Karnataka High Court
The Divisional Manager vs Smt. Sunanda W/O Basavaraj Hanumananal on 5 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
-1-
NC: 2024:KHC-D:16165-DB
MFA No. 104430 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.104430 OF 2022
BETWEEN:
THE DIVISIONAL MANAGER
M/S ORIENTAL INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
ENKAY COMPLEX, II FLOOR,
KESHWAPUR CIRCLE,
OPPT. PATIMA COLLEGE,
HUBBALLI-580020,
BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. A.G.JADHAV, ADVOCATE)
AND:
Digitally signed
by MANJANNA E 1. SMT. SUNANDA W/O. BASAVARAJ HANUMANANAL
Location: HIGH AGE: 61 YEARS, OCC: HOUSE HOLD,
COURT OF
KARNATAKA R/O. BAILHONGAL, TQ: BAILHONGAL,
DHARWAD
BENCH NOW AT RAMAPUR SITE,
Date: 2024.11.16 SAUDATTI-591213, TQ. SAUDATTI,
11:10:42 +0530
DIST: BELAGAVI.
2. CHANDRASHEKHAR S/O. BASAVARAJ HANUMANAL
AGE: 36 YEARS, OCC: COOLIE, BAILHONGAL,
R/O. BAILHONGAL, TQ. BAILHONGAL,
NOW AT RAMAPUR SITE, SAUNDATTI-591213,
TQ: SAVADATI, DIST: BELAGAVI.
3. UMESH S/O. BASAVARAJ HANUMANAL
AGE: 34 YEARS, OCC: COOLIE,
-2-
NC: 2024:KHC-D:16165-DB
MFA No. 104430 of 2022
R/O. BAILHONGAL, TQ: BAILHONGAL,
NOW AT RAMAPUR SITE, SAUDATTI-591213,
TQ: SAVADATTI, DIST: BELAGAVI.
4. LAXMI D/O. BASAVARAJ HANUMANAL
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O. BAILHONGAL, TQ: BAILHONGAL,
NOW AT RAMAPUR SITE,
SAUDATTI-591213, TQ: SAVADATTI,
DIST: BELAGAVI.
5. CHANDRAGOUDA S/O. VEERABHADRAPPA PATIL
AGE: MAJOR, OCC: BUSINESS,
R/O. HOLI HOSUR-591111,
TQ: BAILHONGAL, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. GURURAJ TURAMARI, ADVOCATE FOR R1 TO R4;
NOTICE TO R5 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 18.07.2022
PASSED IN MVC NO.1103/2021 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
SAUNDATTI, AWARDING COMPENSATION OF Rs.17,75,327/- WITH
INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
-3-
NC: 2024:KHC-D:16165-DB
MFA No. 104430 of 2022
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
The insurance company has filed this appeal challenging
the judgment and award dated 18.07.2022 passed by the
learned Principal Senior Civil Judge and Additional MACT,
Saundatti, in M.V.C. No.1103/2021 whereunder the Tribunal
has awarded compensation of Rs.17,75,327/- with interest at
9% per annum from the date of petition till its realization.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Tribunal.
3. Brief facts of the claimants' case before the Tribunal
are that, on 05.08.2019, the husband of the first claimant and
father of claimant Nos.2 to 4 by name Basavaraj @ Basappa, at
about 7:30 hours was proceeding towards Channamma circle
road by walk, at that time, the driver of the TATA Maxi Cab
bearing registration No.KA-22/8297 came from Holi-Hosur road
in a rash and negligent manner and dashed to Basavaraj @
Basappa. As a result, Basavaraj sustained severe head injury
and he was shifted to Malaprabha Hospital, Bailhongal. The
injured Basavaraj succumbed to the injuries on 13.09.2019.
The claimants have contended that, deceased was a retired ASI
NC: 2024:KHC-D:16165-DB
and was also doing agriculture work and getting income of
Rs.50,000/- per month. Hence, they filed a claim petition
under Section 166 of the Motor Vehicles Act seeking
compensation.
4. After service of notice before the Tribunal,
respondent Nos.1 and 2 appeared through their counsel and
filed statement of objections separately denying the entire
averments made in the petition.
5. The Tribunal considering the oral and documentary
evidence of PWs.1 and 2 and Exs.P-1 to P-44 and Exs.R-1 to
R-4, awarded compensation of Rs.17,75,327/- with interest at
9% per annum from the date of petition.
6. Challenging the said judgment and award of the
Tribunal, the insurance company has preferred this appeal.
7. Learned counsel for the appellant-insurance
company contended that claimant Nos.2 and 3 being the sons
of deceased Basavaraj, who are residing separately, are not
entitled for compensation. The deceased was a retired ASI and
was drawing pension of Rs.21,347/- per month but the Tribunal
erred in adding Rs.7,500/- per month as agricultural income
NC: 2024:KHC-D:16165-DB
and it could have awarded only supervision charges as the land
remained. The medical bills furnished by the claimants are not
supported by any material or evidence and that the bills are
not proved by the claimants. The rate of interest on the
compensation awarded by the Tribunal at 9% per annum is on
the higher side and hence seeks reduction of the same to 6%
per annum. Thus, he prays for allowing the appeal by reducing
the compensation reasonably.
8. Per contra, learned counsel for the
respondents/claimants contended that the Tribunal considering
the oral and documentary evidence on record, has awarded
fair and reasonable compensation and hence, no interference is
called for at the hands of this Court. Thus, the learned counsel
prayed for dismissal of the appeal.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that arises
for our consideration in this appeal is:
"Whether the impugned judgment and award of the
Tribunal calls for interference?"
NC: 2024:KHC-D:16165-DB
10. There is no dispute with regard to the occurrence of
the accident on 05.08.2019 and death of Basavaraj @ Basappa
in the said road traffic accident.
11. Learned counsel for the insurance company has
taken a contention that claimant Nos.2 and 3 being the sons of
deceased Basavaraj are residing separately and thus, they are
not entitled for compensation.
12. Section 166 of MV Act is a beneficial legislation,
which provides for filing of application for compensation by
persons mentioned in clause(a) to (d) of Sub Section(1),
thereof. Section 166 of the Act reads as under:
"166. Application for compensation.-(1) An
application for compensation arising out of an accident of
the nature specified in sub-section (1) of section 165 may
bemade-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all
or any of the legal representatives ofthe deceased; or
(d) by any agent duly authorised by the person injured
or all or any of the legalrepresentatives of the deceased, as
the case may be:
Provided that where all the legal representatives of the
deceased have not joined in any such application for
NC: 2024:KHC-D:16165-DB
compensation, the application shall be made on behalf of or
for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the
application.
[(2) Every application under sub-section (1) shall be
made, at the option of the claimant, either to the Claims
Tribunal having jurisdiction over the area in which the
accident occurred or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides or carries
on business or within the local limits of whose jurisdiction
the defendant resides,and shall be in such form and contain
such particulars as may be prescribed:
Provided that where no claim for compensation under
section 140 is made in such application, the application
shall contain a separate statement to that effect
immediately before the signature of the applicant]
[* * * ]
[(4) The Claims Tribunal shall treat any report of
accidents forwarded to it under Sub- section (6) of
Section 158 as an application for compensation under this
Act.]
13. A bare reading of the said provision makes it clear
that the legal representatives of the deceased are entitled to
move an application for compensation by virtue of sub- clause(c)
and (d) of Section 166(1) of MV Act. In this regard, it is apt to
refer to the judgment of the co-ordinate bench of this Court in
the case of B.V. GOPAL AND ANOTHER Vs. MEHABOOB PASHA
AND OTHERS in MFA No.7318 of 2016 dated 23.10.2020
NC: 2024:KHC-D:16165-DB
wherein it is held at paras 9 to 12 as under:
9. A bare reading of the said provision makes it clear that
the legal representatives of the deceased are entitled to move
an application for compensation by virtue of sub-clause [c]
and [d] of Section 166 [1]. In this regard, it is apt to refer to
the judgment of the Hon'ble Apex Court in the case of
Manjuri Bera [Smt] V/s. Oriental Insurance Co. Ltd. &
Another [(2007) 10 SCC 643], wherein it is enunciated
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.
10. .....The Tribunal has a duty to make an award,
determine the amount of compensation which is just and
proper and specify the person or persons to whom such
compensation would be paid. The latter part relates to the
entitlement of compensation by a person who claims for
the same.
11. According to Section 2(11) CPC, "legal
representative" means a person who in law represents the
estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased and where a
party sues or is sued in a representative character the
person on whom the estate devolves on the death of the
party so suing or sued. Almost in similar terms is the
definition of legal representative under the Arbitration and
NC: 2024:KHC-D:16165-DB
Conciliation Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches
of BANCO National Ultramarino v. Nalini Bai Naique [1989
Supp (2) SCC 275 the definition contained in Section 2(11)
CPC is inclusive in character and its scope is wide, it is not
confined to legal heirs only. Instead it stipulates that a
person who may or may not be legal heir competent to
inherit the property of the deceased can represent the
estate of the deceased person. It includes heirs as well as
persons who represent the estate even without title either
as executors or administrators in possession of the estate
of the deceased. All such persons would be covered by the
expression "legal representative". As observed in Gujarat
SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a
legal representative is one who suffers on account of death
of a person due to a motor vehicle accident and
need not necessarily be a wife, husband, parent and
child."
10. A reading of the said judgment makes it clear that
the legal representatives of the deceased have a right to
apply for compensation. It would be incumbent on the
Tribunal to consider the petition notwithstanding the
concerned legal representatives not fully dependent on the
deceased as held by the Hon'ble Apex Court in the case of
National Insurance Company and others V/S.
Birendar and Others [Civil Appeal Nos.242-
243/2020 (D.D. 13.01.2020)].
11. In the case of Vinish Jain and others supra, the
Hon'ble Apex Court has held that 50% deduction is called
for to consider the loss of dependency applying the
multiplier method wherein, the 1/3rd deduction was
made by the High Court, keeping in view the fact that the
claimants were two major sons and two granddaughters.
12. In Mangalamma and Others supra, the Co-
- 10 -
NC: 2024:KHC-D:16165-DB
ordinate Bench of this Court while considering the claim
made by the married daughters and sons of the deceased
seeking compensation held that 50% has to be deducted
for the personal expenses and 50% of the income has to be
considered as savings of the deceased who was working as
mason, assessing the monthly income at Rs.3,000/-
applying the multiplier method, loss of estate has been
determined.
14. A reading of the said judgment makes it clear that
the legal representatives of the deceased have a right to apply
for compensation. It would be incumbent on the tribunal to
consider the petition notwithstanding the concerned legal
representatives are not fully dependant on the deceased as held
by Hon'ble Apex Court in the case of NATIONAL INSURANCE
COMPANY LIMITED Vs. BIRENDER AND OTHERS reported in
AIR 2020 SC 434.
15. In view of the decisions stated supra and Section
166 of MV Act, the Tribunal has not committed any error in
awarding compensation to the siblings of deceased Basavaraj
and hence, no interference is called for in that regard.
16. In the claim petition, the claimants have shown the
age of the deceased as 70 years and is receiving monthly
- 11 -
NC: 2024:KHC-D:16165-DB
pension of Rs.21,347/-. Hence, monthly income is assessed at
Rs.21,347/-. Claimant No.1 is the wife of the deceased and
claimant Nos.2 and 3 are the children of the deceased.
Therefore, 1/3rd of the income of the deceased has to be
deducted towards his personal and living expenses. As per
decision of the Hon'ble Apex Court in the case of Sarala
Verma & Others Vs. Delhi Transport Corporation &
Another1, multiplier applicable to the age of the deceased is
'5' which is rightly considered by the Tribunal. Thus, loss of
dependency is reckoned as under:
Rs.21,347 - Rs.7,115/-(1/3rd ) = Rs.14,232/-
Rs.14,232/- x 12 x 5=Rs.8,53,920/-
17. The Tribunal has awarded Rs.15,000/- each
towards loss of estate and funeral expenses and Rs.5,51,467/-
towards medical bills, which is just and reasonable and do not
require enhancement. Further, a sum of Rs.40,000/- awarded
towards loss of consortium is on the lower side. As per the
judgment rendered by the Hon'ble Apex Court in the case of
Magma General Insurance Company Limited Vs Nanu
2009 ACJ 1298
- 12 -
NC: 2024:KHC-D:16165-DB
Ram @ Churu Ram & Others2 and Pranay Sethi supra, the
claimants are entitled to Rs.1,60,000 i.e. (Rs.40,000/-x4)
towards loss of consortium. Thus, in all, the claimants are
entitled to modified compensation as under:
Loss of dependency
Rs.8,53,920/-
Loss of consortium (Rs.40,000x4) Rs.1,60,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
Medical expenses Rs.5,51,467/-
-----------------
Total Rs.15,95,387/-
-----------------
18. Thus, the claimants are entitled to total
compensation of Rs.15,95,387/- as against Rs.17,75,327/-
awarded by the Tribunal.
19. So far as interest is concerned, the appellant
contended that, the rate of interest awarded by the
Tribunal @ 9% per annum on the compensation is on the
higher side and same has to be reduced to 6% per annum.
In light of the Division Bench decision of this Court in the case
of MS.JOYEETA BOSE AND OTHERS -V-
VENKATESHAN.V AND OTHERS (MFA 5896/2018 and
2018 (18) SCC 130
- 13 -
NC: 2024:KHC-D:16165-DB
connected matters disposed of on 24.8.2020), the rate of
interest on the compensation awarded by the Tribunal at 9%
per annum is reduced to 6% per annum. Accordingly, the rate
of interest @ 9% per annum is reduced to 6% per annum.
13. Accordingly, the point for consideration is answered
partly in the affirmative.
14. In the result, we pass the following:
ORDER
The appeal filed by the claimants is allowed in part. The
judgment and award dated 18.07.2022 passed by the learned
Principal Senior Civil Judge and Additional MACT, Saundatti, in
M.V.C. No.1103/2021 is modified to the extent that the
claimants are entitled to reduced total compensation of
Rs.15,95,387/- with interest at the rate of 6% per annum from
the date of petition till realization. The insurance company
shall deposit the compensation with accrued interest before the
Tribunal within six weeks from the date of receipt of certified
copy of this judgment.
Registry is directed to transmit the amount in deposit to
the Tribunal concerned forthwith.
- 14 -
NC: 2024:KHC-D:16165-DB
Draw modified award accordingly.
Registry is directed to send a copy of this judgment to
the Tribunal forthwith.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
kmv
Ct:vh
