24,343/-

awarded by the Tribunal to the claimants.

24. After re-assessing the entire material on record, the

claimants are entitled to the compensation as under:

Loss of dependency                                 Rs. 19,04,136/-
Transportation of dead body, funeral and other     Rs.    30,000/-
expenses
Loss of Consortium to the husband-claimant         Rs.    40,000/-
No.1
Loss of love and affection to claimant Nos.2 and   Rs.    80,000/-
3 (Rs.40,000 x 2)
10% on the enhanced amount of loss of estate,      Rs.    17,521/-

loss of consortium and funeral expenses for every three years stated supra Loss of Estate = Rs.15,000/-

Loss of Consortium          = Rs.40,000/-
Funeral Expenses            = Rs.15,000/-
Total                       = Rs.70,000/-
10% of 70,000 = 7000/-
(70,000 + 7000 = 77,000)                7000
10% of 77,000 = 7700/-                  7700
(77,000 + 7,700 = 84,700/-)             2821
3.33% of 84,700 = 2821/-            17,521



Total                                              Rs. 20,71,657/-

Less compensation awarded by the Tribunal          Rs. 20,96,000/-
Reduction of compensation                           Rs.   24,343/-
                                      - 20 -




                                                     MFA No. 8115 of 2016
                                                 C/W MFA No. 6454 of 2016

25. In all, the claimants are entitled to a compensation of

Rs. 20,71,657/- and deducting the compensation of

Rs.20,96,000/- already awarded by the Tribunal, the

compensation awarded to the claimants are reduced by

Rs.24,343/-.

26. In view of the aforesaid reasons, we pass the

following:

ORDER

i) Miscellaneous First Appeal No.8115/2016 filed by

the claimants for enhancement of compensation

awarded by the Tribunal is dismissed;

ii) Miscellaneous First Appeal No.6454/2016 filed by

the Insurance Company for reduction of

compensation awarded by the Tribunal is allowed

in-part;

iii) The impugned judgment and award dated

16.06.2016 passed in MVC No.2847/2015 by the

XXI Additional Small Causes Judge and MACT

(SCCH-23), Bengaluru, awarding the compensation

of Rs.20,96,000/- with interest at the rate 6% per

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MFA No. 8115 of 2016 C/W MFA No. 6454 of 2016

annum from the date of petition till deposit is

hereby modified and the amount awarded to the

claimants is reduced by Rs.24,343/- out of the

compensation awarded by the Tribunal

(Rs.20,96,000 - Rs.24343 =Rs.20,71,657/-) with

6% interest from the date of petition till

realization;

iv) The Insurance Company is directed to deposit the

remaining 50% of compensation after deducting a

sum of Rs.24,343/- as stated supra within six

weeks from the date of receipt of a copy of this

judgment;