Allowed

Dasappa v. Thimmegowda

Karnataka HC8 Aug 2022MFA/2963/2019

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court enhanced compensation from Rs.30,000 to Rs.8,43,400. While rejecting dependency claims for major sons lacking proof of residence, the Court awarded substantial amounts for loss of dependency (using notional income), loss of estate, love and affection, and funeral expenses.

What did the court decide?

Modified the impugned award; claimants entitled to enhanced compensation of Rs.8,13,400/ with interest.

Dasappa Vs Thimmegowda — 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 08^TH DAY OF AUGUST, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.2963/2019 (MV-D)

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BETWEEN:

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DASAPPA – DIED AFTER CLAIM PETITION WAS FILED LEAVING CLAIMANTS 1 TO 4 AS SURVIVING LR’s HENCE NOT MADE HIM PARTY IN APPEAL.

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CHANDRASHEKAR .D S/O. DASAPPA

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HINDU, NOW AGED 34 YEARS,

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HUCHAPPA @ RAVISH .D S/O. DASAPPA HINDU, NOW AGED 29 YEARS,

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VENKATESH .D S/O. DASAPPA HINDU, NOW AGED 27 YEARS,

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NARAYANA .D S/O. DASAPPA HINDU, NOW AGED 25 YEARS,

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ALL ARE RESIDENTS OF KESARAMADU AT POST, TUMKUR TALUK,

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TUMKUR – 572 104 KARNATAKA STATE. ... APPELLANTS

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(BY SRI T.C. SATHISHKUMAR, ADVOCATE)

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AND:

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THIMMEGOWDA S/O. RAMANNA HINDU, MAJOR R/AT NO.E 230, 5^TH MAIN, III CROSS, LAGGERE, BANGALORE – 560 058.

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THE BRANCH MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD., NO.121, ESTATE BUILDING, 9^TH FLOOR, DICKENSON ROAD, M.G. ROAD, BANGALORE – 42. ... RESPONDENTS

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(BY SRI B. PRADEEP, ADVOCATE FOR R-2; V/O. DATED 17.08.2021 NOTICE TO R-1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16/01/2019, PASSED IN MVC NO.7027/2017, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM., COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY , B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The claimants/appellants have filed the present Miscellaneous First Appeal against the impugned judgment and award dated 16.01.2019 made in MVC No.7027/2017 on the file of the IX Additional Small Causes and Additional MACT at Bengaluru (SCCH-07) (hereinafter referred to as the ‘the Tribunal’ for short) seeking enhancement of compensation whereby, the Tribunal has awarded total compensation of Rs.30,000/- with interest @ 6% p.a. from the date of petition till the date of realization.

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It is the case of the claimants that claimant

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No.1 is the husband of deceased died during the pendency of the claim petition, claimant No.2 is son of Smt. Gowramma the predeceased first wife of claimant No.1, claimant Nos.3 to 5 are the sons of the deceased Puttamma @ Puttanarasamma filed claim petition under the provisions of Section 166 of the

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Motor Vehicles Act contending that deceased was doing coolie work and was earning Rs.500/- per day. On 07.07.2017 at about 7.00 a.m., when the deceased Puttamma @ Puttanarasamma was proceeding as a pedestrian from Gudemaranahalli Hand Post towards Beerawara Village via NH-75 road and on reaching near Beeravara Gate, at that time, a Car bearing registration No.KA-03-MC-3386 came from Bengaluru side in a rash and negligent manner and dashed against the deceased and thereby, she sustained severe head injury along with other injuries to all over the body and died on the spot. It is stated that claimants spent Rs.50,000/-towards obsequies, death ceremony, miscellaneous expenses including transportation charges. Due to death of Puttamma @ Puttanarasamma, claimant No.1 being husband and claimant Nos.2 to 5 being the sons of the deceased lost love and affection and lost earning member of the

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family and further stated that due to sudden demise of Puttamma @ Puttanarasamma, the future of the family members has been hampered and they have undergone deep mental agony and thereby, they claimed compensation of Rs.25,00,000/- towards loss

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of contributions to the family, loss of estate, loss of consortium, etc., It is further stated that the jurisdictional police have registered a case in Crime No.328/2017 against the driver of the Car bearing registration No.KA-03-MC-3386 and sought to allow the claim petition.

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In pursuance of the notice issued by the

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Tribunal, respondent No.1 has not appeared and was placed ex-parte.

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Respondent No.2-Insurance Company filed

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objection statement denying the averments made in the claim petition and also denied the relationship

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between the deceased and claimants. It admitted the issuance of policy in respect of offending vehicle bearing registration No.KA-03-MC-3386 and the policy was in force from 06.02.2017 to 05.02.2018. It is stated that the liability is subject to terms and conditions of the policy, verification of Engine and Chasis number, the validity and effective driving licence of the driver of the vehicle and subject to the limits of liability. It has also denied the age, avocation and income of the deceased and further stated that the accident took place in the center of the highway, where the deceased was crossing the road unmindful without observing the vehicular movements and thus, the deceased alone was accountable for the accident and there is iota of negligence on the part of the driver of the insured vehicle and sought to dismiss the claim petition against respondent No.2.

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5. The Tribunal on the basis of the pleadings,

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framed the following issues:

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“1 . Whether the Petitioners prove that they are legal heirs and dependents of deceased Smt. Puttamma @ Puttanarasamma.?

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2. Whether the Petitioner proves that the accident occurred due to rash and negligent act of driver of Car bearing registration No.KA-03-MC-3386 and as a result Smt. Puttamma @ Puttanarasamma, sustained fatal injuries and succumbed to injuries?

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3. Whether the Petitioners are entitled for compensation ? If so, to what extent and from whom?”

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Claimants in order to substantiate their

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case, claimant No.4 was examined as PW.1 and examined one more witness as PW.2 and got marked documents at Exs.P.1 to P.14. On the other hand,

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respondents have not adduced any evidence nor got marked any documents.

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The Tribunal, on the basis of the pleadings,

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oral and documentary evidence on record has held that the claimants have proved that they are the legal representatives of the deceased. However, they have not proved that they are dependent upon the deceased Puttamma @ Puttanarasamma and further held that the accident occurred on 07.07.2017 was due to rash and negligent driving of the driver of the Car bearing registration No.KA-03-MC-3386 and due to the impact of the accident, deceased Puttamma @ Puttanarasamma succumbed to the injuries and thereby, claimants are entitled for total compensation of Rs.30,000/(Rs.15,000/towards love and affection and Rs.15,000/- towards funeral, obsequies ceremony and conveyance) with interest @ 6% p.a. from the date of the petition till the date of realization

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and fastened the liability upon respondent

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No.2/Insurance Company.

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Being unsatisfied with the quantum of

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compensation awarded by the Tribunal being on the lower side, the claimants preferred the present appeal.

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Respondent No.2-Insurance Company has not preferred any appeal against the judgment and award passed by the Tribunal.

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We have heard the learned counsel for the parties to the lis .

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Sri T.C. Sathishkumar, learned counsel for

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the appellants contended with vehemence that the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.30,000/with interest @ 6% p.a. is on the lower side and same

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is not sustainable. He would contend that the Tribunal has erred in holding that claimant Nos.2 to 5 are major sons and they are not entitled for any compensation. He further contended that the deceased was earning Rs.15,000/- per month by doing coolie and the said aspect has not been considered by the learned Judge and the Tribunal has erred in not awarding the compensation under the head 'loss of dependency' nor 'future prospects' and the Tribunal has proceeded to award a sum of Rs.30,000/- erroneously ignoring the legislation of the Motor Vehicles Act while enacting the Motor Vehicles Act. Learned counsel for the appellants has relied upon the dictum of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Birender & others [(2020)11 SCC 356] (Birender) , to the effect that deduction of 50% of the income

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towards personal expenses is excessive and not proper and thereby, sought to allow the appeal.

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Per contra, Sri. B. Pradeep, learned counsel

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for the Insurance Company sought to justify the impugned judgment and award passed by the Tribunal and contended that in the entire claim petition, there is no averments that claimant Nos.2 to 5 are the dependents of the deceased and were residing together. Since claimant Nos.2 to 5 are majors, the Tribunal is justified in holding that they are not the dependents of the deceased. Thereby, the Tribunal is justified in awarding the compensation of Rs.30,000/-. In support of his contention, learned counsel relied upon the dictum of the Hon’ble Apex Court in the case of New India Assurance Company Limited Vs. Vinish Jain and Others [(2018) 3 SCC 619] (Vinish Jain) paragraph Nos.6 and 7 and sought to dismiss the appeal.

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In view of the rival contentions urged by

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the learned counsel for the parties, the only point that would arise for our consideration in the present appeal

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is:

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“Whether the appellants/claimants have made out a case for enhancement of compensation in the facts and circumstances of the present case?"

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We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on records carefully.

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It is an undisputed fact that deceased Puttamma @ Puttanarasamma died in a road traffic accident that occurred on 07.07.2017 due to rash and negligent driving of driver of the Car bearing registration No.KA-03-MC-3386. The same is evident from the material documents at Ex.P.1-FIR and

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Ex.P.6-Chargesheet filed by the jurisdictional police

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against the driver of the Car. It is also not in dispute that the jurisdictional police have registered a criminal

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case against the driver of the Car in Crime No.328/2017. The adverse finding of the Tribunal against the driver of the Car has reached finality. Admittedly, the owner or the driver or the insurance company have not challenged the adverse finding of the Tribunal.

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Though the Tribunal held that the claimants are the legal representatives of the deceased, however, they are not dependent upon the deceased and proceeded to grant compensation of Rs.30,000/towards loss of love and affection and for funeral expenses, which is against the basic principle of the Motor Vehicles Act.

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As per evidence of PW.1-claimant No.4, the deceased was aged about 45 years as on the date of the accident. As per Ex.P.8- Postmortem report, the deceased was aged about 50 years at the time of the accident and Ex.P.10 – Aadhar Card of deceased would depict the date of birth of the deceased as 1959 i.e., 58 years. It is the specific case of claimants that deceased was doing coolie and earning Rs.15,000/per month, but no documents were produced to prove the income of the deceased. In the absence of the material document to evidence the actual income of the deceased, the guidelines issued by the Karnataka State Legal Services Authority, Bengaluru needs to be considered. As per the guidelines for the accident that occurred in the year 2017, the notional income to be taken is at Rs.11,000/- per month. As per the dictum of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi

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and others [2017 ACJ 2700] , 10% has to be added

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to the income of the deceased towards future prospects. Thus, the total income of the deceased comes to Rs.12,100/- (Rs.11,000 + 10% future prospects).

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The Tribunal held that claimant Nos.2 to 5 are major sons of the deceased and they are not dependants of the deceased. In order to verify the veracity of the finding, we carefully perused the evidence of PW.1, who had stated that claimant Nos.2 to 5 are not residing together. Even though they are majors, they are depending upon the income of the deceased and they had no independent income. To prove the same, they have not produced any documents to show that they are residing together and are dependants of the deceased. In the absence of the same, as rightly held by the Tribunal, though claimant Nos.2 to 5 are the legal representatives of

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deceased, they are not dependant upon the income of the deceased. Thereby, 50% of the income has to be deducted towards personal expenses. Thus, the notional income would be Rs.6,050/-. Taking into consideration the age of the deceased as 58 years as per Ex.P.10 – Aadhar card of the deceased, the multiplier applicable is ‘9’. Thus, the claimants are entitled for compensation of Rs.6,53,400/- under the head ‘loss of dependency’. (Rs.6,050 x 12 x 9 = 6,53,400/-)

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In view of the dictum of the Hon’ble Apex Court in United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur and others [AIR 2020 SC 3076] and Magma General Insurance Company Ltd. Vs. Nanu Ram & Others

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[2018 ACJ 2782] as the claimants/dependents are four in number, they are entitled for Rs.40,000/- each amounting to Rs.1,60,000/- under the head ‘loss of

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estate’ and towards ‘conveyance and funeral expenses’ Rs.15,000/- each. Accordingly, the point framed for consideration is answered partly in the affirmative and the claimants are entitled for just and proper compensation.

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Learned counsel for the appellants contended that deduction to an extent of 50% towards personal expenses is excessive and though the Birender’s case stated supra relied upon by the learned counsel for the appellants, it was the case where the Hon’ble Supreme Court held that the claimants are major sons staying with deceased along with their families and were largely dependant on the income of the deceased and since dependant’s family members are 2 to 3, 1/3^rd of the income has been deducted towards personal and living expenses. In the present case, nowhere in the evidence as well as in the claim petition it is stated that claimants had

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resided together with the deceased and had been largely dependent upon the income of the deceased. Claimant Nos.2 to 5 are aged about 34 years, 29 years, 27 years and 25 years respectively. They are major sons of the deceased. They are still young and energetic and they have earning capacity and also there is no whisper in the entire claim petition as well as in the evidence that they are still residing together and are largely depending upon the deceased.

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The dictum relied upon by the Insurance Company in the case of Vinish Jain’s stated supra , it was a case where the claimants are major sons having own source of income and they are not dependant on the deceased and two grand daughters, primarily dependant on their father and not on their grand father. In those circumstances, the Hon’ble Supreme Court deducted 50% of the personal expenses of the deceased. Admittedly, in the present case, the

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Tribunal awarded compensation of Rs.15,000/- each towards loss of love and affection and for funeral, obsequies ceremony and conveyance. At this stage, it is relevant to state that the Motor Vehicles Act does not define the term ‘legal representative’. Generally, ‘legal representative’ means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A ‘legal representative’ may also include any person who intermeddles with the estate of the deceased. Such

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person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. The Hon’ble Supreme Court further held that the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of Motor Vehicles Act and it should not be confined only to mean the

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spouse, parents and children of the deceased. As noticed above, Motor Vehicles Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their family. Therefore, the provisions of the Motor Vehicles Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfill its legislative intent.

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As already held in the present case, the deceased leaving behind claimant Nos.1 to 5, claimant No.1 husband of the deceased died during the pendency of the claim petition. Though claimant Nos.2 to 5 are the legal heirs of the deceased, they are not dependants as there is no whisper in the entire evidence on record. In the absence of the same, the Tribunal is not justified in denying the compensation to the claimants on the other heads, who are legally entitled.

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On reassessing the entire oral and

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documentary evidence on record, this Court is of the considered opinion that the appellants/claimants are entitled for just and proper compensation under different heads as under:

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Sl. No.	Head of Compensation	Amount in Rs.
1.	Loss of dependency	6,53,400.00
2.	Loss of love and affection (40,000 X 4)	1,60,000.00
3.	Loss of estate	15,000.00
4.	Funeral, obsequies and misc. expenses	15,000.00
	Total	8,43,400.00

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The Tribunal has already awarded a sum of Rs.30,000/and deducting the same out of Rs.8,43,400/-, the claimants are entitled to enhanced compensation of Rs.8,13,400/- with interest @ 6% p.a. from the date of petition till the date of realization.

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In view of the above, we answer the point

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raised in the present appeal in partly in the affirmative holding that the appellants/claimants have made out a case for enhancement of compensation in the facts and circumstances of the case.

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In the result, we pass the following:

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ORDER

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i. The appeal filed by the claimants is

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allowed-in-part.

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ii. The impugned judgment and award passed by the Tribunal is hereby modified. iii. The claimants are entitled for total

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compensation of Rs.8,43,400/- as against Rs.30,000 /- awarded by the Tribunal.

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iv. The claimants are entitled for enhanced compensation of Rs.8,13,400/with

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interest @ 6% p.a. from the date of petition till the date of realization.

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v. Insurance Company shall deposit the enhanced compensation amount within a period of six weeks from the date of receipt of a copy of this order with proportionate interest.

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vi. On such deposit, claimants are entitled for compensation in equal proportionate.

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vii. Trial Court records be transmitted to the concerned Tribunal forthwith.

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No order as to costs.

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Sd/-

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JUDGE

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Sd/JUDGE