Karnataka High Court
Smt. Tulasi vs Sri T.A. Manjunatha on 6 December, 2023
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MFA No.6637/2023
C/W MFA.CROB No.106/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No. 6637/2023 (MV-D)
C/W
MFA CROSS OBJECTION No.106/2023
IN MFA No.6637/2023
BETWEEN:
THE REGIONAL MANAGER
CHOLAMANDALAM MS GIC LTD
GOLDEN HEIGHTS COMPLEX
59TH C CROSS, 4TH M BLOCK
RAJAJINAGAR
BANGALORE-560010 ...APPELLANT
(BY SRI PRADEEP B., ADVOCATE)
AND:
Digitally signed
by K S 1. TULASI
RENUKAMBA W/O LATE SANNASWAMY
Location: High AGED ABOUT 31 YEARS
Court of
Karnataka 2. BHAVANI
D/O LATE SANNASWAMY
AGED ABOUT 14 YEARS
3. YASHWANTH KUMAR
S/O LATE SANNASWAMY
AGED ABOUT 12 YEARS
4. LAKSHMI
D/O LATE SANNASWAMY
AGED ABOUT 6 YEARS
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MFA No.6637/2023
C/W MFA.CROB No.106/2023
SINCE 2ND TO 4TH RESPONDENTS ARE MINOR
WILL BE REPRESENTED BY THEIR MOTHER
AND N/G i.e., TULASI - 1st RESPONDENT.
5. LAKSHMAMMA
W/O LATE SANNAIAH
AGED ABOUT 63 YEARS
ALL ARE R/AT ANEKANNABADI VILLAGE
HALLIMYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT.
6. T. A. MANJUNATHA
S/O ANNAIAH
AGED ABOUT 41 YEARS
R/AT MAHADESHWARA COLONY
HALLIMYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT.
7. SANDIPA B. R
S/O RANGASWAMY
AGED ABOUT 26 YEARS
R/AT BETTADASATHENAHALLI
BAGIVALU VILLAGE
HALEKOTE HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT ...RESPONDENTS
(BY SRI. SRINIVASA D. C., ADVOCATE FOR R1 TO R5;
R2 TO R4 ARE MINORS REPRESENTED BY R1;
NOTICE TO R6 AND R7 ARE DISPENSED WITH VIDE ORDER DATED
4.10.2023)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 19.12.2022 PASSED IN MVC NO. 1703/2021 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, HOLENARASIPRA, AWARDING
COMPENSATION OF RS. 27,84,160/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
IN MFA CROB No.106/2023
BETWEEN:
1. SMT. TULASI
W/O LATE SANNASWAMY
AGED ABOUT 32 YEARS
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MFA No.6637/2023
C/W MFA.CROB No.106/2023
2. KUMARI BHAVANI
D/O LATE SANNASWAMY
AGED ABOUT 15 YEARS
3. MASTER YASHWANTH KUMAR
S/O LATE SANNASWAMY
AGED ABOUT 13 YEARS
4. KUMARI LAKSHMI
D/O LATE SANNASWAMY
AGED ABOUT 7 YEARS
THE CROSS OBJECTORS No.2 TO 4 ARE MINORS,
REPRESENTED BY THIER NATURAL GUARDIAN
AND MOTHER SMT. TULASI VIZ.,
(APPELALNT No. 1 HEREIN)
5. SMT. LASKSHMAMMA
W/O LATE SANNAIAH
AGED ABOUT 64 YEARS
ALL ARE R/AT ANEKANNABADI VILLAGE
HALLIMYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT 573210 ...CROSS OBJECTORS
(BY SRI SRINIVASA D. C., ADVOCATE)
AND:
1. SRI T.A. MANJUNATHA
S/O ANNAIAH
AGED ABOUT 42 YEARS
R/AT MAHADESHWARA COLONY
HALLIMYSORE HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT 573210.
2. SRI SANDIPA B. R
S/O RANGASWAMY
AGED ABOUT 27 YEARS
R/AT BETTADASATHENAHALLI
BAGIVALU VILLAGE
HALEKOTE HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT 573211
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MFA No.6637/2023
C/W MFA.CROB No.106/2023
3. M/S CHOLAMANDALAM M. S
BENERAL INSURANCE CO. LTD.
BY ITS REGIONAL MANAGER
GOLDEN HEIGHT COMPELX
59-C CROSS, 4TH M BLOCK
RAJAJINAGARA
BENGALURU 560010 ...RESPONDENTS
(BY SRI B. PRADEEP, ADVOCATE FOR R3;
NOTICE TO R1 AND R2 IS DISPENSED WITH VIDE ORDER DATED
06.12.2023)
THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF THE
CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 19.12.2022 PASSED
IN MVC NO. 1703/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AND MOTOR ACCIDENTS CLAIMS TRIBUNAL AT
HOLENARASIPURA, AWARDING COMPENSATION OF Rs.27,84,160/-
WITH INTEREST AT 6% P.A. AND ENHANCE THE COMPENSATION
PAYABLE TO CROSS OBJECTORS AS PER LAW AS ORIGINALLY
CLAIMED BY THEM IN CLAIM PETITION.
THIS MISCELLANEOUS FIRST APPEAL AND MFA CROB
COMING ON FOR ORDERS THIS DAY, K. S. MUDAGAL J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The matter is taken-up for final disposal with the consent
of both parties.
2. Challenging the award in MVC No.1703/2021
passed by the Senior Civil Judge and JMFC, MACT at
Holenarasipura, the insurer has preferred MFA No.6637/2023
and the claimants have preferred the aforesaid cross-objection.
3. Appellant in MFA No.6637/2023 was the third
respondent, respondent Nos.1 to 5 were the petitioners and
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respondent Nos.6 and 7 were respondent Nos.1 and 2 in MVC
No.1703/2021 before the Tribunal.
4. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the
Tribunal.
5. Claimant No.1 is the widow, claimant Nos.2 to 4 are
the minor children and claimant No.5 is the aged mother of the
deceased Sannaswamy. On 21.03.2021 at 4.00 p.m. when
Sannaswamy was proceeding on motorcycle bearing
registration No.KA-45-X-4402 near Muslim cemetery within the
limits of Malliganahalli village, Holenarasipura Taluk, TATA ACE
Goods vehicle bearing registration No.KA-13-C-9528 hit the
motorcycle of Sannaswamy and caused the accident. He
suffered grievous injuries and succumbed to such injuries on
the spot.
6. Regarding the accident, complaint as per Ex.P2 was
filed against the driver of the TATA ACE No.KA-13-C-9528. On
that basis, the FIR/Ex.P1 was registered. On investigation, the
concerned police filed charge sheet as per Ex.P9 against the
driver of the TATA ACE No.KA-13-C-9528 alleging that the
accident and the consequential death of Sannaswamy occurred
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due to the actionable negligence on the part of the driver of the
said vehicle. At the relevant time, respondent Nos.1, 2 and 3
were the owner, insured and the insurer respectively of the
TATA ACE No.KA-13/C-9528.
7. Claimants filed MVC No.1703/2021 contending that
the accident and consequential death of Sannaswamy occurred
due to actionable negligence on the part of the driver of TATA
ACE No.KA-13-C-9528. They further contended that
Sannaswamy was earning Rs.20,000/- per month from coolie
work and dairy work and Rs.25,000/- from the agriculture.
They contended that they were all dependent on the income of
Sannaswamy and due to his death, they have suffered
damages. They claimed compensation of Rs.60,00,000/- from
the respondents.
8. Respondent Nos.1 and 2 did not contest the
petition. Respondent No.3 alone contested the petition denying
the occurrence of the accident due to the actionable negligence
of the driver of TATA ACE No.KA-13-C-9528. Respondent No.3
contended that the accident occurred due to the negligence of
the deceased Sannaswamy himself. Respondent No.3 denied
the age, occupation, income of the deceased and its liability to
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pay the compensation. On behalf of the claimants, claimant
No.1 was examined as PW.1 and Exs.P1 to P16 were marked.
Respondents did not lead any evidence.
9. The Tribunal on hearing the parties by the
impugned award relying on the evidence of PW.1 and Exs.P1 to
P9 the police records held that, the accident occurred due to
the actionable negligence of the driver of TATA ACE goods
vehicle No.KA-13-C-9528. The Tribunal relying on the
postmortem report Ex.P6 assessed the age of the deceased as
40 years and notionally assessed his income at Rs.15,000/- per
month. The Tribunal deducted 1/4th from the same for living
expenses of the deceased, added 25% of the same by way of
future prospects, applied 15 multiplier and awarded
compensation of Rs.25,31,160/- on the head of loss of
dependency.
10. The tribunal in all awarded compensation of
Rs.27,84,160/- with interest at 6% per annum by the insurer
on different heads as per the table below:
Sl. Particulars Compensation
No. awarded in
Rs.
1. Loss of dependency 25,31,160/-
2. Funeral Expenses 16,500/-
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3. Loss of estate 16,500/-
4. Loss of spousal consortium to 44,000/-
the petitioner No.1
5. Loss of parental consortium to 1,32,000/-
(44,000/- each)
6. Loss of Filial consortium to the 44,000/-
petitioner No.5
Total 27,84,160/-
11. The insurer challenges the award on the ground of
quantum as well as negligence. The cross objection is filed
questioning the adequacy of compensation awarded.
12. Sri B.Pradeep, learned Counsel for the insurer
submits that PW.1 was not the eyewitness, no eyewitness was
examined and the accident occurred due to contributory
negligence of the deceased also. He submits that notional
income assessed is on the higher side and the compensation
awarded on all other heads is also on the higher side.
13. Per contra Sri Srinivasa.D.C, learned Counsel for
the claimants submits that respondent Nos.1 to 3 did not
contest the matter denying the negligence on the part of the
driver of the insured vehicle nor insurer examined the said
driver. Therefore, the Tribunal relying on the charge sheet
rightly held that the driver of TATA ACE No.KA-13-C-9528
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guilty of negligence. He submits that notional income assessed
by the Tribunal is on the lower side and compensation awarded
on the other heads is also on the lower side.
14. Having regard to the submissions of both side and
on examining the records, the questions that arise for
consideration of the Court are:
(i) Whether the finding of the Tribunal that the
accident and consequential death of Sannaswamy
occurred due to actionable negligence of the driver of
TATA ACE No.KA-13-C-9528 is sustainable?
(ii) Whether the compensation awarded is just
one?
ANALYSIS
Reg. Point No.1/actionable negligence:
15. Respondent Nos.1 and 2 the owner and insured of
TATA AE goods vehicle No.KA-13-C-9528, did not dispute the
occurrence of the accident and actionable negligence on the
part of the driver of the said vehicle. Respondent No.3 also
does not dispute the occurrence of the accident, but according
to respondent No.3 the deceased Sannaswamy also contributed
for occurrence of the accident. It may be true that the charge
sheet is not the conclusive proof of negligence. However, that
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carries a presumptive value in view of Section 114(e) of the
Indian Evidence Act, 1872. On the complaint, after
investigation police charge sheeted only the driver of TATA ACE
No.KA-13-C-9528. As the charge sheet has a presumptive
value, the burden was on the respondent to rebut the same.
16. As already pointed out, respondent Nos.1 and 2 the
owner and insured did not dispute the actionable negligence on
the part of the driver of the vehicle. Even respondent No.3 did
not examine the driver of the said vehicle to claim that the
deceased also contributed for the occurrence of the accident.
Therefore, the presumption with regard to charge sheet Ex.P9
was not rebutted. Hence, the Tribunal was justified in holding
that the accident and consequential death of Sannaswamy took
place due to actionable negligence of the driver of TATA ACE
No.KA-13-C-9528.
Reg. quantum:
17. The relationship of the claimants with the deceased
Sannaswamy was not disputed. The claimants did not produce
any documents regarding proof of actual age of the deceased.
Therefore, the Tribunal was justified in relying on postmortem
report and considering his age as 40 years based on the same.
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Multiplier of 15 applied is as per the judgment of the Hon'ble
Supreme Court in Sarla Varma v. Delhi Transport Corporation1.
18. Claimants though contended that the deceased was
doing coolie work, dairy work and agriculture, except their self-
serving statement, no evidence was adduced in proof of such
occupation or income of the deceased. Therefore, the Tribunal
was justified in assessing his income notionally. The accident
occurred in the year 2021. Considering prevailing wage rates,
cost of living at the relevant time, age of the deceased and
notional income of the deceased assessed by the Tribunal at
Rs.15,000/- per month is just one.
19. The Tribunal relying on the judgment of the Hon'ble
Supreme Court in Sarla Varma's case referred to supra rightly
deducted 1/4th of the income of the deceased for his personal
expenses as he had five dependents. Therefore, his monthly
income comes to (Rs.15,000-3750)=11,250/- as the deceased
was aged 40 years and had no permanent employment, as per
the judgment of the Hon'ble Supreme Court in National
Insurance Company Limited vs. Pranay Sethi2, 25% has to be
AIR 2009 SC 3104
AIR 2017 SC 5157
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added to his income by way of future prospects. Though the
Tribunal added 25%, it appears by typographical error it is
mentioned as 10%. 25% of Rs.11,250 comes to Rs.2,812/-.
Therefore, his monthly contribution to the family come to
(Rs.11,250+2812)=14,062/-. Therefore, compensation payable
on the head of loss of dependency comes to (Rs.14,062 x 12 x
15) = 25,31,160/-.
20. The Tribunal relying on the judgment of the Hon'ble
Supreme Court in Pranay Sethi's case referred to supra and
Magma General Insurance Company Ltd. v. Nanu Ram3, has
rightly awarded compensation of Rs.40,000/- on the head of
spousal, parental and filial consortium to claimant Nos.1 to 5
with escalation at 10%. Similarly, the compensation on the
head of funeral expenses, transportation and loss of estate was
awarded as per the ratio laid down in the judgment of the
Hon'ble Supreme Court in Pranay Sethi's case referred to
supra. Therefore, entire compensation awarded by the Tribunal
was in accordance with the principles laid down by the
aforesaid judgments and the evidence on record. Thus,
compensation awarded was just one. It cannot be said that the
2018 (18) SCC 130
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same was either on the lower side or on the higher side as
contended by the parties. Therefore, the appeal and cross-
objection deserve no merit and dismissed accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
VBS,PKN
