Partly allowed

United India Insurance Co. Ltd. v. Smt. Kamalamma

Karnataka HC24 Aug 2021MFA/839/2018

Case brief

AI extract

What is this about?

High Court modified a motor accident claim award reducing compensation to Rs.15.57 lakhs following National Insurance v. Pranay Sethi principles and reduced interest from 9% to 6% p.a., dismissing the claimants' appeal for enhancement while partially allowing the insurer's appeal.

What did the court decide?

Total compensation reduced to Rs.15,57,400 with interest at 6% per annum; insurer's appeal allowed in part; claimants' appeal dismissed.

United India Insurance Co. Ltd. Vs Smt. Kamalamma — 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 24^TH DAY OF AUGUST, 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 RAVI V. HOSMANI

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M.F.A.No.9438/2018 (MV) C/W

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M.F.A.No.839/2018 (MV)

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IN M.F.A.No.9438/2018

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BETWEEN:

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SMT.KAMALAMMA W/O HANUMANTHAPPA AGED ABOUT 43 YEARS

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HANUMANTHAPPA

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S/O NAGAPPA, AGED ABOUT 46 YEARS

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BOTH ARE R/O GALLARAHALLI VILLAGE BHARAMASAGARA HOBALI

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CHITRADURGA TQ. & DIST.-577 501.

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...APPELLANTS

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(BY SRI.SPOORTHY HEGADE NAGARAJA, ADVOCATE)

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AND:

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M/s. UNITED INDIA INSU.CO.LTD., BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE, MMK COMPLEX AKKAMAHADEVI ROAD

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DAVANGERE-577 002.

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SRI.R.JAYANTHI

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PRO: GOLDER HORSE DRILLERS #11, 12, 2^ND MAIN, 3^RD CROSS CHAMRAJPET, BEGURU.

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PRESENTLY R/O. AT #28 RANGASWAMY PRILLAI STEE NO.1 THIRUCHUDONDE-637 211 NAMAKKAL DIST., TAMILNADU STATE. ...RESPONDENTS

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(BY SRI.B.C.SEETHA RAMA RAO, ADVOCATE FOR R1 VIDE ORDER DATED 10.08.2021; NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 30.10.2017, PASSED IN MVC NO. 262/2017, ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.839/2018

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE MMK COMPLEX, AKKAMAHADEVI ROAD P.J.EXTENSION, DAVANGERE-577 002. REP. BY ITS DIVISION MANAGER.

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...APPELLANT

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(BY SRI.B.C.SEETHA RAMA RAO, ADVOCATE)

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AND:

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SMT. KAMALAMMA AGED ABOUT 43 YEARS W/O SRI HANUMANTHAPPA

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SRI HANUMANTHAPPA AGED ABOUT 45 YEARS S/O NAGAPPA.

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BOTH ARE RESIDENT OF GOLLARAHALLI VILLAGE BHARAMASAGARA HOBLI CHITRADURGA TALUK & DISTRICT.

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R.JAYANTHI PROPRIETOR GOLDER HORSE DRILLERS #11, 12, II MAIN, III CROSS CHAMARAJPET, BENGALURU-560 018. (OWNER OF LORRY NO.KA.01/AF-1797)

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PRESENTLY RESIDING AT NO.28, RANGASWAMI PILLAI STREET NO.1, THIRUCHUDONDE NAMAKAL DISTRICT TAMILNADU STATE-637 211. ...RESPONDENTS

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(BY SRI.SPOORTHY HEGADE NAGARAJA, ADVOCTE FOR R1 & R2 VIDE ORDER DATED 24.08.2021; NOTICE TO R3 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 30.10.2017 PASSED IN MVC NO.262/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., CHITRADURGA, AWARDING COMPENSATION OF RS.23,35,000/- WITH INTEREST @9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE MFAs COMING ON FOR ORDERS THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Challenging the impugned judgment and award dated 30.10.2017 passed in MVC No.262/2017 by the Prl. Senior Civil

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Judge & CJM, Chitradurga, (hereinafter referred to as ‘Tribunal’ for short) insurer and claimants are in appeal.

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MFA No. 839/2018 is filed by claimants challenging the award on the ground of quantum and interest awarded by the tribunal; whereas MFA No. 9438/2018 is filed by claimants seeking enhancement of compensation.

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Brief facts of the case are that on 13.10.2016 at about 1.45 p.m. Santhosh H., was riding motorcycle bearing registration No.KA-17-ET/3077 from Davanagere towards service road in KHB colony. At that time, driver of lorry bearing registration No.KA-01/F-1797 came towards service road in rash and negligent manner and dashed against motorcycle causing death of Santhosh on the spot. Alleging loss of dependency due to his untimely death, claimants filed claim petition under Section 166 of the M.V. Act, against owner and insurer of the lorry claiming compensation.

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Inspite of service of summons, respondent No.1 -

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owner did not enter appearance and placed ex-parte . Respondent no.2 filed objections denying occurrence of the accident as well as negligence of the driver of the insured

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vehicle. It was also denied the age, occupation and income of the deceased as well as the dependency of the claimants. It admitted issuance of policy, but contended that there was violation of terms and conditions of the policy. The claim was also opposed as exorbitant, hence sought for dismissal of the petition.

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Based on pleadings, tribunal framed following issues:

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Whether petitioners prove that, Santhosh H. S/o Hanumanthappa died to the accidental injuries in the RTA occurred on 13.10.2016 at about 1.45 p.m. khb colony, “g” Block, 10^th main Davangere, due to rash and negligent manner of driver of lorry bearing registration No.KA-01/AF-1797 by its driver?

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Whether the petitioners are entitled for compensation? If so, how much and from whom?

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What order or award?

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In support of their case, claimant no.1 examined as PW1. Ex.P.1 to 7 were marked. On the other hand, no evidence was adduced on behalf of respondents, but copy of insurance policy as marked with consent as Ex.R.1.

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Thereafter upon consideration, tribunal answered issue

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no.1 in affirmative, issue no.2 partly in affirmative and issue

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no.3 allowing claim petition in part and awarding compensation of Rs.23,35,000/- with interest at 9% per annum and directing respondent-insurer to pay the same.

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Aggrieved by the award, both claimants as well as insurer are in appeal.

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Shri. B.C. Seetha Rama Rao, learned counsel for insurer-appellant in MFA No.839/2018 submitted that deceased Santhosh was a bachelor, claimants are his parents and only mother can be considered as dependant. Hence 1/2 of the income was required to be deducted towards personal expenses. But tribunal deducted 1/3, which was contrary to settled principles of law. It was further contended that the tribunal also awarded a sum of Rs.1,00,000/- towards ‘loss of estate’, Rs.25,000/- towards ‘funeral expenses’ and Rs.50,000/- towards ‘love and affection’ which was excessive. Learned counsel sought indulgence of this Court for reduction of interest awarded at 9% per annum. On the above grounds, learned counsel sought for allowing insurer’s appeal and dismissal of claimants appeal.

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On the other hand, Shri.Spoorthy Hegade Nagaraja, learned advocate for the claimants in MFA No.9438/2018 submitted that deceased was 19 years of age, doing mason work, and earning Rs.15,000/- per month, but tribunal considered his monthly income at Rs.10,000/- only without adequate justification. It was further submitted that as deceased was residing with his parents in a rural area, tribunal was justified in deducting 1/3 towards personal expenses. It was further submitted that on overall consideration, the compensation determined by the tribunal was grossly inadequate and sought for enhancement of compensation by dismissing the appeal of the insurer.

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We have heard learned counsel on both sides, perused impugned judgment and award and the record.

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From the above, it is seen that claimants are in appeal seeking enhancement and insurer is in appeal seeking reduction of compensation and interest. Therefore, occurrence of accident due to rash and negligent driving of lorry by its driver resulting in death of claimants’ son are not in dispute. Issuance of policy and its validity as on date of accident as well as the

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liability of insurer to pay compensation are also not in dispute. The only dispute is regarding assessment of compensation. Therefore, the point that arise for our consideration is:

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“i) Whether the compensation awarded requires modification?

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ii) Whether the interested awarded by the tribunal at 9% p.a. requires reduction?”

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In order to establish age, occupation and income of

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the deceased, claimant No.1, mother examined as PW.1. She deposed that deceased was 19 years of age, working as mason and earning more than Rs.15,000/- per month. However, it is not substantiated by leading evidence. In the absence of specific evidence, tribunal would be justified in taking income on notional basis. The accident admittedly occurred on 13.10.2016. Tribunal considered his income at Rs.10,000/- per month. The notional income prescribed by the Karnataka Legal Services Authority for settlement of cases before Lok Adalath for the year 2016 is Rs.9,500/-. However, tribunal has considered it at Rs.10,000/- per month without any specific reasoning or noticing the fact that deceased was working in rural place. Therefore, same cannot be sustained. It has to be taken at Rs.9,500/instead. The deceased was 19 years of age and self employed;

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claimants are parents and only mother would sole dependant, in the absence of evidence, regarding claimant No.2-father being dependant on income of deceased. As per the decision of the Hon’ble Supreme Court in National Insurance Co. Ltd. -vPranay Sethi and Others, reported in AIR 2017 SC 5157, National Insurance Co. Ltd. -v- Pranay Sethi and Others, reported in AIR 2017 SC 5157, deduction towards personal expenses would be ½ and 40% to be added to income towards ‘future prospects’ and multiplier applicable would be ’18’. Therefore,’loss of dependency’ would be:

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Rs.9,500/- + 40% - ½ X 12 X 18 = Rs.14,36,400/-.

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As per Pranay Sethi ’s case (supra), claimants are also entitled to a sum of Rs.40,000/- each towards parental consortium. In addition, they would be entitled to Rs.15,000/towards ‘funeral expenses’ and Rs.15,000/- towards ‘loss of estate’. Since more than three years have lapsed after rendering decision in Pranay Sethi ’s case, 10% has to be added to compensation awarded under conventional heads i.e., 1,10,000/(80,000 + 30,000/-) + 10% = Rs.1,21,000/-.

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As the award of the tribunal under conventional heads is contrary to the principles in Pranay Sethi’ s case, same cannot

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be sustained. Claimants would be entitled to Rs.1,21,000/- under conventional heads as above. Hence, total re-assessed compensation would be :

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1.	Loss of dependency	Rs.14,36,400/-
2.	Conventional heads	Rs.1,21,000/-
	Total	Rs.15,57,400/-

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Accordingly, point for consideration is answered in the affirmative as above. Claimants are entitled to a total reassessed compensation of Rs.15,57,400/- as against Rs.23,35,500/awarded by the tribunal And point no.1 is answered partly in the affirmative.

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Point No.2: While passing the impugned award, tribunal has granted interest at 9% per annum by referring to the decision in the case of Municipal Corporation of Delhi Vs. Association of Victim of Uphar Tragedy . As the rate of interest on terms deposits has reduced from the date of judgment in Uphar Tragedy case (supra) and also as this Court has been consistently awarding interest at 6 % per annum, award of interest at 9% cannot be sustained, same is reduced to 6%. Accordingly point no.2 is answered in the affirmative.

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Hence, the following:

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ORDER

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i) MFA No.9438/2018 filed by the claimants stands dismissed.

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ii) MFA No.839/2018 filed by the insurer is allowed in part.

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iii) The total compensation awarded by the Tribunal is modified and reduced to Rs.15,57,400/(Rupees Fifteen Lakhs Fifty Seven Thousand Four Hundred only) as against Rs.23,35,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iv) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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v) 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.

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vi) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vii) Draw modified award accordingly.

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viii) The Registry shall transfer the amount in deposit to the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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