Karnataka High Court

The Oriental Insurance Co Ltd vs Ranjitha M K on 5 November, 2024

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                                                    NC: 2024:KHC:44540-DB
                                                      MFA No.8270/2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                       DATED THIS THE 5TH DAY OF NOVEMBER, 2024
                                        PRESENT
                         THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                                            AND
                      THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                 MISCELLANEOUS FIRST APPEAL NO.8270/2022 (MV-D)


                BETWEEN:

                THE ORIENTAL INSURANCE CO., LTD.,
                NEW MUSLIM HOSTEL COMPLEX
                IN FRONT OF FIRE BRIGADE
                1ST MAIN, SARASWATHIPURAM
                MYSORE CITY, MYSORE.

                THROUGH ITS REGIONAL OFFICE
                NO.44/45, LEO SHOPPING COMPLEX
                RESIDENCY ROAD, BANGALORE-560 025
Digitally       REP BY ITS MANAGER.
signed by K S
RENUKAMBA
Location:                                                    ...APPELLANT
High Court of
Karnataka       (BY SRI. JANARDHAN REDDY, ADV.,)


                AND:

                1.    RANJITHA M.K.
                      D/O LATE KUMARA
                      AGED ABOUT 22 YEARS
                      R/AT HALEBEEDU VILLAGE
                      MELUKOTE HOBLI
                      PANDAVAPURA TALUK
                      MANDYA DISTRICT.

                2.    PUNEETH H.S.
                      S/O SWAMYGOWDA
                      AGED ABOUT 24 YEARS
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                                             NC: 2024:KHC:44540-DB
                                                MFA No.8270/2022




    HEGGADAHALLI VILAGE
    MELUKOTE HOBLI
    PANDAVAPURA TALUK
    MANDYA DISTRICT
    (OWNER OF THE M/C NO.KA-11-EQ-8579).

                                                   ...RESPONDENTS
(BY SRI. VIJAY KUMAR T, ADV., FOR R1
V/O/DTD:19.3.2024 NOTICE TO R2 IS HELF SUFFICIENT)


     THIS MFA IS FILED U/S.173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS CONNECTED WITH MVC NO.85/2022
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
MACT, AT PANDAVAPURA EXAMINE THE SAME AND MODIFY
THE AWARD DATED 19.10.2022 IN THE INTEREST OF JUSTICE.

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

CORAM:      HON'BLE MRS JUSTICE K.S.MUDAGAL
            and
            HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

                       ORAL JUDGMENT

(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

"Whether the compensation awarded to respondent No.1

under the impugned award in MVC.No.85/2022 passed by the

Additional Senior Civil Judge & MACT, Pandavapura is just?" is

the question involved in this case"

2. The appellant was respondent No.2, respondent

No.1 was the sole claimant and respondent No.2 was

respondent No.1 in MVC.No.85/2022 before the tribunal. For

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the purpose of convenience, the parties are referred to

henceforth according to their ranks before the tribunal.

3. Claimant is the younger sister of deceased M.K.

Ranjan. On 28.08.2021, when M.K. Ranjan was traveling as a

pillion rider with the rider Shivaraja S/o. Eregowda on

motorcycle bearing No. KA-11-EQ-8579, the said motorcycle

met with an accident near Heggadahalli Village, near land of

Mayigowda within the limits of Melukote police station. Due to

the injuries suffered in the accident, M.K. Ranjan died at the

spot. At the relevant time, respondent Nos.1 and 2 were the

registered owner and the insurer of Bajaj Pulsar motorcycle

bearing No. KA-11-EQ-8579.

4. Claimant filed MVC.No.85/2022 against the

respondents claiming compensation of Rs.38,50,000/- alleging

that the deceased was earning Rs.30,000/- per month by

agriculture and she was solely dependent on his income. She

further alleged that due to his untimely death, she is subjected

to destitution and respondents are liable to compensate the

same.

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5. Respondent No.1 did not contest the matter.

Respondent No.2/insurer alone contested the matter denying

the occurrence of the accident due to the negligence on the

part of the rider of the motorcycle. Respondent No.2 further

contended that the claimant is a married sister and not a

dependent of the deceased. Therefore, the petition is not

maintainable. It was further alleged that the claimant in

collusion with the police and others has created some

documents and filed a false claim petition. Respondent No.2

sought dismissal of the petition.

6. Before the tribunal, in support of her case, the

claimant got examined herself as PW.1 and got marked the

FIR, complaint, charge sheet, inquest mahazar, spot mahazar,

property list, post mortem report, Indemnity bond, bank pass

book etc., together as Ex.P1. On behalf of respondent No.2 its

official was examined as RW.1 and Exs.R1 to R3 were marked.

The tribunal on hearing the parties by the impugned judgment

and award held that the accident and consequential death

occurred due to the actionable negligence on the part of the

rider of motorcycle No. KA-11-EQ-8579. The Tribunal further

held that the claimant was dependant of the deceased. The

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tribunal considered the age of the deceased as 26 years and

notionally assessed his income as Rs.15,000/- per month.

Added 40% for the same by way of future prospects, deducted

50% out of the same for the personal expenses of the

deceased, applied 17 multiplier and awarded compensation of

Rs.21,42,000/- on the head of loss of dependency. The tribunal

in all awarded compensation at Rs.22,22,000/- on different

heads as follows:

Monthly income of the Rs. 15,000/-

deceased
After    adding    40% Rs. 21,000/-
towards          future
prospects     as    per
directions of Hon'ble
High Court.
Less    1/2    towards Rs. 10,500/-
personal expenses
Actual income of the Rs.10,500/-
deceased
Multiplier as per Sarla        17
Verma case
Loss of Dependency        Rs.10,500/-   x Rs.21,42,000/-
                          12 x 17
Loss of Estate                            Rs.   20,000/-
Funeral Expenses                          Rs.   20,000/-
Brother Consortium to Rs.40,000/-         Rs.   40,000/-
petitioner
                              Total       Rs.22,22,000/-

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7. Insurer has challenged the said award in the above

appeal. Sri. Janardhan Reddy, learned counsel for the

appellant/Insurer reiterating the grounds of appeal submits that

evidence on record clearly shows that the claimant was married

to the rider of the motorcycle itself, before the accident and

they were living together. Therefore, she does not become the

dependent of the deceased. At the most, compensation could

have been awarded under the head of loss of estate. In support

of his submission he relies on the judgment of this Court in

A. Manavalagan v. A. Krishnamurthy & Others1.

8. Per contra, Sri. Vijay Kumar T., learned counsel for

respondent No.1/claimant justifying the impugned award

submits that even the married sister and brothers based on the

circumstances of the case have to be treated as dependents of

the deceased. Therefore, the compensation awarded on the

head of loss of dependency is just one. In support of his

submission he relies on the judgment in Gujarat State Road

Transport Corporation v. Ramanbhai Prabhatbhai & Another2.

ILR 2004 KAR 3268

(1987) 3 SCC 234

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9. It is not disputed that the deceased was the elder

brother of the claimant and both of them had lost their parents.

The claimant contended that at the time of the accident she

was unmarried, she was dependent on the income of the

deceased and subsequently, she married the offender himself.

However, the inquest mahazar produced by the claimant

herself contains the statements of one Dharmesh and T.D.

Ravi, the blood relatives of the deceased and the claimant. In

those statements they have clearly stated that after the demise

of his parents, the deceased had performed the marriage of the

claimant with Shivaraja (the rider of the motorcycle) and they

were all living together. Learned counsel for the

respondent/claimant submits that those persons were not

examined therefore, those statements cannot be relied. The

inquest report which contains the statements was produced by

the claimant herself. Therefore, that becomes the part of her

evidence. Hence, learned counsel for respondent/claimant

cannot seek to rely only on one part of the said document

which is favorable to him and reject the other part of the said

document. He cannot approbate and reprobate simultaneously.

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This view of ours is supported by the judgment of the Hon'ble

Supreme Court in Oriental Insurance Company Ltd. v.

Premlata Shukla & Others3.

10. In addition to that PW.1 in her cross-examination

has clearly admitted that she has become graduate and she is

well conversant with English language. In the chief examination

she has stated that her occupation is agriculture and animal

husbandry, but still she claims to be the dependent of the

deceased. Reading of the judgment in Ramanbhai's case

shows that there the maintainability of the petition by the

brothers of the deceased itself was disputed claiming that they

will not become the legal representatives of the deceased. In

that context, the Hon'ble Supreme Court interpreting the term

legal representative held that the brothers also become legal

representatives and can maintain the petition. In this case the

insurer is not disputing the maintainability of the petition at all.

Further, as the claimant as the sole surviving heir of the

deceased, becomes his class II heir. But the question is

whether she is the dependent of the deceased. When the

claimant was already married and she has some gainful

(2007) 13 SCC 476

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occupation by no stretch of imagination she can be called as

dependent of the deceased. However, the records show that

the claimant, her husband and the deceased were living

together. Deceased was aged 26 years and able bodied person.

Therefore, he would have earned some income and spent out of

the same for his sister's family also. In the similar

circumstances, this Court in A. Manavalagan's case referred

to supra has held that though such family member is not

entitled to compensation on the head of loss of dependency,

they will be entitled to compensation on the head of loss of

estate. In that case, if they were living separately loss of estate

has to be considered as 25%, if they were living together the

contribution of the deceased to the family would be 50% and

that becomes loss of estate. Therefore, the said judgment is

aptly applicable to this case.

11. As there was no proof of actual income of the

deceased, the tribunal has considered the same as Rs.15,000/-

per month and the claimant has not challenged the same. By

adding 40% to the same by way of future prospects

(Rs.6,000/-) his monthly income comes to Rs.21,000/- (15,000

+ 6,000). In view of the judgment of the Hon'ble Supreme

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Court in Sarala Verma & Others v. Delhi Transport

Corporation & Another4's case and as the deceased was

bachelor, 50% has to be deduced for his personal expenses.

Therefore, his savings comes to (21,000x50%) is Rs.10,500/-.

The applicable multiplier is 17. 50% of the savings has to be

taken towards the loss of estate to the claimant. Hence, the

compensation payable on the head of loss of estate comes to

Rs.10,71,000/- (10,500 x 12 x 17 x 50/100). In view of the

judgment of the Hon'ble Supreme Court in National

Insurance Company Ltd., v. Pranay Sethi5 and Magma

General Insurance Company Limited v. Nanu Ram &

Others6, the claimant is entitled to compensation of

Rs.15,000/- on the head of funeral expenses and transportation

of dead body with escalation of 10% and consortium of

Rs.40,000/- with escalation at 10%. Therefore, the just

compensation payable is as follows:

1. Loss of estate Rs.10,71,000/-

2. Loss of consortium Rs. 44,000/-

3. Loss of funeral expenses and Rs. 16,500/-

transportation of dead body Total Rs.11,31,500/-

(2009) 6 SCC 121 5 2017 (16) SCC 680 6 (2018) 18 SCC 130

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12. The same shall carry interest at 6% per annum and

the compensation is payable by the appellant/insurer. For the

aforementioned reasons, the appeal deserves to be allowed in

part. Hence, the following;

ORDER

i. The appeal is partly allowed.

ii. The impugned award in MVC.No.85/2022 on the file

of the Additional Senior Civil Judge & MACT, Pandavapura is

modified as follows:

a. The claimant is entitled to compensation of

Rs.11,31,500/- with interest thereon at 6%

from the date of the petition till its realization.

b. The respondent No.2/insurer shall deposit the

same before the tribunal, on adjusting the

amount already deposited, if any.

c. The amount in deposit and TCRs shall be

transmitted to the tribunal forthwith.

d. Excess amount deposited, if any by the

insurer/respondent No.2 shall be returned to it

digitally.