Karnataka High Court

The Branch Manager vs Smt.Rashka Bai W/O Late ... on 2 January, 2023

Bench: J.M.Khazi

                              1       MFA No.200723/2015




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 2ND DAY OF JANUARY, 2023

                          BEFORE

         THE HON'BLE MRS. JUSTICE J.M.KHAZI

               MFA No.200723/2015 (MV)
Between:

The Branch Manager
National Insurance Company Ltd.
Branch Office, Anupam Complex
Basveshwar Chowk, G.G. Road, Bidar
Now represented by its Authorized Signatory
Divisional Office, Main Road, Kalaburagi
                                              ... Appellant
(By Smt. Sangeeta Bhadrashetty , Advocate)

And:

1.     Smt.Rashika Bai W/o Late Shivajirao Biradar
       Age: 61 Years, Occ: Household
       R/o Chikalchanda Village, Tq: Bhalki
       Dist: Bidar

2.     Biradar Vijay Kumar S/o Madhavrao Biradar
       Age: Major, Occ: Business & Agriculture
       R/o Jambgi Village, Tq: Aurad-B, Dist: Bidar

                                           ... Respondents

(Sri Sharanabasappa K. Babshetty, Advocate for R1;
R2 served)
                              2        MFA No.200723/2015




      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act praying to allow this
appeal by setting aside the impugned judgment and award
passed by the Additional District Judge and II Additional
Motor Accident Claims Tribunal at Bidar sitting at Bhalki in
MVC No.115/2013 dated 24.01.2015.


      This appeal coming on for Final Hearing this day, the
Court delivered the following:-

                       JUDGMENT

Challenging the liability as well as quantum,

respondent No.2, insurance company is before this

Court.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. The petitioner, who is aged 60 years filed a

petition under Section 166 of Motor Vehicles Act (for

short, 'the MV Act') seeking compensation on account

of death of her husband in a motor vehicle accident

dated 03.12.2012.

4. It is the case of the petitioner that her

husband Shivajirao aged 70 years was a retired

revenue inspector getting pension of Rs.12,000/- per

month. He was also running a Kirana shop earning

Rs.8,000/- p.m. On 03.12.2012 while proceeding on

the left side of the road, on Bidar-Naubad road, he

was hit by motorcycle bearing registration No.KA-

38/K-6278 (hereinafter referred as "offending

vehicle") and died on the next day while undergoing

treatment. As the owner and insurer of the offending

vehicle respondents are jointly and severally liable to

pay the compensation.

5. Though respondent No.1 appeared has not

filed written statement.

6. Respondent No.2 appeared and filed

written statement disputing that the accident occurred

due to the rash or negligence driving by the rider of

the offending vehicle. Respondent No.2 has also

disputed the age, occupation, income of the deceased

and also expenses incurred for his treatment. The

rider of the offending had no valid driving licence and

sought for dismissal of the petition against it.

7. Based on the pleading, the Tribunal framed

necessary issues.

8. Petitioner examined herself as P.W.1 and

got marked Exs.P.1 to 20.

9. Respondent No.2 has not led any oral and

documentary evidence.

10. Vide the impugned judgment and award,

the Tribunal has partly allowed the claim petition and

granted compensation in a sum of Rs.4,30,000/- and

directed respondent No.2 to pay the same with

interest at 6% per annum as detailed below:

i. Loss of Dependency : Rs.3,60,000/-

      ii. Loss of estate                    :    Rs.30,000/-
      iii. Transportation of dead                Rs.15,000/-
      body
      iv. Loss of consortium for            :    Rs.10,000/-
      petitioner
      v. Hospital charges &                 :    Rs.15,000/-
      medical bills
      Total                                 :    Rs.4,30,000/-

      11.   The   petitioner         has   not   challenged    the

impugned judgment and award.

12. Though duly served with notice, respondent

No.1 has remained ex parte.

13. During the course of arguments learned

counsel representing respondent No.2 submitted that

the Tribunal has failed to appreciate oral and

documentary evidence placed on record in right

perspective. It has wrongly held that accident was

due to rash or negligent driving by the rider of the

offending vehicle. Alternatively, the quantum of

compensation granted is on the higher side.

14. On the other hand, learned counsel for the

petitioner supported the impugned judgment and

award and prays to dismiss the appeal.

15. Heard learned counsel for the petitioner

and learned counsel for respondent No.2.

16. The fact that the petitioner is wife of the

deceased is not in dispute. Though she is not the

eyewitness to the incident, based on the information

furnished by one Pratap Singh, she has filed the

complaint. After completing the investigation, the

concerned police have filed chargesheet against the

rider of the offending vehicle. Admittedly, in the

chargesheet there are no allegations that the

deceased contributed to the accident. Prima facie the

chargesheet coupled with the testimony of P.W.1

established the fact that the accident was due to the

rash or negligent act of rider of the offending vehicle.

17. Now coming to the question whether the

quantum of compensation awarded by the Tribunal is

just and reasonable or it calls for interference by this

Court under the following various heads:

18. Loss of dependency:- Though petitioner

claims that the deceased was a retired revenue

inspector getting pension of Rs.12,000/- p.m., she has

not produced any documents to evidence the said

fact. As rightly held by the Tribunal, where it is

accepted that the deceased was a retired Government

employee, getting pension, then as the wife, petitioner

would be entitled for family pension, in which event,

the difference in the pension is to be deducted while

calculating the loss of dependency. Anyhow, in the

absence of proof that the deceased was a retired

revenue inspector, drawing pension, the Tribunal has

rightly rejected the said contention.

18.1. Though the petitioner has produced

Ex.P.17 said to be the licence dated 09.02.2012 for

running Kirana and general store, there is no evidence

that the deceased was running the said Kirana shop

and the exact income derived from the same.

Therefore, rightly the Tribunal has rejected the said

contention and taken the income of the deceased on

notional basis. The accident is of the year 2012.

Based on minimum wages, it would be appropriate to

consider the notional income of the deceased at

Rs.6,500/- p.m. and as such, Rs.9,000/- p.m.

considered by the Tribunal is on the higher side.

Consequently, the notional income of the deceased is

restricted to Rs.6,500/- per month.

18.2. Though the petitioner claimed that the

deceased was aged 70 years, she has not produced

any evidence to prove the same. Therefore, based on

post mortem report, the Tribunal has rightly

considered the age of the deceased as 75 years.

Though as per the decision in Magma General

Insurance Company Limited vs. Nanu Ram Alias

Chuhru Ram And Others1, while calculating loss of

dependency, loss of future prospects is required to be

added, having regard to the fact that the deceased

was aged more than 60 years, there is no scope for

adding future prospects. Since the deceased was aged

75 years, the multiplier 5 considered by the Tribunal is

correct.

18.3. The Tribunal has deducted 1/3rd of the

income of the deceased towards his personal and

living expenses. However, as per the decision of the

Hon'ble Supreme Court in Sarla Verma (smt) &

Others vs. Delhi Transport Corporation &

Another2, where the deceased is a bachelor having

parents, then only mother would be considered as his

(2018) 18 SCC 130

(2009) 6 SCC 121

dependent and therefore, 50% is required to be

deducted towards his personal and living expenses.

Similarly, in case of married person leaving behind

only a spouse, 50% is to be deducted towards his

personal and living expenses. If the deceased is

married and having 2-3 dependents, then deduction

would be 1/3rd, 4-6 dependents deduction would be

1/4th and more than 6 dependents, the deduction

would be 1/5th.

18.4. The situation where the deceased is

married and left behind only the wife, then the

deduction towards his personal and living expenses is

to be 50%, as in case of parents, of which only

mother is to be considered as dependent, is clarified

by the Co-ordinate Bench of this Court in New India

Assurance Co., Ltd., rep., by Sr. Divisional

Manager vs. Sri David. T and Another 3 (David's

case) and The Manager National Insurance Co.

Ltd., Shivamogga vs. T. Chandranaika and

Others4 (T. Chandranaika's case).

18.5. In the light of the above decisions, in the

present case, as the petitioner is the only dependent

of the deceased, 50% income is to be deducted

towards his personal and living expenses. Therefore,

deduction of 1/3rd made by the Tribunal is not

correct. The remaining 50% of income of the

deceased is to be taken into consideration for

calculating loss of dependency. With these

components, the compensation under the head loss of

dependency is Rs.6,500/- x 12 x 5 x 50% =

Rs.1,95,000/- as against Rs.3,60,000/- granted by the

Tribunal.

ILR 2012 KAR. 2859

ILR 2018 KAR 2837

19. Medical Expenses:- It is pertinent to note

that immediately after the accident, the deceased was

shifted to the hospital and on the next day, he

succumbed to the injuries. Based on the medical bills,

the Tribunal has rightly granted compensation in a

sum of Rs.15,000/- and it calls for no interference.

20. Loss of consortium:- The Tribunal has

granted compensation in a sum of Rs.10,000/- under

this head. As per National Insurance Company

Limited V. Pranay Sethi and others5, under the

head loss of consortium, the wife, parents and

children of the deceased are entitled for compensation

in a sum of Rs.40,000/- each. Therefore,

compensation under this head is enhanced to

Rs.40,000/-.

(2017) 16 SCC 680

21. Loss to estate and Funeral expenses:-

The Tribunal has granted compensation in a sum of

Rs.30,000/- under the head loss to estate and

Rs.15,000/- under the head transportation of body. It

has not granted any compensation under the head

funeral expenses. When major compensation is

granted under the head loss of dependency, as per

Pranay Sethi's case under the conventional head of

loss to estate and funeral expenses, which includes

transportation charges, a sum of Rs.15,000/- each is

required to be granted. Therefore, compensation of

Rs.30,000/- granted under the head loss to estate is

reduced to Rs.15,000/- and compensation in a sum of

Rs.15,000/- is granted under the head funeral

expenses, which includes transportation charges and

therefore, Rs.15,000/- granted exclusively under the

head transportation of dead body is to be disallowed.

22. Thus, in all the petitioner is entitled for

compensation in a sum of Rs.2,80,000/- together with

interest at 6% p.a., as against Rs.4,30,000/- granted

by the Tribunal as detailed below:

Sl.No. Heads Amount awarded Amount awarded by the Tribunal by this Court

1. Loss of Rs.3,60,000/- Rs.1,95,000/-

dependency

2. Loss of Rs.10,000/- Rs.40,000/-

consortium

3. Loss of estate Rs.30,000/- Rs.15,000/-

4. Funeral Rs.15,000/- Rs.15,000/-

           expenses          (transportation
                             of dead body)
5.         Medical           Rs.15,000/-          Rs.15,000/-
           expenses
              Total          Rs.4,30,000/-        Rs.2,80,000/-


         23.   To   this     extent,   the     appeal   filed   by

respondent No.2 deserves to be allowed in part.

Accordingly, I proceed to pass the following: