Partly allowed

Smt. Nagarathnamma v. Kariyappa

Karnataka HC8 Jan 2021MFA/3227/2018

Case brief

AI extract

What is this about?

This appeal challenges the compensation awarded for a road traffic accident resulting in death. The High Court determined the deceased's age using the post mortem report, recalculated income, and enhanced the Tribunal's award to Rs. 15.80 lakhs with interest.

What did the court decide?

The appeal is allowed in part; compensation enhanced to Rs. 15,80,000/- with 6% interest. The order on liability and apportionment remains intact. Insurance company to deposit amount within 90 days.

Smt. Nagarathnamma Vs Kariyappa — 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 8^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.3227/2018 (MV)

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BETWEEN :

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1 . SMT.NAGARATHNAMMA W/O LATE GOVINDEGOWDA, HINDU, AGED ABOUT 36 YEARS

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2 . KUM. LAVANYA D/O LATE GOVINDEGOWDA, HINDU, AGED ABOUT 5 YEARS

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APPELLANT No.2 IS MINOR REP. BY MOTHER/APPELLANT No.1 AS NATURAL GUARDIAN.

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3 . SMT.MAGADAMMA W/O LATE RAMA DASE GOWDA, AGED ABOUT 61 YEARS

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ALL ARE R/O NARASIPURA AT POST, SOMPURA HOBLI, NELAMANGALA TALUK, BENGLAURU RURAL DISTRICT ...APPELLANTS

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(BY SRI T.C.SATISHKUMAR, ADV.)

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AND :

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1 . KARIYAPPA S/O LATE HANUMAIAH, HINDU, MAJOR,

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R/O NAGAIHANAPALYA, URDIGERE HOBLI, TUMKUR TALUK & DISTRICT

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2 . THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., JAYADEVA COMPLEX, B.H.ROAD, TUMKUR-572 101. MAY BE SERVED TO REGIONAL MANAGER, T.P.HUB, (THIRD PARTY CLAIMS HUB) VI FLOOR, KRUSHI BHAVANA, HUDSON CIRCLE, NEAR CORPORATION CIRCLE, BENGALURU-560002 …RESPONDENTS

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(BY SRI C.SHANKARA REDDY, ADV. FOR R-2; R-1 IS SERVED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2018 PASSED IN MVC No.1650/2017 ON THE FILE OF THE XXI ADDITIONAL SCJ AND XIX ACMM, MEMBER MACT, BENGALURU (SCCH-23) 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 award dated 30.01.2018 passed in MVC No.1650/2017 on the file of the XXI Additional Small Causes Judge

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and Motor Accident Claims Tribunal at Bengaluru (SCCH-23) (‘Tribunal’ for short).

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The claimants instituted petition under

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Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Govinde Gowda in the road traffic accident.

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It was averred in the petition that on 26.02.2017 at about 6.30 p.m., when the deceased – Govinde Gowda was waiting for the bus, standing on the footpath, in front of Milk Diary of Narasipura Sompura Hobli, Nelamangala Taluk, the rider of the two wheeler bearing registration No.KA-06-EQ-7409 (offending vehicle) has ridden the vehicle in a rash and negligent manner and dashed to the deceased, due to which the deceased fell down and sustained multiple injuries. Immediately, he was shifted to Dobbaspet Government Hospital and then to Columbia Asia Hospital, Yeshwanthpur, Bengaluru. But he succumbed to the

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accidental injuries on 27.02.2017 while taking

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treatment in the hospital.

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The claimants – widow, minor child and

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mother of the deceased contended that the deceased was earning Rs.20,000/- per month from his contract work and claimants were depending on the earnings of the deceased. The untimely death of the deceased has caused mental agony, loss of dependency, loss of love and affection to the claimants. On these set of facts and grounds, the claimants sought for compensation.

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In response to the notice issued, the

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respondents appeared through their respective counsel. No statement of objection was filed by the respondent No.1. Respondent No.2 - insurer contested the matter denying the petition averments. The specific defence taken was that the two wheeler was plying on the road without permit and FC; the rider of the two wheeler did not possess valid and effective driving licence; the

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deceased was standing on the road and contributed for the accident. The insurer denied the manner of the accident, age, income, dependency. The compensation sought by the claimants is exorbitant and prayed for dismissal of the petition.

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Based on the pleadings, issues were framed and answered as per the reasons recorded in the impugned judgment allowing the petition in part awarding total compensation of Rs.5,89,000/- with interest at the rate of 6% per annum from the date of petition till its realisation.

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Being dissatisfied, the claimants are before this Court.

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8. Learned counsel for the

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appellants/claimants submitted that the deceased was aged about 50 years as per the post mortem report – Ex.P7, but the Tribunal has wrongly taken the age of

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the deceased as 62 and applied the multiplier of ‘7’ to compute the loss of dependency. The income of the deceased determined by the Tribunal is also not in accordance with law. It was further submitted that the compensation awarded under the conventional heads is meager. Accordingly, he sought for enhancement of compensation.

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Learned counsel for the insurer submitted that the Tribunal on analysis of ocular and documentary evidence has rightly determined the age of the deceased as 62 years and the loss of dependency determined by applying the multiplier of ‘7’ with monthly income of the deceased at Rs.9,000/- is also just and proper. Therefore, no further interference is warranted by this Court. On these grounds, 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 original records.

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The fulcrum of dispute relates to the

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determination of the age of the deceased. The Tribunal relying on Ex.P10 - Ration Card produced by the claimants has determined the age of the deceased at 62 years. Challenging the same, learned counsel for the appellants/claimants filed I.A.No.1/2020 for producing the additional document namely, School Certificate said to have been issued by the Headmaster, Government Primary School, Narasipura, Nelamangala Taluk, Bengaluru Rural District. This document is dated 04.01.2018, the impugned judgment and order was passed 30.01.2018. In the said document, the date of birth of the deceased is shown as 01.06.1963. As per the Ration Card – Ex.P10, the age of the deceased is shown as 61 years. As could be seen from the cause-

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title, the age of the mother of the deceased is shown as 60 years and the age of the daughter of the deceased is shown as 4 years. As per the post mortem report at Ex.P7, age of the deceased is shown as 50 years. It is apparent that there is no consistency in the age found in different documents. Hence, we deem it appropriate to adopt the age reflected in the post mortem report rather than the age shown in the ration card or the School Certificate proposed to be filed on record which is issued on 04.01.2018. No satisfactory explanation has been offered by the claimants to establish that by due diligence the said document was not placed on record before the Tribunal. Hence, we are not inclined to accept the same.

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Considering the post mortem report, the age of the deceased is determined at 50 years. Referring to the chart prepared by the Karnataka State Legal Services Authority, in the absence of proof of income, we

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deem it appropriate to re-determine the monthly income of the deceased at Rs.11,000/-. Adding 25% towards future prospects, the total income would be Rs.13,750/per month. Applying the multiplier of ‘13’, deducting 1/3^rd of the income towards personal and living expenses, the loss of dependency would work out to Rs.14,30,000/- (13,750 x 12 x 13 x 2/3).

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In terms of the dictum of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and New India Assurance Company Limited v/s. Somwati and others reported in (2020) 9 SCC 644 , the claimants are entitled to Rs.40,000/- towards loss of spousal consortium; Rs.40,000/- towards loss of parental consortium; Rs.40,000/- towards loss of filial consortium; Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	14,30,000/-
2.	Loss of spousal consortium	40,000/-
3.	Loss of parental consortium	40,000/-
4.	Loss of filialconsortium	40,000/-
5.	Loss ofestate	15,000/-
6.	Towards funeral expenses	15,000/-
	Total	15,80,000/-

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Thus, the claimants shall be entitled to total

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compensation of Rs.15,80,000/- with interest at the rate of 6% per annum 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) The appeal is allowed in part. ii) The total compensation awarded by the Tribunal is modified and enhanced to

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Rs.15,80,000/- (Rupees Fifteen Lakhs Eighty Thousand only) as against Rs.5,89,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization. iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact. iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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