Karnataka High Court
Sahana vs Venkatesh R K on 26 June, 2024
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NC: 2024:KHC:23459-DB
MFA No. 1539 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.1539 OF 2023 (MV-D)
BETWEEN:
SAHANA
D/O LATE NAGESH A V
AGED ABOUT 21 YEARS,
R/AT KAREKERE VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TQ AND DISTRICT-573201
...APPELLANT
(BY SRI. H J ANANDA, ADVOCATE)
AND:
Digitally
signed by
REKHA R 1. VENKATESH R K
S/O KEMPEGOWDA
Location:
High Court of MAJOR, R/AT RANGAPURA VILLAGE
Karnataka SHANTHIGRAMA POST
HASSAN TQ AND DISTRICT - 573 201
2. THE MANAGER
CHOLAMANDALAM M S GENERAL
INSURANCE COMPANY LTD.,
REGIONAL OFFICE, UNIT NO.4
9TH FLOOR, (LEVEL-06)
GOLDEN HEIGHTS COMPLEX, 39 C CROSS,
INDUSTRIAL 4TH M BLOCK, RAJAJINAGAR
BENGALURU - 560 010
...RESPONDENTS
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MFA No. 1539 of 2023
(BY SRI. B.PRADEEP, ADVOCATE FOR R2;
VIDE ORDER DATED 09.03.2023, NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO a) ENHANCE THE COMPENSATION TO
Rs.51,73,000/- FROM 35,73,000/- AND ALSO ENHANCE THE
RATE OF INTEREST FROM 6% P.A. TO 18% P.A IN THE
INTEREST OF JUSTICE AND EQUITY; b) PASS ANY OTHER
APPROPRIATE ORDER INCLUDING THE COST OF THIS APPEAL
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the petitioner seeking enhancement of
the compensation granted by the Tribunal for the death of her
father in a motor vehicle accident dated 14.09.2020.
2. For the sake of convenience, parties are
referred to by their ranks before the Tribunal.
3. Facts: It is the case of the petitioner that on
14.9.2020 at about 7:50 p.m, her father Nagesh. A.V was
proceeding on his motorbike bearing registration
No.KA-13-EE-2047 ('motor cycle' for short), near S.K.
Fish land on B.M. Road, Kenchatahalli, a rider of
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motorcycle bearing registration No.KA-13-X-6033
('offending vehicle' for short), came in a high speed, in a
rash or negligent manner and dashed against the
motorcycle of deceased. Due to the impact, Nagesh A.V
fell down and sustained grievous injuries. Immediately he
was shifted to hospital and he died on 15.09.2020 while
undergoing treatment. At the time of accident, deceased
was working as a teacher and earning Rs.48,973/- p.m.
Petitioner was dependent on him. As the owner and
insurer of the offending vehicle, respondents are jointly
and severally liable to pay the compensation and hence
the petition.
4. Though appeared through counsel, respondent
No.1 has not filed objections.
5. Respondent No.2 has filed statement of
objections denying the entire case of the petitioner,
including the allegations with regard to the accident,
nature of the injury suffered, income of the deceased and
that the petitioner was dependent on him. The
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compensation claimed is highly exorbitant and fanciful.
The driver is offending vehicle was not possessing valid
driving license. The petition is not maintainable for non
gender of owner or insurer of the motorcycle. The liability
of respondent No.2 is subject to the terms and conditions
of the policy.
6. Based on the pleadings Tribunal framed
necessary issues.
7. In support of the petition, including the
petitioner in all 3 witnesses are examined as PW-1 to 3,
and got marked Ex.P1 to 21.
8. No oral or documentary evidence is led by the
respondent.
9. Vide the impugned judgment and award, the
Tribunal has partly allowed the claim petition granting
compensation in sum of Rs.35,73,000/- and directed
respondent No.2 to pay the same with interest at 6% p.a
as detailed below:
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Heads Amount
In Rs.
Loss of dependency 34,96,000
Loss of estate 16,500
Funeral expenses 16,500
Loss of consortium 44,000
(Rs.44,000 x 1)
TOTAL 35,73,000
10. Respondents have not challenged the impugned
judgment and award.
11. During the course of arguments, learned
counsel for petitioner submitted that the compensation
granted under all the heads is on the lower side and the
Tribunal has erred in taking the personal and living
expenses of the deceased at 50% instead of 1/3rd. Since
the deceased was a Government employee, 15% of
income is required to be added towards future prospects
instead of 10%. The Tribunal has not granted any
compensation under the head medical expenses, though
the petitioner has produced the receipts and Income tax
deducted is also on higher side.
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12. On the other hand learned counsel representing
respondent 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. 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 he sustained injuries and died and that
petitioner is unmarried daughter of deceased dependent
on him has attained finality.
15. It is also not in dispute that this deceased was
working as a teacher and he was a Government employee.
Based on the date of birth, forthcoming in the pay slip, the
Tribunal has rightly taken his age as 55 years and as such
multiplier '11' considered by the Tribunal is correct.
Though the deceased was married, petitioner is the only
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dependent on him. It is submitted that his wife had died
about one month prior to his death on account of some
ailment. Having regard to the fact that petitioner is the
only dependent on the deceased, as per the decision of
the Hon'ble Supreme Court in Sarla Verma and Ors Vs.
Delhi Transport Corporation and Anr. (Sarla Verma)1,
where there are less than two dependent, deduction
towards living and personal expenses of deceased is
required to be taken at 50% and the Tribunal is justified in
taking remaining 50% for calculating loss of dependency.
16. Ex.P19 is the pay slip of deceased for the
month of August 2020. As per this, he has drawing gross
salary in a sum of Rs.48,973/-. As per the decision of the
Hon'ble Supreme Court in Magma General Insurance
Company Limited Vs. Naanu Ram Alias Chuhru Ram
(Magma General Insurance)2, for calculating loss of
dependency, loss of future prospects is required to be
added. Since deceased was aged 55 years and was in a
(2009) 6 SCC 121
(2018) 18 SCC 130
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permanent employment, 15% of the gross required to be
added towards loss of future prospects. Therefore, the
Tribunal has erred in adding only 10% of the income
towards loss of future prospects. 15% of Rs.48,973/-
comes to Rs.7,345/-. Therefore, the gross income is
required to be taken at Rs.56,318/-. Per year this would
be 56318x12=6,75,816.
17. As per the decision of the Hon'ble Supreme
Court in Shyamwati Sharma and Ors Vs Karam Singh and
Ors (Shyamwati Sharma)3, where the annual income of
deceased/injured is in the taxable range, appropriate
deduction should be made towards income tax/surcharge
by calculating his net income. Since the deceased was a
Government employee, out of the gross income of the
deceased, professional tax at the rate of Rs.200/- p.m. i.e,
Rs.2,400/- p.a. and income tax is required to be deducted.
After deducting professional tax, the income comes to
6,75,816-2,400=6,73,416. For the Assessment year
(2010) 12 SCC 378
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2021-22, the income tax and education cess at 4%
payable is Rs.49,070/-. Therefore, after deducting the
income tax and educational cess, the net income comes to
Rs.6,24,346 (i.e., 6,73,416-49070 = 6,24,346). This is
required to be taken into consideration for calculating loss
of dependency. With annual net income at Rs.6,24,346/-
multiplier '11' and 50% towards loss of dependency, the
total compensation payable under the head loss of
dependency is Rs.6,24,346x11x50%= Rs.34,33,903/-.
18. However, the Tribunal has deducted
professional tax and deducted a sum of Rs.625/- towards
income tax p.m. based on Form-16. It appears at the
request of deceased only Rs.625/- p.m. is deducted
towards TDS and Form No.16 has reflected the same.
However, income tax is required to be deducted as per
prescribed calculations. Therefore, despite granting only
10% towards loss of future prospects, the compensation
granted by the Tribunal under the head loss of
dependency is Rs.34,96,000/-, whereas it ought to have
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been Rs.34,33,903/-. Since, respondents have not
challenged the impugned judgment and award, we are not
inclined to reduce the same to Rs.34,33,903/-. Of course,
the income tax department is at liberty to recover the tax
payable out of the compensation received by the
petitioner.
19. The petitioner has produced medical bills for a
total sum of Rs.1,00,054=71 Ps. It is pertinent to note
that accident occurred on 14.09.2020 at 7.50 p.m.
Immediately, he was rushed to Janapriya Hospital. He died
on 15.09.2020 at 6.10 p.m. During this period, he was
undergoing treatment. Therefore, petitioner is entitled for
the amount spent for the treatment. It appears though the
deceased was a Government employee, petitioner has not
made any claim for medical reimbursement and all the
original bills are produced. However, the Tribunal has not
granted any compensation under the head medical
expenses. Therefore, petitioner is entitled for
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compensation of Rs.1,00,054/- under the head medical
expenses.
20. So far as grant of compensation in a sum of
Rs.77,000/- under the head loss to estate, funeral
expenses and loss of consortium is concerned, there is no
scope for interference.
21. Thus, in all petitioner is entitled for a total
compensation in a sum of Rs.35,73,000 granted by the
Tribunal + Rs.1,00,054/- under the head medical
expenses i.e., Rs.35,73,000+1,00,054=Rs.36,73,054/-
and accordingly, the following:
ORDER
(i) Appeal is allowed in part.
(ii) Petitioner is entitled for compensation in a
sum of Rs.36,73,054/- as against
Rs.35,73,000/- granted by the Tribunal
together with interest at 6% p.a. on the
enhanced compensation.
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(iii) Respondent 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) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
RR
