Karnataka High Court

The Manager vs Neelaji @ Neelajamma on 4 September, 2024

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                                                               NC: 2024:KHC:36313
                                                             MFA No. 3325 of 2015




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 4TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                      THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                     MISCELLANEOUS FIRST APPEAL NO. 3325 OF 2015 (MV-D)

                     BETWEEN:
                           THE MANAGER,
                           NATIONAL INSURANCE CO. LTD.,
                           1ST FLOOR, 5TH STAGE,
                           ADICHUNCHANAGIRI ROAD,
                           KUVEMPUNAGARA, MYSURU - 570 023
                           BY
                           NATIONAL INSURANCE CO. LTD.
                           REGIONAL OFFICE, NO.144,
                           SUBHARAM COMPLEX, M.G. ROAD,
                           BANGALORE - 560 001.
                           BY IT'S MANAGER
                                                                 ...APPELLANT
                     (BY SRI. O. MAHESH, ADVOCATE)
                     AND:
                     1.    NEELAJI @ NEELAJAMMA,
                           AGED ABOUT 38 YEARS,
                           W/O SHIVANNA,
                           R/AT K. SHETTAHALLI VILLAGE,
Digitally signed by        SRIRANGAPATNA TALUK,
PRAJWAL A                  MANDYA DISTRICT - 571 401.
Location: HIGH COURT 2.    ARUNKUMAR, MAJOR,
OF KARNATAKA               S/O THIMMARAJU,
                           R/AT GOWDAHALLI VILLAGE,
                           SRIRANGAPATNA TALUK,
                           MANDYA DISTRICT - 571 401.
                                                               ...RESPONDENTS
                     (VIDE ORDER DATED 20.04.2017 NOTICE TO R1 IS
                           HELD SUFFICIENT, VIDE ORDER DATED 17.02.2017
                           NOTICE TO R2 IS DISPENSED WITH)

                          THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
                     JUDGMENT AND AWARD DATED21.01.2015 PASSED IN MVC
                     NO.683/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
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                                                 NC: 2024:KHC:36313
                                               MFA No. 3325 of 2015




JUDGE, MACT, SRIRANGAPATNA, AWARDING COMPENSATION OF
RS.4,76,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT AND ETC.

     THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:   HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA


                     ORAL JUDGMENT

In this appeal, the Insurance Company is

challenging the quantum of compensation.

2. For the sake of convenience, the rank of the

parties shall be referred to as per their status before

the Tribunal.

3. Undisputedly, there was an accident on

10.04.2013 at 6.00 p.m., on Mysore-Bangalore main

road, near Lokapavani bridge at Srirangapatna town,

involving one Puttamadamma the mother of the

petitioner and the motor cycle bearing Reg.No.KA-11-

X-1721. Motor cycle hit against the deceased, due to

which she has sustained the injuries treated at

Government Hospital, Srirangapatna and K.R.Hospital,

Mysore. In spite of treatment, she succumbed to

NC: 2024:KHC:36313

death on 16.04.2013. The petitioner claiming to be the

dependent approached the Tribunal for grant of

compensation of Rs.8,50,000/-. Claim was opposed by

the Insurance Company. The Tribunal after taking

evidence and hearing both the parties, awarded the

compensation of Rs.4,76,000/- with interest at 6% per

annum. Pleading that the petitioner is not a dependent

of the deceased, being married daughter residing

separately, the Tribunal erroneously assessed the loss

of dependency and questioned the impugned judgment

and award.

4. Heard the arguments of Sri. O. Mahesh,

learned counsel for the Insurance Company. Service to

respondent No.1 is held sufficient.

5. It is contended by the learned counsel for the

Insurance Company that the deceased was a resident

of K. Shettahalli village, the petitioner was a married

daughter, residing at Madapura village at her

matrimonial home with her husband and two children.

NC: 2024:KHC:36313

Being a married daughter, she cannot be dependent.

No evidence is placed before the Tribunal that the

petitioner is dependent on the deceased mother. The

Tribunal erroneously assumes that the petitioner is

being a daughter is a dependent at entitled to

compensation and sought for modification. It is further

contended that the deceased was also contributed for

the accident, the Tribunal has not considered the

contributory negligence on the part of the deceased.

6. On perusal of materials on record, the accident

is explained. The only points that arise for

consideration is whether the petitioner is dependent on

the deceased and is there any contributory negligence

on the part of the deceased.

7. As regarding contributory negligence on the

part of the deceased is concerned. Prosecution papers

to show that at the time of accident, the deceased was

a pedestrian going on the left side of the road towards

her village. From the opposite direction motor cycle

NC: 2024:KHC:36313

came and hit against her. There is no evidence on

records to show that the deceased was either crossing

the road or contributed for the occurrence of the

accident. Evidence did not support the contentions

taken by the Insurance Company. Hence, contributory

negligence on the part of the deceased is not

explained.

8. As regarding dependency is concerned, the

petitioner is aged 36 years she was married to the

Madapura having husband and two children and she is

residing in her matrimonial home. Contrary in the

cause title, she has given the address of K. Shettahalli

village, which is the residence of the deceased. This

goes to show that the petitioner was not the resident

of K. Shettahalli at the time of accident and she was

residing in her matrimonial home.

9. During the course of cross-examination, the

petitioner asserted that she is the dependent on the

coolie of the mother. The deceased is also a coolie, she

NC: 2024:KHC:36313

has to depend on her daily earnings. The petitioner

being a married daughter with two children and

husband to take care of, it is hard to accept that the

petitioner is dependent on the mother. If the evidence

of the petitioner to accept that she is dependent on the

mother then her two children and husband are also

dependent on the mother. This is not the evidence on

record. Hence, for the sake compensation the

petitioner cannot be allowed to blow hot and cold that

at one point she resides with her matrimonial home

with children and husband and at another point she

claims that she is resident of K. Shettahalli depending

on the daily coolie earning of her mother.

10. The Tribunal did not consider these aspects

while assessing the loss of dependency. Being a sole

married daughter, she is entitled to claim loss of

estate, funeral expenses, medical expenses and love

and affection only. The medical expenses that she has

spent is Rs.5,000/-, towards funeral expenses and love

NC: 2024:KHC:36313

and affection with 10% appreciation in view of the law

laid down in the Hon'ble Apex Court in National

Insurance Company Limited vs. Pranaya Sethi

and others1, Rs.16,500/- and Rs.44,000/-.

11. Loss of estate has to be calculated in applying

the formula for calculating the loss of dependency. The

accident of the year 2013, the notional income of the

coolie will not less than Rs.8,000/-, the deceased was

55 years, 10% appreciation has to be considered as

future prospects. 50% has to be deducted towards

personal expenses, applicable multiplier will be 11.

Then it comes to Rs.8,000/-+Rs.800/-

(10%)=Rs.8,800/--Rs.4,400/-(50%)=Rs.4,400/-

X12X11=Rs.5,80,800/-. Out of which 30% has to be

awarded as loss of estate and it comes to

Rs.1,74,240/-. Total compensation comes to

Rs.2,39,740/- rounded up to Rs.2,40,000/- as against

(2017)16 SCC 680

NC: 2024:KHC:36313

Rs.4,76,000/- awarded by the Tribunal, thereby

reduction of Rs.2,36,000/-.

12. In view of the above discussions, appeal

merits consideration, in the result, the following:

ORDER

i) Appeal is allowed-in-part;

ii) The impugned judgment and award is

modified;

iii) The petitioner would be entitled to total

compensation of Rs.2,40,000/- instead of

Rs.4,76,000/- assessed by the Tribunal

with interest at 6% per annum, from the

date of petition till the date of deposit;