Partly allowed

Krishnappa v. Narasimharaju

Karnataka HC18 Aug 2022MFA/2631/2017

Case brief

AI extract

What is this about?

Two appeals against a tribunal award in Motor Accident claims. The court enhanced compensation for death of a 2-year-old child from 4 lakhs to 5.9 lakhs by applying Supreme Court principles for notional income instead of Section 163-A schedules. It also enhanced injury compensation for a third party from 2.34 lakhs to 3.53 lakhs and reduced interest to 6% p.a.

What did the court decide?

Compensation enhanced to Rs.5,90,000 for death claim and Rs.3,53,800 for injury claim; interest fixed at 6% p.a. from date of petition.

Krishnappa Vs Narasimharaju — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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MFA No. 2630 OF 2017 (MV - I) C/W

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MFA No.2631 OF 2017 (MV - I)

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IN M.F.A. No.2630/2017

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BETWEEN:

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MAHALAKSHMI, 28 YEARS, W/O MARIYANNA,

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MARIYANNA, 33 YEARS, S/O EREGOWDA,

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BOTH ARE RESIDENTS OF DODDAGULA, KASABA HOBLI, SIRA TALUK, TUMAKURU DISTRICT.

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…APPELLANTS

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(BY SRI.PATEL D KAREGOWDA, ADVOCATE)

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AND:

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NARASIMHARAJU, AGE 26 YEARS, S/O RAJANNA,

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R/O DODDAGULA, KASABA HOBLI, SIRA TALUK, TUMAKURU DISTRICT – 572 101.

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TATA AIG GENERAL INSRUANCE COMPANY, II FLOOR, JP & DEVIJAMBUKESHWARI ARCADE, #69, MILLERS ROAD, BENGALURU – 52, BY ITS MANAGER.

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…RESPONDENTS

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

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2016 PASSED IN MVC NO.1626/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. No.2631/2017

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BETWEEN:

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KRISHNAPPA, AGED 38 YEARS, S/O MARIYANNA, RESIDENT OF DODDAGULA, KASABA HOBLI, SIRA TALUK, TUMAKURU DISTRICT.

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…APPELLANT (BY SRI.PATEL D KAREGOWDA, ADVOCATE)

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AND:

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NARASIMHARAJU, AGE 26 YEARS, S/O RAJANNA, R/AT DODDAGULA, KASABA HOBLI, SIRA TALUK, TUMAKURU DISTRICT – 572 101.

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TATA AIG GENERAL INSRUANCE COMPANY, II FLOOR, JP & DEVIJAMBUKESHWARI ARCADE, #69, MILLERS ROAD, BENGALURU – 52, BY ITS MANAGER.

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…RESPONDENTS

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

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2016 PASSED IN MVC NO.1627/14 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, AT SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFAs COMING ON FOR FURTHER AGRUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA No.2630/2017 and MFA No.2631/2017 are

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filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’, for short)

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by the claimants being aggrieved by the judgment dated 11.11.2016, passed by the Court of Senior Civil Judge and Additional Motor Accident Claims Tribunal, at Sira in MVC Nos.1626/2014 and 1627/2014, respectively, for seeking enhancement of compensation.

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2. Brief facts:

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Facts giving rise to the filing of the appeal briefly stated are that on 17.06.2014, at about 12.00 p.m., when the claimants were proceeding on Autoricksha bearing registration No. KA-06-C-8804, to go to their village and when the above said Auto reached near Thaggihalli, then the driver of the said Auto drove the same in a rash and negligent manner and toppled the same on Padmapura-Doddagula road and as a result of it the claimants of MVC No1626/2014 sustained grievous injuries and later succumbed to the injuries and the claimant in MVC No.1627/2014 has sustained bodily injuries.

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The claimants in MVC No.1626/2014 filed a petition under Section-166 of the MV Act seeking compensation for the death of the deceased along with interest. The claimant in MVC No.1627/2014 filed a petition under Section 166 of the MV Act seeking compensation.

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It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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5. The Tribunal held that the claimants in

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MVC No.1626/2014 are entitled to a compensation of Rs.4,00,000/- along with interest at the rate of 9% p.a. and in MVC No.1627/2014 and the claimant is entitled to a compensation of Rs.2,34,800/- along with interest at the rate of 9% p.a. and directed the

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respondent-Insurance company to deposit the compensation amount along with interest. Being aggrieved, the present case filed.

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Heard the learned counsel for the parties and perused the records.

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In MFA No.2630/2017:

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The learned counsel for the claimants in MFA No.2630/2017 (MVC No.1626/2014) has contended that in the present case 2 years old girl namely, Komala died in the accident but the tribunal has granted only compensation of Rs.4,00,000/- along with interest at the rate of 9% per annum from the date of petition till realization by making both respondent Nos.1 and 2 jointly liable.

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It is submitted that as per the dictum of Hon’ble Apex Court in the case of KISHAN GOPAL

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AND ANOTHER VS. LALA AND OTHERS [(2014) 1

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SC 244] , in case of death of a children, the notional

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income has to be considered as Rs.30,000/- per annum and multiplied with a multiplier of younger age of the parents and then the compensation has to be awarded. But in the present case, the Tribunal has held notional income of Rs.15,000/- only and awarded compensation of Rs.2,25,000/- under the ‘loss of dependency’, Rs.1,00,000/- under the head of ‘loss of love and affection’ and Rs.75,000/- under the head of ‘Non-pecuniary damages’. In total, awarded a total sum of Rs.4,00,000/- in case of death of 2 years old girl, child, which is on lesser side. Hence, he prays for enhancement of compensation.

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On the other hand, the learned counsel for

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the Insurance Company has opposed claim of the claimants for seeking enhancement and prays to dismiss the appeal on the ground that in case of death of minor child, the notional income held by the Tribunal is correct and also multiplier applied is

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correct. Accordingly, the compensation awarded, which is just and reasonable.

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The learned counsel for the respondentInsurance company placed reliance on several Judgments of the Hon’ble Apex court in the case of RESHMA KUMARI VS. MADAN MOHAN AND ANOTHER REPORTED IN 2013 ACJ 1253 and other connected cases and in the case of RAJENDRA SINGH VS. NATURAL INSURANCE COMPANY under Civil appeal No.2624 of 2020 (arising out of SLP (Civil) No(s). 13964 of 2018).

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The learned counsel for the Insurance Company places reliance on judgment of Hon’ble Apex Court in RAJENDRA SINGH (supra). In this judgment the principle of law laid down in KISHAN GOPAL

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AND ANOTHER (supra) case is not considered. Further submitted that the principle of law laid down in the judgment of KISHAN GOPAL AND ANOTHER

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(supra), is applicable in the case on hand, which is rendered earlier to the RAJENDRA SINGH (supra).

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Further, the learned counsel for the insurance company places reliance on judgment of this court passed in MFA No.8536/2019 in the case of Lakshmi Devi and other Vs. Murugesh, dated 23.06.2022 and in this case, on account of death of a minor child aged 2 years old, granted a sum of Rs,3,00,000/- by following the judgment of Hon’ble Supreme court in case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] and also by referring to the case in RESHMA KUMARI stated supra.

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The facts and circumstances stated in case of RESHMA KUMARI (supra) and in the present case are entirely different. In the RESHMA KUMARI (supra) case it was held regarding applying multiplier and by making interpretation of Section 163-A of MV

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Act and Schedule-II of the MV Act. As held above, the judgment in the case of RESHMA KUMARI stated supra is not applicable in the present case and also upon considering the facts and circumstances in MAGMA GENERAL INSURANCE CO. LTD stated supra, the facts and circumstances are different from the present case. Therefore, the above cited judgment rendered in MFA No.8536/2019 (supra) is not applicable in the case on hand. Hence, it is not followed.

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This court has followed the judgment of the Hon’ble Supreme court in the case of KISHAN GOPAL AND ANOTHER (supra) and judgment of this court in MFA No.507/2017 (supra) are followed as they are squarely applicable to the case on hand.

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In MFA No.2630/2017 (MVC No.1626/2014):

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The compensation awarded by the Tribunal is as follows:

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Loss of Dependency	2,25,000/-
Loss of Love & affection	1,00,000/-
Non-Pecuniary damages	75,000/-
Total	4,00,000/-

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In the present case, in an accident, as above stated, 2 years old girl komala died in the accident. The Tribunal had held the notional income at Rs.15,000/- per annum on the basis of Schedule-II provided under Section 163-A of Motor Vehicle Act and by applying multiplier of '15' and awarded compensation under the head of 'loss of dependency'. The observation of the tribunal in this regard by holding notional income Rs.15,000/- per annum is wrong. Since, the tribunal had followed the ScheduleII provided under Section 163-A of Motor Vehicle Act, but the instant claim petition is filed under Section 166 of MV Act. The claimants have not invoked provision under Section 163-A of MV Act. Therefore, in this regard the ratio laid down by the Hon’ble Apex

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Court in case of KISHAN GOPAL AND ANOTHER (supra) is applicable and also the ratio laid down by this Court in judgment in MFA No.507/2017 dated 29.11.2019 passed in case of MANJUNATH AND OTHERS VS. NATIONAL INSURANCE CO. LTD ADN

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OTHERS is applicable.

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The Hon’ble Apex Court in case of KISHAN GOPAL AND ANOTHER (supra) has elaborately laid down the principle of law by following earlier judgments passed in respect of claim petitions filed where minor children died in the accident.

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The Hon’ble Apex Court in case of KISHAN

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GOPAL AND ANOTHER stated supra has observed in para 39, which reads as under:

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"In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000 and further taking the young age of the parents, namely, the mother who was about 36

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years old, at the time of accident, by applying the legal principles laid down in Sarla Verma V.DTC, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000X15=4,50,000 and 50,000 under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas, which is referred to in Lata Wadhwa case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants."

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In the above stated case, facts are that a 10 year old boy died in the accident. A 10 year old boy is also non earning member in the family. In the present case 2 years old girl is dead. Therefore, there cannot be any differentiation between death of minor

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children, whether it may be 2 years old or 5 years or 10 years. No amount of compensation can solace the grief of parents, who have lost their minor children. Therefore, the Tribunal committed an error in taking into consideration only a sum of Rs.15,000/- per annum as notional income by following Schedule-II provided under Section 163-A of Motor Vehicle Act. Therefore, it is just and proper to take notional income of Rs.30,000/-p.a. as observed by the Hon’ble Apex Court in the case of KISHAN GOPAL AND ANOTHER stated supra. Therefore, the sum of Rs.30,000/- p.a. is taken as notional income. The claimants are father and mother of the deceased, while adopting multiplier the age of the younger parent has to be considered as observed in the case of KISHAN GOPAL AND ANOTHER stated supra. In the present case, the appellant No.1-Claimant No.1 was aged about 25 years, at the time of accident. Therefore, the multiplier applicable is '18'. Thus, the

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claimants are entitled to compensation of

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Rs.5,40,000/- (Rs.30,000 x 18) on account of ‘loss

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of dependency’ .

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Further, a sum of Rs.50,000/- is awarded under conventional heads towards 'loss of love and affection, funeral expenses and last rites' as held by the Hon’ble Apex court in the case of KISHAN GOPAL AND ANOTHER stated supra, as above observed.

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Thus, the claimants in MFA

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No.2630/2017 (MVC No.1626/2014) are entitled

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to the following compensation:

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Loss of dependency	:	Rs.	5,40,000/-
loss of love and affection,	:	Rs.	50,000/-
funeral expenses and last rites
Total	:	Rs.	5,90,000/-

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The Tribunal awarded compensation of Rs.4,00,000/- . This court enhanced to compensation

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Rs.5,90,000/- . Therefore, the appellant/claimants are entitled enhanced compensation of

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Rs.1,90,000/- along with interest at 6% P.A, in addition to what has been awarded by the tribunal. Hence, the appeal is liable to be allowed in part.

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In MFA No.2631/2017 (MVC No.1627/2014):

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The learned counsel for the

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appellant/claimant has contended that for the injuries sustained by the claimant, the Tribunal awarded compensation of Rs.2,34,800/- with interest at the rate of 9% per annum, which is on lower side. Hence, he prays for enhancement of compensation.

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It is not in dispute that the

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claimant/Krishnappa has sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The compensation awarded by the Tribunal is as follows:

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Future loss of income	1,72,800/-
Pain and suffering	25,000/-
Loss of income during the Lay down period	12,000/-
Medical, conveyance, Nutrition and Attendant Charges	15,000/-
Loss of future happiness and amenities	10,000/-
Total	2,34,800/-

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The claimant claims that he was earning Rs.12,000/- per month. He has not produced any documents to prove his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2014, the notional income has to be taken at Rs.8,500/- p.m.

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As per wound certificate-Ex.P.8, 3

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discharge cards-Ex.P.9 and case sheet-Ex.P.13, the claimant has sustained fracture of left Fibula upper end and below knee joint. Even though there is a

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single fracture as per medical records, the said fracture is caused to the upper end of Fibula and below the knee joint. The part of the body i.e., knee joint plays vital role in making movement and rotation of legs. Therefore, the injuries sustained in the present case and the compensation awarded under the head for pain and suffering Rs.25,000/- is on lesser side. Therefore, the same is enhanced to Rs.40,000/- under the head ‘pain and suffering’ .

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PW-3, the doctor has stated in his

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evidence that the claimant has suffered permanent physical disability of 55% to left lower limb and 18% to the whole-body. Therefore, taking into consideration the evidence of the Doctor-PW-3 and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 15%. The claimant is aged about 35 years at the time of the accident and multiplier applicable to his

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age group is ‘16’. Thus, the claimant is entitled for compensation of Rs.2,44,800/- (Rs.8,500/- X 15% X 16X 12) on account of 'loss of future income' .

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Further, the Tribunal has awarded a compensation of Rs.12,000/- under the head loss of income during laid up period by taking the monthly income of Rs.6,000/- for 2 months. But the evidence of the Doctor as well as the case sheet and discharge summary discloses that the claimant was admitted in the hospital totally for a period of 60 days for 3 times in various hospitals. Therefore, the loss of income during laid up period would be for 4 months to be given. Accordingly, the ‘ loss of income during laid up period’ is taken as 4 months, and a sum of Rs.34,000/- (Rs.8500/- x 4months) is granted. The Tribunal has awarded a compensation of Rs.15,000/under the heads, the medical, conveyance, Nutrition

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and Attendant charges which are found to be correct and hence no interference is called for.

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The claimant had produced medical bills worth Rs.14,023/which is rounded off to Rs.15,000/- . Therefore, the claimant is entitled for sum of Rs.15,000/under the head 'medical expenses and hospitalization charges’ apart from transportation conveyance and food nutrition charges etc. Accordingly, a compensation of Rs.10,000/- is awarded under the said heads.

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Further a compensation of Rs.10,000/- is awarded under ‘ loss of amenities’ is found to be correct and proper which needs no modification.

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Thus, the appellant-claimant in MFA No.2631/2017 (MVC No.1627/2014) is entitled to the following compensation:

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Future loss of income (Rs.8,500X15%X16X12)	: Rs.	2,44,800/-
Pain and suffering	: Rs.	40,000/-
Loss of income during the Laid up period (8,500X4)	: Rs.	34,000/-
Medical expenses	: Rs.	15,000/-
Transportation, conveyance, Nutrition and food and Attendant Charges	: Rs.	10,000/-
Loss of future happiness and amenities	: Rs.	10,000/-
Total	: Rs.	3,53,800/-

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Therefore, the appellant is awarded a total compensation of Rs.3,53,800/- as against the compensation awarded by the Tribunal Rs.2,34,800/-. Hence, the appellant is entitled for an additional compensation of Rs.1,19,000/(Rs. 3,53,800– Rs. 2,34,800) , along with interest at 6% per in addition to what has been ordered by the tribunal. Hence, the appeal is liable to be allowed in part.

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Regarding Interest:

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The learned counsel for the insurance

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company submitted that 9% interest is on higher side. Hence, simple interest @ 6% p.a. may be awarded. Therefore, he prays for reduction of rate of interest @ 6% p.a. In this regard, the order of Tribunal granting interest @ 9% p.a. is modified and interest @ 6% p.a. is awarded on the compensation amount from the date of petition till its realization.

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Therefore, I proceed to pass the following:

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ORDER

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a) MFA No.2630/2017 filed by the appellantsclaimants is allowed in part.

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b) MFA No.2631/2017 filed by the appellantclaimant is allowed in part.

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c) The judgment and award dated 11.11.2016, passed in MVC Nos.1626/2014 and MVC No.1627/2014 by the Court of Senior Civil Judge and

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Additional Motor Accident Claims Tribunal, at Sira is modified, to the aforesaid extent.

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d) The appellants/claimants in MFA No.2630/2017 are entitled for additional compensation of Rs.1,90,000/- (Rs. 5,90,000/- – Rs.4,00,000/- ) along with interest at @ 6% p.a. interest from the date of petition till its realization, in addition to what has been awarded by the tribunal.

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e) The appellants/claimants in MFA No.2631/2017 are entitled for additional compensation of Rs.1,19,000/- ( Rs. 3,53,800/- – Rs. 2,34,800/-) @ 6% p.a. interests from the date of petition till its realization, in addition to what has been awarded by the tribunal.

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f) No order as to costs.

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g) Draw award accordingly.

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Sd/JUDGE

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Krishnappa v. Narasimharaju

Case brief

What is this about?

What did the court decide?

Krishnappa v. Narasimharaju

Case brief

What is this about?

What did the court decide?

What the court decided

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