Partly allowed

Smt M Arunamma v. Sri N Paramesh

Karnataka HC18 Dec 2021MFA/2343/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, quashing the judgment and award of the Motor Accident Claims Tribunal. The Court recalculated the compensation enhancing it from Rs.5,12,300/- to Rs.11,72,500/- by applying the correct notional income, multiplier, and percentages for future prospects and consortium as per Supreme Court guidelines.

What did the court decide?

Compensation enhanced to Rs.11,72,500/- with interest; insurance company directed to pay differential amount.

Smt M Arunamma Vs Sri N Paramesh — Insurance | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA, BENGALURU

¶3

DATED THIS THE 18^TH DAY OF DECEMBER 2021

¶4

BEFORE

¶5

THE HON'BLE MR.JUSTICE P.N.DESAI

¶6

MFA NO. 2343/2012 (MV)

¶7

BETWEEN:

¶8

SMT. M.ARUNAMMA W/O. LATE B MUNIYAPPA, AGED ABOUT 33 YEARS

¶9

M.SUMANTH S/O B MUNIYAPPA, AGED ABOUT 11 YEARS

¶10

M.MOUNIKA D/O LATE B. MUNIYAPPA, AGED ABOUT 9 YEARS,

¶11

M.DANUSH

¶12

S/O LATE B.MUNIYAPPA, AGED ABOUT 8 YEARS,

¶13

SR.DODDA BANDA PALLEPPA S/O LATE KODIGAPPA, AGED ABOUT 73 YEARS,

¶14

APPELLANTS 2 TO 4 ARE MINORS REP. BY THEIR MOTHER CUM NATURAL GUARDIAN

¶15

APPELLANT NO.1 SMT.ARUNAMMA

¶16

ALL ARE R/AT THIPPENHALLI VILLAGE AND POST, NANDI HOBLI, CHIKBALLAPUR

¶17

TALUK AND DISTRICT, PIN-101.

¶18

...APPELLANTS

¶19

(BY SMT. SUGUNA R REDDY, ADVOCATE.)

¶20

¶21

AND:

¶22

SRI.N. PARAMESH S/O NARASIMHAPPA, MAJOR R/AT DODDA KIRUGAMBI, JATHAWARA POST, CHICKBALLAPURA DISTRICT, PIN CODE-101.

¶23

THE BRANCH MANAGER UNITED INDIA INS.CO.LTD., NO.25, 1^st Floor, SHANKARNARAYAN BUILDINGS, M.G.ROAD, BENGALURU-560001.

¶24

…RESPONDENTS

¶25

(SRI. L.SREEKANTA RAO, ADVOCATE FOR R2; R1 SERVED & UNREPRESENTED)

¶26

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 11.02.2011 PASSED IN M.V.C NO.4030/2009 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶27

THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶28

JUDGMENT

¶29

The appeal is filed by the claimants challenging

¶30

the judgment and award dated 11.02.2011, passed by the Motor Accident Claims Tribunal, (for short hereinafter referred to as ‘Tribunal’), Bangalore, in MVC No.4030/2009, whereby the claim petition allowed in

¶31

¶32

part by the Tribunal, awarding compensation of Rs.5,12,300/- with interest at 6% p.a.

¶33

The appellants/claimants filed a claim petition before the tribunal claiming compensation for the death of one B Muniyappa who is the husband of petitioner No.1 and father of petitioner Nos.2 to 4 and son of 5^th petitioner, who died in a road traffic accident occurred on 13.07.2008.

¶34

Brief case of the claimants before the

¶35

tribunal is that, on 13.07.2008 at about 11.30 pm, when the deceased was returning back to his village from Chikkaballapur by riding the motor cycle bearing registration No.KA-04-ED-8299 in a moderate speed

¶36

and by following traffic rules, when he reached near Thippenahalli Vilalge of Chikkaballapur-Gowribidanur road, at that time, the rider of the offending motor cycle bearing Reg. No.KA-40-J-4182 came from opposite direction in a rash and negligent manner with high speed and dashed to the motor cycle of the deceased and caused the accident. Due to the impact, the deceased sustained grievous injuries and immediately

¶37

¶38

he was taken to Government Hospital, Chikkaballapur for the first aid, thereafter, he was shifted to other hospital at Bangalore, but he succumbed to the injuries. Hence, the petitioner Nos.1 to 5 who are the wife, children and father respectively have filed the claim petition seeking compensation before the tribunal.

¶39

In response to the summons, both the respondents appeared and filed their written statements. They have denied the contentions of the petitioners as false and contended that they be put to strict proof of the same. It is contended that the accident occurred due to rash and negligent riding of the motor cycle bearing registration No.KA-04-ED-8299 by the deceased himself. The second respondentinsurance company admitted that the insurance policy was in-force as on the date of accident. However, the liability of respondent/insurer is strictly subject to the terms and conditions of policy and prayed to dismiss the claim petition.

¶40

After considering the pleadings of the parties, the tribunal framed the following issues:

¶41

¶42

“(i) Whether the petitioners prove that on 13.07.2008 at about 11.30 p.m., when the deceased was returning back to his village from Chikkaballapur on his motor cycle near Thippenhalli Village gate, on ChikkaballapurGowribidanur Road, at that time another motor cycle bearing No.KA-40-J-4182 came at high speed in a rash and negligent manner and dashed against the deceased motor cycle, as a result of which, he died as alleged?

¶43

(ii) Whether the petitioners are entitled for compensation? If so, at what rate and from whom?

¶44

(iii. What Order or Award?”

¶45

Before the tribunal, petitioner No.1 got herself examined as PW.1 and got marked fourteen documents as Exhibit P1 to P14 consisting of FIR, complaint, Report, Requisition, certified copy of Mahazar, Seizure Mahazar, Inquest Report, PM Report, IMV Report, Rough Sketch, Charge Sheet, Indemnity bond, copy of ration card, original hospital receipts and prescriptions. On behalf of respondents, no evidence is adduced.

¶46

¶47

After hearing the arguments, the tribunal

¶48

awarded compensation of Rs.5,12,300/- with interest at the rate of 6% per annum, from the date of petition till the date of realization. Aggrieved by the same, this appeal is filed.

¶49

Heard Smt. Suguna R Reddy, the learned counsel for the appellants and Sri. L.Sreekanta, learned counsel for respondent No.2.

¶50

Learned counsel for the appellants argued

¶51

that the deceased was working as a Moulding contractor and earning Rs.400 to Rs.500/- per day. But the tribunal has taken only Rs.3,000/- per month, which is on a lower side. Learned counsel further argued that the tribunal has not awarded future prospects and a compensation of Rs.10,000/- awarded towards loss of consortium is also very meager. Hence, prays for enhancement of compensation in view of the judgment of the Hon'ble Apex Court in the case of National

¶52

Insurance Company Limited vs. Pranay Sethi and others , reported in (2017) 16 Supreme Court Cases 680.

¶53

¶54

Against this, learned counsel for the Insurance Company supported the impugned judgment and award passed by the tribunal and submits that the accident is of the year 2008 and the compensation awarded by the tribunal is just and fair. Hence, prayed to dismiss the appeal.

¶55

I have considered the arguments of learned

¶56

counsel for the parties and perused the impugned judgment and award passed by the tribunal and records of the case.

¶57

Admittedly, the accident occurred due to

¶58

rash and negligent riding of the offending vehicle and the same is not disputed. The insurance policy of the offending vehicle was also in-force as on the date of accident. Hence, liability of the 2^nd respondent is also not disputed. The tribunal has taken income of the deceased at Rs.3,000/- per month, as there is no records or materials produced. In my considered view, the said income assessed by the tribunal appears to be on the lower side. Even according to the notional income to be taken where there is no proof of income in

¶59

¶60

the Lok-Adalath chart which is usually considered for awarding compensation in MVC cases in Lok-Adalath, for the year 2008, a sum of Rs.4,500/- is taken as notional income. Therefore, the same is taken as the notional income of the petitioner.

¶61

The deceased was admittedly aged about 35 years at the time of accident. Therefore, the appropriate multiplier applicable to the age group of deceased is 16, as per the decision of the Hon’ble Supreme Court in the case of SARLA VERMA(SMT) AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121. As there are five dependants, as per the above said decision stated supra, 1/4^th income has to be deducted towards personal and living expenses of the deceased. Recently the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS, REPORTED IN (2017) 16 SUPREME COURT CASES 680, has observed that 40% future prospects will have to be added in respect of the person who is below the age of 40 years. Therefore,

¶62

¶63

40% will be added to Rs.4,500/-, then it comes to Rs.6,300/- (Rs.4500X40/100). After deducting 1/4^th of his income towards his personal expenditure, it comes to Rs.4,725/-(Rs.6300x1/4=1575-6300). Therefore, the compensation towards 'loss of dependency' works out to Rs.9,07,200/- (Rs.4,725x12x16). The appellants/ claimants are entitled for a sum of Rs.9,07,200/towards loss of dependency as against Rs.4,32,000/awarded by the tribunal.

¶64

Further, the tribunal has awarded a sum of Rs.10,000/- towards loss of consortium and Rs.20,000/towards love and affection, which is on meager side. The constitutional bench of Hon'ble Supreme Court in the case of Pranay Sethi Supra , as stated supra held that wife is entitled for the compensation under the head 'loss of consortium' and children are entitled for filial consortium and parents are entitled for parental consortium. Since the appellant No.1 is the wife and appellant No.2 to 4 are the children and appellant No.5 is the father of deceased respectively, in view of the decision of Hon’ble Supreme Court reported in

¶65

¶66

(2018) 18 Supreme Court Cases 130 , in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram

¶67

and others, they are entitled for a sum of Rs.2,30,000/- towards loss of spouse consortium, filial consortium and parental consortium and loss of love and affection.

¶68

The Tribunal has awarded a sum of

¶69

Rs.35,300/- towards medical expenses, based on the bills produced. The same is unaltered.

¶70

In the result, considering the nature of injuries, evidence of the appellants, the compensation

¶71

awarded by the tribunal needs to be re-judged and is

¶72

recalculated under different heads as under:

¶73

Sl. No.	Particulars	Compensation awarded by the tribunal	Compensation re- determined by this court
1.	Loss of dependency	Rs.4,32,000/-	Rs.9,07,200/-
2.	Loss of spousal consortium and parental consortium and love and affection,	Rs.30,000/-	Rs.2,30,000/-
3.	Medical Expenses	Rs.35,300/-	Rs.35,300/-

¶74

¶75

4.	Funeralexpenses	Rs.10,000/-	----
5.	Loss of estate	Rs.5,000/-	----
	Total	Rs. 5,12,300/-	Rs.11,72,500/-

¶76

In the result, I pass the following:

¶77

ORDER

¶78

1. The appeal is partly allowed;

¶79

1. The impugned judgment and award passed by Court of Motor Accident Claims Tribunal, Bangalore (SCCH-17), having been modified, the compensation is enhanced to Rs.11,72,500 /- (Rupees Eleven lakh Seventy-two thousand Five hundred only) from Rs.5,12,300/- awarded by the tribunal.

¶80

1. The appellants are entitled for the enhanced compensation of Rs.6,60,200 /- (Rupees Six Lakhs Sixty Thousand Two hundred only) with 6% per annum, from the date of petition till the date of realization.

¶81