Karnataka High Court
Sumithra vs Sagar M on 13 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 5677 of 2023
C/W MFA No. 3059 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5677 OF 2023(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3059 OF 2023(MV)
IN MFA 5677/2023
BETWEEN:
1. SUMITHRA
W/O KRISHNAPPA
NOW AGED ABOUT 57 YEARS
2. GIRIDHARA
S/O KRISHNAPPA
NOW AGED ABOUT 40 YEARS
3. SHIVAKUMARA K
S/O KRISHNAPPA
Digitally signed
by NOW AGED ABOUT 37 YEARS
DHANALAKSHMI
MURTHY
4. JAGADISH K
Location: High
Court of S/O KRISHNAPPA
Karnataka NOW AGED ABOUT 35 YEARS
ALL ARE R/AT NO.82
BASAVANAPURA VILLAGE
NELAMAKANAHALLI POST
MALAVALLI TALUK
MADYA DISTRICT-571430.
...APPELLANTS
(BY SRI. RANGEGOWDA N R., ADVOCATE)
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MFA No. 5677 of 2023
C/W MFA No. 3059 of 2023
AND:
1. SAGAR M
S/O KESHAVAMURTHY
AGED MAJOR
R/AT NO. 28, HOSABADAVANE
SIDDARTHA NAGAR
MALAVALLI TOWN
MANDYA-571430.
2. ICICI LAMBARD GENERAL
INSURANCE COMPANY LIMITED
NO.45/1, 5TH FLOOR
RESIDENCY ROAD CROSS
LEO SHOPPING COMPLEX
BANGALORE-560001
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI.B.C SHIVANNE GOWDA., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.12.2022
PASSED IN MVC NO. 603/2021 ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER,
MACT, BENGALURU (SCCH-23), W PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA 3059/2023
BETWEEN:
THE MANAGER
M/S ICICI LAMBARD GENERAL
INSURANCE COMPANY LIMITED
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MFA No. 5677 of 2023
C/W MFA No. 3059 of 2023
NO.45/1, 5TH FLOOR
RESIDENCY ROAD CROSS
LEO SHOPPING COMPLEX
BANGALORE.
NOW REP BY ITS MANAGER
M/S ICICI LOMBARD GIC LTD.,
REGIONAL OFFICE
THE ESTATE, 9TH FLOOR
DICKENSON ROAD
M.G.ROAD, BANGALORE-42.
...APPELLANT
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE)
AND:
1. SMT. SUMITHRA
W/O KRISHNAPPA
NOW AGED ABOUT 57 YEARS
2. SRI. GIRIDHARA
S/O KRISHNAPPA
NOW AGED ABOUT 40 YEARS
3. SRI. SHIVAKUMARA K
S/O KRISHNAPPA
NOW AGED ABOUT 37 YEARS
4. SRI. JAGADISH K
S/O KRISHNAPPA
NOW AGED ABOUT 37 YEARS
ALL ARE R/AT NO.82
BASAVANAPURA VILLAGE
NELAMAKANAHALLI POST
MALAVALLI TALUK
MADYA DISTRICT-571430.
5. SAGAR M
S/O KESHAVAMURTHY
R/AT NO. 28, HOSABADAVANE
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MFA No. 5677 of 2023
C/W MFA No. 3059 of 2023
SIDDARTHA NAGAR
MALAVALLI TOWN
MANDYA-571430.
...RESPONDENTS
(BY SRI. RANGEGOWDA N.R., ADVOCATE FOR R1 TO R4:
SRI. L. RAJA, ADVOCATE FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.12.2022
PASSED IN MVC NO. 603/2021 ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER,
MACT, BENGALURU (SCCH-23 AWARDING A COMPENSATION
OF RS.8,14000/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL ITS REALIZATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA 5677/2023 is filed by the claimants and MFA
3059/2023 is filed by the Insurance Company under
Section 173(1) of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the Act', for short) being
aggrieved by the judgment and award dated 27.12.2022
passed by the MACT, Bengaluru in MVC 603/2021.
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2. Facts giving rise to the filing of the appeals briefly
stated are that on 25.11.2020, when the deceased
Krishnappa was riding TVS Moped bearing registration
No.KA-11-S-6992 near M.Basavanapura Gate on Malavalli-
Maddur Road, Mandya, at that time, a Maruti Suzuki Eeco
Car bearing registration No.KA-11-N-4710 which was
being driven in a rash and negligent manner, dashed
against the TVS moped. 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 No.2
appeared through counsel and filed written statement
denying the averments made in the claim petition. The
respondent No.1 did not appear before the Tribunal inspite
of service of notice and hence was placed ex-parte.
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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 the case,
examined claimant No.2 as PW-1 and another witness as
PW-2 and got exhibited documents namely Ex.P1 to
Ex.P20. On behalf of respondents, neither any witness was
examined nor any document was produced. The Claims
Tribunal, by the impugned judgment, inter alia, held that
the accident took place on account of rash and negligent
driving of the offending vehicle by its driver, 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.8,14,000/- along with
interest at the rate of 6% p.a. and directed the Insurance
Company to deposit the compensation amount along with
interest. Being aggrieved, these appeals have been filed.
6. The learned counsel for the claimants has raised the
following contentions:
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a) Firstly, the claimants claim that the deceased was
aged about 67 years at the time of the accident and he
was a Retired Government employee and drawing pension
of Rs.22,144/- per month. In view of the decision of the
Apex Court reported in 2019 ACJ 34 (SC), the claimants
are entitled to claim entire salary except deduction
towards income tax and profession tax. The Tribunal
considering the same has rightly taken the income at
Rs.22,144/- p.m.
b) Secondly, the claimants are entirely depending on
the income of the deceased. There are four claimants.
Contrary to the decision of the Apex Court in the case of
SARLA VERMA, the Tribunal has deducted 50% of the
income of the deceased towards personal expenses
instead of 1/3rd of the income.
c) Thirdly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE
CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017
SC 5157], the claimants are entitled for Rs.15,000/-
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towards 'loss of estate' and Rs.15,000/- towards 'funeral
expenses'.
d) Fourthly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ
2782], each of the claimants are entitled for
compensation of Rs.40,000/- under the head of 'loss of
love and affection and consortium'.
e) Lastly, considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is on the lower side. Hence, he prays for
enhancement of compensation.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
a) Firstly, the claimant No.1, is the wife of the deceased
and claimant Nos.2 to 4 are major sons. Deceased was a
Retired Government employee and receiving monthly
pension and after his death, wife is getting the monthly
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pension. Therefore, the claimants are entitled for
compensation only towards 'loss of estate'. But the
Tribunal has erred in awarding compensation towards 'loss
of dependency' by taking the monthly income of the
deceased at Rs.22,144/-.
b) Claimant No.1 is the only dependent and claimant
Nos.2 to 4 are major sons of the deceased. Therefore, the
Tribunal has rightly deducted 50% of the income of the
deceased towards personal expenses.
c) Thirdly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is excessive. Hence, he prays for reduction of
compensation.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
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9. It is not in dispute that Krishnappa died in the road
traffic accident occurred on 25.1.2020 due to rash and
negligent driving of the offending vehicle by its driver.
10. The claimants claim that deceased was a Retired
Government employee and drawing monthly pension of
Rs.22,144/-. The Tribunal considering the evidence of the
claimants and materials available on record and also
relying on the judgment of the Apex Court reported in
2019 ACJ 34 (SC), has rightly taken the monthly income
of the deceased as Rs.22,144/- and also rightly held that
the claimants are entitled for 'loss of dependency'.
11. Since the claimants are wife and three major sons of
the deceased and they are entirely depending on the
income of the deceased, it is appropriate to deduct 1/3rd of
the income of the deceased towards personal expenses
and remaining amount has to be taken as his contribution
to the family instead of 50% deducted considered by the
Tribunal. The deceased was aged about 67 years at the
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time of the accident and multiplier applicable to his age
group is '5'. Thus, the claimants are entitled to
compensation of Rs.8,85,760/- (Rs.22,144*12*5*2/3) on
account of 'loss of dependency'.
12. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'. Claimant No.1, wife of the deceased is entitled
for compensation of Rs.40,000/- under the head of 'loss of
spousal consortium'.
13. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
claimant Nos.2 to 4, children of the deceased are entitled
for compensation of Rs.40,000/- each under the head of
'loss of parental consortium'.
14. The compensation of Rs.79,000/- awarded by the
Tribunal under the head of 'medical expenses' is as per the
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medical bills produced by the claimants. The same is just
and reasonable.
15. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 885,760
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of Parental consortium 120,000
Medical expenses 79,000
Total 11,54,760
16. In the result, the following order is passed:
ORDER
a) The appeal filed by the claimants are allowed in
part and the appeal filed by the Insurance Company is
dismissed.
b) The judgment of the Claims Tribunal is modified.
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c) The claimants are entitled to a total compensation of
Rs.11,54,760/- as against Rs.8,14,000/- awarded by the
Tribunal.
d) The Insurance Company is directed to deposit the
compensation amount along with interest at 6% p.a. from
the date of filing of the claim petition till the date of
realization, within a period of six weeks from the date of
receipt of copy of this judgment.
e) The apportionment, deposit and release of amount
shall be made in terms of the award of the Tribunal.
f) In view of the order dated 23.8.2023 passed by this
Court, the claimants are not entitled for interest on the
enhanced compensation for the delayed period of 116
days in filing the appeal.
g) The amount in deposit is ordered to be transferred to
the Tribunal forthwith.
Sd/-
JUDGE
DM
