Partly allowed

Gopplaiah v. M/S National Insurance Co. Ltd.

Karnataka HC17 Dec 2021MFA/645/2015

Case brief

AI extract

What is this about?

The High Court allowed this first appeal partly, re-determining compensation for death in a motor vehicle accident. The court recalculated loss of dependency from Rs.3.28 lakh to Rs.8.4 lakh based on the deceased's age and future prospects, while keeping love and affection and consortium awards intact, raising the total to Rs.9.77 lakh.

What did the court decide?

Compensation enhanced from Rs.4,65,900 to Rs.9,77,000; appeal allowed in part; records remanded to tribunal.

Gopplaiah Vs M/S National Insurance Co. Ltd. — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 17^TH DAY OF DECEMBER 2021

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BEFORE

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

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M.F.A. NO.645 OF 2015 (MV)

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BETWEEN:

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GOPPLAIAH S/O SHANAIAH U MOTAIAH, AGED 53 YEARS, R/AT #20, GOTTIKERE, KUNIGAL TALULK, TUMKUR DISTRICT-572 101.

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SMT.HANUMAMMA AGED 72 YEARS, W/O SHANAIAH U MOTAIAH, R/AT #20, GOTTIKERE, KUNIGAL TALULK, TUMKUR DISTRICT-572 101.

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SMT.DEVEERAMMA, W/O NANJAPPA, AGED 75 YEARS, R/AT NO.180, MARURU, MAGADI TALUK, BENGALURU DISTRICT-562 127.

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SMT. ANITHA, W/O SRI. VENKATESH, AGED 28 YEARS, D/O GOPALAIAH, R/AT HADANA HALLI, YEDIYUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT-572 101.

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...APPELLANTS

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(BY SRI. D.S SRIDHAR FOR SRI. K.V. SHYAMAPRASADA, ADVOCATE)

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AND:

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M/S NATIONAL INSURANCE CO. LTD., NO.1930/A, 16^TH 'B' CROSS, BUS STAND ROAD, NEW TOWN, YELAHANKA,BENGALURU URBAN BENGALURU-560 064 REPRESENTED BY ITS MANAGER.

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RANGANATH T N S/O NAGARAJU, WARD NO.2, MAGADI ROAD, RAJAJINAGAR, BENGALURU-560 012.

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NARASIMHA MURTHY, S/O THIPPAIAH, MAJOR, NO.45/2, BAYAPPA BUILDING, VITTASANDRA MAIN ROAD, BEGUR, BENGALURU-560 068. …RESPONDENTS

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(BY SRI:O. MAHESH, ADVOCATE FOR R1 R2 AND R3 SERVICE OF NOTICE DISPENSED WITH VIDE ORDER DATED 29.07.2021)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 12.09.2014 PASSED IN MVC NO.7247/2012 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Heard learned counsel for the appellants and learned

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counsel for respondent No.1 at the stage of admission itself

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and the matter is finally heard and disposed of.

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This appeal lays challenge to the judgment and award passed by the II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru, (for short hereinafter referred to as ‘MACT') (SCCH-13) Bengaluru in MVC No.7247/2012 dated dated 12^th September 2014, wherein the tribunal has awarded a compensation of Rs.4,65,900/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit.

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The appellants who were claimants before the tribunal filed a claim petition claiming compensation on account of death of Nanjamma under section 166 of M.V. Act. The brief contention before the tribunal is that on 18.10.2012, at about 11.00 a.m., when the deceased Nanjamma was a pedestrian on the extreme left side of the road, in front of Thimmarayappa House, Maruru, Kuduru Hobli, Magadi Taluk, at that time, the rider of the offending motor cycle bearing registration No.KA-41-H-3169 came in rash and negligent manner in high speed so as to endanger human life and dashed against the deceased, due to said impact, deceased Nanjamma fell down and sustained grievous injuries and succumbed to the injuries on

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19.10.2012. Hence, the appellants/claimants who are husband, mother-in-law, mother and daughter of deceased Nanjamma filed a claim petition claiming compensation in respect of death of the deceased.

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Respondent No.2 owner of the vehicle did not appear. Respondent No.1-Insurance company and respondent No.3 appeared and only respondent No.1Insurance company filed written statement. They have denied the accident in question. It is contended that the accident occurred due to negligence of the deceased while crossing the road. Insurance company has admitted that insurance policy was in force as on the date of the accident, but the liability of the insurance company, if any, is subject to terms and conditions of the policy and if there is any violation, the insurance company is not liable to pay. With these contentions, respondent No.1-Insurance company prayed to dismiss the petition.

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On the basis of the above pleadings, the tribunal framed the following issues:-

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“1. Whether the petitioners prove that, deceased Nanjamma died in RTA arising out of accident alleged to have been taken place on 18.10.2012 at about 11.00 a.m., on Maruru, Kudur Hobli, Magadi Taluk, Ramanagar Dist. due to rash and negligent riding of Motor Cycle bearing Reg.No.KA41-H-3169?

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2. Whether the petitioners are entitled for compensation as claimed? If so to what extent?

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3. What order or award?"

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Petitioner No.1 who is the husband of the deceased got examined himself as PW.1 and got marked 15 documents as Exs-P1 to P15 which consist of FIR, complaint, post-mortem report, charge sheet and notarised copy of identity card of the deceased. Respondents have not let in any evidence.

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After hearing the arguments, the tribunal has passed the said impugned judgment which is now under challenge before this Court.

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Heard learned counsel for the appellants Sri.D.S. Sridhar for Sri. K.V. Shyamaprasada and Sri. O. Mahesh, learned counsel for respondent No.1.

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Perused the appeal memo, judgment and other materials placed before this Court.

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The accident in question is not in dispute and the policy was in force as on the date of the accident. So the liability of the insurance company is also not in dispute. Learned counsel for the appellants/claimants argued that the income of the deceased taken by the tribunal is on very lower side wherein the tribunal has taken Rs.5,500/-. On the other hand, the deceased was earning Rs.6,000/- p.m. by doing coolie work. Learned counsel argued that the compensation awarded under 'loss of love and affection to the daughter' is also not provided and compensation awarded under other heads is also on lower side.

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Against this, learned counsel for the insurance company/respondent No.1 contended that the deceased was earning Rs.6,000/- p.m. Now they cannot contend that it is on the lower side. Further, the tribunal has awarded

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compensation infact both under 'loss of love and affection' and 'loss of consortium' which needs to be corrected in view of the decision of the Hon'ble Supreme Court in Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782 . So learned counsel supported the judgment and argued that it needs no interference.

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I have perused the records.

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It is contended that deceased Nanjamma was doing coolie work. Even though a person who is not having income where there is no proof of income, during Lok Adalath, notional income is considered at the rate of Rs.7,000/- to Rs.8,000/- p.m. for the year 2012. However, claimants themselves have contended that the deceased was earning Rs.6,000/-. Therefore, in my considered view, the income of the deceased is to be taken at Rs.6,000/p.m. As per the decision of the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Others , reported in AIR 2017 SC 5157, for the self employed person, future prospects for the age group of

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40 - 50 years, is to be taken at 25%. Here, in this case, the age of the deceased is '43' years. Therefore, 25% future prospects is to be added to the income, which comes to Rs.7,500/-. There are two dependents. Therefore, 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 reported in (2009)6 SCC 121, 1/3^rd is to be deducted towards 'personal expenses' which comes to Rs.5,000/- . The tribunal while applying multiplier has taken into consideration the age of the first petitioner as '50' years. Now, it is settled principles of law that the age of the deceased will have to be taken into consideration. Therefore, as the deceased is aged '43' years, as per the decision rendered in Sarla Verma' case, proper multiplier that is applicable for the age group between 41 to 45 years is '14'. Therefore, it needs to be modified. Accordingly, compensation under the head 'loss of dependency' comes to Rs.8,40,000/ -(Rs.5,000x12x14).

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Of-course, the deceased has left behind her husband, daughter, mother-in-law and her mother. However, keeping in mind the number of dependents, the

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compensation awarded under 'loss of love and affection' and 'loss of consortium' are kept intact and it needs no interference. The compensation awarded under 'loss of estate' and 'funeral expenses' is not in dispute.

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15. In the result, the compensation awarded by the

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tribunal need to be re-judged and recalculated under

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different heads of compensation as under:

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Sl. No.	Particulars	Compensation awarded by the tribunal in Rs.	Compensation re-determined by this courtin Rs.
1.	Loss of dependency	3,28,900/-	8,40,000/-
2.	Loss of love and affection	12,000/-	12,000/-
3.	Loss of consortium	1,00,000/-	1,00,000/-
4.	Funeral expenses	25,000/-	25,000/-
	Total	Rs.4,65,900/-	Rs.9,77,000/-

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In the result, I pass the following:

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ORDER

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(i) The appeal is allowed-in-part;

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(ii) The impugned judgment and award passed by

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learned II Addl. Small Causes Judge & XXVIII ACMM,

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Bengaluru, having been modified, the appellants/claimants are entitled for a total compensation of Rs.9,77,000/- (Rupees Nine lakh Seventy Seven Thousand only) instead of Rs.4,65,900/- which is awarded by the tribunal.

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(iii) The appellants/claimants are entitled for

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enhanced compensation of Rs.5,11,100/-.

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(iv) Other conditions of the tribunal regarding apportionment and interest remained unaltered.

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(iv) The respondents shall deposit the compensation

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amount within six weeks from the date of receipt of a certified copy of this order.

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(v) Costs made easy.