Karnataka High Court
Chandrakala vs Dilipkumar M A on 2 July, 2024
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MFA No. 1662 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND 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.1662 OF 2023 (MV-D)
BETWEEN:
1. CHANDRAKALA
W/O LOKESH
D/O GANGASHANIAH
AGED ABOUT 27 YEARS,
2. VISHALAMMA
S/O GANGASHANIAH
AGED ABOUT 50 YEARS,
BOTH ARE R/AT OLD RESIDENTS OF
GATTIPURA, MAGADI TALUK
Digitally signed by
REKHA R
Location: High
BOTH ARE PRESENTLY RESIDING AT
Court of Karnataka SATHYAMANGALA
TUMKURU TALUK
TUMKURU DISTRICT - 572 101
...APPELLANTS
(BY SRI. M.B.RYAKHA, ADVOCATE)
AND:
1. DILIPKUMAR M A
S/O AMASAIAH,
AGED ABOUT 33 YEARS,
R/AT MADENTURE AT POST
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MFA No. 1662 of 2023
SHANTHIGRAMA HOBLI,
HASSAN TALUK
HASSAN DISTRICT - 571 231
2. THE MANAGER
TATA AIG GEN, INSURANCE CO. LTD.,
OFFICE AT NO 1ST FLOOR, NO.612
KORAMANGALA, BENGALURU - 560 034
...RESPONDENTS
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
26.11.2021 PASSED IN MVC NO.382/2019 ON THE FILE OF THE
VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU,
ENHANCE THE COMPENSATION BY ALLOWING THE APPEAL, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR THIS HEARING DAY,
J.M.KHAZI J., THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Not being satisfied with the quantum of compensation
granted by the Tribunal for the death of Lokesh respectively -
the brother and son of petitioners, in a motor vehicle accident
dated 08.12.2018, they have filed this appeal under Section
173(1) of Motor Vehicles Act, seeking enhancement.
2. For the sake of convenience, parties are
referred to by their ranks before the Tribunal.
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3. Facts: It is the case of the petitioners that on
08.12.2018, Lokesh was traveling as a pillion rider on
motor cycle bearing registration No.KA-13-EE-7819
('offending vehicle' for short). It was ridden by respondent
No.1 in a rash or negligent manner, as a result of which at
about 11.00 p.m, when they were near the garden land of
Mahalingappa, respondent No.1 lost control and dashed
the offending vehicle against mud hump formed on
account of construction work and both Lokesh and
respondent No.1 fell down. In the said accident, Lokesh
sustained grievous injuries. Despite treatment at
Koratagere and Tumakuru Government Hospitals, ESI
Hospital and Udbhava Hospital, Bengaluru, Lokesh
succumbed to the injuries on 13.12.2018 at 3.30 p.m.
3.1 At the time of accident, deceased was working
as Manager, Gramina Koota Bank, Dabaspete Branch and
earning Rs.30,000/- p.m. As the sister and mother,
petitioners were dependent on deceased Lokesh. As the
owner/rider and insurer of the offending vehicle,
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respondent Nos. 1 and 2 are jointly and severally liable to
pay the compensation.
4. Respondent No.1 filed written statement
denying that accident occurred due to his rash or negligent
driving. At the time of accident, he was holding a valid
driving license. Since the offending vehicle was insured
with respondent No.2, it is liable to pay the compensation.
5. Respondent No.2 filed written statement,
disputing that offending vehicle is involved in the accident.
It may be a case of hit and run. There is inordinate delay
of 6 days in filing the complaint. Respondent No.2 also
disputed the cause of accident, age, occupation and
income of the deceased. Though coverage is admitted, its
liability is subject to the terms and conditions of the
policy. The compensation claimed is highly exorbitant,
fanciful, and without any basis and sought for dismissal of
the petition against it.
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6. Based on the pleadings Tribunal framed
necessary issues.
7. In support of petitioners' case, petitioner No.2
is examined as PW-1, one witness as PW-2 and Exs.P1 to
21 are marked.
8. On behalf of respondent No.2, one witness is
examined as RW-1 and Exs.R1 to 4 are marked.
9. Vide the impugned judgment and award the
Tribunal partly allowed the claim petition and granted
compensation in a sum of Rs.9,88,000/- together with
interest at 6% p.a and directed respondent No.2 to pay
the same. The details of the compensation granted are as
under:
Heads Amount
In Rs.
Loss of dependency 9,18,000
Love and affection 40,000
Loss of estate 15,000
Funeral expenses 15,000
TOTAL 9,88,000
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10. Respondents have not challenged the impugned
judgment and award.
11. Not being satisfied with the quantum of
compensation, petitioners have filed the appeal,
contending that the impugned judgment and award is
contrary to the fact and probabilities of the case. Despite
production of proof of salary certificate, the Tribunal has
erred in taking the income of the deceased on notional
basis. The loss of future prospects are not added. The
compensation granted under the other heads is on the
lower side and prays to allow the appeal.
12. On the other hand, learned counsel for
respondent No.2 submits that in the absence of proof of
exact income, income taken on notional basis is correct.
Petitioners are not entitled for interest on the
compensation that may be granted under the head loss of
future prospects. The compensation granted under the
other heads are correct and prays to dismiss the appeal.
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13. We have heard arguments of both sides and
perused the records.
14. Having regard to the fact that respondents have
not challenged the impugned judgment and award, the
findings of the Tribunal that accident occurred due to the
rash or negligent driving of the offending vehicle and in
the said accident, Lokesh sustained injuries and died and
being the insurer, respondent No.2 is liable to pay
compensation has attained finality.
15. Based on the Aadhar card, the Tribunal has
correctly taken the age of deceased as 26 years and
multiplier '17'. Ex.P9 is the appointment letter dated
09.04.2018 issued by Credit access gramin Ltd (formerly
known as Gramine Koota Financial Services Pvt.Ltd).
Ex.P10 is the pay slip for the month of November 2018. As
per Ex.P9, deceased was appointed as Trainee Kendra
Manager (TKM), Grade - B1, on the job training for a
period of 4-6 months, with a condition that his
performance would be monitored by supervisors during
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the said period. The training period may be extended by
another 3 months for valid reasons, based on the feedback
by the supervisors. The TKM will not be allowed to
continue as trainee beyond 9 months in case he is not able
to meet performance expectations and/or do not submit
the required documents to complete the reference
verification/background verification. The accident is dated
08.12.2018 i.e., within 8 months of the training. The
petitioners have not produced any documents to show that
the job of deceased was confirmed. Consequently, the
Tribunal is justified in not taking into consideration Exs.P9
and 10 and calculating the compensation based on
notional income.
16. Since the accident is of the year 2018, the
notional income ought to have been taken at Rs.12,500/-
instead of Rs.9,000/-. Admittedly, the Tribunal has not
added loss of future prospects while calculating loss of
dependency. Since income is taken on notional basis,
deceased is rightly considered as coming under the
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category of private/self employee and since he was below
the age of 40 years, as per the decision of Hon'ble
Supreme Court in Magma General Insurance Co Ltd Vs.
Nanu Ram Alias Chuhru Ram and others (Magma
General Insurance)1, 40% of income is required to be
added towards loss of future prospects. 40% of Rs.12,500
is Rs.5,000/-. Therefore, the compensation under the head
loss of dependency is 17,500x12x17x50%=17,85,000/-
(i.e.,12,500x12x17x50%=12,75,000 + 5,000x12x17x50%
= 5,10,000/-) as against Rs.9,18,000/- granted by the
Tribunal.
17. As held by the Hon'ble Supreme Court in
National Insurance Co. Ltd. Vs. Pranay Sethi and others
(Pranay Sethi)2 and Magma General Insurance, the
mother, only petitioner No.2 is entitled for compensation
under the head loss on consortium which the Tribunal has
granted under the head "loss of love and affection".
Similarly, under the head loss of estate and funeral
(2018) 18 SCC 130
(2017) 16 SCC 680
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expenses, the Tribunal has rightly granted compensation
in a sum of Rs.15,000/- each which also requires no
interference.
18. Thus, in all the petitioners and respondent No.3
are entitled for a total compensation in a sum of
Rs.18,55,000/- as against Rs.9,88,000/- granted by the
Tribunal as detailed below:
Heads Amount Amount granted by this
granted by Court
the Tribunal In Rs.
In Rs.
Loss of dependency 12,75,000
9,18,000 + 5,10,000 i.e. 17,85,000
(Loss of future
prospects)
Loss of consortium 40,000 40,000
(Loss of love &
affection)
Loss of estate 15,000 15,000
Funeral expenses 15,000 15,000
TOTAL 9,88,000 18,55,000
19. One of the grounds urged by respondent No.1 is
that although petitioners are entitled for interest on the
compensation granted from the date of petition till
realization, no interest is to be allowed on the portion of
the compensation granted under the head loss of future
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prospects, as there would be no delay in payment of the
same and since it would become due at a point of time
which has not yet arisen.
19.1 In this regard, he relied upon the decision of
Allahabad High Court in ICICI Lombard General Insurance
Company Vs Smt.Seema Devi and 6 Ors (Seema Devi)3.
In this decision, placing reliance on the decisions in
Khusboo Chirania @ Kanta Chirania Vs Kamal Kumar
Sovasaria (Khusboo), National Insurance Company Ltd
Vs. Mst. Aisha Bano and Ors dated 14.07.2023 (Aisha
Bano) and Smt. Kalpana Madhu Gavali and Ors Vs
Maharashtra State Road Transport Corporation dated
21.09.2023 (Kalpana), it was held that the compensation
granted under the head loss of future prospects should not
have been subjected to payment of any interest.
19.2 In Aisha Bano, it was held that future
prospects is relatable to an income to be received in the
Neutral citation No.2024:AHC:104849 dated 24.6.2024
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future and as such there could not be any loss to the
claimants for the payment of future prospects at the time
the deceased met with the accident. The reason for
awarding interest on the compensation amount minus the
future prospects is due to the fact that though the loss of
dependency starts from the date of the accident, the
compensation amount is computed on the date of award of
the Tribunal. Interest is awarded to compensate the loss
of money value on account of lapse of time, such as the
time taken for the legal proceedings and for the denial of
right to utilise the money when due. However, future
prospects is with regard to probable income to be received
in the future and as such there is no requirement to grant
interest on the amount awardable towards future
prospects, as the future is yet to happen. Further, future
prospects is given for the entire future and as such, the
claimant is getting compensation in the lump sum prior to
the occurrence of future events.
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19.3 We are in the complete agreement with the
above decisions. Since the amount due under the head
loss of future prospects is yet to become due, it would be
illogical and illegal to direct the insurance company to pay
interest on loss of future prospects. Therefore, out of the
total compensation payable, the respondent No.1 is not
liable to pay any interest on the compensation under the
head loss of future prospects. However, so far as the
remaining compensation, respondent No.1 is liable to pay
interest at the rate of 6% p.a. as directed by the Tribunal.
20. Thus, petitioners are entitled for interest at the
rate of 6% p.a. on the enhanced compensation, except on
Rs.5,10,000/- granted under the head loss of future
prospects.
21. In the result, appeal is allowed in part and
accordingly, the following:
ORDER
(i) Appeal is allowed in part.
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(ii) Petitioners are entitled for compensation in
a sum of Rs.18,55,000/- as against
Rs.9,88,000/- granted by the Tribunal
together with interest at 6% p.a. on the
enhanced compensation, except
Rs.5,10,000 granted under the head loss of
future prospects.
(iii) Respondent No.2 being the insurer is
directed to pay the compensation together
with interest at 6% p.a on the enhanced
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.
(iv) As per order dated 15.03.2023, petitioners
are not entitled for interest for the delayed
period on the enhanced compensation.
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(v) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
RR
