Karnataka High Court
The Divisional Manager vs Smt Bhagya on 1 July, 2024
-1-
NC: 2024:KHC:24691-DB
MFA No. 1055 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.1055 OF 2023
BETWEEN:
THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.
DIVISIONAL OFFICE, MALLAPPA COMPLEX,
B.H.ROAD, SHIVAMOGGA,
REP BY DEPUTY MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
MAHALAKSHMI CHAMBERS,
2ND FLOOR, NO.9, M.G.ROAD,
BENGALURU - 560 001.
...APPELLANT
(BY SRI. P B RAJU, ADVOCATE)
AND:
Digitally signed by
REKHA R
Location: High Court of
1. SMT. BHAGYA
Karnataka W/O LATE JAYASHANKAR,
AGED ABOUT 48 YEARS,
HOUSE WIFE,
R/O MUGULUVALLI VILLAGE AND POST,
CHIKKAMAGALURU TALUK AND DISTRICT.
2. ABHILASH S
S/O SURESH,
AGED ABOUT 27 YEARS,
R/O GONGALAKATTE, KRISHNAPURA,
KALLATTIPURA POST,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT.
-2-
NC: 2024:KHC:24691-DB
MFA No. 1055 of 2023
3. THE PROPRIETOR,
VINAY GAS DISTRIBUTORS
BASAPPA COMPLEX BH-206,
KODI CAMP,
TARIKERE TOWN AND TALUK.
...RESPONDENTS
(BY SRI. K R LINGARAJU, ADVOCATE FOR R1;
R2 AND R3 ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT PRAYING TO a) SET ASIDE THE JUDGMENT AND AWARD
DATED 15.11.2022 PASSED IN MVC NO.76/2022 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL COURT I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU AND TO EXONERATE THE LIABILITY UPON
THE APPELLANT INSURANCE COMPANY; b) GRANT COST; c)
GRANT SUCH OTHER RELIEF OR RELIEF'S AS THIS HON'BLE
COURT MAY DEEM FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 173(1) of Motor
Vehicles Act, respondent No.3 - Insurance Company has
challenged the quantum of compensation granted by the
Tribunal for the death of one Jayashankar in a motor vehicle
accident dated 09.09.2021.
2. For the sake of convenience, parties are
referred to by their ranks before the Tribunal.
NC: 2024:KHC:24691-DB
3. Facts: It is the case of the petitioner that she is
the mother of deceased Rakshitha M.J. On 09.09.2021 at
about 12.30 p.m, Rakshitha M.J was riding TVS XL motor
cycle bearing registration No.KA-18-EJ-2736 ('motor cycle'
for short) from Pillenahalli towards Muguluvalli along with
her father M.C.Jayashankar as a pillion rider. When they
were near Kadekaluve, a lorry bearing registration No.KA-
66-0117 ('offending vehicle' for short), being driven by its
driver in a high speed, in a rash or negligent manner came
from the opposite side and dashed against the motorcycle.
In the said accident, both of them died on the spot. At the
time of accident, deceased Rakshitha M.J was studying in
B.Com-II Year at IDSG College, Chikkamagaluru. She was
also serving as computer operator in Janaspandana
Development Society, Chikkamagaluru and earning
Rs.18,000/- p.m. Being the mother, petitioner was
dependent on deceased. As driver, owner and insurer,
respondent Nos.1 to 3 are jointly and severally liable to
pay the compensation and hence they laid a petition for
compensation.
NC: 2024:KHC:24691-DB
remained ex-parte.
5. Respondent No.3 filed written statement,
admitting the coverage of the offending vehicle, but its
liability was subject to the terms and conditions of the
policy. It has denied the entire case of the petitioner,
including the allegations with regard to the accident, death
due to accidental injury, income of the deceased and that
the petitioner was dependent on her. Since deceased was
a student, she had no income. The compensation claimed
was highly exorbitant and fanciful. The accident occurred
due to the negligence of the deceased. The driver of the
offending vehicle was not possessing valid and effective
driving license.
6. Based on the pleadings Tribunal framed
necessary issues.
NC: 2024:KHC:24691-DB
7. In support of the petition, including the
petitioner 2 witnesses were examined as PW-1 and 2 and
Exs.P1 to 19 were marked.
8. No oral evidence was led by respondent No.3,
but it got marked copy of the policy as Ex.R1.
9. Vide the impugned judgment and award, the
Tribunal partly allowed the claim petition granting
compensation in sum of Rs.30,01,000/- with interest at
6% p.a. and directed respondent No.3 to pay the same as
detailed below:
Heads Amount
In Rs.
Loss of dependency 29,16,000
Funeral expenses 20,000
Loss of consortium, love and 40,000
affection
Loss of estate 25,000
TOTAL 30,01,000
10. Petitioner has not challenged the impugned
judgment and award.
NC: 2024:KHC:24691-DB
11. During the course of arguments, learned
counsel for respondent No.3 submitted that the impugned
judgment and award is opposed to law, facts, probabilities
of the case and liable to be set aside. As a temporary
employee, deceased was not entitled for HRA, TA and
conveyance. The compensation granted is on the higher
side.
12. On the other hand learned counsel representing
the petitioner supported the impugned judgment and
award and sought for dismissal of the appeal.
13. We have heard elaborate arguments of both
sides and perused the records.
14. In respect of the accident, a case was
registered in Cr.No.122/2021 for the offences punishable
under Sections 279, 304-A I.P.C. and Section 187 of IMV
Act. Based on the oral and documentary evidence placed
on record, the Tribunal has rightly held that accident
occurred due to the rash or negligent driving of the
NC: 2024:KHC:24691-DB
offending vehicle and in the said accident, the daughter
and husband of petitioner died at the spot.
15. At the time of accident, deceased was studying
in B.Com II Year. Petitioner has claimed that she was
working as Data entry operator in Janaspandana
Development Society, Chikkamagaluru and earning
Rs.18,000/- p.m. On this aspect she has relied upon salary
slip for the month of August 2021. The Tribunal has
accepted this document and held her income as
Rs.18,000/- p.m.
16. Petitioner has not produced the order
appointing the deceased as Data entry operator. It is not
clear whether she was in permanent employment or
temporarily engaged. Ex.P9 is the service letter dated
10.08.2022 issued on behalf of Janaspandana
Development Society. It is stated that deceased worked
from 10.04.2020 to 06.09.2021 and she was drawing
consolidated salary of Rs.18,000/- p.m. The date of
accident is 09.09.2021. Ex.P10 is the salary slip. Petitioner
NC: 2024:KHC:24691-DB
has not proved Ex.P9 and 10 by examining the concerned
official of Janaspandana Development Society. No
documents are produced to show the disbursement of
salary to the deceased. At least petitioner could have
produced the account statement of deceased to prove the
disbursement of salary into her account. Therefore, Ex.P9
and 10 cannot be taken into consideration and the loss of
dependency is required to be ascertained by considering
the income of deceased on notional basis.
16. Based on the school records, the Tribunal has
rightly held that at the time of accident, deceased was
aged 20 years and therefore '18' multiplier considered by
the Tribunal is correct. Since the accident is of the year
2021, the notional income is required to be taken at
Rs.15,000/- p.m. The Tribunal has not added any amount
towards loss of future prospects. As per the decision of
Hon'ble Supreme Court in Magma General Insurance Co
Ltd Vs. Nanu Ram Alias Chuhru Ram and others (Magma
NC: 2024:KHC:24691-DB
General Insurance)1, loss of future prospects is required
to be added. Since deceased was held to be still a student
and below the age of 40 years, 40% is required to be
added towards loss of future prospects. 40% of
Rs.15,000/- is Rs.6,000. Therefore, income is required to
be taken at Rs.21,000/-.
17. Deceased was not married. It is relevant to
note that in the same accident, the father of deceased i.e.,
the husband of petitioner also died. Therefore, strictly
speaking petitioner cannot be treated as dependent on the
deceased. Anyhow, having regard to the fact that
deceased was not married, 50% of notional income is
required to be deducted towards her personal and living
expenses. The balance of 50% is to be taken into
consideration for calculating loss of dependency. With the
income at Rs.21,000/- and multiplier '18', the loss of
dependency is Rs.21,000x12x18x50%=Rs.22,68,000/- as
against Rs.29,16,000/- granted by the Tribunal.
(2018) 18 SCC 130
- 10 -
NC: 2024:KHC:24691-DB
18. As per the decision of the Hon'ble Supreme
Court in National Insurance Co. Ltd. Vs. Pranay Sethi and
others (Pranay Sethi)2 and Magma General Insurance
(stated supra) when substantial compensation is granted
under the head loss of dependency, under the
conventional head a sum of Rs.70,000/- is required to be
granted, viz., under the head loss of consortium
Rs.40,000/-, loss to estate Rs.15,000/- and funeral
expenses (which includes transportation charges)
Rs.15,000/-.
19. Thus, in all petitioner is entitled for a total
compensation in a sum of Rs.23,38,000/- together with
interest at 6% per annum as detailed below:
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Loss of dependency 29,16,000 22,68,000
Funeral expenses 20,000 15,000
(including transportation charges)
Loss of consortium 40,000 40,000
(Loss of consortium,
love and affection)
Loss of estate 25,000 15,000
Total 30,01,000 23,38,000
(2017) 16 SCC 680
- 11 -
NC: 2024:KHC:24691-DB
20. To this extent, the impugned judgment and
award is required to be modified and accordingly the
following:
ORDER
(i) Appeal is allowed.
(ii) Respondent is entitled for compensation in
a sum of Rs.23,38,000/- as against
Rs.30,01,000/- granted by the Tribunal
together with interest at 6% p.a. on the
enhanced compensation.
(iii) Appellant being the insurer is directed to
pay the compensation together with
interest at 6% p.a on the compensation
from the date of petition till realization
(minus the amount already
paid/deposited, if any) within a period of
six weeks from the date of this order.
- 12 -
NC: 2024:KHC:24691-DB
(iv) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
RR
