Karnataka High Court

The Divisional Manager vs Smt. Vidayvati And Anr on 24 July, 2024

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                                                            NC: 2024:KHC-K:5262
                                                        MFA No. 201189 of 2019




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 24TH DAY OF JULY, 2024

                                              BEFORE
                              THE HON'BLE MR. JUSTICE UMESH M ADIGA


                           MISCL. FIRST APPEAL NO. 201189 OF 2019 (MV-I)


                      BETWEEN:

                      M/S SHRIRAM GENERAL INSURANCE CO. LTD
                      E-8, EPIP, RIICO INDUSTRIAL AREA,
                      SITAPURA, JAIPUR,
                      RAJASTAN-302022,
                      REPRESENTED BY ITS,
                      AUTHORIZED SIGNATORY,

                      PRESENTLY REPRESENTED BY ITS,
                      OFFICER/ MANAGER,
                      SHRIRAM GENERAL INSURANCE CO. LTD,
                      NO.5/4, 3RD FLOOR , S V ARCADE,
Digitally signed by
SHIVALEELA            BELEKAHALLI MAIN ROAD,
DATTATRAYA            OFF BANNERUGHATTA ROAD,
UDAGI
                      IIMP POST, BENGALURU-560076.
Location: HIGH
COURT OF
KARNATAKA                                                          ...APPELLANT
                      (BY SRI SUDARSHAN M., ADVOCATE)

                      AND:

                      1.   SMT. VIDYAVATI W/O MUSALI MALLAPPA,
                           AGED ABOUT: 60 YEARS,
                           OCC: HOSUEHOLD WORK,
                           R/O. TULJAPPA NIVAS
                           JANATA COLONY CHIDRI,
                           BIDAR-585401.
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                                      NC: 2024:KHC-K:5262
                                  MFA No. 201189 of 2019




2.   SRI. GIRI NAGARAJ S/O LATE MALLAPPA
     AGED ABOUT: 40 YEARS OCC: NIL,
     R/O. TULJAPPA NIVAS JANATA COLONY
     CHIDRI BIDAR-585401.

3.   SRI. GIRI VENKATESH S/O LATE MALLAPPA
     AGED ABOUT: 38 YEARS, OCC: NIL,
     R/O. TULJAPPA NIVAS, JANATA COLONY,
     CHIDRI BIDAR-585401.

4.   SMT. M. MANJULA S/O LATE MALLAPPA
     AGED ABOUT: 28 YEARS OCC: HOUSE HOLD,
     R/O. TULJAPPA NIVAS, JANATA COLONY,
     CHIDRI BIDAR-585401.

5.   SRI. BASAPPA S/O LATE KALLAPPA
     AGED ABOUT: 88 YEARS OCC: NIL,
     R/O. TULJAPPA NIVAS, JANATA COLONY,
     CHIDRI BIDAR-585401.

6.   SMT. MARIYAMMA W/O BASAPPA
     AGED ABOUT: 83 YEARS, OCC: NIL,
     R/O. TULJAPPA NIVAS, JANATA COLONY,
     CHIDRI BIDAR-585401.

7.   SRI. PRASHANTH S/O DHANSINGH JADHAV
     AGE: MAJOR OCC: BUSINESS,
     R/O NO.823 H.H.NO.82, VILLAGE BONTHI THANDA,
     TQ. AURAD-B, DIST. BIDAR-585401,
     (OWNER OF ASHOK LEYLAND
     COMET SUPER 1611, REG.NO.KA-38/5239).
                                          ...RESPONDENTS

(BY SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1 TO R4;
VIDE ORDER DATED 24.07.2024 NOTICE TO R7 IS D/W)

     THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED-10.12.2018
PASSED IN MVC NO.168/2016 BY THE COURT OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE AND PRINCIPAL
MACT, BIDAR. AND ETC
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                                              NC: 2024:KHC-K:5262
                                          MFA No. 201189 of 2019




    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:       THE HON'BLE MR. JUSTICE UMESH M ADIGA


                        ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

This appeal is by the insurer challenging the

impugned judgment and award in MVC.No.168/2016 dated

10.12.2018 passed by the Prl. Dist. & Sessions Judge &

Prl. MACT, Bidar (hereinafter for short referred to as

'Tribunal').

2. Though this appeal is slated for orders, with the

consent of learned counsels for both the side, it is taken

up for final disposal.

3. The parties will be referred as per their ranks

before the Tribunal for sake of convenience.

4. The very short point is involved in this appeal is

whether grownup and major children are entitled for

compensation under the head loss of dependency?

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5. Brief facts of the case are that on 05.11.2015

around 12:50 p.m. deceased-Musali Mallappa met with an

accident on Bidar-Chidri road, near Central school of Bidar,

due to rash and negligent driving of lorry bearing

Reg.No.KA-38/5259 by its driver. As a result of which, the

said Musali Mallappa sustained grievous injuries and

succumbed to the injuries at the spot.

6. The claimants as already stated above are wife,

children and parents of the deceased. They had contended

that deceased was aged about 60 years and getting

pension of Rs.20,000/- per month as well as Rs.5,000/- as

tuition charges. Deceased utilized his income for the

benefit of the family. Therefore, the claimants are entitled

for compensation.

7. Before the Tribunal the insurer denied the

contents of the claim petition and has also contended that

claimant Nos.2 to 4 are not entitled for compensation, as

NC: 2024:KHC-K:5262

they are grown up sons and daughter of the deceased and

they were not depending upon earnings of the deceased.

8. The Tribunal after hearing both the parties

awarded compensation of Rs.9,02,700/- with interest at

the rate of 6% per annum by the impugned judgment and

award. The same is challenged in the present appeal.

9. Heard the learned counsel for the both the

parties.

10. The learned counsel for the appellant/Insurance

Company would submit that claimant Nos.2, 3 and 4 are

adult sons and daughter of the deceased. Therefore, they

are not entitled for the compensation. The Tribunal

considering the presence of claimant Nos.2 to 4 deducted

1/3rd of income towards personal expenses and awarded

the amount of compensation towards loss of dependency,

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for which they are not entitled. In view of the same,

prayed for reconsidering the impugned judgment.

11. The learned counsel for the respondents-

claimants has submitted that claimant Nos.5 and 6 had

died when the matter was pending before the Tribunal.

However, in the impugned judgment at the cause-title it is

not specifically mentioned.

12. He further submits that in the case of National

Insurance Company Limited vs. Birender and

Others1, the Hon'ble Apex Court held that Section 166 of

the Motor Vehicles Act (for short, 'the M.V.Act') does not

say that claimants should be completely depending upon

the earnings of the deceased; on the contrary the said

section says that legal heirs of deceased in an accident are

entitled to claim compensation.

2020(11)SCC 356

NC: 2024:KHC-K:5262

13. Considering the said provision of law the

Hon'ble Apex Court in the case of Birender (supra) held

that though major sons and daughter having their own

source of income, they are entitled to claim compensation.

The law laid down in the said judgment is applicable to the

facts of the present case. Therefore, the contention of the

insurer/appellant is not tenable and prayed for dismissal of

the appeal.

14. The claimant Nos.2 to 4 are major sons and

daughter of the deceased is not in dispute. There is no

much discussion regarding dependency of the claimants on

the earnings of the deceased in the impugned judgment.

While awarding compensation under Section 166 of the

M.V.Act, nowhere states that only the dependents on the

deceased are entitled for compensation. It is very clear

that legal heirs of the victims of an accident/who died in

an accident are entitled for claiming compensation.

NC: 2024:KHC-K:5262

15. Under such circumstances, merely the

claimants are major sons and daughter, does not mean

that they are not entitled for compensation.

16. As per the claim petition the deceased was

earning Rs.20,000/- per month as pension and Rs.5,000/-

as tuition charges and contributing his income for the

maintenance of family consists of large members and lost

the said earnings. Under such circumstances, their

contention cannot be denied only on the technical ground

that they are majors.

17. In the case of Birender (supra) the Hon'ble

Apex Court while discussing the provisions of 166 of the

M.V.Act at para-14 observed as under:

"14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned

NC: 2024:KHC-K:5262

legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus: "9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act."

18. The principle of law laid down in the aforesaid

judgment is applicable to the facts of the present case.

Therefore, the contention of the appellant/Insurance

Company that since the children are majors, they are not

entitled for compensation is not tenable.

19. For the aforesaid discussion, I proceed to pass

the following: