Karnataka High Court

The Branch Manager vs Smt Neelamma @ Neelamma.R on 11 September, 2023

Bench: K.Somashekar, Umesh M Adiga

                                           -1-
                                                    NC: 2023:KHC:32751-DB
                                                    MFA No. 8516 of 2019




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                                        PRESENT
                        THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                           AND
                        THE HON'BLE MR JUSTICE UMESH M ADIGA
                    MISCELLANEOUS FIRST APPEAL NO. 8516 OF 2019 (MV-D)
               BETWEEN:

                     THE BRANCH MANAGER
                     THE ORIENTAL INSURANCE COMPANY LTD.,
                     NO.865, SARATHY COMPLEX
                     ABOVE CANARA BANK
                     1ST MAIN ROAD
                     KENGERI SATELLITE TOWN
                     BENGALURU-560 060.
                     NOW REPRESENTED BY
                     M/S. THE ORIENTAL INSURANCE
                     COMPANY LIMITED
Digitally            REGIONAL OFFICE
signed by D          LEO SHOPPING COMPLEX
K BHASKAR            #44/45, RESIDENCY ROAD
Location:            BANGALORE - 560 025
High Court           REPRESENTED BY ITS
of Karnataka
                     AUTHORISED SIGNATORY.
                                                             ...APPELLANT
               (BY SRI. SURESH K - ADVOCATE)

               AND:

               1.    SMT NEELAMMA @ NEELAMMA.R.
                     W/O. LATE.SURESH
                     AGED ABOUT 40 YEARS

               2.    KUM. SUSHMA.S.
                     D/O. LAE. SURESH
                     AGED ABOUT 17 YEARS
                             -2-
                                          NC: 2023:KHC:32751-DB
                                          MFA No. 8516 of 2019




3.   KUM. SOUJANYA.S.
     D/O. LATE SURESH
     AGED ABOUT 14 YEARS

     THE APPELLANTS NOS. 2 & 3 ARE MINOR
     REPRESENTED BY THEIR MOTHER
     AND NATURAL GUARDIAN
     SMT. NEELAMMA @ NEELAMMA .R

     ALL ARE PRESENTLY RESIDING AT
     NEW NO.33 (OLD NO.38/8)
     SUBHASH NAGAR, 7TH MAIN
     4TH CROSS, GANDHINAGARA
     KENGERI UPANAGARA
     BENGALURU SOUTH
     BENGALURU-560 060.

4.   SRI. NAGESH.K
     S/O. SRI. KRISHNAPPA
     NO.223/7, 7TH MAIN, 3RD CROSS
     KENGERI SATELLITE TOWN
     BENGALURU-560 060
                                                ...RESPONDENTS
(BY SRI. JAGADEESH - ADVOCATE FOR
    SRI. GOPAL KRISHNA N - ADVOCATE FOR R-1 TO R-3;
    SRI. C.S. PREMKUMAR - ADVOCATE FOR R-4)

      THIS MFA FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT 1988, PRAYING TO CALL FOR THE RECORDS IN
M.V.C.NO.3604/2018 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS   TRIBUNAL   AND   COURT      OF    SMALL   CAUSES,   AT
BANGALORE AND DISMISS THE PETITION.

      THIS MFA, COMING ON FOR HEARING, THIS DAY,
K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:
                              -3-
                                       NC: 2023:KHC:32751-DB
                                       MFA No. 8516 of 2019




                        JUDGMENT

This appeal is preferred by the appellant - insurance

company challenging the judgment and award passed by

the Tribunal in MVC No.3604/2018 dated 10.07.2019 and

seeking intervention by consideration of the grounds urged

therein, if not, there shall be miscarriage to the case of the

appellant.

2. Heard learned counsel Sri Suresh.K. for the

appellant and learned counsel Sri Jagadeesh appearing on

behalf of Sri Gopala Krishna.N. for respondent Nos.1 to 3

and so also, learned counsel Sri C.S.Premkumar for

respondent No.4. Perused the impugned judgment and

award passed by the Tribunal.

3. It is transpired in the case of the petitioners that

deceased was the son of petitioner No.1 and brother of

petitioner Nos.2 and 3. On 20.06.2018 at about 2.20 pm.

deceased was proceeding on 6th Main Road, Kengeri

Upanagara on Honda Activa bearing Regn.No.KA-05-KG-

2848 and while he reached opposite to Tirumala Provision

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

Store, Kengeri, Bengaluru, at that time the driver of the

car bearing Regn.No.KA-19-P-3629 driving in a rash and

negligent manner hit against the said Honda Activa. As a

result, deceased - Chethan sustained severe injuries and

succumbed to injuries.

4. Subsequently, based upon the complaint at

Ex.P1, criminal prosecution was initiated and FIR came to

be recorded as per Ex.P2. Subsequently, the claimants

filed claim petition before the jurisdictional Tribunal

contending that the deceased was hale and healthy prior

to accident and was earning Rs.15,000/- p.m. by doing

Helper work and due his death, they have suffered

financial and mental agony. It is contended that they

have incurred Rs.1,00,000/- towards transportation and

last rituals and hence they being the LRs of deceased

claimed compensation against the respondents.

5. In response to the claim petition, respondent No.1

filed written statement but respondent No.2 did not file

any written statement. Based upon the pleadings of the

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

parties, the issues were framed which is also reflected in

the impugned judgment and award of the Tribunal. In

support of the contentious contentions made by the

petitioners, petitioner No.1 examined herself as PW.1 and

produced Ex.P1 to P14 and also got examined PW.2 as eye

witness and through him Ex.P15 was also got marked. On

the other side, respondent No.1 examined RW.1 and got

marked Exs.R1 and R2.

6. Subsequent to closure of evidence on both the

side, the Tribunal appreciated the evidence of PW.1 -

Neelamma @ Neelamma.R who is none other than the

mother of deceased and she has produced Ex.P1 to P14

documents such as Ex.P1 - complaint, Ex.P2 - FIR, Ex.P3

- spot mahazar, Ex.P4 - spot sketch, Ex.P5 - IMV report,

Ex.P6 - inquest report, Ex.P7 - PM report, Ex.P8 - final

report, Ex.P9 - death certificate of deceased, Ex.P10 -

salary certificate of deceased, Ex.P11 - Aadhar card of

deceased, Ex.P12 - Election ID card of PW.1, Ex.P13 -

Aadhar cards of petitioner Nos.2 and 3 and Ex.P15 -

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

Aadhar card of PW.2. These documents were got marked

on the part of the claimants seeking absolute

compensation under the relevant provisions of the Motor

Vehicles Act. The Tribunal while answering the issues

framed had relied on the reliances of Hon'ble Supreme

Court in 2015 ACJ 1985, 2017 ACJ 2700 and 2018 ACJ 5

inclusive of the reliance of National Insurance Company

Ltd vs. Pranay Sethi and others and also the reliance of

Magma General Insurance Co.Ltd vs. Nanu Ram @ Chunu

Ram and others. Consequently, on appreciation of the

oral and documentary evidence on record, the Tribunal

awarded total compensation of Rs.23,68,000/- with

interest @ 8% p.a. from the date of petition till the date of

deposit. It is this judgment which has been challenged by

the Insurance company by urging various grounds.

7. Learned counsel for the appellant contends that

the Tribunal has committed error in assessing the income

of the deceased at Rs.15,000/- p.m. without there being

any proof. Even as per the chart issued by the Karnataka

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

State Legal Services Authority the notional income of a

person for the year 2018 without there being any proof of

income is taken as Rs.12,500/- p.m. It is further

contended that deceased was riding the vehicle without

wearing a helmet and as per Ex.P7 the PM report it is

opined that the death was due to coma as a result of

sustaining head injury. It is also contended that the

interest of 8% p.a. awarded by the Tribunal is also on

higher side. On all these grounds, learned counsel for the

appellant - insurance company seeks for intervention of

the impugned judgment and award rendered by the

Tribunal in MVC No.3604/2018 as there are no justifiable

reasons assigned by the Tribunal.

8. On the contrary, learned counsel for claimants has

taken us through the initiation of prosecution of the

offender/accused in the offending vehicle. He contends

that the Tribunal by considering the oral and documentary

evidence on record has rightly come to the conclusion that

mere not possessing licence and not wearing helmet will

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

not prove the negligence aspect. But looking into the facts

of the case and the documents, the Tribunal has observed

that the petitioners have proved that deceased died due to

the injuries sustained in the accident caused by the

offending car and has rightly awarded the compensation to

the claimants. Further, PW.1 is a widow and have to look

after unmarried daughters who were entirely depending on

the income of deceased. These are all the contentions

taken by the counsel for the claimants and sought for

dismissal of the appeal.

9. Keeping in view the contentious contentions taken

by learned counsel for the parties stated supra, the

accident in question is not in dispute and further the

Tribunal based upon the oral and documentary evidence

available on record has rightly arrived at a conclusion that

looking to the facts of the case and the documents

produced i.e., FIR, complaint, spot mahazar, IMV report

are showing the fact that the Car hit Honda Activa vehicle.

In the absence of cogent proof, it is not acceptable and

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

the petitioners have proved that deceased died due to the

injuries sustained in the accident caused by the offending

vehicle. But however, the Tribunal has committed an error

regarding the income of the deceased where the claimants

had produced Ex.P10 - salary certificate. The said

document was seriously disputed by the respondents. The

author of the said document was not examined and also it

was not in a prescribed manner. Such being the case, the

Tribunal erred in considering the notional income of

deceased as Rs.15,000/- p.m. and awarded

Rs.22,68,000/- towards loss of dependency. Therefore, it

is deemed appropriate for intervention in this aspect and

to recalculate the compensation under the said head.

When there being no proof of income, as per the chart of

Karnataka State Legal Services Authority and so also,

based upon the reliances of the Hon'ble Supreme Court,

the notional income of a person for the year 2018 is to be

taken at Rs.12,500/-. The Tribunal in the absence of proof

of permanent job has rightly added 40% towards future

prospects, accordingly the calculation would be

- 10 -

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

Rs.17,500/-. The Tribunal has rightly deducted 50% of the

income towards personal expenses and the same will

come to Rs.8750/- . Accordingly, the compensation under

the head loss of dependency would be Rs.8,750 x 12 x 18

= Rs.18,90,000/-.

10. Insofar as compensation under the head loss of

estate, loss of consortium and transportation of dead body

and funeral expenses the Tribunal has relied on the

decision of the Hon'ble Supreme Court in National

Insurance Company Limited vs. Pranay Sethi and others

and Magma General Insurance Co. Ltd vs. Nanu Ram @

Chuhru Ram and others. But however, keeping in view

the recent judgment of the Hon'ble Apex Court in Civil

Appeal No.2410-2412/2023 D.D. 27.03.2023 in the

case of SHRIRAM GENERAL INSURANCE CO. LTD.

vs. BHAGAT SINGH RAWAT & ORS, their Lordship of

the Hon'ble Apex Court, reiterating the law laid down in

the case of PRANAY SETHI, held that under the

conventional heads, Rs.40,000/-, Rs.15,000/- and

- 11 -

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

Rs.15,000/- shall be awarded under the head of Loss of

consortium, loss of estate and funeral expenses and for

every three years, it needs to be enhanced by 10%. The

law laid down in the above said judgment is applicable to

the facts of the present case. Accordingly, Rs.48,400/-,

Rs.18,150/- and Rs.18,150/- is awarded under the head of

'Loss of consortium', 'Loss of Estate' and 'Funeral

Expenses', respectively.

11. Therefore, the claimants are entitled for following

amount of compensation:

Loss of Dependency                           Rs.       18,90,000/-
Loss of Consortium                           Rs.         48,400/-
Loss of Estate                               Rs.         18,150/-
Transportation of     dead   body       and Rs.          18,150/-
Funeral expenses
TOTAL                                        Rs.       19,74,700/-

12. In all, claimants are entitled for a sum of

Rs.19,74,700/- as against Rs.23,68,000/- awarded by the

Tribunal. The compensation is reduced by Rs.3,93,300/-.

However, in a given peculiar facts and circumstances of

the case, the interest at 8% p.a. awarded by the Tribunal

- 12 -

NC: 2023:KHC:32751-DB MFA No. 8516 of 2019

will remain in tact. Accordingly, we proceed to pass the

following:

ORDER The appeal is allowed in part. The impugned

judgment and award passed by the Tribunal in MVC

No.3604/2018 dated 10.07.2019 is modified. Claimants