Partly allowed

The Divisional Manager v. Mr. Koragappa Poojary

Karnataka HC10 Mar 2022MFA/3483/2017

Case brief

AI extract

What is this about?

In a modification appeal regarding a motor accident claim, the High Court recalculated compensation. The court adjusted the loss of dependency multiplier based on the deceased's age, applied future prospects, and restricted conventional heads like funeral and estate expenses to statutory limits, reducing the total award.

What did the court decide?

Appellant allowed in part; total compensation reduced to Rs. 13,40,685 with 6% interest; cross objections by petitioners dismissed.

The Divisional Manager Vs Mr. Koragappa Poojary — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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M.F.A.NO.3483/2017 (MV) C/W

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M.F.A.Crob.NO.18/2018

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IN MFA No.3483/2017

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BETWEEN:

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., KATHYANI COMPLEX, BELTHANGADY TALUK, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 5^TH & 6^TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BANGALORE - 01

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… APPELLANT

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(BY SMT. HARINI SHIVANANDA, ADVOCATE)

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AND:

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MR. KORAGAPPA POOJARY 62 YEARS, S/O CHENNAPPA POOJARY,

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SMT. SHEELA, 52 YEARS, W/O KORAGAPPA POOJARY,

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KUM. RADHA, 27 YEARS, D/O KORAGAPPA POOJARY,

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KUM. PADMALATHA, 25 YEARS, S/O KORAGAPPA POOJARY,

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ALL ARE R/A VANADURGA NIVAS, SEEGEDADDA, ARASKATTE, NARAVI VILLAGE & POST, BELTHANGADY TALUK – 574 214

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VINAY PRASAD, MAJOR, S/O RADHAKRISHNA, R/A OM SHREE GERUKATTE POST, KALIYA VILLAGE, BELTHANGADY – 574 214

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...RESPONDENTS

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(SRI. K.SHASHIKANTH PRASAD, ADVOCATE FOR R1-R4; R5 SERVED & UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.01.2017 PASSED IN MVC NO.775/2015 ON THE FILE OF PRINCIPAL DISTRICT JUDGE & MACT: DK, MANGALURU, AND PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT TO GRANT UNDER THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA CROB.No.18/2018

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BETWEEN:

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MR. KORAGAPPA POOOJARY, S/O LATE CHENNAPPA POOJARY, AGED ABOUT 63 YEARS, VNANDURGA NIVAS, SEEGEDADDA, ARASKATTE, POST: NARAVI – 574 109, BELTHANGADY TALUK.

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SMT. SHEELA, W/O MR. KORAGAPPA POOJARY, AGED ABOUT 53 YEARS,

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VNANDURGA NIVAS, SEEGEDADDA, ARASKATTE, POST: NARAVI – 574 109, BELTHANGADY TALUK.

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KUMARI RADHA, D/O MR. KORAGAPPA POOJARY, AGED ABOUT 28 YEARS, VNANDURGA NIVAS, SEEGEDADDA, ARASKATTE, POST: NARAVI – 574 109, BELTHANGADY TALUK.

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KUMARI PADMALATHA, D/O MR. KORAGAPPA POOJARY, AGED ABOUT 26 YEARS, VNANDURGA NIVAS, SEEGEDADDA, ARASKATTE, POST: NARAVI – 574 109, BELTHANGADY TALUK.

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…CROSS OBJECTORS

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(BY SRI. K.SHASHIKANTH PRASAD, ADVOCATE)

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AND:

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UNITED INDIA INSURANCE CO. LTD., REP: THE DIVISIONAL MANAGER, KATHYANI COMPLEX, BELTHANGADY – 574 214

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MR. VINAYA PRASAD, S/O MR. RADHAKRISHNA, OM SHREE, POST: GERUKATTE – 574 293 KALIYA VILLAGE, BELTHANGADY TALUK ...RESPONDENTS

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(SMT. HARINI SHIVANANDA, ADVOCATE FOR R1; V/O/DTD 04.07.2018, R2 NOTICE DISPENSED WITH)

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THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC, 1908, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.01.2017 PASSED IN MVC NO.775/2015 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, MACT, DAKSHINA KANNADA ONLY IN SO FAR AS IT DIS-ALLOWS COMPENSATION AS CLAIMED BY THE CROSS OBJECTOR AND THE CLAIM PETITION BE ALLOWED AS PRAYED FOR AND CROSS OBJECTION BE ALLOWED WITH COST, AND DISMISS THE COST, AND DISMISS THE APPEAL FILED BY THE FIRST RESPONDENT (M.F.A.NO: 3483/2017) IN THE INTEREST OF JUSTICE.

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THIS MFA A/W MFA CROB COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These two appeals are directed against the judgment and award dated 19.01.2017 in MVC.No.775/2015 on the file of the Prl. District Judge and MACT, Dakshina Kannada, Mangaluru.

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MFA.No.3483/2017 is filed by the Insurance Company challenging the impugned judgment and award on quantum, contending that it is on the higher side. On the other hand, MFA.Crob.No.18/2018 is filed by the petitioners seeking enhancement of the compensation granted by the Tribunal.

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For the sake of convenience the parties are referred to by their rank before the Tribunal.

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It is the case of the petitioners that they are the parents and sisters of deceased – Sundara. On 24.01.2015 while deceased Sundara was proceeding on motor cycle bearing Reg.No.KA-21-R-5519 from Yedapadavu towards Mangaluru, at around 7.30 a.m., near Tiles factory, Suralpady, Badagulipady Village, Mangaluru Taluk, a Tata Indica Car bearing Reg.No.KA-21-A-9236 (hereinafter referred to as ‘the offending vehicle’), driven in a rash or negligent manner by its driver came and dashed against the hind portion of the motor cycle of the deceased.

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4.1. The deceased sustained grievous injuries and he was shifted to Father Muller’s Hospital. Inspite of best treatment, he did not survive and ultimately on 26.01.2015 he succumbed to the injuries.

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4.2. The deceased was aged 32 years. He was earning Rs.30,000/- per month as welder. The petitioners

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were dependent on him. Respondent Nos.1 and 2 being the owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation.

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In his written statement respondent No.1 has denied that accident had occurred due to the rash or negligent driving by the driver of the offending vehicle. On the other hand, it was the negligence of the deceased which caused the accident. Therefore, the owner and the insurer of the motor cycle are necessary parties. He has denied the expenses incurred by the petitioners for treatment, funeral expenses etc. Since the offending vehicle was covered by valid insurance policy issued by respondent No.2 in the event of allowing the petition, respondent No.2 is liable to indemnify the same.

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In the written statement respondent No.2 though admits the coverage of the offending vehicle, has denied the age, occupation, income, nature of the injury

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sustained by the deceased, treatment and medical

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expenses.

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On behalf of the petitioners, three witness are examined as PW-1 to PW-3 and Exs.P1 to 24 were marked.

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On behalf of the respondents, Ex.R1 was

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marked.

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Vide impugned judgment and award, the Tribunal has granted compensation in a sum of

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Rs.15,42,485/- as detailed below:

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Heads	Amount in Rs.
Loss of Income/dependency	12,48,000
Loss of Love and affection	1,00,000
Loss of estate	1,00,000
Funeral Expenses	25,000
Transportation charges	10,000
Medical expenses	59,485
TOTAL	15,42,485

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The petitioners have challenged the impugned judgment and award seeking enhancement contending that the Tribunal has erred in holding that petitioner Nos.3 and 4 were not dependent on the deceased and the deduction of 1/3^rd towards the personal and living expenses of the deceased is correct. The Tribunal has not granted compensation under the head future prospects.

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On the other hand, respondent No.2 has challenged the impugned judgment and award contending that since the deceased was a bachelor, 50% of the income should have been deducted towards his personal and living expenses. In the absence of proof, the income taken at Rs.12,000/- per month by the Tribunal is on the higher side. It should be based on minimum wages. The compensation granted on the other heads is on the higher side and it requires to be reconsidered and prays to allow the appeal and re-determined the quantum of compensation payable to the petitioners.

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In view of the specific grounds urged in the appeal memo as well as in the memorandum of cross objections, it has become necessary to examine the quantum of compensation granted by the Tribunal and see whether it calls for any interference by this Court.

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Loss of dependency: The date of incident is 24.01.2015. According to the petitioners, the deceased was aged 32 years at the time of accident. The said fact is not disputed by the respondents. However for calculating the loss of dependency, the Tribunal has considered the age of petitioner No.2 i.e., the younger of the two parents which is 50 years and considered ‘13’ multiplier for calculating the loss of dependency, the age of the deceased is required to be taken into consideration. Since the deceased was aged 32 years, the appropriate multiplier is ‘16’ instead of ‘13’ taken by the Tribunal.

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13.1 Though the petitioners claim that the deceased was working as welder and earning Rs.30,000/- per month, the Tribunal has not accepted the evidence of PW.2 said to

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be the employer of the deceased. In the absence of acceptable proof of the income of the deceased, the Tribunal has taken the income of the deceased as Rs.12,000/- per month without any basis. In the absence of actual proof of the income, the compensation is required to be calculated based on notional income. As per the chart prepared by the Karnataka State Legal Services Authority, which is based on minimum wages, during the year 2015 the income is required to be taken at Rs.9,000/- per month.

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13.2 In view of the decision of the Magma

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Insurance Co. case, loss of future prospects is also required to be taken into consideration for calculating the loss of dependency. Since the deceased was 32 years of age and was having a private employment, 40% of his income is required to be added to arrive at the loss of dependency. 40% of Rs.9,000/- comes to Rs.3,200/- which makes the total income at Rs.12,200/-.

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13.3 Since the deceased was a bachelor, 50% of his income is required to be deducted towards his personal and living expenses. The remaining 50% is to be considered for calculating the loss of dependency. Thus taking the income as Rs.12,200/- per month and multiplier as ‘16’ and at 50% of this amount, loss of dependency is 12,200 x 12 x 16 x 50% = 11,71,200/- as against Rs.12,48,000/- granted by the Tribunal.

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Loss of consortium: The Tribunal has granted compensation in a sum of Rs.1,00,000/- under the head loss of love and affection. However as per the decision of Pranay Sethi's case, the parents, spouse and children are entitled for loss of consortium at the rate of Rs.40,000/each. Since petitioner Nos.1 and 2 are the parents they are entitled for the compensation under the head loss of parental consortium. As rightly held by the Tribunal, petitioner Nos.3 have failed to prove that they were dependent on the deceased. Therefore, only petitioner Nos.1 and 2 are entitled for the compensation in a sum of

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Rs.80,000/under the head loss of consortium.

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Consequently, Rs.1,00,000/- granted by the Tribunal under the head loss of love and affection is on the higher side and it is restricted to Rs.80,000/-.

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15. Funeral expenses and Transportation charges:

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The Tribunal has granted compensation of Rs.25,000/under the head funeral expenses and Rs.10,000/- under the head transportation charges i.e., in all Rs.35,000/- has been granted under these two heads. However, as per

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Pranay Sethi's case, when the bulk compensation is granted under the head loss of dependency under conventional head a sum of Rs.15,000/- is to be granted under the head funeral expenses which includes the transportation charges. Therefore, the compensation under the head funeral expenses is restricted to Rs.15,000/- and separate compensation granted under the head transportation charges is disallowed.

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Loss of Estate: Similarly, when substantial compensation is granted under the head loss of

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dependency, a conventional sum is required to be granted under the head loss of estate, which is to be restricted to Rs.15,000/- as per Pranay Sethi's case. Therefore, the compensation granted in a sum of Rs.1,00,000/- under the head loss of estate is on the higher side and it is restricted to Rs.15,000/-.

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Medical expenses: Based on the medical bills, the Tribunal has granted compensation in a sum of Rs.59,485/-. I find no reason to interfere with the same.

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Thus, in all petitioners are entitled for compensation in a sum of Rs.13,40,685 as against Rs.15,42,485/- granted by the Tribunal, with interest at 6% p.a. as detailed below:

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Heads	Amount granted by the Tribunal In Rs.	Amount granted by this Court In Rs.
Loss of dependency	12,48,000	11,71,200
Loss of consortium	1,00,000	80,000
Loss of estate	1,00,000	15,000
Funeral expenses	25,000	15,000
Transportation charges	10,000	-
Medical expenses	59,485	59,485
TOTAL	15,42,485	13,40,685

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To this extent the appeal filed by the Insurance

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Company i.e., MFA.No.3483/2017 deserves to be allowed and MFA.Crob.No.18/2018 filed by the petitioners is liable to be dismissed and accordingly, I proceed to pass the following:

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ORDER

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(i) MFA.No.3483/2017 is allowed in part.

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(ii) Appellants/petitioners are entitled for compensation in a sum of 13,40,685/- as against Rs.15,42,485/- granted by the Tribunal, with interest at 6% p.a. from the date of petition till

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realization (minus the amount already paid/deposited)

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(iii) The respondent No.2 Insurance company i.e., appellant in MFA.No.3483/2017 shall deposit the compensation amount within a period of six weeks from the date of this order.

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(iv) Consequently, MFA.Crob.No.18/2018 filed by the petitioners is dismissed.

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(iv) Registry shall transmit the trial court records along with copy of this judgment forthwith.

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(v) The amount in deposit shall be transmitted to the

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Tribunal for payment to petitioner Nos.1 and 2.

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Sd/JUDGE

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ssb

The Divisional Manager v. Mr. Koragappa Poojary

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Mr. Koragappa Poojary

Case brief

What is this about?

What did the court decide?

What the court decided

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