Karnataka High Court

Smt. Shobha vs The Signatory Authority on 15 February, 2024

Author: S G Pandit

Bench: S G Pandit

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                                                        MFA No. 100660 of 2020
                                                    C/W MFA No. 100042 of 2020



                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                            DATED THIS THE 15TH DAY OF FEBRUARY, 2024

                                               PRESENT
                                THE HON'BLE MR JUSTICE S G PANDIT
                                                 AND
                               THE HON'BLE MR JUSTICE K V ARAVIND
                      MISCELLANEOUS FIRST APPEAL NO. 100660 OF 2020 (MV-D)
                                             C/W
                         MISCELLANEOUS FIRST APPEAL NO. 100042 OF 2020

                      IN MFA NO.100660/2020

                      BETWEEN:

                      1.   SMT. SHOBHA W/O. NINGAPPA
                           GUNDANNANAVAR @ GUNDANNAVAR
                           AGE: 38 YEARS, OCC: HOUSEHOLD WORK.

                      2.   KUM. RAGHAVENDRA S/O. NINGAPPA
                           GUNDANNANAVAR @ GUNDANNAVAR,
                           AGE: 17 YEARS 10 MONTHS,
                           OCC: STUDENT,
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
                      3.   KUM. YAMANAPPA S/O. NINGAPPA
Date: 2024.02.24
10:54:45 +0530
                           GUNDANNANAVAR @ GUNDANNAVAR,
                           AGE: 10 YEARS, OCC: STUDENT.

                      4.   KUM. RAKESH S/O. NINGAPPA
                           GUNDANNANAVAR @ GUNDANNAVAR,
                           AGE: 06 YEARS, OCC: NIL,

                      5.   AKKAMMA D/O. NINGAPPA
                           GUNDANNANAVAR @ GUNDANNAVAR,
                           AGE: 04 YEARS 1/2 MONTHS, OCC: NIL,
                           SINCE APPELLANTS NO.2 TO 5
                           ARE MINORS,
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                                 MFA No. 100660 of 2020
                             C/W MFA No. 100042 of 2020



     R/BY. THEIR NATURAL MOTHER,
     M/G, I.E., APPELLANT NO.1.

6.   NINGAVVA W/O. YAMANAPPA
     GUNDANNANAVAR @ GUNDANNAVAR,
     AGE: 74 YEARS, OCC: HOUSEHOLD WORK,
     ALL ARE R/O: KUNNUR,
     TQ: SHIGGAON-581193, DIST: HAVERI.
                                            ...APPELLANTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE)

AND:

1.   THE SIGNATORY AUTHORITY,
     RELIANCE INDUSTRIES LTD,
     B-4, MIDC, INDUSTRIAL AREA,
     PATALGANGA,
     PO: RASAYANI KHALAPUR, RAIGAD,
     MAHARASHTRA STATE-431714.

2.   THE DIVISIONAL MANAGER,
     HDFC ERGO GENERAL INSURANCE
     CO. LTD, 1ST FLOOR,
     VIRUPAKSHA KRIPA,
     OPP-KIMS MAIN GATE,
     P. B. ROAD, VIDYANAGAR,
     HUBBALLI-580021.
                                           ...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLORI, ADV. FOR RESPONDENT NO.1,
    SRI. S. K. KAYAKMATH, ADV. FOR RESPONDENT NO.2)

     THIS MISCELLENEOUS FIRST APPEAL IS FILED U/S.173(1)
OF MOTOR VEHICLES ACT, PRAYING TO ENHACE THE
COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD
PASSED IN M.V.C NO.220/2017, ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT AND JMFC, SHIGGAON, DATED
19/06/2019 BY ALLOWING THIS APPEAL WITH COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY.
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                                  MFA No. 100660 of 2020
                              C/W MFA No. 100042 of 2020




IN MFA NO.100042/2020

BETWEEN:

THE DIVISIONAL MANAGER,
HDFC ERGO GENERAL INSURANCE
COMPANY LTD, 1ST FLOOR,
VIRUPAKSHA KRIPA,
OPP: KIMS MAIN GATE, P. B. ROAD,
VIDYANAGAR, HUBBALLI.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
                                             ...APPELLANT
(BY SRI. S. K. KAYAKMATH, ADVOCATE)

AND:

1.   SMT. SHOBHA W/O. NINGAPPA
     GUNDANNANAVAR @ GUNDANNAVAR
     AGE: 37 YEARS, OCC: HOUSEHOLD WORK.

2.   KUMAR RAGHAVENDRA S/O. NINGAPPA
     GUNDANNANAVAR @ GUNDANNAVAR,
     AGE: 17 YEARS, OCC: STUDENT.

3.   KUMAR YAMANAPPA S/O. NINGAPPA
     GUNDANNANAVAR @ GUNDANNAVAR,
     AGE: 09 YEARS, OCC: STUDENT.

4.   KUMAR RAKESH S/O. NINGAPPA
     GUNDANNANAVAR @ GUNDANNAVAR,
     AGE: 05 YEARS, OCC: STUDENT,

5.   KUMARI AKKAMMA D/O. NINGAPPA
     GUNDANNANAVAR @ GUNDANNAVAR,
     AGE: 3 ½ YEARS, OCC: STUDENT,
     SINCE RESPONDENTS NO.2 TO 5
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                                  MFA No. 100660 of 2020
                              C/W MFA No. 100042 of 2020



     ARE MINORS, REPRESENTED BY
     NATURAL GUARDIAN MOTHER,
     SMT. SHOBHA W/O. NINGAPPA
     GUNDANNANAVAR @ GUNDANNAVAR
     ALL ARE RESIDENT OF KUNNUR,
     TALUK: SHIGGAON,
     DIST: HAVERI-581205.

6.   SMT. NINGAVVA W/O. YAMANAPPA
     GUNDANNANAVAR @ GUNDANNAVAR,
     AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
     R/O: KUNNUR, TALUK: SHIGGAON,
     DIST: HAVERI-581205.

7.   THE AUTHORISED SIGNATORY,
     RELIANCE INDUSTRIES LTD,
     B-4, MIDC, INDUSTRIAL AREA,
     PATALGANGA,
     P.O. RASAYANI KHALAPUR,
     RAIGAD,
     MAHARASTHRA STATE-402107.
                                           ...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLORI, ADV. FOR RESPONDENT NO.7,
NOTICE TO RESPONDENT NO.1 AND 6 SERVED,
RESPONDENT NO.2 TO 5 ARE MINORS R/BY. RESPONDENT NO.1)

      THIS MISCELLENEOUS FIRST APPEAL IS FILED U/S.173(1)
OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL THE
RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS
PRAYED FOR BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 19.06.2019, PASSED BY THE SENIOR CIVIL
JUDGE, AND M.A.C.T, SHIGGAON IN MVC NO.220/2017, WITH
COST IN THE INTEREST OF JUSTICE AND EQUITY.


      THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
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                                  MFA No. 100660 of 2020
                              C/W MFA No. 100042 of 2020



                        JUDGMENT

These cross appeals by the claimants and the insurer

against the judgment and award in MVC No.220/2017

dated 19.07.2019 on the file of the Senior Civil Judge and

JMFC, Shiggaon.

2. MFA No.100660/2020 by the claimants seeking

enhancement of compensation. MFA No.100042/2020 by

the insurer denying the liability and disputing quantum of

compensation awarded.

3. The claimants are wife, children and mother of

Ningappa Gundannanavar who died on 25.12.2016 in road

traffic accident involving motorcycle bearing No.KA-27/Q-

5642 and car bearing No.MH-46/Z-9336. It is pleaded that

the deceased prior to the accident was driver in KSRTC

and doing agriculture, earning Rs.45,000/- per month. The

deceased was aged 39 years.

4. On issuance of notice, the 1st respondent

though served remained absent and placed ex-parte, 2nd

respondent appeared through counsel and filed obsection

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denying the petition averments. The insurer admitted the

policy, however denied liability contending violation of

terms and conditions of the policy, denying the driving

license and alleging that the accident occurred due to rash

and negligent riding of motorcycle.

5. The petitioner No.1 examined herself as PW1

and marked Exs.P1 to P18. The respondents have not

examined any witness and no documents are marked.

6. The Tribunal on consideration of the material

evidence on record awarded a compensation of

Rs.16,94,896/- under the following heads.

Sl.

Heads of Compensation Amount in Rs.

No.

1. Loss of dependency 16,24,896.00

2. Loss of love and affection 40,000.00

3. Loss of estate 15,000.00

4. Funeral expenses 15,000.00 Total 16,94,896.00

7. The Tribunal while determining the

compensation considered the income at Rs.8,000/- per

month and age of the deceased as 39 years, applied

multiplier 13, deducted 1/5th towards personal expenses

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and awarded 40% of the assessed income towards future

prospectus and interest at the rate of 6% per annum.

8. Heard learned counsel Shri. Harish S.Maigur for

appellant, learned counsel Shri. Nagaraj C. Kallori for

respondent No.1 and learned counsel Shri. S.K.

Kayakamath for respondent No.2.

9. Learned counsel for the claimants submits that

the deceased was driver in KSRTC. In support of the

income, Ex.P16 salary certificate issued by KSRTC for the

year 2012 is produced. Wherein, the deceased was

drawing salary of Rs.12,680/- for the month of September

2012. The income adopted at Rs.8,000/- per month is on

the lower side. Learned counsel further submits that the

age of the deceased is not in dispute. The deceased was

aged 39 years, the tribunal committed an error in applying

multiplier 13. It is further submitted that the six claimants

were the dependants on the earning of the deceased.

When the six claimants were dependants of the deceased,

the Tribunal committed an error in deducting 1/5th towards

personal expenses. It is further submitted that the

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compensation awarded under conventional heads is also

on the lower side.

10. Learned counsel for the insurer further submits

that the deceased was triple riding in the motorcycle, the

accident caused due to the rash and negligent riding of the

motorcycle. As the death of the deceased was due to the

negligence of the deceased himself, the insurer is not

liable to pay any compensation. Learned counsel submits

that in the absence of any proof of income, the Tribunal is

justified in assessing the income notionally at Rs.8,000/-

per month. It is further submitted that the salary

certificate at Ex.P16 is of 2012, the deceased was

terminated prior to his death, the salary certificate cannot

be considered as a basis for assessing income of the

deceased. On the above submissions prays to dismiss the

claimants appeal and to allow the insurer appeal

11. Having heard the learned counsel for the parties

and on perusal of the appeal papers and records, the

points that arise for consideration are:

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i. Whether the liability fastened on insurer

by the Tribunal needs interference?

ii. Whether the compensation awarded by

the Tribunal is to be enhanced?

12. Our answer to the above points is in the

'negative' and 'affirmative' respectively.

13. The contention of the insurer that the accident

was due to rash and negligent driving of the motorcycle

with triple riding is not acceptable. There is no evidence to

prove that the deceased was travelling triple riding in the

motorcycle involved in the accident. No evidence is placed

by the insurer to prove that the accident was due to the

triple riding in the bike. Police on detailed investigation

have filed charge sheet on the driver of Car holding him

responsible for rash and negligent driving and causing

death of the deceased. Moreover it is for the insurer to

prove that triple riding was the case for accident. In the

absence of any evidence on record, the contention of the

insurer that accident occurred due to triple riding in the

bike is not acceptable and accordingly rejected.

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14. The claimants have contended that the

deceased was driver in KSRTC and have produced Ex.P16

salary slip for the month of September 2012. Wherein, the

deceased was drawing salary of Rs.12,680/-, from Ex.P16

it is clear that the deceased was a driver. Further as on

September 2012 he was drawing a salary of Rs.12,680/-.

It is only when no evidence is available to assess the exact

income of the deceased, notional assessment of income of

the deceased notionally is accepted. In the present case as

the basis for assessing income of the deceased was

available as per Ex.P16, the Tribunal committed an error

in assessing the income notionally. The contention of the

insurer that as on the date of accident, the deceased was

terminated from service from KSRTC is not supported by

any evidence. Considering the pay-slip for the month of

September 2012, wherein, the deceased was drawing

salary of Rs.12,680/-, we are of the view that due to

revision of pay, similarly placed driver in KSRTC would

draw salary not less than Rs.15,000/- per month. When

deceased was drawing salary of Rs.12,680/- during

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September 2012, during 2019 his salary would not be less

Rs.15,000/- per month. We proceed to assess the income

of the deceased at Rs.15,000/- per month. The age of the

deceased as 39 years is not in dispute. The Tribunal

committed an error in applying 13 as multiplier. As per the

judgment in Sarla Verma for the age group of 36 to 40

the applicable multiplier is 15. Accordingly, we hold

applicable multiplier is 15.

15. The Tribunal committed an error in deducting

1/5th towards personal expenses. As per Sarla Verma if

the number of dependent family members are between 4

to 6, the deduction is to be made at 1/4th of the assessed

income. There are six dependants on the deceased. We

hold that 1/4th deduction to be made towards personal

expenses.

16. The deceased was aged 39 years as no

evidence is placed to prove that the deceased was in

permanent job, we hold that the assessed income is to be

enhanced by 40% towards future prospects. Thus, the

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claimants would be entitled for compensation on the head

of loss of dependency as under:

Rs.15,000 + 40% x 12 x 15 x 1/4= 28,35,000/-

17. As per Hon'ble Apex Court in the case of

Magma General Insurance Company Limited Vs.

Nanu Ram & Others1, the claimants would be entitled for

Rs.40,000/- each towards spousal, parental and filial

consortium. Hence, we award Rs.40,000/- to each of the

claimant towards consortium. Award of Rs.15,000/-

towards loss of estate and Rs.15,000/- towards funeral

expenses is as per Pranay Sethi, same is maintained.

18. The compensation awarded towards loss of

estate and funeral expense is in conformity with the

Pranay Sethi no interference is required.

19. Thus, the claimants would be entitled for

modified compensation under following heads:

2018 ACJ 2782

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Sl.

Heads of Compensation Amount in Rs. No.

1. Loss of dependency 28,35,000.00

2. Towards spousal, parental and filial 2,40,000.00 consortium (40,000/-x6)

3. Loss of estate 15,000.00

4. Funeral expenses 15,000.00 Total 31,05,000.00 Amount awarded by the tribunal 16,94,896.00 Enhancement 14,10,104.00

20. Thus claimants would be entitled to total

compensation of Rs.31,05,000/- as against

Rs.16,94,896/- awarded by the Tribunal.

In the result, we proceed to pass the following:

ORDER

a) The above appeal is allowed in part.

b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants are entitled to total compensation of Rs.31,05,000/- as against Rs.16,94,896/- awarded by the Tribunal.

c) The enhanced compensation amount of Rs.14,10,104/- will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.