Karnataka High Court

Sri. Philip vs Sri. Mohammed Saffi on 3 September, 2024

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                                                              NC: 2024:KHC:35973
                                                            MFA No. 3933 of 2021




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                               BEFORE
                           THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
                      MISCELLANEOUS FIRST APPEAL NO.3933 OF 2021(MV-D)
                      BETWEEN:

                      1.    SRI. PHILIP,
                            S/O. LATE SELVARAJ @ VINCENT,
                            AGED ABOUT 70 YEARS,
                            NO.24, B.S.A. ROAD,
                            FRAZER TOWN,
                            BENGALURU-560 084.

                      2.    SMT. ROSEY
                            W/O. MUTHUSWAMY. T,
                            AGED ABOUT 67 YEARS,
                            NO. 312, 1ST CROSS,
                            NEW BAGALUR LAYOUT,
                            ST. THOMAS TOWN POST,
                            BENGALURU-560 084.

                      3.    JOSEPHINE
Digitally signed by         W/O. PHILIP,
AASEEFA PARVEEN             AGED ABOUT 59 YEARS,
Location: HIGH
COURT OF                    NO. 312, 1ST CROSS,
KARNATAKA                   NEW BAGALUR LAYOUT,
                            ST. THOMAS TOWN POST,
                            BENGALURU-560 084.

                      4.    DANIEL
                            S/O. LATE SELVARAJ @ VINCENT SEVARAJ,
                            AGED ABOUT 57 YEARS,
                            VALAJPET VELLORE,
                            TAMILNADU-632 513.

                      5.    GEORGE. S.,
                            S/O. LATE SELVARAJ @ VINCENT SEVARAJ,
                            AGED ABOUT 55 YEARS,
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                                        NC: 2024:KHC:35973
                                      MFA No. 3933 of 2021




     R/AT NO. 17,
     12TH CROSS,
     SAGYA PERRAN,
     ST. THOMAS TOWN POST,
     BENGALURU-560 084.
                                              ...APPELLANTS
(BY SRI. UDAYA KUMAR R.L., ADVOCATE)
AND:

1.   SRI. MOHAMMED SAFFI,
     S/O. S. MOHINDDIN BASHA,
     NO. 1130, 17TH CROSS,
     3RD BLOCK, HRB LAYOUT,
     OPP. TO NARENDRA THEATERE,
     BENGALURU-560 043.

2.   BHARTI AXA GENERAL INSURANCE CO. LTD.,
     REGIONAL OFFICE,
     1ST FLOOR, FERNS ICON,
     SURVEY NO. 28, DODDANAKUNDI VILLAGE,
     K.R. PURAM HOBLI,
     BENGALURU-560 037.

3.   SMT. ALICE MARY
     W/O. LATE CARITON THOMAS,
     AGED ABOUT 63 YEARS,
     NO.312, 1ST CROSS,
     NEW BAGALUR LAYOUT,
     BENGALURU-560 084.
                                             ...RESPONDENTS

(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R2;
    V/O DATED:02.07.2024, NOTICE TO R1 DISPENSED WITH;
    R3 - SERVED - UNREPRESENTED)

       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED. 25.02.2021 PASSED IN MVC
NO.1145/2020,   ON THE FILE OF THE IX ADDITIONAL SMALL
CAUSES JUDGE AND ACMM, MEMBER, MACT, BENGALURU
SCCH-7,    PARTLY   ALLOWING   THE   CLAIM   PETITION   FOR
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                                                NC: 2024:KHC:35973
                                              MFA No. 3933 of 2021




COMPENSATION          AND        SEEKING      ENHANCEMENT          OF
COMPENSATION.

       THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA


                          ORAL JUDGMENT

Heard Sri.Udaya Kumar R.L, learned counsel for

appellants as well as Sri.B.C.Shivanne Gowda, learned

counsel who represents respondent No.2-insurance

company.

2. Challenge in this appeal is the order that is

rendered by the Motor Accidents Claims Tribunal,

Bengaluru in M.V.C. No.1145/2020 dated 25.02.2021. The

appellants projecting to be the dependents of the

deceased Sagayanathan (hereinafter be referred to as

'deceased' for brevity) moved an application claiming

compensation of Rs.20,00,000/- in total. Exhibiting its

view that the appellants cannot be termed to the

dependents of the deceased, the tribunal awarded a sum

of Rs.15,000/- towards loss of estate and Rs.15,000/-

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towards funeral, obsequies ceremony and conveyance

expenses. In total, the tribunal awarded a sum of

Rs.30,000/- as compensation.

3. Arguing the matter, learned counsel Sri.Udaya

kumar.R.L submits that the appellants are the siblings of

the deceased and they were all depending upon the

earnings of the deceased by the date of accident. The

deceased as a painter was earning Rs.25,000/- per month

and he was contributing his entire earnings towards the

welfare of the appellants. Without observing these facts,

the tribunal failed to award any amount under the head

loss of dependency which is unjustifiable. Learned counsel

thereby seeks to award the amount claimed as

compensation.

4. Vehemently opposing the submission thus made,

Sri.B.C.Shivanne Gowda, learned counsel for respondent

No.2 contends that the points elicited during the course of

cross examination of PW-1 themselves speaks that the

appellants were not depending upon the earnings of the

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deceased. All the appellants got married and are

maintaining their own family members. Thus being the

situation, they cannot be termed to be the dependents of

the deceased. Learned counsel brought to the notice of

this Court the discussion that went on issue No.1 in the

impugned order.

5. The observations made by the tribunal at para

No.9 of the impugned order are as under:-

"In the cross-examination by the counsel for Respondent No.2 PW.1 stated that the Petitioner No.1 is her elder brother and he is married and has got one child, petitioner No.2 is also married and she got 3 children and she is residing in her matrimonial house. PW-1 stated that Petitioner No.3 is also married and she got child and her husband is no more. PW- 1 stated that the name of her husband is Philip and she got two children. She deposed that Petitioner No.5 is married and he got 3 children and he is residing separately. PW-1 sated that Petitioner No.6 is married and he got one child and he is residing separately".

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6. Thus, it is clear that the first appellant got

married, beget one child. Second appellant got married,

beget three children and is residing at her matrimonial

home. The third respondent got married, got a child,

however her husband is no more. The third appellant has

got two children. The fourth appellant got married and has

got three children. The fifth appellant is married, got one

child and is residing separately.

7. Admittedly, no proof is produced to show that the

claimants were residing with the deceased by the date of

accident. However, projecting that even the brothers and

sisters are entitled for compensation, learned counsel

relies upon the decision of Hon'ble Apex Court in the case

between Gujarat State Road Transport Corporation -vs-

Ramanbhai Prabhatbhai and another reported in AIR 1987

Supreme Court 1690. In the said decision the Hon'ble

Apex Court at para 11 of the judgment held as follows:

"We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard

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to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realization of compensation and that is provided by S.110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in S.110-B of the Act to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by S.110-B of the Act amongst the legal representatives for whose benefit an application may be filed under S.110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in all Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by

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the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira.v. Chaturbhai Taljabhai, (AIR 1977 Guj

195) (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S.110-A of the Act if he is a legal representative of the deceased".

8. The aforementioned decision makes it clear that

every legal representative who suffers on account of death

of a person due to a motor vehicle accident is entitled for

compensation. Therefore it is incumbent on part of the

appellants herein to show that they suffered on account of

death of the deceased. The said sufferance financially

should be established by producing cogent and convincing

evidence to the effect that the deceased was at any time

contributing any amount from his earnings towards the

welfare of the appellants.

9. Also contending that in the similar circumstances

this Court awarded substantial sum towards loss of estate,

learned counsel also relied upon the decision of the

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Division bench of this Court in the case between

B.V.Gopala and another -vs- Mehaboob Pasha and others

in MFA No.7318/2016 dated 23.10.2020. In the said

decision, the Court at para Nos.10 to 14 held as follows.

"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 -vs- Birendar and Others (Civil Appeal Nos.242-243/2020 (D.D.13.01.2020)).

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 grand daughters.

In Mangalamma and Others supra, the Co- ordinate Bench of this Court while considering the

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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.

Yet another Co-ordinate Bench of this Court in the case of Basavaraj Gowdana and Others supra, having regard to the claim made by the brothers and sisters of the deceased therein and his occupation as a driver in a private limited company, assessed the loss of estate considering 50% of the monthly income of the deceased by applying the multiplier method.

In the light of the aforesaid judgments, we have no hesitation to reckon the loss of estate deducting 50% of the income of the deceased Sripada.B.V towards personal expenses. The material evidence on record depicts that the deceased was a caterer and was aged about 46 years at the time of the accident. It is not in dispute that the claimants were aged about 48 years and 44 years respectively at the time of filing the claim petition and had their own

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independent avocation, but the same would not disentitle them to claim the loss of estate applying the multiplier method".

10. Learned counsel for appellants also relies upon

the decision of the co-ordinate bench of this Court in MFA

No.5319/2022 dated 16.07.2024, wherein at para No.24

and 25 of the judgment held as follows:-

"It appears from the evidence, the deceased along with this claimant were staying together in the house. Therefore, by considering the evidence on record. I am of the view that taking 15% as loss of estate is not considered in this case. Whereas, the Division Bench of this Court in a case MFA No.7318/2016 dated 23.10.2020 by considering the various judgments Manjuri Bera (Smt) -vs- Oriential Insurance Company Limited and another (2007) 10 SCC 643 and National Insurance Company and others -vs- Birendar and others (Civil Appeal Nos.242-243/2020 dated 13.01.2020 and Vinish Jain and others case and Mangalamma and Others case, Basavaraj Gowdana and others case were all considered and finally 50% was

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deducted towards the personal expenditure of the deceased.

While considering the loss of estate. Though the counsel also produced various judgments of the co ordinate bench that is based upon the A.Manavalagan -vs- A.Krishnamurthy and others case. This case already considered the A.Manavalagan case the Hon'ble Supreme Court has stated can increase the loss of estate if any evidence is laid. Such being the case, I am of the view 50% shall be deducted towards the loss of estate instead of 15% as to be considered".

11. In the case on hand no material is produced to

show that the appellants were depending upon the

earnings of the deceased. At the same time, there is no

denial of the fact that the deceased remained unmarried

and that the appellants are the siblings of the deceased.

Therefore, this Court is of the view that 50% of the

earnings of the deceased are required to be deducted

towards his personal and living expenses, applying other

parameters for calculating the compensation, the amount

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arrived at is required to be awarded under the head loss of

estate.

12. Admittedly, the deceased was aged about 64

years by the date of accident. The contention of the

appellants is that the deceased as painter was earning

Rs.25,000/- per month. No proof is produced either in

respect of occupation or the earnings of the deceased by

the date of accident.

13. The submission that is made by learned counsel

for respondent No.2 Sri.B.C.Shivanne Gowda in this regard

is that the deceased who was aged about 64 years cannot

be expected to do painting work and indeed the deceased

was not earning anything by the date of accident. It is not

a case that the deceased was suffering with any kind of

disease or was depending upon others by the date of

accident. However, considering the fact that there is no

convincing proof with regard to the actual occupation and

earnings of the deceased by the date of accident, for the

purpose of calculating compensation, this Court considers

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desirable to take the notional income of the deceased as

Rs.10,000/- per month. The appropriate multiplier to be

applied as per the decision of the Hon'ble Apex Court in

Sarla Verma and Others v. Delhi Transport Corporation

and Another reported in 2009 SAR (Civ) 592 case is '7'.

Thus, the amount which the claimants are entitled to

towards loss of estate is as under:-

               Heads                           Amount in Rs.
Notional monthly income                            10,000-00
Annual income                                    1,20,000-00
On    applying    appropriate                    8,40,000-00
multiplier '7'

14. Thus, the appellants are entitled to Rs.8,40,000/-

towards loss of estate. Together with the said amount the

appellants are entitled to Rs.16,500/- towards funeral

expense. Thus the total compensation which the

appellants are entitled to is Rs.8,56,500/-.

15. Thus, the appeal is disposed of with the following:-

ORDER

i. The appeal is allowed in part.

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ii. The compensation that is awarded by the Motor

Accidents Claims Tribunal, Bengaluru through orders

in M.V.C. No.1145/2020 dated 25.02.2021 is

enhanced from Rs.30,000/- to Rs.8,56,500/-.