Karnataka High Court
The Branch Manager Reliance ... vs Smt.Saviata W/O Chindanand ... on 13 January, 2023
Bench: K.S.Mudagal, Anil B Katti
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S. MUDAGAL
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
MFA NO.202616/2019
C/w
MFA No.201496/2016. MFA No.201497/2016,
MFA No.202617/2019 (MV-D)
In MFA No.202616/2019
BETWEEN:
1. Smt. Vanishree W/o Krishnaji Kulkarni,
Age: 33 years, Occ: Household Work,
2. Radhika W/o. Rajeev Kulkarni,
Age: 48 years, Occ: Household Work,
All are residents of LIG No.111,
Jalanagar, Vijayapur.
... Appellants
(By Sri D.P. Ambekar, Advocate)
AND:
1. The Proprietor,
Karnataka Agri. Equipments,
R/o: Opp: Head Post Office,
M.G.Road, Vijayapur-586101.
Owners of Zylo Car No.KA.28.N.0275.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
2
2. The Branch Manager,
Reliance General Insurance Co. Ltd.
Court Road, Kalburgi-585101.
... Respondents
(By Sri Manjunath Ginni, Advocate for R1;
Smt. Preeti Patil Melkundi, Advocate for R2)
This Miscellaneous Fist Appeal is filed under Section
173(1) of MV Act, praying to call for the entire records in
impugned judgment and award in MVC No.1080/2013 dated
29.06.2016, of the IV Addl. District and Sessions Judge and,
Member MACT-XIII Vijayapur, passed in MVC No.1079/2013,
awarding `23,00,000/- with interest thereon at 9% and
enhance the said compensation to `35,84,000/- with interest
@ 9% per annum, from the date of filing of the petition, till
the date of realization.
In MFA No.201496/2016
BETWEEN:
The Branch Manager,
Reliance General Insurance Co. Ltd.,
Court Road, Gulbarga.
(Now represented by Authorized
Signatory, Hubli)
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
AND:
1. Smt. Savita W/o Chidanand Nagashetti,
Age: 26 years, Occ: Household work,
2. Ananya D/o Chidanand Nagashetti,
Age: 4 years, Occ: Minor,
Represented by her next friend / Guardian
Mother Resp.No.1 herein Smt. Savita W/o
Chidanand Nagashetti,
Age: 26 years,
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
3
3. Bhimaraya S/o Balavantraya Nagashetti,
Age: 68 years, Occ: Agriculture,
4. Smt. Ambawwa W/o Bhimaraya Nagashetti,
Age: 59 years, Occ: Household work,
All are R/o: Jai Karnataka Colony,
Sindagi Naka, Bijapur-586101.
5. The Proprietor,
Karnataka Agri. Equipments,
R/o: Opp: Head Post Office,
MG Road, Bijapur-586101.
... Respondents
(By Sri D.P. Ambekar, Advocate for R1, R3 & R4;
Sri Manjunath Ginni, Advocate for R5;
R2 is Minor Represented by R1)
This Miscellaneous Fist Appeal is filed under Section
173(1) of MV Act, praying to call for the records and allow
the above appeal by setting aside the impugned Common
Judgment and Award dated 29.06.2016 in MVC
No.1079/2013 passed by the IV Addl. District & Sessions
Judge & Member M.A.C.T. XIII, Vijayapura, in the interest of
justice and equity.
In MFA No.201497/2016
BETWEEN:
The Branch Manager,
Reliance General Insurance Co. Ltd.,
Court Road, Gulbarga.
(Now represented by Authorized
Signatory, Hubli)
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
AND:
1. Smt. Vanishree W/o Krishnaji Kulkarni,
Age: 30 years, Occ: Household work,
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
4
Deleted as per
2. Smt. Pushpabai W/o Hanumantarao Kulkarni, Order
20.07.2018 .
dated
Age: 78 years, Occ: Household work,
All are R/o: LIF No.111, Near Siddeshwar Bank,
Jal Nagar, Bijapur-586101.
3. The Proprietor,
Karnataka Agri. Equipments,
R/o: Opp: Head Post Office,
MG Road, Bijapur-586101. ... Respondents
(By Sri Manjunath Ginni, Advocate for R3;
R1 is served;
R2-deleted V/o dated 20.07.2018)
This Miscellaneous Fist Appeal is filed under Section
173(1) of MV Act, praying to call for the records and allow
the above appeal by setting aside the impugned Common
Judgment and Award dated 29.06.2016 in MVC
No.1080/2013 passed by the IV Addl. District & Sessions
Judge & Member MACT-XIII, Vijayapura, in the interest of
justice and equity.
In MFA No.202617/2019
BETWEEN:
1. Smt. Savita W/o Chidanand Nagashetti,
Age: 26 years, Occ: Household work,
2. Ananya D/o. Chidanand Nagashetti,
Age: 7 years, Occ: Student,
Since minor represented her mother
the appellant No.1.
3. Smt. Ambawwa W/o Bhimaraya Nagashetti,
Age: 60 years, Occ: Household work,
All are residents of Jai Karnatak Colony,
Sindagi Naka, Vijayapur-586101. ... Appellants
(By D.P. Ambekar, Advocate)
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
5
AND:
1. The Proprietor,
Karnataka Agri. Equipments,
R/o: Opp: Head Post Office,
M.G.Road, Vijayapur-586101.
Owners of Zylo Car No.KA.28.N.0275.
2. The Branch Manager,
Reliance General Insurance Co. Ltd.
Court Road, Kalburgi-585101.
... Respondents
(By Sri Manjunath Ginni, Advocate for R1;
Smt. Preeti Patil Melkundi, Advocate for R2)
This Miscellaneous Fist Appeal is filed under Section
173(1) of MV Act, praying to call for the entire records in
impugned Judgment and Award in MVC No.1079/2013 dated
29.06.2016, of the IV Addl. District & Sessions Judge and,
Member MACT-XIII Vijayapur, passed in MVC No.1079/2013,
awarding `20,05,000/- with interest thereon at 9% and
enhance the said compensation to `42,84,000/- with interest
@ 9% per annum, from the date of filing of the petition, till
the date of realization.
These appeals pertaining to Kalaburagi Bench having
been heard and reserved on 30.11.2022 coming on for
pronouncement of judgment this day, Anil B. Katti J, sitting
at Principal Bench through video conferencing delivered the
following:
JUDGMENT
The appellants-claimants in MFA No.202616/2019 and
MFA No.202617/2019 are challenging the judgment and
award in MVC No.1080/2013 and MVC No.1079/2013
respectively. The appellant Insurance Company in MFA
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
No.201497/2016 and MFA No.201496/2016 is challenging
award in the above referred two cases dated 29.06.2016
passed by the IV Additional District and Sessions Judge and
MACT-XIII, Vijayapura.
2. These four appeals are arising out of the
common judgment and award passed by the Tribunal and
hence, the same are taken for disposal by this common
judgment.
3. The parties to the appeals are referred with their
ranks as assigned in the Tribunal for the sake of
convenience.
4. The factual matrix leading to the case of
claimants can be stated in nutshell to the effect that on
13.08.2012 at 3:00 a.m., on NH-50 (Hospet-Kustagi Road),
near Chandrashekar School of Kustagi Town, the driver of
Mahindra Xylo Car bearing No.KA-28/N-0275 Sameer
Kulkarni drove the same in rash and negligent manner and
dashed against road side welcome pole. Due to the said
accident, inmates of the car Krishnaji Kulkarni and
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
Chidanand succumbed to the injuries sustained in the
accident and another inmate of the car Girish Gadiyale
sustained grievous injuries. The deceased Chidanand and
Krishnaji Kulkarni were practicing Advocates at Vijayapura.
On account of their untimely death, the claimants have lost
bread earner of their family and subjected to greater
hardship. Therefore, prayed for compensation as prayed in
their respective petitions.
5. In response to the notice, respondent No.1-
owner of the vehicle remained ex-parte. Respondent No.2
appeared through counsel and filed written statement
contending that petition averments are all false, frivolous
and not maintainable in law. The age, occupation and
income of the deceased Chidanand and Krishnaji Kulkarni
have been denied. It has been further denied that the
accident in question has occurred due to rash and negligent
driving by driver of Mahindra Xylo car bearing No. KA-28/N-
0275. Therefore, prayed for dismissal of both petitions.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
6. The claimants in order to prove their case relied
on the evidence of PWs.1 to 4 and the documents as per
Exs.P1 to P28. The document at Ex.C-1 came to be marked
through the evidence of PW4 - Dr. Hanumant Katti. The
respondents have relied on the evidence of RWs.1 to 3 and
the document as per Ex.R1. The Tribunal after hearing the
parties granted total compensation in MVC No.1079/2013 as
follows:
1 Diet, conveyance and `13,000/-
attendant charge
2 Medical expenses `1,07,212/-
3 Loss of dependency `15,30,000/-
4 Loss of consortium of married `1,00,000/-
life
5 Loss of estate `30,000/-
6 Loss of love and affection `1,00,000/-
7 Loss of care and guidance for `1,00,000/-
minor child
8 Transportation of dead body `25,000/-
and funeral expenses
TOTAL `20,05,212/-
Rounded to `20,05,000/-
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
The compensation awarded by the Tribunal in MVC
No.1080/2013 is as follows:
1 Loss of dependency `20,48,000/-
2 Loss of consortium of `1,00,000/-
married life
3 Loss of estate `30,000/-
4 Loss of love and affection `1,00,000/-
5 Transportation of dead body `25,000/-
and funeral expenses
TOTAL `23,03,000/-
Rounded to `23,00,000/-
The said compensation amount in both cases shall
carry interest at the rate of 9% per annum from the date of
petitions till realization of entire amount.
7. The correctness and legality of the said judgment
regarding quantum of compensation in MVC No.1079/2013
and MVC No.1080/2013 has been challenged by the
claimants as well as Insurance Company.
8. Heard the arguments of both sides.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
9. The Tribunal after appreciating oral and
documentary evidence has recorded finding that the accident
in question occurred due to rash and negligent driving of the
driver of the Mahindra Xylo car bearing No.KA-28/N-0275
and as a result Chidanand and Krishnaji Kulkarni succumbed
to the injuries sustained in the accident and one Girish
Gadiyale sustained grievous injuries. The said finding of the
Tribunal is based on the document as per Ex.P1 - FIR, Ex.P2
- Complaint, Ex.P3 - Spot Panchnama, Ex.P4 - IMV Report,
Ex.P5 - Charge-sheet and P.M. Reports as per Exs.P9 and
P18. The respondent No.2 - Insurance Company has not
seriously challenged the said finding of the Tribunal. We find
no reason to interfere with the said finding.
10. The respondent No.2 - Insurance Company
claims that the notional income accepted by the Tribunal in
both the cases on the higher side, since the same is
determined without there being any basis. The living
expenses should have been taken as 1/3rd instead of 1/4th.
The grant of compensation on the conventional head is on
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
higher side. The grant of interest at the rate of 9% should
have been restricted to 6%.
11. On the other hand, the claimants in both the
cases have contend that the notional income accepted by
Tribunal is on lower side, since deceased Chidanand and
Krishnaji Kulkarni being Practicing Advocates in Vijayapura
had sumptuous income. The Tribunal has not granted any
compensation on the head loss of future prospects.
Reg. MVC No.1079/2013
12. The Tribunal in MVC No.1079/2013 for the
reasons stated in Para 18 of its judgment has accepted
monthly income of deceased - Chidanand at `9,000/- by
legal profession and `1,000/- per month from agriculture,
totally amounting to `10,000/- and `1,20,000/- per annum.
The Tribunal has deducted 1/4 as living expenses and by
applying multiplier of '17' has awarded compensation of
`15,30,000/- on the head loss of dependency. The Tribunal
has also awarded `4,75,212/- on conventional heads, totally
amounting to `20,05,000/-.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
13. The fact that deceased Chidanand was a
Practicing Advocate for the last 3 years prior to his death and
supporting documents as per Exs.P10, P11, P12, P15 and
P16 has not been seriously challenged by respondent No.2 -
Insurance Company. The learned counsel for the claimants
in both the cases relied on the following judgments:
1) Civil Appeal No.19-20 of 2021, Kirti &
Another Vs Oriental Insurance Co. Ltd.
05.01.2021.
2) Civil Appeal No.4688-4689 of 2022,
S.Chandrasekharan & Others Vs.
M.Dinakar & Another, dated 11.07.2022.
3) MFA No.2668 of 2011, National insurance
Company Ltd., V/s K.Sujatha and Others,
dated 20.06.2014.
4) MFA No.103545 of 2016 C/w MFA
No.101388 of 2017, The Regional
Manager APSRTC V/s Smt.Sindhu @
Sindhumati and others, dated 25.07.2019.
5) MFA No.23395/2011, Mangala W/o
Vijaykumar Bolmal V/s North West Road
Transport Corporation, Hubli, dated
17.04.2012.
6) MFA No.101610/2019, ICICI Lombard
General Insurance Co. Ltd V/s Smt.
Tabasum W/o Late Goresab Sanadi @
Kotur, dated 30.09.2020.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
The first two judgments relate to different profession
and the notional income accepted in the said cases cannot
form basis for accepting the same in the present case. The
other judgments related to Advocate's profession and the
notional income has been accepted ranging from `10,000/-
to `20,000/- per month, in view of the facts involved in the
said cases. In view of the facts of the present case, it would
be appropriate to accept monthly income of deceased -
Chidanand as `15,000/- per month. The Tribunal should
have given future prospects of 40% in view of the judgment
of Apex Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others - 2017 ACJ 2700.
If 40% on the accepted income of `15,000/- is calculated,
then it comes to `6,000/- (`15,000/- + `6,000/-)=
`21,000/- per month and per annum it works out to
`2,52,000/-. In view of judgment of Hon'ble Apex Court in
Sarla Verma v. DTC- (2009) 6 SCC 121, looking to the
number of dependents 1/3rd has to be deducted, since the
claimant No.4 father cannot be the dependent on the income
of deceased Chidanand. If 1/3rd amount is deducted as
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
living expenses out of `2,52,000/- then it comes to
`84,000/-. The net income would be (`2,52,000/- -
`84,000/-) = `1,68,000/-. If the same is calculated with
multiplier of '17' then it comes to `28,56,000/- to which
amount in our opinion the claimants are entitled to as
compensation on the head of loss of dependency.
14. The wife, minor daughter and parents of
deceased Chidanand are dependents on his income. In view
of the judgment in Magma General Insurance Company
Limited vs. Nanu Ram Alias Chuhru Ram and others -
(2018) 18 SCC 130, each of the dependents are entitled to
compensation of `40,000/-on the head of loss of consortium.
The same would work out to (40,000/- x 4) = `1,60,000/-in
total.
15. In view of Pranay Sethi's case referred above,
the compensation on the head of loss of estate and funeral
expenses has to be restricted at `15,000/- each.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
16. The accident in question has occurred on
13.08.2012. The deceased Chidanand has taken treatment
as an inpatient in KLE hospital, Belgaum for a period of 13
days. The Tribunal has awarded `1,07,212/- medical
expenses based on medical bills as per Ex.P13 and the same
does not call for any interference. Thus, the claimants in
MVC No.1079/2013 are entitled to compensation on the
following heads:
1 Loss of dependency `28,56,000/-
2 Loss of consortium `1,60,000/-
(`40,000/- x 3)
3 Loss of estate `15,000/-
4. Funeral expenses `15,000/-
5 Medical expenses `1,07,212/-
Total `31,53,212/-
Reg. MVC No.1080/2015
17. The claimants in MVC No.1080/2015 are the wife
and mother of deceased Krishnaji Kulkarni. Deceased
Krishnaji Kulkarni was the practicing advocate in Vijayapura
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
and earning `25,000/- per month from his legal profession.
The Tribunal has relied on the documents as per Ex.P19,
Ex.P20, Ex.P22 and Ex.P23 to hold that deceased Krishnaji
Kulkarni was practicing advocate for the last ten years and
was also having income from agriculture. The Tribunal has
accepted the monthly income of `16,000/- per month from
both the sources annually works out to `1,92,000/-. The
Tribunal by accepting the age of deceased Krishnaji Kulkarni
as 35 years based on P.M.report at Ex.P18 and applying
multiplier 16 with 1/3rd deduction of living expenses has
concluded that claimants are entitled for total compensation
of `20,48,000/- on the head of loss of dependency.
18. The learned counsel for respondent No.2-
Insurance Company contends that the notional income
accepted by the Tribunal is on higher side. Whereas the
claimants contend that the same is on lower side. The
Tribunal has recorded the finding that the claimants have not
produced any documents to prove the actual income from
legal profession and agriculture. In the absence of any
concrete material on record for proof of the actual income of
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
deceased Krishnaji Kulkarni that has to be assessed based
on the length of practice, the facts of the case, the available
evidence on record and applying certain logics. If the same
is considered with reference to the above quoted judgments,
where the income from legal profession was taken ranging
from `10,000/- to `20,000/- per month, then in our opinion
income of deceased Krishnaji Kulkarni can be safely accepted
as `15,000/- per month.
19. For the said amount a sum at the rate of 40%
has to be added as future prospects. If the same is
calculated then it comes to (`15,000/- + `6,000/-) =
`21,000/- and per annum it works out to `2,52,000/-. The
two claimants are dependents on the income of deceased
Krishnaji Kulkarni. Therefore, 1/3rd has to be deducted as
living expenses, which works out to `84,000/-. If the same
is deducted then it comes to (`2,52,000/- - `84,000/-)
=`1,68,000/-. The age of deceased Krishnaji Kulkarni in view
of PM report as per Ex.P18 is to be accepted 35 years as
taken by the Tribunal. In view of Sarla Verma case
referred above, the appropriate multiplier applicable is 16. If
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
the same is calculated then it comes to (` 1,68,000/-X 16) =
`26,88,000/- to which amount in our opinion the claimants
are entitled to as compensation on the head of loss of
dependency.
20. In view of the judgment in Magma Insurance
Company's case referred above, each of the claimants are
entitled to compensation on the head of loss of consortium
at the rate of `40,000/- in all amounting to (`40,000/- X 2)
= `80,000/-. In view of Pranay Sethi case referred above,
the claimants are entitled for `15,000/- on the head of loss
of estate and `15,000/- on the head of funeral expenses.
The claimants are entitled for total compensation as follows:
1 Loss of dependency `26,88,000/-
2 Loss of consortium `80,000/-
3 Loss of estate `15,000/-
4 Funeral expenses `15,000/-
TOTAL `27,98,000/-
`27,98,000
21. The claimants in both cases are entitled to the
compensation as discussed above, as against one awarded
by the Tribunal. The respondent No.2-Insurance company is
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
liable to pay the enhanced compensation i.e., (`31,13,312/-
- `20,05,000/-) = `11,08,312/- in MVC No.1079/2013 and to
pay enhanced compensation (`27,98,000/- - `23,03,000/-)
= `4,95,000/- in MVC No.1080/2013.
22. Learned counsel for respondent No.2 has argued
that grant of interest on the compensation at the rate of 9%
per annum from the date of petition till realization of entire
amount cannot be legally sustained. In support of her such
contention, reliance is placed on the following decisions
1) Crl.Appeal No.1540/2022, Sri. Benson
George Vs. Reliance Gen. Ins. Co. Ltd.
2) MFA No.103557/2016 Shriram Gen. Ins.
Co. Ltd. Vs. Laxmi and others, dated
20.03.2018,
3) MFA No.1907/1986 Managing Director,
Karnataka Power Corporation Ltd. Vs.
Geetha, dated 05.11.1986.
4) MFA No.2361/1992, P.Ramadevi Vs.
C.B.Saikrishna and Others, dated
23.04.1993.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
5) MFA No.1901/1999, Puttanna and Others
Vs. Lakshmana and Others, dated
21.01.2000.
The Hon'ble Apex Court in the first decision and in
remaining decisions this Court have modified the grant of
interest from 9% and 12% to 6%. Therefore in our view, in
the present case also the interest awarded by the Tribunal at
the rate of 9% per annum requires to be modified at the rate
of 6% per annum. The said compensation amount will carry
interest at the rate of 6% per annum from the date of
petition till realization. Hence, we proceed to pass the
following:
ORDER
The appeals filed by the appellants-claimants and
respondent No.2-Insurance company are hereby partly
allowed.
The appellants/claimants in MVC No.1079/2013 are
entitled to compensation of `31,53,212/-.
The appellants/claimants in MVC No.1080/2013 are
entitled to compensation `27,98,000/-.
MFA No.202616/2019
C/w. MFA No.201496/2016,
MFA No.201497/2016,
MFA No.202617/2019
The said amount awarded in both the cases shall
carry interest at the rate of 6% per annum from the date of
petition till realization of entire amount.
The apportionment and investment as ordered by
Tribunal is maintained.
In view of the order of this Court dated 16.03.2022,
the appellants-claimants in both the cases are not entitled
for interest for the delayed period of 1176 days in filing the
appeal.
Respondent No.2/insurer shall deposit the enhanced
compensation amount before the Tribunal within four weeks
from the date of receipt of copy of this Judgment on
adjusting the amount already deposited, if any.
Sd/-
JUDGE
Sd/-
JUDGE
Sbs*/SMP
