Karnataka High Court
The Oriental Insurance Company Ltd vs Gummanna on 4 July, 2024
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MFA No. 8625 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH 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.8625 OF 2023 (MV-D)
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE, 1ST FLOOR, JYOTHI SUPAR
BAZAR, THODUPUZHA, KERALA - 685 584
THROUGH ITS BENGALURU REGIONAL OFFICE
NO.44/45, 4TH FLOOR, LEO SHOPPING COMPLEX,
RESIDENY ROAD, BENGALURU - 560 025
REPRESENTED BY ITS DEPUTY MANAGER
...APPELLANT
(BY SRI. S V HEGDE MULKHAND, ADVOCATE)
AND:
Digitally signed by
REKHA R 1. GUMMANNA
Location: High Court
of Karnataka S/O CHITHAPPA,
AGED ABOUT 68 YEARS,
2. BALAMMA
W/O GUMMANNA,
AGED ABOUT 63 YEARS,
3. KARIYANNA
S/O GUMMANNA,
AGED ABOUT 33 YEARS,
4. CHANDRANNA
S/O GUMMANNA,
AGED ABOUT 30 YEARS,
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MFA No. 8625 of 2023
5. CHITHAPPA
S/O GUMMANNA,
AGED ABOUT 28 YEARS,
6. SAROJAMMA
W/O KRISHNAPPA,
AGED ABOUT 23 YEARS,
ALL ARE R/O KARAEBALAPPANAHATTI VILLAGE,
HULIYAR HOBLI, C N HALLI TALUK,
TUMKUR DISTRICT
7. THE MANAGING PARTNER
KAVALKAT METALS,
DOOR NO.IX/413/4-11,
THRISSUR, KERALA - 680 005
...RESPONDENTS
(BY SRI. MANJEGOWDA B V, ADVOCATE FOR
SRI. CHANDRASHEKARA K A, ADVOCATE FOR R1 TO R6;
R7 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
13.10.2023 PASSED IN MVC NO.196/2020 BY THE SENIOR
CIVIL JUDGE JMFC, XIX MACT, CHIKKANAYAKANAHALLI, MADE
THERE IN BY ALLOWING THIS APPEAL AND GRANT SUCH
OTHER APPROPRIATE RELIFS AS THIS HON'BLE COURT DEEMS
FIT TO GRANT IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR THIS HEARING DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the insurance company, challenging
the impugned judgment and award passed by the Tribunal,
granting compensation in a sum of Rs.32,45,200/- for the
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death of one Jayanna in a motor vehicle accident dated
06.09.2019.
2. For the sake of convenience, parties are
referred to by their ranks before the Tribunal.
3. Facts: Petitioner who are the parents and
siblings of Jayanna filed the petition, contending that on
the date of accident at 9:45 a.m Jayanna was proceeding
on motorcycle bearing registration No.KA-44-U-7353
('motorcycle' for short) on Huliyar - C.N. Halli road. Near
SLR petrol bunk, in front of the tea shop of
Channabasavaiah , a lorry bearing registration No.KL-08-
BS-6903 came from opposite side in a rash or negligent
manner and dashed against the motorcycle. As a result of
the accident, Jayanna sustained grevious injuries and died
on the spot. At the time of accident, deceased was rearing
cows and earning Rs.25,000/- p.m. Petitioners were
dependent on him. As the insurer and owner, respondents
are jointly and severally liable to pay the compensation
and hence the petition.
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4. Though duly served, before the Tribunal
respondent No.2 remained absent and as such placed ex-
parte.
5. Respondent No.1/insurance company appeared
through counsel and filed written statement, disputing the
date, time, cause of accident and the manner in which it
took place. Respondent No.1 has specifically pleaded that
accident occurred due to the negligence of the deceased.
He was not holding a valid and effective driving license.
The income of deceased and that petitioners were
dependent on him is also disputed. The compensation
claimed is exorbitant, fanciful and without any basis.
6. Based on the pleadings Tribunal framed
necessary issues.
7. In support of the petition, petitioner No.3 is
examined as PW-1 and Exs.P1 to 23 are marked.
8. Respondent No.1 has not let any oral or
documentrary evidence.
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9. Vide the impugned judgment and award, the
Tribunal has partly allowed the claim petition granting
compensation in sum of Rs.32,45,200/- and directed
respondent No.1 to pay the same with interest at 6% p.a
as detailed below:
Heads Amount
In Rs.
Loss of dependency 31,75,200
Funeral expenses 15,000
Loss of consortium 40,000
Loss of estate 15,000
TOTAL 32,45,200
10. Petitioners have not challenged the impugned
judgment and award.
11. Being aggrieved by the impugned judgment and
award, respondent No.1 has filed this appeal, contending
that it is illegal, arbitrary and contrary to the evidence on
record and principles of law laid down by the Hon'ble
Supreme Court. The spot sketch shows that the accident
took place on a straight road and having regard to the fact
that it is a head on collision, front portion of both vehicles
is damaged. It clearly shows that the accident occurred
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due to the negligence of deceased. Petitioners have not
examined any independent eye witnesses to prove that
accident was caused due to the sole negligence of driver of
the offending vehicle. The Tribunal contrary to the
principles of Res Ipsa Loquitor has fastened the entire
liability on the driver of the offending vehicle. The Tribunal
ought to have attributed at least 50% contributory
negligence on the part of the deceased. Since deceased
was a bachelor, the Tribunal ought to have deducted 50%
of the income towards personal and living expenses. The
Tribunal has erred in deducting only 1/4th towards his
personal and living expenses. In the absence of proof of
exact income, the Tribunal has erred in taking the income
of the deceased at Rs.14,000/- p.m. Viewed from any
angle the impugned judgment and the award is not
sustainable and hence the appeal.
12. On the other hand, learned counsel
representing the petitioners has supported the impugned
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judgment and award and sought for dismissal of the
petition.
13. PW-1 Kariyanna is not an eye witness to the
incident. Based on the information received regarding the
accident, he has filed the complaint. The respondent No.1
specifically contended that the accident occurred due to
the negligence of deceased or at least he has contributed
to the cause of the accident. It has specifically contended
that the road where the accident took place is very broad
road and there was sufficient space and having regard to
the fact that the accident is a head on collision, there is
contributory negligence on the part of deceased. It is
submitted by the learned counsel for respondent No.1 that
intentionally petitioners have not chosen to produce the
sketch.
14. Even though during the course of cross-
examination of PW-1, it is suggested that accident
occurred due to the negligence of deceased, which is
denied by him, respondent No.1 has not chosen to lead
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any independent witness to prove that there was
contributory negligence on the part of deceased. There
was no impediment for the respondent No.1 to produce
the sketch and also lead evidence to prove that there is
contributory negligence by the deceased. The concerned
police have filed charge sheet against the driver of the
offending vehicle. Respondent No.2 being the owner of the
offending vehicle has not chosen to examine the driver to
prove the manner in which the accident has taken place.
In Anita Sharma Vs New India Assurance Company Ltd
(Anita Sharma)1, the Hon'ble Supreme Court held that if
the owner-cum-driver of the offending vehicle was setting
up a defence plea that accident was not as a result of his
negligence, but the carelessness or rashness of driver of
the other vehicle, then the onus was on him to step into
the witness box and explain as to how the accident has
taken place. Respondent No.1 has also not challenged the
charge sheet. In the light of the above facts and
(2021) 1 SCC 171
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circumstances, we are of the considered opinion that the
Tribunal is justified in holding that the accident was due to
the rash or negligent driving of the offending vehicle and
that the respondents have failed to establish that there
was contributory negligence on the part of the deceased.
15. Now coming to the quantum of compensation,
in the documents placed on record, the age of the
deceased is stated as 22 years. The respondent No.1 has
not seriously disputed his age except suggesting that no
documents are produced to evidence the said fact.
Consequently, based on the material placed on record the
Tribunal is justified in taking the age of the deceased as
22 years and consequently the multiplier '18' considered
by the Tribunal is correct. Although the petitioners have
claimed that deceased was earning Rs.25,000/- p.m, no
evidence is produced to prove the same. Therefore, the
Tribunal is justified in taking the income on notional basis.
Since the accident is of the year 2019 based on the
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minimum wages, the notional income taken at Rs.14,000/-
p.m is also correct.
16. Since the deceased was in private employment
and aged less than 40 years, the Tribunal has rightly
added 40% income towards loss of future prospects. 40%
of Rs.14,000 is Rs.5,600. Therefore, the income is
required to be taken at Rs.19,600/-. Since the deceased
was a bachelor, as per the decision of the Hon'ble
Supreme Court in Sarla Verma & Ors. Vs. Delhi Transport
Corporation & Anr. (Sarla Verma)2, 50% of income is
required to be deducted towards his personal and living
expenses. It is also pertinent to note that only petitioner
Nos.1 and 2 being the parents of deceased are to be held
as dependent on him. Petitioner Nos.3 to 5 are the elder
brothers of deceased. Petitioner No.6 is the married sister
of the deceased. They cannot be considered as dependent
on the deceased. Therefore, the Tribunal has erred in
deducting only 1/4th of the income towards living and
(2009) 6 SCC 121
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personal expenses of the deceased. With these
components, the compensation under the head loss of
dependency is 19,600x12x18x50%= Rs.21,16,800/- (i.e.,
14,000x12x18x50%=15,12,000 + 5,600x12x18x50%=
6,04,800), as against Rs.31,75,200/- 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)3, when the substantial compensation is
granted under the head loss of dependency, under the
conventional head i.e, loss to estate and funeral expenses
(which includes transportation charges of the dead body)
and loss of consortium, a sum of Rs.15,000/- each and
Rs.40,000/- respectively is required to be granted. In
Magma General Insurance Co Ltd Vs. Nanu Ram Alias
Chuhru Ram and others (Magma General Insurance)4,
the Hon'ble Supreme Court clarified that the consortium is
(2017) 16 SCC 680
(2018) 18 SCC 130
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of three types spousal, parental, and filial. When the
spouse, viz., husband or wife of a person dies, he/she is
entitled for spousal consortium. When a parent dies, child
is entitled for compensation under the head parental
consortium. Similarly, when a child dies, parents are
entitled for filial consortium.
18. In Pranay Sethi, referred to supra it is not
made clear whether Rs.40,000/- reflected under the head
consortium referred to under the conventional heads is an
amount to be awarded for each of the spouse, parents
and/or children as the case may be or it should be an
amount to be divided between all the petitioners, who are
entitled for compensation under the head loss of
consortium. However, in Magma General Insurance
case, the Hon'ble Supreme Court granted Rs.40,000/-
each to the claimants, which gives an indication that each
of the claimants who come under such category are
entitled for compensation under the head loss of
consortium is entitled for Rs.40,000/-.
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19. In this regard, relying upon the decision of the
Hon'ble Supreme Court in Shriram General Insurance
Company Ltd Vs Bhagat Singh Rawat and Ors. (Shriram
General Insurance)5, learned counsel for
appellant/insurance company submitted that Rs.40,000/-
to be paid under the head loss of consortium is to be
divided between the claimants who are entitled for the
compensation under the said head and each of them are
not entitled for Rs.40,000/- each. In that case, the
Tribunal had granted a sum of Rs.40,000/- under the head
loss of consortium and again a sum of Rs.50,000/- under
the head loss of love and affection. The Hon'ble Supreme
Court held that the grant of such amount to each of three
dependent separately was erroneous. However, in the
light of the decision in Magma General Insurance, we
inclined to hold that those of the petitioners who are
entitled for compensation under the head loss of
consortium are entitled for Rs.40,000/- each.
AIR Online 2020 SC 573
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20. In the present case, petitioner Nos.1 and 2 are
parents of the deceased. We hold that each of them are
entitled for compensation of Rs.40,000/- under the head
filial consortium. The petitioner Nos.3 to 6 are siblings of
the deceased. They are not entitled for any compensation
under the head loss of consortium.
21. Thus, in all petitioners are entitled for a total
compensation in a sum of Rs.22,26,800/- as against
Rs.32,45,200/- granted by the Tribunal, as detailed below:
Heads Amount Amount granted by
granted by this Court
the Tribunal In Rs.
In Rs.
Loss of dependency 31,75,000 15,12,000 21,16,800
+6,04,800
(Loss of future
prospects)
Funeral expenses 15,000 15,000
(including transportation charges)
Loss of filial consortium 40,000 80,000
(Loss of
consortium, love
and affection)
Loss of estate 15,000 15,000
Total 32,45,200 22,26,800
22. One of the grounds urged by respondent No.1 is
that although petitioners are entitled for interest on the
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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
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 has relied upon the decision
of Allahabad High Court in ICICI Lombard General
Insurance Company Vs Smt.Seema Devi and 6 Ors
(Seema Devi)6. 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
Neutral citation No.2024:AHC:104849 dated 24.6.2024
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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
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
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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.
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.
23. Thus, the petitioners are entitled for interest at
the rate of 6% p.a. on the enhanced compensation, except
on Rs.6,04,800/- granted under the head loss of future
prospects. In the result appeal filed by respondent No.1
succeeds and accordingly, the following:
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ORDER
(i) Appeal is allowed in part.
(ii) Petitioners are entitled for compensation in
a sum of Rs.22,26,800/- as against
Rs.32,45,200/- granted by the Tribunal
together with interest at 6% p.a, except
Rs.6,04,800/- granted under the head loss
of future prospects.
(iii) Respondent No.1 being the insurer is
directed to pay the compensation together
with interest at 6% p.a 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) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
RR
