Karnataka High Court

M/S. Icici Lombard General Insurance ... vs Smt. Sunanda on 5 September, 2024

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                                                                NC: 2024:KHC:36490
                                                             MFA No. 1570 of 2017
                                                         C/W MFA No. 3096 of 2016



                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 5TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                     THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                          MISCELLANEOUS FIRST APPEAL NO. 1570 OF 2017 (MV-D)
                                                   C/W
                          MISCELLANEOUS FIRST APPEAL NO. 3096 OF 2016 (MV-D)


                     IN MFA No. 1570/2017

                     BETWEEN:

                     1.     SMT. SUNANDA,
                            W/O LATE PRAKASH,
                            AGED ABOUT 36 YEARS,

                     2.     KUM. RUCHITHA P.,
                            D/O LATE PRAKASH,
                            AGED ABOUT 14 YEARS,

                     3.     MASTER VARUN P.,
                            S/O LATE PRAKASH,
                            AGED ABOUT 12 YEARS,
Digitally signed by
PRAJWAL A
Location: HIGH COURT
                     4.     PUTTEGOWDA,
OF KARNATAKA                F/O LATE PRAKASH,
                            AGED ABOUT 70 YEARS,

                     5.     SMT. JAVARAMMA,
                            W/O PUTTEGOWDA (DECEASED MOTHER),
                            AGED ABOUT 64 YEARS,

                            PETITIONER NO.2 AND 3 ARE MINORS,
                            REP. BY THEIR MOTHER AND THE
                            NATURAL GUARDIAN,
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                                         NC: 2024:KHC:36490
                                     MFA No. 1570 of 2017
                                 C/W MFA No. 3096 of 2016



     THE PETITIONER NO.1, 2 AND 3 ARE
     R/AT 484/2, 2ND MAIN, PEENYA,
     BANGALORE-58.

     PETITITIONER NO.4 AND 5 ARE
     FATHER AND MOTHER OF THE DECEASED,
     R/AT NO.23, MEGEHALLI VILLAGE,
     SINGAPURA POST, ALUR TALUK,
     HASSAN DISTRICT.
                                              ...APPELLANTS
(BY SRI. RAMASWAMY H. C., ADVOCATE)

AND:

1.   M/S. ICICI LOMBARD,
     GENERAL INSURANCE, R/BY ITS
     MANAGER,
     NO.62/1, 2ND FLOOR,
     RICHMOND ROAD, PRESTIGE
     CORNIKE, BANGALORE-25.

2.   M/S. BANGALORE DRY ICE & GAS CO.,
     REP. BY RAVIKUMAR,
     M.K. PROPRIETOR, NO.192,
     3RD MAIN ROAD, CHAMARAJPET,
     BANGALORE-2.
                                            ...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R1;
    V/O DATED 09.03.2018, NOTICE TO R2 IS DISPENSED
    WITH)


     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30/07/2015 PASSED IN MVC
NO.5826/2013 ON THE FILE OF THE XXI A.C.M.M. & XXIII
A.S.C.J, BENGALURU (SCCH-25), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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                                         NC: 2024:KHC:36490
                                      MFA No. 1570 of 2017
                                  C/W MFA No. 3096 of 2016



IN MFA NO. 3096/2016

BETWEEN:

     M/S. ICICI LOMBARD GENERAL INSURANCE
     COMPANY LTD.,
     REGIONAL OFFICE,
     NO.62/1, 2ND FLOOR,
     RICHMOND ROAD, PRESTIGE CORNICHE,
     BANGALORE,
     NOW REP. BY ITS LEGAL MANAGER,
     M/S. ICICI LOMBARD GIC LTD.,
     REGIONAL OFFICE,
     THE ESTATE, 9TH FLOOR,
     DICKENSON ROAD, M.G. ROAD,
     BANGALORE-42.
                                        ...APPELLANT

(BY SRI. B. C. SHIVANNE GOWDA, ADVOCATE)

AND:

1.   SMT. SUNANDA,
     W/O. LATE PRAKASH,
     NOW AGED ABOUT 35 YEARS,

2.   KUM. RUCHITHA P.,
     D/O. LATE PRAKASH,
     AGED ABOUT 13 YEARS,

3.   MASTER VARUN,
     S/O. LATE PRAKASH,
     AGED ABOUT 11 YEARS,

     2ND AND 3RD RESPONDNET ARE MINOR,
     REP. BY NATURAL GUARDIAN AND MOTHER,
     I.E. 1ST RESPONDENT,
     R/AT NO. 484/2, 2ND MAIN,
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                                          NC: 2024:KHC:36490
                                       MFA No. 1570 of 2017
                                   C/W MFA No. 3096 of 2016



     PEENYA, BANGALORE-58.

4.   PUTTEGOWDA
     F/O. PRAKASH,
     AGED ABOUT 70 YEARS,

5.   SMT. JAVARAMMA,
     M/O. PRAKASH,
     AGED ABOUT 63 YEARS,
     BOTH ARE RESIDING AT
     NO.23, MEGEHALLI VILLAGE,
     SINGAPURA POST,
     ALUR TALUK,
     HASSAN DISTRICT-573 201.

6.   M/S. BANGALORE DRY ICE AND GAS COMPANY,
     REP BY RAVIKUMAR M.K..,
     PROPRIETOR,
     NO.192, 3RD MAIN ROAD,
     CHAMARAJAPET,
     BANGALORE-560 002.
                                     ...RESPONDENTS

(BY SRI. H.V. BHANU PRAKASH, ADVOCATE FOR R1 TO R5)


     THIS MFA IS FILED U/S. 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30/07/2015 PASSED IN MVC
NO.5826/2013 ON THE FILE OF THE XXI A.C.M.M. & XXIII
A.S.C.J, BENGALURU (SCCH-25), AWARDING COMPENSATION
OF RS.18,80,400/- WITH INTEREST @ 8 % FROM THE DATE OF
PETITION TILL DEPOSIT.

     THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
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                                             NC: 2024:KHC:36490
                                          MFA No. 1570 of 2017
                                      C/W MFA No. 3096 of 2016



                       ORAL JUDGMENT

The petitioners are seeking enhancement of

compensation, whereas the insurance company is

challenging the quantum of compensation and also the

rate of interest.

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

shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are, undisputedly there was

an accident on 21.08.2013 at 9.20 p.m., while Prakash,

the husband of first petitioner, father of petitioners No.2

and 3, son of petitioners No.4 and 5, riding in Kinetic

Honda bearing No.KA-02-EA-8977 near Sumanahalli Ring

Road in front of Manjunatha Bakery, was hit by the Tempo

bearing No.KA-01-B-3381, due to which he sustained

injuries and succumbed to death at the spot. The

petitioners as dependants have approached the Tribunal

for grant of compensation. The Claim was opposed by the

Insurance Company. The Tribunal after taking the

evidence and hearing both the parties, allowed the claim

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petition in assessing compensation of Rs.18,80,400/- with

interest at 8% per annum. Pleading inadequacy and

seeking enhancement of compensation, the petitioners

have filed the appeal MFA.No.1570/2017. Claiming that

the compensation and the rate of interest is excess, the

Insurance Company has filed the appeal

MFA.No.3096/2016.

4. Heard the arguments of Sri. H.V. Bhanu

Prakash, learned counsel for the petitioners and Sri. B. C.

Shivanne Gowda, learned counsel for the Insurance

Company.

5. It is contended by the learned counsel for the

petitioners that the deceased was running a bakery at

Laggere in the name of 'L.G. Iyengar Bakery' and he was

earning more than Rs.20,000/- of income per month. To

support the same, the license issued by the BBMP for the

bakery is also placed as per Ex.P13. The Tribunal did not

consider the same and treated the deceased as a person

with no proof of income and taken the notional income.

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The compensation awarded under the conventional heads

is the lower side and sought for enhancement.

6. Per contra, learned counsel for the Insurance

Company has contended that the BBMP license was

standing in the name of third person. No evidence is

placed before the Tribunal to show that the petitioner was

running a bakery and no bank statements were provided

to show the income. In the absence of proof, the Tribunal

is right in taking the notional income. There are only five

dependants, the Tribunal instead of deducting 1/4th of

personal expenses, deducted 1/5th and interest awarded is

on the higher side and sought for modification.

7. I have given my anxious consideration to the

arguments addressed by the learned counsel for both

parties and perused the records.

8. There is no dispute as to the accident. The

Insurance Company has already satisfied the award

passed by the Tribunal and therefore, only the quantum of

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compensation and the rate of interest are in dispute. The

petitioners claim that the deceased was running a bakery

and he was earning income. Ex.P13 is the bakery license

issued by the BBMP. The licenser is a different person than

that of the deceased. No other evidence is placed that the

deceased was the owner or running the bakery except

there is a statement by his relative during the course of

inquest that, the deceased was residing at Laggere,

running a bakery. The petitioners have not placed any

evidence in proof of income of the deceased. Hence, the

deceased has to be treated as a person with no proof of

income. In the year 2013, a person with no proof of

income will earn not less than Rs.8,000/- per month. The

Tribunal has rightly assessed the notional income of the

deceased at Rs.8,000/-.

9. Since the deceased was aged 40 years, future

prospects at 40% has been considered. While deducting

personal expenses, the Tribunal deducted 1/5th instead of

1/4th. The compensation awarded under the conventional

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heads is inadequate and therefore, the actual

compensation has to be calculated. Notional income of the

deceased is taken at Rs.8,000/-, Rs.3,200/- will be the

40% future prospects and total income comes to

Rs.11,200/-. Rs.2,800/- will be the 1/4th of the income. If

it is excluded, the actual income comes to Rs.8,400/-. As

such Rs.8,400/- multiplied by 12x15 multiplier, then loss

of dependency comes to Rs.15,12,000/-.

10. Towards loss of consortium to the wife, parental

consortium and love and affection to the children at

Rs.40,000/- each assessed and Rs.15,000/- each to the

loss of estate and funeral expenses. Since the accident is

10 years old, 10% has to be given in the appreciation of

the conventional heads in light of the judgment of the

Hon'ble Apex Court in the case of National Insurance

Co.Ltd. -vs- Pranay Sethi and Others 1. The

compensation under the conventional head comes to

Rs.2,53,000/-. Total compensation comes to

(2017) 16 SCC 680

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Rs.17,65,000/- as against Rs.18,80,400/- awarded by the

Tribunal, thereby reduction of Rs.1,15,400/-.

11. As regarding rate of interest is concerned, the

Tribunal has awarded 8% interest. In the year 2013, no

banks will offer interest at 8% per annum and the Tribunal

has not assigned any special reason for awarding higher

rate of interest. Higher rate of interest can be awarded

only if there is any special reason to be recorded. In the

impugned judgment, no such reasons are forthcoming.

Hence, in a case of this nature, the rate of interest has to

be considered in light of the judgment of the Division

Bench of this Court in Ms.Joyeeta Bose and Ors. -vs-

Venkateshan.V. and Ors. in M.F.A.No.5896/2018 c/w

M.F.A.Nos.4444/2018 and 4659/2018 (MV) DD

24.08.2020. Hence, the petitioners are entitled interest at

6% per annum.

12. In view of the above discussions, appeal filed by

the petitioners is devoid of merits and appeal filed by the

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Insurance Company merits consideration, in the result, the

following:

ORDER

(i) MFA.No.1570/2017 is dismissed;

(ii) MFA.No.3096/2016 is partly allowed;

(iii) The impugned judgment and award passed by the Tribunal is modified;

(iv) The petitioners are entitled to total compensation of Rs.17,65,000/- instead of Rs.18,80,400/- with interest at the rate of 6% per annum from the date of petition till the date of deposit;

(v) The Insurance Company shall deposit the compensation accordingly. If excess compensation, if any deposited, shall be returned to the Insurance Company;