Partly allowed

Shri. C. N. Kumar v. the Branch Manager

Karnataka HC11 Jan 2021MFA/1440/2019

Case brief

AI extract

What is this about?

In a Motor Accident appeal, the High Court enhanced the compensation awarded by the Tribunal from approximately 25 lakhs to over 54 lakhs. The court corrected the Tribunal's erroneous denial of loss of dependency, calculating it based on the deceased's income and a multiplier of 17, alongside conventional heads for filial consortium and funeral expenses.

What did the court decide?

The total compensation was enhanced to Rs. 54,05,738/- with interest at 6% per annum from the date of the claim petition.

Shri. C. N. Kumar Vs the Branch Manager — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE M.I.ARUN

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M.F.A.No.1440/2019 (MV)

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BETWEEN :

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SHRI.C.N.KUMAR S/O C.R.NAGABHUSHAN RAO AGED 66 YEARS.

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SMT.C.K.PADMA W/O C.N.KUMAR AGED 57 YEARS

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BOTH ARE R/AT No.379, 19^TH MAIN FIRST BLOCK RAJAJINAGAR, BENGALURU-560010. ...APPELLANTS

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(BY SRI RAGHU PRASAD.B.S., ADV.)

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AND :

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THE BRANCH MANAGER

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ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., VISHRANTHI MELARAM TOWER No.2/319, RAJIV GANDHI SALAI [OMR] KARAPAKKAM, CHENNAI-600097

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MIMI GUHA

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SINCE DEAD BY HER LEGAL HEIRS

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ARUP BANDHU GUHA

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MAJOR

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AVIRUP BANDHU GUHA S/O ARUP BANDHU GUHA MAJOR

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ADHIRAJ BANDHU GUHA S/O ARUP BANDHU GUHA MAJOR

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ANTARA BANDHU GUHA S/O ARUP BANDHU GUHA MAJOR

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R/AT No.20/21 [S] NALINI RANJAN AVENUE BLOCK A, KOLKATA WEST BENGAL.

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…RESPONDENTS

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(BY SRI O.MAHESH, ADV. FOR R-1; SRI VARUN TALLAM, ADV. FOR R-2 TO R-5.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 15.09.2018 PASSED IN MVC No.5021/2016 ON THE FILE OF THE III ADDITIONAL JUDGE & MEMBER MACT, COURT OF SMALL CAUSES, BENGALURU [SCCH-18], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and

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award dated 15.09.2018 passed in MVC No.5021/2016

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on the file of the III Additional Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-18) ['Tribunal’ for short].

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The claimants being the parents of the deceased Nitin Kumar instituted the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of their son in the road traffic accident.

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It was averred in the claim petition that on 11.05.2016 while Nitin Kumar was proceeding along with his two other friends in a car – Maruti Ritz bearing registration No.WB-06-A-9740, due to the rash and negligent driving of the driver of the said vehicle who dashed the vehicle to the lamp post No.PWD/PSR/18, the deceased and other occupants sustained grievous injuries. Immediately they were shifted to SSKM hospital, Kolkata where the doctor declared that the Nitin Kumar was brought dead.

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It was contended that the deceased was aged

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about 27 years at the time of the accident and was

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working as a software engineer and senior copy writer in advertising company and drawing income of Rs.49,956/- plus other allowances per month. Due to the sudden demise of their son, they have suffered a lot and lost their bread earner. It was contended that the said motor vehicle accident occurred due to the rash and negligent driving of the driver of the offending vehicle and as such the respondents are jointly and severally liable to pay compensation. On these set of facts and grounds, they sought for compensation.

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In response to the notice issued,

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respondents appeared and contested the claim. The respondent No.1 – insurer has contended that the compensation claimed by the claimants is highly excessive, exorbitant and imaginary. The driver of the offending vehicle had no valid and effective driving licence to drive the said offending vehicle. Admitting the issuance of policy in respect of the offending vehicle, it

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was contended that neither the owner of the vehicle nor the jurisdictional police have complied mandatory provisions of Section 134[c] and Section 158[6] of the Motor Vehicles Act, 1988 in furnishing the better particulars.

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The respondent No.2 denying the petition averments stated that the vehicle was insured with the first respondent – insurer and the policy was in force as on the date of the accident. The driver of the offending vehicle in order to avoid collision to the two persons, who were crossing the road in a negligent manner, accidentally hit the lamp post which resulted in the death of the Nitin Kumar. The driver of the offending vehicle had valid and effective driving licence as on the date of the accident. Liability, if any, has to be fastened on the insurer.

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On the basis of the pleadings, issues were

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framed and answered allowing the claim petition in part

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awarding total compensation of Rs.25,36,780/- with interest at the rate of 9% p.a., from the date of petition till its realization.

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Being dissatisfied with the quantum of compensation awarded, the claimants have preferred the present appeal.

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appellants/claimants submitted that the Tribunal has failed to determine the loss of dependency in consonance with the settled legal principles of law qua

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the material evidence on record. The compensation awarded under the conventional heads is on the lower side and the same deserves to be enhanced substantially.

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Learned counsel for the insurer justifying

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the impugned judgment and award submitted that the Tribunal on appreciation of oral and documentary

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evidence has awarded just compensation as such there is no scope for further enhancement. Accordingly, he sought for dismissal of the appeal.

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We have carefully considered the rival

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submissions of the learned counsel appearing for the parties and perused the material on record.

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As could be seen from the records, the deceased was working as a software engineer and senior copy writer in an advertising company. Ex.P9 appointment letter would disclose that the deceased was appointed as Programmer Analyst Trainee, Ex.P10 and P11 are the pay slips issued by Cognizant Technology Solutions India Private Limited, Ex.P12 is the pay slip issued by the Interactive Avenues Private Limited, Ex.P13 is the confirmation letter, Ex.P14 is the statement of bank account. These documents coupled with the evidence of PW2 – Finance Controller, Ogilvy and Mather Private Limited, Bengaluru would establish

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the income earned by the deceased at the time of the accident at Rs.38,227/-. Deducting the profession tax of Rs.150 and income tax of Rs.992/-, the actual income would be Rs.37,085/which has been rightly determined by the Tribunal.

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However, the Tribunal denying the

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compensation under the head loss of dependency, awarded the compensation under the head loss to estate

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on the footing the parents – claimants are not the dependents of the deceased. This finding of the Tribunal is palpably erroneous and the same is not sustainable. The claimants being the father and mother aged about 64 years and 55 years respectively, had sought for compensation for the death of their son in the motorcycle accident. It is obvious that the parents have to depend upon their children in the evening of their life. At that age, losing a well educated and handsome earning son would not be a mere loss to estate but

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certainly loss of dependency. As such, loss of

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dependency requires to be reckoned keeping in mind the age of the deceased as 27 years. Applying the multiplier of 17 with the monthly income of Rs.37,085/deducing 50% towards the personal and living expenses of the deceased, adding future prospects to the extent of 40%, the monthly income would be Rs.51,919/- [37,085 + 14,834], the loss of dependency would be Rs.52,95,738/- [51,919 x 12 x 17 x ½].

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In terms of the ruling of the Hon'ble Apex

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Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) supra and (2020) 9 SCC 644 [New India Assurance Company Limited V/s. Somwati And Others] , the claimants are entitled to compensation of Rs.1,10,000/under the conventional heads viz., Rs.80,000/- towards Filial consortium [Rs.40,000/to each parent];

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Rs.15,000/- towards funeral expenses and Rs.15,000/-

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towards loss of estate.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed

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as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	52,95,738/-
2.	Loss of Filial Consortium [Rs.40,000/-to eachparent]	80,000/-
3.	Loss of Estate	15,000/-
4.	Funeralexpenses	15,000/-
	Total	54,05,738/-

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Thus, the claimants shall be entitled to total compensation of Rs.54,05,738/- with interest at the rate of 6% per annum on the enhanced compensation from the date of the claim petition till the date of realization.

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Hence, the following:

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ORDER

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i] Appeal is allowed in part.

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ii] The total compensation awarded by the Tribunal is modified and enhanced to Rs.54,05,738/- as against Rs.25,36,780/which shall carry interest at the rate of 6% per annum on the enhanced compensation from the date of the claim petition till its realization.

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iii] The insurance company shall deposit the reassessed total compensation determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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