Partly allowed

Mrs. Latha George v. Cholamandalam Ms General Insurance Company Ltd.

Karnataka HC15 Jun 2021MFA/3452/2018

Case brief

AI extract

What is this about?

The High Court modified two Motor Accident Claims Tribunal judgments, enhancing compensation awarded to legal representatives of a deceased husband and an injured wife. While rejecting higher income claims due to lack of evidence, the Court enhanced dependency and non-pecuniary losses based on Supreme Court guidelines.

What did the court decide?

Compensation enhanced to Rs.12,80,000 for deceased and Rs.1,30,000 for injured claimant; interest awarded on enhanced amounts.

Mrs. Latha George Vs Cholamandalam Ms General… — 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 15^TH DAY OF JUNE 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO.3451 OF 2018 (MV-D)

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C/W

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M.F.A. NO.3452 OF 2018 (MV-I)

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M.F.A. NO.3451 OF 2018

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BETWEEN:

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MRS. LATHA GEORGE W/O LATE GEORGE MANOHAR AGED ABOUT 51 YEARS.

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MR. NITIN LAZARUS S/O LATE GEORGE MANOHAR AGED ABOUT 22 YEARS.

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BOTH ARE RESIDING AT: NO.115 18TH MAIN, I CROSS, 6TH BLOCK KORAMANGALA, BENGALURU - 560068.

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... APPELLANTS

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(BY SRI. GIRIMALLAIAH, ADV.,)

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AND:

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CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD. UNIC - IV, 9TH FLOOR, (LEVEL - 06) GOLDEN HEIGHTS COMPLE 59TH 'C' CROSS, INDUSTRIAL SUBURB

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RAJAJINAGAR 4TH 'M' BLOCK BENGALURU - 560010.

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MR. S. RAMAR S/O SUBBAIAH, MAJOR HOOVINAKADU EASTATE KUTTA POST, KODAGU - 571350.

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... RESPONDENTS

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(BY SRI. O. MAHESH, ADV., FOR R1 V/O DTD:16.02.2021 NOTICE TO R2 IS D/W)

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THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2018 PASSED IN MVC NO.4265/2016 ON THE FILE OF THE XXI ACMM & XXIII ADDL. SMALL CAUSES JUDGE, MACT, BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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M.F.A. NO.3452 OF 2018

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BETWEEN:

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MRS. LATHA GEORGE W/O LATE GEORGE MANOHAR AGED ABOUT 57 YEARS RESIDING AT: NO.115 18TH MAIN, I CROSS, 6TH BLOCK KORAMANGALA, BENGALURU - 560068.

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... APPELLANT

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(BY SRI. GIRIMALLAIAH, ADV.,)

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AND:

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CHOLAMANDALAM MS GENERAL

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INSURANCE COMPANY LTD., UNIC - IV, 9TH FLOOR, (LEVEL - 06) GOLDEN HEIGHTS COMPLEX 59TH 'C' CROSS, INDUSTRIAL SUBURB RAJAJINAGAR 4TH 'M' BLOCK BENGALURU - 560010.

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MR. S. RAMAR S/O SUBBAIAH, MAJOR HOOVINAKADU EASTATE

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KUTTA POST, KODAGU - 571350.

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... RESPONDENTS

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(BY SRI. O. MAHESH, ADV., FOR R1 V/O DTD:16.02.2021 NOTICE TO R2 IS D/W)

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THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2018 PASSED IN MVC NO.4266/2016 ON THE FILE OF THE XXI ACMM & XXIII ASCJ, MACT COURT OF SMALL CAUSES, BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A.No.3451/2018 and M.F.A.No.3452/2018 have

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been filed by the claimants seeking enhancement of the amount of compensation under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) against the judgment dated 01.01.2018 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal' for short) in MVC No.4265/2016 and MVC

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No.4266/2016 respectively. Since, both the appeals arise out of the same accident and from the same judgment, they were heard together and are being decided by this common judgment.

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Facts giving rise to the filing of these appeals briefly stated are that on 16.11.2015, the deceased George Manohar and the injured claimant Latha George were proceeding a car bearing registration No.KA-ML-2038. When they reached near Hosalu Maramma Temple, Anechowakuru Forest Area, Mysore, a Mahindra Goods Vehicle bearing Registration No.KA-12-7008 (hereinafter referred to as 'the offending vehicle' for short), which was being driven by its driver in a rash and negligent manner, dashed against the car in which, the deceased and the injured claimant were traveling. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same whereas the injured claimant sustained grievous injuries and was immediately shifted to BGS Hospital, Bangalore for treatment where the claimant was an inpatient for 2 days

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The legal representatives of the deceased

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thereupon filed a petition under Section 166 of the Act viz., MVC No.4265/2016 claiming compensation on the ground that the deceased was aged about 49 years at the time of accident and was engaged as a real estate agent and running a paper business and was earning a sum of Rs.50,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent driving of the offending vehicle by its driver. The claimants claimed compensation to the tune of Rs.66,00,000/- along with interest. The injured claimant also filed a petition under Section 166 of the Act viz., MVC No.4266/2016 inter alia on the ground that the claimant was admitted to BGS Hospital, Bangalore, where she took treatment as inpatient for a period of 02 days. It is also pleaded that the injured claimant has spent huge amount towards medical expenses. It was pleaded that the claimant was earning Rs.20,000/- from working as a real estate agent and due to the impact of the accident, the claimant is unable to carry on with the work as before. It further pleaded that the accident took place on account of the rash and negligent driving of the driver of the offending

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vehicle. The injured claimant claimed compensation to the tune of Rs.6,00,000/- along with interest.

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The insurer of the offending vehicle viz., Respondent No.1 in MVC No.4265/2016 and MVC No.4266/2016 filed written statement, inter alia , in which the mode and manner of the accident was denied. The insurer of the offending vehicle admitted the existence of the insurance policy in respect of the offending vehicle and pleaded that the liability to the compensation, if any, are subject to the terms and conditions of the insurance policy. It was pleaded that the claim petition were bad for non-compliance of Section 134(c) and Section 158(6) of the Act. It was further pleaded that the driver of the offending vehicle did not possess a valid and effective driving licence at the time of accident. It was also pleaded that the accident occurred on account of the negligence of the deceased himself in driving his car. The ages, avocations, income of the deceased as well as the injured claimant and the injuries sustained by the injured claimant were also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined himself as PW-1 and got exhibited documents namely Ex.P1 to Ex.P32. The respondents examined Anand (RW1), Mohan (RW2) and adduced documents namely Ex.R1 and Ex.R5. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver. It was further held, that as a result of aforesaid accident, the deceased as well as the injured claimant sustained injuries and the deceased succumbed to the same. The Tribunal further held that the claimants in MVC No.4265/2016 are entitled to a compensation of Rs.11,10,100/- along with interest at the rate of 8% per annum whereas, the injured claimant in MVC No.4266/2016 was held entitled to a compensation of Rs.1,07,000/- along with interest at the rate of 8% per annum. Being aggrieved, these appeals have been filed.

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Learned counsel for the claimant in MVC

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No.4265/2016 submitted that the Tribunal erred in assessing

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the income of the deceased at Rs.8,000/- per month when EX.P8 and Ex.P9 Bank Statements for the years 2014 and 2015 clearly indicate that the deceased was earning Rs.5,26,250/- and Rs.7,67,217/- respectively. It is also submitted that Ex.P27 to Ex.P30 Bills regarding Paper Agency, indicate that the deceased was engaged in running a paper agency. It is also urged that the sums awarded under the heads ‘loss of consortium’ and ‘funeral expenses’ are on the lower side and deserves to be enhanced suitably. Learned counsel for the injured claimant in MVC No.4266/2016 submitted that the injured claimant was an inpatient for a period of 2 days and has undergone multiple surgeries for the treatment of the injuries sustained by her in the accident and the amount of compensation awarded by the Tribunal is on the lower side and deserves to be enhanced suitably.

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On the other hand, learned counsel for the Insurance Company submitted that no evidence has been adduced by the claimants to prove the income of the deceased before the Tribunal and that the Tribunal has

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rightly assessed the income of the deceased notionally at Rs.8,000/- per month. It is further submitted that the injured claimant in MVC No.4266/2016 has not examined the doctor who has treated her with regard to the injuries sustained by her in accident and therefore, the Tribunal has not assessed the disability sustained by her in the accident. It is urged that in both the claim petitions viz., MVC No.4266/2016 and MVC No.4265/2016, the amount of compensation awarded by the Tribunal is just and proper and does not call for any interference by this court.

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We have considered the submissions made by learned counsel for the parties and have perused the record. It is not in dispute that the accident occurred on account of the negligence of the driver of the offending vehicle. The only issue which arises for our consideration in these appeals are with regard to the quantum of compensation. Now we may advert to the quantum of the compensation in MVC No.4265/2016. The claimants have contended that the deceased was earning a sum of Rs.50,000/- per month by running a paper agency as well as being engaged as a real

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estate agent and in order to prove the aforesaid contention, the claimants have produced EX.P8 and Ex.P9 Bank Statements as well as Ex.P27 to Ex.P.30 Bills for Purchase of Paper. EX.P8 and Ex.P9 Bank Statements disclose that the deceased's bank account witnessed cash credits to the extent of Rs.5,26,250/- and Rs.7,67,217/- for the year 2014 and 2015 respectively. However, the same cannot be relied upon to assess the income of the deceased, as the transactions contained in EX.P8 and Ex.P9 Bank Statements, do not disclose the source of the funds and the reason for their credit. Ex.P27 to Ex.P.30 Bills for Purchase of Paper also can not be relied upon to assess the income of the deceased, as the author of the aforesaid document has not been examined to prove the contents of the documents. Therefore in the absence of any evidence with regard to the income of the deceased, the income of the deceased is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2015, the notional income of the deceased is assessed at Rs.9,000/- per month.

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In view of the law laid down by the Constitution

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Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’

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AIR 2017 SC 5157 , 25% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.11,250/-. Since, the number of dependents is 4, therefore, 1/3rd of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.7,500/-. Taking into account the age of the deceased which was 49 years at the time of accident, the multiplier of ‘13’ has to be adopted. Therefore, the claimants are held entitled to (Rs.7,500x12x13) i.e., Rs.11,70,000/- on account of loss of dependency.

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In view of laid down by the Supreme Court in

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‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

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& ORS.’ (2018) 18 SCC 130 , which has been subsequently clarified by the Supreme Court in ‘ UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’

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AIR 2020 SC 3076 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss

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love and affection. Thus, the claimants are held entitled to Rs.80,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.12,80,000/-. Needless to state that the enhanced amount of compensation viz., Rs.1,69,948 /- shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Claims Tribunal in MVC No.4265/2016 is modified.

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Now we may advert to the quantum of compensation in MVC No.4266/2016. Ex.P22 Wound Certificate discloses that the claimant has sustained the following injuries -

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Multiple grazed abrasion of 7x5 cm on forehead both cheeks and chin

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Abroded contusion of 4x3 cm on outer aspect of left shoulder

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Multiple abroaded contusions on back of right hand 5x2 cm and left hand 4x4 cm.

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Out of the aforesaid injuries, injury no.(1) and (3) are simple while injury No.(2) is grievous in nature. It is pertinent to note here that the injured claimant has failed to examine an expert viz., the doctor to testify with regard to the disability and injuries sustained by her as well as to the authenticity of the medical documents adduced by her. Therefore, the Tribunal has rightly not awarded compensation under the head 'Loss of earning capacity'. Taking into consideration Ex.P22 Wound Certificate, Ex.P23 Discharge summary and the notional income for the year 2015 being Rs.9,000/- per month, the claimant is held entitled to Rs.18,000/- (Rs.9,000/- x 3 months) under the head 'Loss of income during laid up period' as the claimant may have been laid up atleast for a period of 2 months. The tribunal has awarded Rs.15,000/under the head 'Nourishment, Conveyance and Attendant Charges', the same is on the lower side and is enhanced to Rs.20,000/-. Thus the injured claimant is held entitled to a total compensation of Rs.1,29,989/- which is rounded off to *Rs.1,30,000/-. Needless to state that the enhanced amount of compensation viz., Rs.23,000 /- shall carry interest at the rate of 6% per

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Corrected vide chambers Order dated 10-07-2023

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annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Claims Tribunal in MVC No.4266/2016 is modified.

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Accordingly, the appeals are partly allowed.

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Sd/JUDGE

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Sd/JUDGE

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Mrs. Latha George v. Cholamandalam Ms General Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Mrs. Latha George v. Cholamandalam Ms General Insurance Company Ltd.

Case brief

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