Karnataka High Court

Rathnamma vs Chikkegowda on 11 December, 2023

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                                                         NC: 2023:KHC:45082
                                                      MFA No. 10499 of 2018




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                       DATED THIS THE 11TH DAY OF DECEMBER, 2023
                                         BEFORE

                     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                 MISCELLANEOUS FIRST APPEAL NO. 10499 OF 2018 (MV-D)

                BETWEEN:

                1.    RATHNAMMA
                      W/O. SHADAKSHARI
                      AGED ABOUT 39 YEARS

                2.    SHADAKSHARI
                      S/O. LATE . SHIVANNA
                      AGED ABOUT 45 YEARS

                3.    SHASHIKUMAR
                      S/O. SHADAKSHARI,
                      ALL ARE R/AT KIBBANAHALLI, HALEHUR
                      TIPATUR TALUK, TUMKUR DISTRICT]
                      NOW R/AT YALLAPURA
                      TUMKUR TALUK
                      TUMKUR DIST
                                                              ...APPELLANTS
Digitally
signed by JAI   (BY SRI RAGHU R .,ADVOCATE)
JYOTHI J
Location:
HIGH COURT      AND:
OF
KARNATAKA
                1.    CHIKKEGOWDA
                      S/O CK MELAPPA,
                      AGED ABOUT 38 YEARS
                      DRISTESHWARA EXTENSION,
                      CHELUR VILLAGE, CHELUR HOBLI,
                      GUBBI TLAUK,
                      TUMKUR DISTRICT - 572 101

                2.    THE MANAGER
                      NATIONAL INSURANCE CO LTD,
                      BRANCH OFFICE,
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                                             NC: 2023:KHC:45082
                                          MFA No. 10499 of 2018




    KASTURI MANSION,
    BEHIND KRISHNA TALKIES,
    MG ROAD,
    TUMKUR CITY - 572 101
                                               ...RESPONDENTS
(NOTICE   SERVED   TO  R-1   &            UNREPRESENTED; BY
SMT.H.R.RENUKA.,ADVOCATE FOR R-2)


     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13/10/2017, PASSED IN MVC
NO.177/2015, ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE MACT, TUMAKURU, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                          JUDGMENT

This is an appeal filed by the claimants aggrieved by

the dismissal of the MVC.No.177/2015 dated. 13.10.2017

on the file of the III Addl. Senior Civil Judge & MACT,

Tumakuru, the parents and brother are before this court,

seeking compensation seeking compensation of an amount

of Rs.8,00,000/- for the death of the daughter in the

accident.

2. This is the case of the claimants that

03.10.2014 at about 7.15 p.m. the Respondent no.1 who

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is none other than the husband of the deceased was

traveling from Chelur Village to the house of father-in-law.

Respondent No.1 being the driver of the vehicle has drove

the same in high speed, in rash and negligent manner and

both of them fell from the bike on the road and met with

an accident. Due to the accident, the deceased sustained

fatal injuries on her head and other vital parts of the body.

Both the injured were shifted to the Hospital, thereafter

the wife had succumbed to the injuries. The charge sheet

is filed against the husband as because of his rash and

negligent driving, the accident had taken place and this

present petition is filed by the parents and brother of the

deceased. The court below had dismissed the claim

petition holding that as per sub-section (1) of Section 15

of the Hindu Succession Act 1956, the property of female

Hindu dying intestate shall devolve according to the rules

set out in Section 16 on different class-I heirs enumerated

in class-(a) to (e). It is not disputed that the deceased

has left behind her husband as her legal heir enumerated

in class-(a) of sub-section (1) of Section 15. Necessarily

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property of the deceased would devolve on the husband

who is the class-I heir. As the deceased had no children,

the Respondent No.1 who is rider of the vehicle is the only

legal heir who comes under class-I heir as per Section 15

(1)(a). Further Section 16 of the Hindu Succession Act,

sets-out the order of succession and manner of

distribution among heirs of female Hindu. According to

Rule (1), among the heirs specified in Rule (1) of Section

15, those in one entry shall be preferred to those in any

succeeding entry and those included in the same entry

shall take simultaneously. The court has observed that in

this case Respondent No.1 being the husband and Class-I

heir of deceased shall come in Section 15(1)(a) and

preferred to the claimants as they come under the

succeeding entry of class (c)(d) and (e) of sub-section 1 to

Section 15. Therefore during the life time of Respondent

No.1-husband, the parents and brother of the deceased

certainly cannot become the legal heirs of deceased under

Section 15 of the Hindu Succession Act. It is therefore

submitted that they are not the dependants as well as

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they are not the legal heirs as per Section 15 of the Hindu

Succession Act, the court held that they are not entitled

for any compensation.

3. Learned counsel for the claimant submits that

the court below without considering the fact that the

parents and brother were the dependants had not granted

any compensation and dismissed the claim petition. It is

submitted that the court below ought to have granted a

compensation for the loss of estate if not under the head

of loss of dependency.

4. Learned counsel for the insurance company

submits that the court below had elaborately dealt with

the provisions of the Hindu Succession Act, who are the

legal representatives and who can maintain the

application. It is submitted that in this case, because of

the rash and negligent act of the Respondent No.1 who is

none other than husband of the deceased, the accident

had taken place and charge sheet is filed against them.

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As he cannot claim the compensation, the parents have

filed this application as legal representatives and the court

below had rightly dismissed the petition holding that when

the Class-I legal heir is very much present, the next line of

representative cannot maintain the petition.

5. Having heard the learned counsel on either

side, perused the entire material on record. Under section

161 of the MV Act, under the head of loss of dependency if

they have to get the compensation, they have to show

that they are the dependants on the income of the

deceased. In this case, they are parents and the brother

who are staying separately and even in the evidence also

nothing has been placed to show that they are

dependants. Once if they are not the dependants, they

are not entitled for the compensation under the head of

loss of dependency. In the light of the law laid down by

Hon'ble Apex Court in the case National Insurance

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Company Ltd.,-Vs Birendar & others1, even legal

representative are entitled for the compensation though

not under the heads of loss of dependency but under the

head of loss of estate. Particularly in this case, the

husband himself is a tortfeaser, he is not entitled to claim

compensation even under the head of loss of dependency

and loss of estate. Because, once the husband is ruled out

as he cannot claim the compensation, as per the Hindu

Succession Act, the next line enumerated under section 16

on different Class-I heirs enumerated in Class-(a) to(e),

as these fall under Class-(c) to (e) sub-section 1 to

Section 15 read with Rule 3 of Section 16 of the Hindu

Succession Act. As such only both the parents are entitled

for loss of estate. The Division Bench of this Court in the

case of A. Manavalagan -Vs- A. Krishnamurthy and

others2 referring to various Judgments of Apex Court, has

held that, as the parties were residing at different places

and supporting themselves from their respective income,

(2020)11 SCC 356

ILR 2004 KAR 3268

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the question of loss of dependency will not arise. In such

circumstances, amount spent towards expenses will be

safely be taken as personal expenses taken at 3/4th of

income, balance 1/4th the Hon'ble Division Bench has

observed that in case where they are living independent

and supporting themselves, 3/4th of their income can be

safely taken as living at personal expenses and the

contribution shall be 1/4th and in this case also for the loss

of estate, 1/4th of the income has to be taken. In this

case, it is claimed that she is earning an amount of

Rs.6,000/- per month. As the accident is of the year 2014,

considering Rs.6,000/- as income, as she is 21 years old,

future prospects would come to Rs.2,400/-. (Rs.2,400/- +

Rs.6,000/-=Rs.8,400/-) i.e., Rs.8,400/-. In that 1/4th has

to be taken towards loss of estate i.e Rs.2,100/-. The

parents-claimants are entitled for an amount of

Rs.4,53,600/- under the head of loss of estate.

(Rs.2,100/- x 12 x 18= 4,53,600/-). Towards Consortium

both the parents are entitled for an amount of

Rs.88,000/- (Rs.44,000/- x 2= Rs.88,000/-) and toward

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funeral expense they are entitled for an amount of

Rs.33,000/-.

6. In the light of the law laid down by the Hon'ble

Supreme Court in the case of V. MEKALA -vs- M.

MALATHI AND ANOTHER 3, the claimant is entitled for

an amount of Rs.10,000/- towards legal expenses.

Altogether the claimant is entitled for an amount

Rs.5,84,600/-.

7. The claimants are entitled for compensation

under the following heads:

Sl. Description of Items Compensation Awarded No.

1. Loss of Estate Rs. 4,53,600/-

2. Consortium Rs. 88,000/-

3. Funeral Expenses Rs. 33,000/-

4. Legal Expenses Rs. 10,000/-

                       Total              Rs.             5,84,600/-



    (2014) 11 SCC 178
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                                           NC: 2023:KHC:45082

8. Accordingly, the appeal filed by the claimants is

Allowed-in-part by granting the compensation amount

from an amount of Rs.5,84,600/-. The Tribunal has

already held that insurance company is liable to pay the

compensation, however as they are not entitled claim

petition was dismissed, the insurance company is liable to

pay the compensation amount.

(a) The compensation amount shall carry interest @ 6% per annum from the date of petition, till the date of realization.

(b) Respondent-Insurance Company shall deposit the said compensation amount with accrued interest before the tribunal within a period of 8 (Eight) weeks.

(c) The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.