Karnataka High Court
Smt Shanthamma vs P K Vijaykumar on 6 November, 2024
-1-
NC: 2024:KHC:44785-DB
MFA No.7678/2015
C/W MFA No.7555/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH 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.7678/2015 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.7555/2015 (MV-D)
IN M.F.A. No. 7678/2015:
BETWEEN:
1. SMT. SHANTHAMMA
W/O MALLIKARJUNA
AGED ABOUT 52 YEARS.
2. MALLIKARJUNA
S/O NARASINGAPPA
Digitally AGED ABOUT 57 YEARS.
signed by K S
RENUKAMBA
Location: BOTH ARE R/AT CHANNAPPA COLONY
High Court of FCI MAIN ROAD, VIJINAPURA
Karnataka BENGALURU-560 016.
3. KUM. AVANI
D/O VIJAYKUMAR
AGED ABOUT 9 YEARS
R/AT. CHANNAPPA COLONY
FCI MAIN ROAD, VIJINAPURA
BENGALURU-560 016.
3RD APPELLANT IS A MINOR
REPRESENTED BY HER GRAND MOTHER
AS MINOR GUARDIAN
SMT. SHANTHAMMA.
...APPELLANTS
(BY SRI. A.K. BHAT, ADV., A/W
SRI. RAJU S, ADV.,)
-2-
NC: 2024:KHC:44785-DB
MFA No.7678/2015
C/W MFA No.7555/2015
AND:
1. P.K. VIJAYKUMAR
S/O PUNDALIKAPPA
AGED ABOUT 38 YEARS
R/AT NO.55, 5TH LANE
FCI LAYOUT, BEHIND BHEL FACTORY
VIJAYANAGARA, BENGALURU-40.
2. THE NATIONAL INSURANCE CO. LTD
NO.40, LAKSHMI COMPLEX
ST. MARKS ROAD
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. R. SHASHIDHAR, ADV., FOR R1
SRI. L. SREEKANTA RAO, ADV., FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ENHANCE THE COMPENSATION BY MODIFYING JUDGMENT AND
AWARD PASSED IN MVC NO.244/2010, DATED 07.07.2015, ON
THE FILE OF ADDL. SENIOR CIVIL JUDGE, RAMANAGARA.
IN M.F.A. NO.7555/2015:
BETWEEN:
NATIONAL INSURANCE COMPANY LTD.,
BANGALORE DIVISION NO.40,
LAKSHMI COMPLEX, ST. MARKS ROAD
BANGALORE-560 001
NOW REPRESENTED BY ITS
ASSISTANT MANAGER
MATHSAUCHAN V. GUDI
REGIONAL OFFICE
NO.144, SHUBHARAM COMPLEX
M.G. ROAD, BENGALURU-560 001.
...APPELLANT
(BY SRI. L. SREEKANTA RAO, ADV.,)
-3-
NC: 2024:KHC:44785-DB
MFA No.7678/2015
C/W MFA No.7555/2015
AND:
1. SMT. SHANTHAMMA
W/O MALLIKARJUNA
AGED ABOUT 52 YEARS.
2. MALLIKARJUNA
S/O NARASINGAPPA
AGED ABOUT 57 YEARS.
BOTH ARE R/AT. CHANNAPPA COLONY
FCI MAIN ROAD, VIJINAPURA
BANGALORE-560 016.
3. KUM. AVANI
D/O VIJAYKUMAR
AGED ABOUT 9 YEARS
CHANNAPPA COLONY
FCI MAIN, VIJINAPURA
BANGALORE-560 016.
3RD RESPONDENT IS A MINOR
REPRESENTED BY HER GRAND
MOTHER AS MINOR GUARDIAN
SMT. SHANTHAMMA.
4. P.K. VIJAY KUMAR
S/O PUNDALIKAPPA
AGED ABOUT 38 YEARS
NO.55, 5TH LANE, FCI LAYOUT
BEHIND BHEL FACTORY
VIJAYANAGAR, BANGALORE-560 049.
...RESPONDENTS
(BY SRI. A.K. BHAT, ADV., A/W
SRI. RAJU S, ADV., FOR R1 & R2
R3 MINOR REPRESENTED BY R1
SRI. R. SHASHIDHAR, ADV., FOR R4)
---
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT PASSED IN MVC NO.244/2010 ON
THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE,
-4-
NC: 2024:KHC:44785-DB
MFA No.7678/2015
C/W MFA No.7555/2015
RAMANAGARA DATED 07.07.2015 AND ALLOW THE APPEAL
WITH COST & ETC.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
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)
Challenging the award in MVC No.244/2010 on the file of
Addl. Senior Civil Judge and MACT, Ramanagara, the insured
has preferred MFA No.7555/2015 and the claimants have
preferred MFA No.7678/2015.
2. In MVC No.244/2010 claimant Nos.1 and 2 were the
parents, claimant No.3 was the husband and claimant No.4 was
the minor daughter of the deceased Dr.Savitha. Claimant No.3
was again duplicated as respondent No.1 in the petition. He
was the owner of car bearing No.KA-05 ME-4744 and
respondent No.2 was the insurer of the said car. For the
purpose of convenience, the parties are referred to henceforth
according to their ranks before the Trial Court.
NC: 2024:KHC:44785-DB
3. On 16.02.2010 at 3 p.m. when Dr.Savitha was
travelling in car bearing No.KA-05 ME-4744 driven by claimant
No.3 / respondent No.1, the car hit the roadside tree near
Vision hotel on Bengaluru-Mysuru road within the limits of
Ramanagara Traffic Police Station. Dr.Savitha suffered
grievous injuries and died.
4. Regarding the incident, one Manoj Kumar filed
complaint in Ramanagara Traffic Police Station as per Ex.P2.
Based on the same, FIR Ex.P1 was registered against claimant
No.3. On investigation, said police filed charge sheet against
claimant No.3 for the offences punishable under Sections 279
and 304A of the Indian Penal Code, 1860, alleging that he
drove the car in a rash and negligent manner so as to endanger
human life leading to the accident and death of Dr.Savitha.
5. Claimants filed MVC No.244/2010 alleging that due
to the accident and death of Dr.Savitha, they suffered loss of
dependency, love and affection etc. and claimed compensation
of `50,00,000/- from the respondents in the claim petition.
Claimant No.3 / respondent No.1 represented claimant No.4,
NC: 2024:KHC:44785-DB
the minor daughter as her next friend. He as respondent No.1
did not contest the petition.
6. Respondent No.2 - insurer contested the petition
claiming that the accident occurred due to the actionable
negligence of claimant No.3 himself, therefore he cannot claim
compensation for his own negligence and his petition is not
maintainable.
7. Before the Tribunal at the instance of claimants,
claimant no.3 was deleted from array of claimants. In support
of the case of the claimants, claimant No.1 was examined as
PW-1 and Exs.P1 to P10 were marked. The Officer of
respondent no.2 was examined as RW-1 and Exs.R1 to R4 were
marked. The Tribunal, by the impugned award held that the
said accident occurred due to the negligence of claimant No.3
himself and he is not entitled for any compensation. The
Tribunal further held that claimant Nos.1 and 2 are not
dependants of the deceased as deceased was their married
daughter and they are not entitled to any compensation.
8. The Tribunal notionally assessed the income of the
deceased at Rs.10,000/- p.m., added 50% to the same by way
NC: 2024:KHC:44785-DB
of future prospects considering the age of the deceased as 28
years, deducted 50% of the same towards personal expenses
of the deceased, applied '17' multiplier and awarded
compensation of Rs.15,30,000/- under the head of loss of
dependency. The Tribunal, in all awarded compensation on
different heads as follows:
Compensation Heads Compensation
amount
1. Loss of dependency Rs.15,30,000/-
2. Loss of estate Rs. 20,000/-
3. Funeral expenses Rs. 10,000/-
4. Loss of love and Rs. 10,000/-
affection
TOTAL Rs.15,70,000/-
9. The claimants have challenged the said award
questioning the rejection of claim petition of claimant Nos.1 and
2 and questioning the quantum of compensation awarded.
10. Sri.L.Sreekanta Rao, learned counsel for the insurer
reiterating the grounds of appeal submits that claimant No.3
himself being a tort-feasor could not have maintained the
petition both as claimant and respondent. He could not have
even represented claimant No.4 as he himself was the tort-
feasor. Therefore, compensation could not have been awarded
to claimant No.4 also. There was no proof of income of the
NC: 2024:KHC:44785-DB
deceased. The compensation awarded on all heads is on the
higher side. He further submits that the claimants unduly
dragged this matter since 2015, therefore, they are not entitled
to any interest on the compensation for period occupied in this
appeal.
11. Sri.A.K.Bhat, learned counsel for the claimants
submits that though claimant No.3 filed the appeal, his name
was deleted during the pendency of the proceedings before the
Tribunal itself. In this appeal, his name as next friend of
claimant No.4 was deleted and the next friend of claimant No.4
was replaced by claimant No.1. Therefore, the objection that
claimant No.4 was not properly represented does not survive.
There is no dispute that deceased was a qualified doctor.
Therefore, the Tribunal was in error in assessing her income
notionally at Rs.10,000/- p.m. The compensation awarded on
other heads is also on the lower side.
12. On examination of submissions of both side and
material on record, the questions that arises for consideration
of the Court are:
NC: 2024:KHC:44785-DB
i) Whether the representation of minor claimant
No.4 through claimant No.3 - her father has
vitiated the entire proceedings?
ii) Whether the compensation awarded is just one?
ANALYSIS
13. None of the parties have disputed the relationship
of claimant Nos.1 to 4 with deceased Dr.Savitha and the fact
that she died in the accident on 16.02.2010 at 3 p.m. due to
the accident caused by claimant No.3 who was also arrayed as
respondent No.1 before the Tribunal. On investigation, the
police had filed charge sheet against him. It is true that
claimant No.3 himself being the tort-feasor could not have
maintained the petition to claim compensation for the death of
his wife. However, his name was deleted from the array of
parties by the Tribunal only. Therefore, that contention of the
insurer does not survive at all. So far as he filing the petition
as next friend of claimant No.4, apparently there was a conflict
of interest between claimant No.4 and her father who was also
arrayed as respondent No.1 because as per the records he
caused the death of her mother and he was the tort-feasor.
- 10 -
NC: 2024:KHC:44785-DB
14. Order XXXII Rule 3 Sub-rule(1) of the Code of Civil
Procedure, 1908 as amended by Karnataka High Court
Amendment under Notification No. ROC No.2526/1959 dated
09.02.1967 reads as follows:
"3. (1) Any person who is of sound mind and has
attained majority may act as next friend of a minor
or his guardian for the suit, provided that the
interest of that person is not adverse to that of
the minor and that he is not, in the case of a next
friend, a defendant in the suit or in the case of a
guardian, a plaintiff in the suit."
15. The reading of the above provision clearly shows
that if a person files the case as next friend of the plaintiff /
petitioner and if his interest is adverse to that of minor or he is
adversary party in the case, he cannot act as the next friend of
plaintiff/petitioner. However, before the Tribunal such
contention was not taken. It was only contended that claimant
No.3 cannot maintain the petition as the next friend of claimant
No.4. Still claimant No.4 could have maintained the petition.
Only thing is that claimant No.4 ought to have been
represented through a next friend as per Order XXXII Rule 3(1)
of CPC. However, even the Tribunal lost sight of that fact.
- 11 -
NC: 2024:KHC:44785-DB
It was the responsibility of the Tribunal also to get the said
error rectified. Subsequently, in this appeal, the same is
rectified by appointing claimant No.1 as the next friend of
claimant No.4. Therefore, if there was any irregularity in the
proceedings before the Tribunal by not appointing claimant
No.1 as the next friend of claimant No.4, the same stood
rectified. The question of taking away the petition under Order
XXXII Rule 3 of the CPC does not arise as the appeal is the
continuation of the proceedings before the Tribunal. Protecting
the interest of the minor is the paramount consideration even
for the Court. The irregularity in claimant No.4 being
represented through an improper next friend, by rectification in
appeal proceedings stood regularized. In such circumstance
the initial error in the proceedings does not deprive claimant
No.4 of her substantial right.
16. Claimants contended that the deceased was a
qualified doctor and earning Rs.60,000/- p.m. by her
employment in Global Hospital, Vijaynagar, Bengaluru. To
prove her qualification and income, they relied on the evidence
of PW-1, Ex.P8-degree certificate and Ex.P9-certificate allegedly
issued by her employer. Unfortunately, the claimants did not
- 12 -
NC: 2024:KHC:44785-DB
even choose to examine the author of Ex.P9. Therefore, the
Tribunal notionally assessed her income. However, the fact
that deceased was a MBBS Degree holder is proved by Ex.P8-
her degree certificate. That was not disputed also. In the year
2010, the salary of a qualified doctor that too in a city like
Bengaluru could not have been less than Rs.25,000/- p.m. The
Tribunal was in error in assessing her income only at
Rs.10,000/- p.m. without any basis for the same.
17. The record shows that before the Tribunal, the
claimants produced the enrolment certificate of the deceased
with the Karnataka Medical Council in which her date of birth
was shown 08.12.1982. The accident took place on
16.02.2010. Therefore, as on the date of accident, deceased
had completed 27 years. As per the judgment of the Hon'ble
Supreme Court in Sarla Verma and Others Vs. Delhi
Transport Corporation and Another1, applicable multiplier is
17. As per the judgment of the Hon'ble Supreme Court in
National Insurance Company Limited Vs. Pranay Sethi2
and having regard to the age and occupation of the deceased,
(2009) 6 SCC 121
(2018) 16 SCC 680
- 13 -
NC: 2024:KHC:44785-DB
40% of the income of the deceased has to be superadded to
the same and not 50% as determined by the Tribunal. At that
rate, her monthly income comes to Rs.25,000/- + Rs.10,000/-
(40%) = Rs.35,000/- and annual income comes to Rs.35,000/-
x 12 = Rs.4,20,000/-. Out of that, as per Finance Act 2010,
the tax payable during that period was Rs.38,000/-. Therefore,
her annual income comes to Rs.4,20,000 - Rs.38,000 =
Rs.3,82,000/-.
18. Claimant No.4 was the dependent minor daughter
of the deceased. Therefore, the Tribunal ought to have
deducted 1/3rd towards the personal expenses of the deceased
instead of 1/2. Therefore, her contribution to the family comes
to Rs.2,54,667/-. The evidence of PW-1 shows that claimant
Nos.1 and 2 had a major son who was earning and claimant
No.2 was a pensioner. Therefore, the Tribunal was justified in
holding that claimant Nos.1 and 2 were not dependants of the
deceased. For the aforesaid reasons, compensation payable
under the head of loss of dependency would be Rs.2,54,667/- x
17 = Rs.43,29,339/-. Claimant Nos.1, 2 and 4 are entitled to
compensation of Rs.40,000/- each with escalation at 10% on
the head of consortium in the light of the judgment of the
- 14 -
NC: 2024:KHC:44785-DB
Hon'ble Supreme Court in Pranay Sethi's case referred to
supra and Magma General Insurance Company Limited Vs.
Nanu Ram & Others3. As per the judgment of the Hon'ble
Supreme Court in Pranay Sethi's case referred to supra,
claimant Nos.1, 2 and 4 are entitled to compensation of
Rs.15,000/- + Rs.15,000/- with escalation at 10% under the
heads of loss of estate and funeral expenses. Therefore, just
compensation payable is as follows:
Sl. Particulars Compensation
No. awarded in
Rs.
1. Loss of dependency 43,29,339/-
2. Loss of consortium 1,32,000/-
2. Loss of estate 16,500/-
3. Transportation of 16,500/-
dead body/Funeral
expenses
TOTAL 44,94,339/-
Compensation 15,70,000/-
awarded by the
Tribunal
Enhancement 29,24,339/-
19. Learned counsel for the claimants relying on the
judgment of this Court in Sanjeevini Anand Awate Vs.
Managing Director, Hiranyakesh Sahakari Sakkare
Karkhane4, submits that interest has to be awarded as per the
(2018) 18 SCC 130
2002 ACJ 1814
- 15 -
NC: 2024:KHC:44785-DB
bank lending rate and that was 8% p.a. First of all, the
claimants ought to have led in evidence to show bank lending
rate was 8% but no such evidence was adduced. Even in the
judgment in Sanjeevini Anand Awate's case referred to
supra, it is held that variation from the rate of 8% p.a. is
permissible by the special facts or circumstances of the case
supported by reasons. In the instant case, no evidence was
adduced to show that bank lending rate was 8% p.a.
Therefore, the Tribunal was justified in granting 6% p.a. We do
not find any justification to interfere with the same. Learned
counsel for the insurer submits that the claimants themselves
were grossly negligent in conducting the case. Initially,
claimant No.4 was represented through a person who was not
eligible to represent as her next friend. When that was
questioned before this Court, the matter was prolonged due to
claimants filing application for change of the next friend and
review petition from 2019 to 2023 etc., therefore, the insurer is
not liable to pay the interest for the said period. We find force
in the submissions of the learned counsel for the insurer
because respondent No.1 himself being the tort-feasor has
created mess in the proceedings before the Tribunal and even
- 16 -
NC: 2024:KHC:44785-DB
before this Court. Therefore, interest if any pending in these
appeals has to be paid by him. Insurer cannot be saddled with
the interest for the lapses of respondent No.1. Therefore, both
the appeals deserve to be allowed-in- part. Hence, the
following:
ORDER
i. MFA No.7555/2015 and MFA No.7678/2015 are
allowed-in-part.
ii. It is held that claimant Nos.1, 2 and 4 are entitled
to enhanced compensation of Rs.29,24,339/- with interest
thereon at 6% p.a. from the date of petition till its realization.
iii. Respondent No.2 shall deposit the compensation
amount with interest at 6% p.a. from the date of petition till
the date of impugned award.
iv. Respondent No.1, the tort-feasor is liable to pay the
accrued interest from the date of award till the date of deposit
of the amount by respondent no.2/insurer.
v. Both respondent Nos.1 and 2 shall deposit their
part of liability within four weeks from the date of receipt of
copy of the judgment.
- 17 -
NC: 2024:KHC:44785-DB
vi. Out of the compensation awarded, claimant Nos.1
and 2 are entitled to Rs.44,000/- each with accrued interest
thereon and rest of the amount shall be invested in the name
of claimant No.4, Avani the minor daughter of the deceased, till
she attains majority. Claimant No.1 shall be her next friend in
such fixed deposit and liberty is reserved to draw the accrued
interest for the expenses of the minor.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
