Karnataka High Court
Radhamma vs Zakir Pasha on 5 April, 2024
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NC: 2024:KHC:14301
MFA No. 4872 of 2018
C/W MFA No. 6860 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.4872 OF 2018(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.6860 OF 2018(MV-D)
IN M.F.A. NO.4872 OF 2018
BETWEEN:
THE RELIANCE GENERAL INSURANCE COMPANY LTD.,
1ST FLOOR, MAGANOOR BASAPPA
COMMERCIAL COMPLEX, P.B.ROAD
CHITRADURGA
ALSO AT RELIANCE GENERAL INSURANCE COMPANY
LIMITED.,
EAST WING, 5TH FLOOR, NO.28
CENTENARY BUILDING, M.G.ROAD
BENGALURU-01
NOW REPRESENTED BY MANAGER LEGAL.
...APPELLANT
Digitally signed by (BY SRI ASHOK N. PATIL, ADVOCATE)
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH
COURT OF
AND:
KARNATAKA
1. RADHAMMA
W/O LATE DEVARAJU
AGED ABOUT 26 YEARS
2. MAHESH
S/O LATE DEVARAJA
AGED ABOUT 6 YEARS
3. MAHANTESH
S/O LATE DEVARAJA
AGED ABOUT 4 YEARS
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MFA No. 4872 of 2018
C/W MFA No. 6860 of 2018
4. MARUTHI
S/O LATE DEVARAJA
AGED ABOUT 2 YEARS, MINOR
THE RESPONDENT NOS. 2 TO 4
ARE MINOR, REPRESENTEED BY THEIR
NATURAL MOTHER 1ST RESPONDENT
AS THEIR NATURAL GURARDIAN.
5. BASAVARAJA
S/O LATE SHANTHAPPA
AGED ABOUT 21 YEARS
6. BHARATHAMMA
D/O LATE SHANTHAPPA
AGED ABOUT 23 YEARS
7. ASHARANI
D/O LATE SHANTHAPPA
AGED ABOUT 24 YEARS
8. VANAJAKSHI
W/O LATE SHANTHAPPA
AGED ABOUT 56 YEARS
ALL ARE R/O MARAGATTA VILLAGE
CHITRADURGA TALUKA AND DISTRICT - 577 501.
9. ZAKIR PASHA
S/O SYED JAFFAR
MAJOR,
R/O BASAVESHWARA BEEDI
TARIKERE
CHIKKAMAGALURU DISTRICT-577 101.
...RESPONDENTS
(BY SRI R. SHASHIDHARA, ADVOCATE, FOR R1-R8;
R-2 TO R-4 ARE MINORS REP. BY R-1;
V/O DATED: 06/07/2018 NOTICE TO R-9 DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.02.2018 PASSED IN M.V.C.
ST
NO.630/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT-IV, CHITRADURGA, AWARDING
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MFA No. 4872 of 2018
C/W MFA No. 6860 of 2018
COMPENSATION OF RS.16,30,880/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
IN M.F.A. NO.6860 OF 2018
BETWEEN:
1. RADHAMMA
W/O LATE DEVARAJA
AGED ABOUT 26 YEARS
HOUSEHOLD WORK
2. MAHESH
S/O LATE DEVARAJA
AGED ABOUT 6 YEARS
3. MAHANTESH
S/O LATE DEVARAJA
AGED ABOUT 4 YEARS
4. MARUTHI
S/O LATE DEVARAJA
AGED ABOUT 2 YEARS
THE RESPONDENT NOS. 2 TO 4
ARE MINORS, REPRESENTEED BY THEIR
NATURAL MOTHER 1ST RESPONDENT
AS THEIR NATURAL GURARDIAN.
5. BASAVARAJA
S/O LATE SHANTHAPPA
AGED ABOUT 21 YEARS
6. BHARATHAMMA
D/O LATE SHANTHAPPA
AGED ABOUT 23 YEARS
7. ASHARANI
D/O LATE SHANTHAPPA
AGED ABOUT 24 YEARS
8. VANAJAKSHI
W/O LATE SHANTHAPPA
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MFA No. 4872 of 2018
C/W MFA No. 6860 of 2018
AGED ABOUT 56 YEARS
ALL ARE R/O MARAGATTA VILLAGE
CHITRADURGA TALUKA AND DISTRICT - 577 501.
...APPELLANTS
(BY SRI R. SHASHIDHARA, ADVOCATE)
AND:
ZAKIR PASHA
S/O SYED JAFFAR
MAJOR, OWNER OF EICHER LORRY
BEARING NO.KA-13/B-0388
R/O BASAVESWARA BEEDI
TARIKERE TALUK-577 228
CHIKKAMAGALUR DISTRICT.
THE RELIANCE GENERAL INSURANCE COMPANY LTD.,
1ST FLOOR, MAGANOOR BASAPPA
COMMERCIAL COMPLEX, P.B.ROAD
CHITRADURGA
ALSO AT RELIANCE GENERAL INSURANCE COMPANY
LIMITED.,
EAST WING, 5TH FLOOR, NO.28
CENTENARY BUILDING, M.G.ROAD
BENGALURU-01
NOW REPRESENTED BY MANAGER LEGAL.
...RESPONDENTS
(BY SRI R. ASHOK N. PATIL, ADVOCATE FOR R-2;
V/O DATED: 19/08/2019,
NOTICE TO R-1 IS DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.02.2018 PASSED IN M.V.C.
ST
NO.630/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT-IV, CHITRADURGA, AWARDING
COMPENSATION OF RS.16,30,880/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
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MFA No. 4872 of 2018
C/W MFA No. 6860 of 2018
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.4872/2018 is filed by the Insurer and MFA
No.6860/2018 is filed by the claimants aggrieved by the judgment
and award dated 23.02.2018 passed in MVC No.630/2017 on the file
of MACT, I Addl. Senior Civil Judge and Addl. MACT-IV, Chitradurga,
whereby, the tribunal granted compensation of Rs.16,30,880/-.
2. For the sake of convenience, the parties are referred as they
are referred to in the claim petition before the tribunal.
3. The claim petition was filed seeking compensation of
Rs.40.00 lakhs on account of death of one Devaraja in a road traffic
accident that took place on 04.05.2017 at about 3.30 p.m. near
K. Ballikatte village. It is the case of the claimants that on the day of
the incident, deceased Devaraja was traveling in a tanker tractor
bearing registration No.KA-16/TA-7238 after filling up the water at
K. Ballikatte village to deliver the same to Ramachandrappa areca
garden land. When he was proceeding in between K. Ballikatte- Adi
Chunchanagiri Tank on National High Way-IV road, Chitradurga
Taluk, at that time, the driver of the lorry bearing registration
No. KA-13/B-0388 drove the same from Davanagere side towards
Chitradurga in a rash and negligent manner and dashed to the
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tanker-tractor in which deceased was traveling. Hence, deceased
Devaraja sustained injuries and died on the spot. The claimants
contend that the deceased was hale and healthy and earning
Rs.15,000/- per month and he was doing agriculture work and
getting income of Rs.3.00 lakh per annum. Due to the accident, the
claimants have lost the sole bread earner of the family. They incurred
huge expenses towards transportation of dead body and funeral
expenses. Hence, the claimants filed a claim petition under section
166 of M.V. Act on the ground that claimant No.1 is the wife,
claimant Nos.2 to 4 are the children, claimant No.5 is the brother,
claimant Nos.6 and 7 are sisters and claimant No.8 is the mother of
deceased Devaraja on account of death of Devaraja and thus sought
for enhancement of compensation.
4. The appellant in MFA No.4872/2008-Insurance company
contended that claimant No.5 is the brother, claimant Nos.6 and 7
are sisters of deceased Davaraja and they are major and working
independently and as such they are not dependants on deceased
Devaraja. Hence, claimant Nos.5, 6 and 7 are not entitled for any
compensation. Secondly, the tribunal has awarded a sum of
Rs.2,60,000/- under conventional heads, which is high and exorbitant
and infact, the tribunal ought to have awarded Rs.2,30,000/- under
the said head. Learned counsel for the appellant Insurance company
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contended that no documents have been produced by claimant Nos.5
to 7 to show that they were depending on deceased Devaraja.
5. As there is no dispute with regard to death of deceased
Devaraja in a road traffic accident that occurred on 04.05.2017 due
to rash and negligent driving by the driver of the lorry bearing
registration No.KA-13/B-0388 and liability on the insurer of the lorry,
the only point that arises for consideration of this Court is:-
"Whether the quantum of compensation awarded
by the tribunal is just and reasonable or does it call for
enhancement or reduction?
6. After hearing the learned counsel appearing for the parties
and perusing the judgment and award, it appears that the appellant-
Insurance company in MFA No.4878/2018 has taken up the
contention that claimant Nos.5 to 7 are not dependants and
therefore, the tribunal ought to have deducted 1/5th income of the
deceased towards 'loss of dependency', but the tribunal has deducted
1/4th personal income of the deceased towards 'loss of dependency'.
7. From the perusal of the evidence of PW.1, she has
categorically stated that petitioner Nos.5 to 7 are also residing with
deceased Devaraja and they are unmarried brother and sisters of
deceased Devaraja. PW.1 specifically denied the suggestion that
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claimant Nos.5 to 7 were not depending on deceased Devaraja.
Except their denial, respondent Insurance company has not placed
any material. The appellant-Insurance company has also not placed
any material to show that claimant Nos.6 and 7 are married sisters of
deceased Devaraja. In the absence of such material particulars, it can
be presumed that claimant Nos.6 and 7 are unmarried sisters of
deceased and they were depending on deceased Devaraja. More
importantly, the father of deceased Devaraja is no more. Hence, in
village folk, normally ladies are not managers to perform all the
rituals in the family. Therefore, in the absence of father, deceased
Devaraja was to be considered as the head of the family. Obviously,
the unmarried sisters are considered to be dependant on the income
of their elder brother in the family. Hence, there is no merit in the
contention of learned counsel for the Insurance company. So far as
claimant No.5 is concerned, he is major brother of deceased
Devaraja. At the time of accident, he was aged about 20 years.
Hence, major brother cannot be held as dependant on the income of
deceased elder brother.
8. So far as grant of compensation by the tribunal, it is not just
and reasonable and it is on the lower side and hence, it requires to be
enhanced. The claimants in support of their contention to show that
the deceased was working as a driver of the tanker-tractor and was
earning Rs.15,000/- p.m., have examined first claimant- wife of
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deceased as PW.1. The very fact that when the deceased was driving
the tanker- tractor on National Highway 4, the accident occurred due
to rash and negligent driving by the driver of the offending lorry and
as a result, deceased Devaraja succumbed to the injures on the spot.
Further, from the perusal of the evidence of PW.1 on record, it
establishes that at the time of the accident, deceased was aged about
30 years. Therefore, the appropriate multiplier that would be
applicable is '17'. In the absence of any proof of salary, etc., the
income of the deceased is to taken at the rate of Rs.11,000/- p.m..
The claimants are wife, three children, mother and two unmarried
sisters. Therefore, 1/5th of his income has to be deducted towards his
'personal expenses' and 4/5th of his income has to be taken towards
his family contribution and the multiplier applicable to his age group
is '17'. Therefore, the 'loss of dependency' works out to
Rs.11,000/- +40%x12x17x1/5th=Rs.25,13,280/- and it is awarded
against Rs.13,70,880/- by the tribunal.
9. In view of the law laid down by the Supreme Court in
the case of MAGMA GENERAL INSURANCE COMPANAY
LIMITED Vs. NANU RAM ALIAS CHUHRU RAM AND
OTHERS reported in 2018 ACJ 2782 (SC), claimant No.1,
wife of the deceased is entitled for a compensation of
Rs.40,000/- under the head of 'loss of spousal consortium'
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and claimants No. 2 to 4- children are entitled for a
compensation of Rs.40,000/- each under the head 'loss of
parental consortium'. Further, claimant No.8-mother of
deceased Devaraja is entitled for a compensation of
Rs.40,000/- under the head 'loss of love and affection'. In
all, the claimants are entitled for a sum of Rs.2,00,000/- as
against Rs.1,80,000/- awarded by the Tribunal.
10. The tribunal has awarded compensation of
Rs.15,000/- under the head 'Loss of estate' and Rs.15,000/-
under the head 'transportation and Funeral expenses'
which is just and reasonable, hence, no interference is called
for in this regard.
11. The tribunal has awarded a compensation of
Rs.50,000/- towards 'loss of life expectancy', which is
reasonable, hence, no interference is called for in this regard.
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12. Thus, the claimants are entitled for the following
compensation:-
Compensation under Amount in Rs.
different Heads
Loss of dependency 25,13,280/-
Loss of consortium, love and 2,00,000/-
affection
Loss of estate 15,000/-
Transportation and funeral 15,000/-
expenses
Loss of life expectancy 50,000/-
TOTAL 27,93,280/-
Compensation awarded by the
Tribunal 16,30,880/-
BALANCE 11,62,400/-
12. The claimants are entitled to a total compensation of
Rs.27,93,280/- as against Rs.11,62,400/- awarded by the
tribunal.
Accordingly, I pass the following:
ORDER
1. Crl.A.No.4872/2018 filed by the appellant-Insurance is
allowed-in-part.
2. Crl.A.No.6860/2018 filed by the claimants is allowed-
in-part.
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3. The judgment and award dated 23.02.2018 passed by
I Addl. Senior Civil Judge and Addl. MACT-IV,
Chitradurga in MVC No.630/2017 is modified to the
extent stated hereinabove.
4. The claimants are entitled for an additional enhanced
compensation of Rs.11,62,400/- with interest at 6%
p.a. from the date of filing of the claim petition till the
date of its realization.
5. The Insurance Company Limited shall deposit the
enhanced compensation with interest at 6% p.a.
within a period of eight weeks from the date of receipt
of copy of the judgment.
6. So far as claimant No.5-Basavaraja-brother of
deceased Devaraja is concerned, he is not entitled for
any compensation under the head 'loss of consortium'
and out of the total compensation amount, the tribunal
has granted 7% compensation in favour of claimant
No.5. Now under the changed circumstances and in
view of the discussions made above, such 7% of total
compensation shall also be paid to claimant No.8-
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mother of deceased Devaraja as enhanced
compensation.
7. The amount in deposit by the Insurance company
before this Court shall be transmitted to the tribunal
within a week.
6. Draw the modified award accordingly.
7. Registry to transmit a copy of this judgment to the
concerned Tribunal, along with its records.
8. No order as to costs.
Sd/-
JUDGE
MN
