Partly allowed

The Divisional Manager v. v Jayalaxmi Shetty

Karnataka HC6 Jan 2021MFA/968/2018

Case brief

AI extract

What is this about?

The Karnataka High Court modified an Accident Claims Tribunal award in a motor accident case. It reduced the compensation due to the deceased's relatives from Rs.31.99 lakh to Rs.23.78 lakh by recalculating income to Rs.15,000, adjusting the multiplier to 18, and applying statutory percentages for future prospects and personal expenses. The insurer's appeal was partly allowed while the claimants'

What did the court decide?

The insurance company ordered to deposit Rs.23,78,000 with interest at 6% p.a. The Tribunal's finding of liability remains intact.

The Divisional Manager Vs v Jayalaxmi Shetty — 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 6^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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MFA NO.968 OF 2018 C/W MFA NO.3047 OF 2018 (MV)

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IN MFA NO.968 OF 2018

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BETWEEN :

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THE DIVISIONAL MANAGER CHOLAMANDALAM, GIC LTD. BRANCH OFFICE, 1^ST FLOOR S.R.COMPLEX, DARE HOUSE 2 NSC BOSE ROAD CHENNAI – 01, NOW REP. BY ITS LEGAL MANAGER SR. MANAGER – CLAIMS CHOLAMANDALAM MS GIC LTD. NO.1/2, GOLDEN HEIGHTS 6^TH FLOOR, 59^TH C CROSS 4^TH M BLOCK, RAJAJINAGAR BENGALURU – 560 010

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... APPELLANT

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(BY SRI. PRADEEP B., ADVOCATE)

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AND :

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V. JAYALAXMI SHETTY

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W/O N. BHOJARAJA SHETTY NOW AGED ABOUT 44 YEARS

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VIDYALAKSHMI D/O LATE BHOJARAJA SHETTY NOW AGED ABOUT 22 YEARS

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N.BHOJARAJA SHETTY S/O LATE SHIVARAMASHETTY NOW AGED ABOUT 53 YEARS ALL ARE R/AT HOUSE NO.10 BATTEMALLAPPA ALGERIMANDRI (ASLI) HOSANAGARA TALUK SHIVMOGGA DISTRICT-577 243

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MUNIRATHNA B. S/O VENKATA SWAMI NOW AGED ABOUT 48 YEARS R/O REDDY CAMP SOGANE POST, SHIVAMOGGA PIN – 577 432 ... RESPONDENTS

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(BY SRI. NAGARAJA HEGDE, ADV. FOR R1 TO R3; NOTICE TO R4 IS DISPENSED WITH VIDE COURT ORDER DATED 22.04.2019)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 04.10.2017 PASSED IN MVC NO.653/2015 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, AWARDING A COMPENSATION OF RS.31,99,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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IN MFA NO.3047 OF 2018

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BETWEEN :

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SMT. V. JAYALAXMI SHETTY W/O N. BHOJARAJA SHETTY NOW AGED ABOUT 44 YEARS

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VIDYALAKSHMI D/O N. BHOJARAJA SHETTY NOW AGED ABOUT 22 YEARS

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SRI. N.BHOJARAJA SHETTY S/O LATE SHIVARAM SHETTY NOW AGED ABOUT 53 YEARS ALL ARE R/AT HOUSE NO.110

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BATTEMALLAPPA ALGERIMANDRI (ASLI) HOSANAGARA TALUK SHIVAMOGGA DISTRICT ... APPELLANTS

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(BY SRI. NAGARAJA HEGDE, ADVOCATE)

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AND :

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SRI MANIRATHNA B. S/O VENKATA SWAMI AGED ABOUT 48 YEARS R/O REDDY CAMP SOGANE, SOGANE POST SHIVAMOGGA

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CHOLAMANDALAM M. S. GENERAL INSURANCE CO. LTD. BRANCH OFFICE, 1^ST FLOOR S.R.COMPLEX, MANGALORE HEAD OFFICE: DARE HOUSE 2^ND FLOOR, NO.2 NSC BOSE ROAD CHENNAI – 600 001 REP. BY ITS BRANCH MANAGER ... RESPONDENTS

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(BY SRI. B.PRADEEP, ADV. FOR R2; R1 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 04.10.2017 PASSED IN MVC NO.653/2015 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA) KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, M.I.ARUN J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award dated 04.10.2017 passed by the Additional Motor Accidents Claims Tribunal, Udupi, Kundapura (for short ‘the Tribunal’) in MVC No.653/2015, respondent no.2Insurance Company has preferred MFA No.968/2018 and the petitioners therein have preferred MFA No.3047/2018.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that on 19.05.2015, at about 3.20 p.m., the deceased Sukumar Shetty was riding his motorcycle bearing registration No.KA-15/K1502 from Hosangadi towards Siddapura side. When he reached near Mattiberu of Siddapura village, Kundapura Taluk, at that time, a lorry bearing registration No.KA16/A-3776 belonging to respondent no.1 and insured with respondent no.2 being driven by the rider in a rash and negligent manner dashed against the said motorcycle. Due to

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the said impact, the deceased Sukumar Shetty sustained severe injuries and died on the spot. Hence, the petitioners preferred MVC No.653/2015 and claimed a compensation of Rs.41,25,000/-.

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Petitioner no.1 is the mother, petitioner no.2 is the sister and petitioner no.3 is the father of the deceased Sukumar Shetty.

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After service of summons, respondent no.1 did not appear before the Tribunal and was placed ex parte . Respondent no.2-Insurance Company appeared before the Tribunal through its Counsel, filed its written statement, denied liability and prayed for dismissal of the claim petition.

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The petitioners got examined two witnesses and got marked Exs.P1 to P17. The respondents did not examine any witness but got marked one document as Ex.R1.

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Based on the pleadings and the evidence let in, the Tribunal has awarded a compensation of

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Rs.31,99,000/- along with interest @ 6% per annum to the petitioners. Aggrieved by the same, respondent no.2-Insurance Company has filed MFA No.968/2018. Not satisfied by the award, the petitioners have filed MFA No.3047/2018.

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We have heard learned counsel for the parties.

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It is the contention of respondent no.2-Insurance Company that there was contributory negligence on the part of the deceased which has not been taken into consideration by the Tribunal. Similarly, the income of the deceased has been arrived at Rs.20,000/- per month without any basis. That the Tribunal has taken future prospects at 50% when the deceased had no stable and a permanent job. The Tribunal committed an error by deducting 1/3^rd towards his personal expenses instead of 50% as the deceased was a Bachelor.

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The petitioners have contended that the compensation awarded by the Tribunal is on the lower side and sought for enhancement of the same.

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It is noticed that the accident is of the year 2015.

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The age of the deceased was 24 years at the time of the accident. The Tribunal based on the certificate- Ex.P13 issued by one Kalyani Motors Pvt. Ltd., Bengaluru, which states that the deceased was employed with Kalyani Motors Pvt. Ltd. as a Senior Officer and his monthly salary was Rs.23,900/-, has considered his income at Rs.20,000/- per month. It has further added 50% under the head of future prospects and has deducted 1/3^rd towards his personal expenses and considered the age of petitioner no.1, mother of the deceased and adopted a multiplier of 14 and arrived at Rs.30,24,000/- under the head of loss of dependency. It has further awarded Rs.50,000/- towards loss of estate, Rs.1,00,000/towards loss of love and affection and Rs.25,000/towards transportation and funeral expenses. Thus, it has awarded a sum of Rs.31,99,000/- as compensation to the petitioners. We find that the evidence relied upon, the multiplier adopted by the Tribunal and the compensation awarded under conventional heads to be

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erroneous and not in conformity with the law laid down

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by the Hon’ble Supreme Court in various cases.

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Ex.P13 is the certificate issued by the General Manager, Administration of Kalyani Motors Pvt. Ltd. But, the author of the certificate has not been examined nor any other document has been produced relating to the income of the deceased. Mere production of certificate alone is not sufficient to determine the income of the deceased in the absence of other corroborating evidence. However, it is found that the deceased was a diploma holder in Mechanical Servicing (Automobile). Taking into consideration his technical qualification, we are inclined to hold his income as Rs.15,000/- per month. The deceased was a Bachelor and was aged about 24 years at the time of his death. The multiplier needs to be considered as per the law laid down by the Hon’ble Supreme Court in Sarla Verma vs. D.T.C

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[2009(6) SCC 121] . Based on the age of the deceased and not that of his mother and for the age of 24, the multiplier applicable is 18. Similarly, when the deceased was a Bachelor, 50% of

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his salary has to be deducted towards his personal

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expenses. The petitioners have not been able to establish that he was in a stable and permanent job. Under the said circumstances, as per the law laid down

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by the Apex Court in National Insurance Co.Ltd. v.

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Pranay Sethi (2017) 16 SCC 680 , 40% has to be added to the income of the deceased towards loss of future prospects. Further, as per the law laid down by the Hon’ble Supreme Court in New India Assurance

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Co.Ltd. v. Somwati [(2020)9 SCC 644] , petitioner nos.1 and 3 are entitled to Rs.40,000/- each towards loss of consortium and a sum of Rs.30,000/- towards loss of estate and funeral expenses. Thus, in all, the petitioners would be entitled to the following compensation:

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Loss of dependency Rs.22,68,000/-

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[Rs.15,000/- + 40% X 12 X 18 X ½]

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Loss of consortium Rs.80,000/-

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Loss of estate and funeral expenses Rs.30,000/- Total Rs.23,78,000/-

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Though respondent no.2-Insurance Company has

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contended that there was contributory negligence on

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the part of the deceased, there is nothing on record to show the same. Ex.P9 is the spot sketch which shows that negligence was on the part of the offending lorry driver and not the deceased. Hence, the said contention of the Insurance Company is rejected.

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The petitioners have not made out any ground as to why the compensation needs to be enhanced.

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Hence, the following:

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ORDER

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i] Appeal filed by the insurer in MFA No.968/2018 is allowed in part. Appeal filed by the claimants in MFA No.3047/2018 stands dismissed.

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ii] The compensation awarded by the Tribunal is modified and reduced to Rs.23,78,000/- as against Rs.31,99,000/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii] The insurance company shall deposit the

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compensation amount before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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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 modified compensation shall be disbursed in terms of the order of the Tribunal.

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vi] Draw modified award accordingly.

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