Dismissed

Sri Manjunatha v. the Principal

Karnataka HC29 Mar 2022MFA/5092/2017

Case brief

AI extract

What is this about?

High Court dismissed the appellants' appeal for enhancement of compensation under the Fatal Accidents Act. The Court held petitioners were not financially dependent on the deceased. It recalculated compensation based on five-year estate loss and other heads, finding the Tribunal's award excessive in principal but maintaining it as insurers did not challenge it, while reducing interest.

What did the court decide?

Principal compensation maintained at Rs.9,04,000 as insurers did not challenge it; interest restricted to 6% p.a.; appeal for enhancement dismissed.

Sri Manjunatha Vs the Principal — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^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.5092/2017 (MV)

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BETWEEN:

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SRI MANJUNATHA, S/O CHANNIGIRIAYPPA, AGED ABOUT 30 YEARS, R/AT SAMUDRAKONDA, NITTUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT – 572 101

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SRI. KALLESH, S/O LATE NAGAPPA, AGED ABOUT 49 YEARS, R/O K.B.ROAD, WARD NO.7, TARIKERE TOWN, CHIKKAMAGALORE DISTRICT – 577 228

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… APPELLANTS

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(BY SRI SUNIL K.N., ADVOCATE FOR SRI K.R.RAMESH, ADVOCATE)

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AND:

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THE PRINCIPAL, CHANNABASAWESHWARA INSTITUTE OF TECHNOLONY. N.H.206 ROAD, GUBBI, TUMKUR DISTRICT – 572 102

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THE UNITED INDIA INSURANCE COMPANY LTD., JAYADEVA COMPLEX, B.H.ROAD,

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TUMKUR – 572 101, R/BY ITS BRANCH MANAGER.

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...RESPONDENTS

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(SRI. M.ARUN PONAPPA, ADVOCATE FOR R2;

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R1 IS 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 9/12/2016 PASSED BY THE I ADDITIONAL DISTRICT JUDGE & MACT AT TUMKUR IN MVC NO.307/2016, BY ENHANCING THE COMPENSATION AWARDED BY THE COURT BELOW.

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THIS MFA HAVING BEEN HEARD AND RESERVED ON 03.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Not being satisfied with the compensation granted by

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the Tribunal, petitioners who are the husband and father of deceased have come up with this appeal seeking enhancement of compensation.

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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 on 07.11.2015 at 8.30 a.m on NH-206, in front of RTO Office, Tumakuru city, deceased Kavya was crossing the road. At that point of time, college bus bearing registration No.KA 06/D 0450 (hereinafter referred to as offending vehicle) belonging to respondent No.1, being driven by its driver in a rash or negligent manner came from SS Circle, Tumakuru and proceeding towards Batawadi, dashed against Kavya. As a result of the accident, Kavya sustained fatal injuries. Immediately she was shifted to Vinayaka hospital, Tumakuru and after first aid she was taken to General hospital, Tumakuru. While undergoing treatment, she died on 09.12.2015 at 10.05 p.m.

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Being the husband and father of the deceased, petitioners are entitled for compensation in a sum of Rs.18,00,000/-.

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Respondent No.1 appeared and filed written statement stating that originally deceased hails from

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Arasikere taluk. She was given in marriage to one person of Samudrakote Village, Gubbi Taluk. However, due to domestic violence, she left the company of her husband and also filed cases against him and his family members and the said cases are pending adjudication. She was living separately in a hostel at Tumakuru. During her hospitalisation neither the petitioners nor anyone took care of her. Petitioners denied her any care and she died in the hospital. Consequently, petitioners are not entitled for any compensation. They have filed this petition to make wrongful gain.

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The vehicle in question was insured with respondent No.2. At the time of alleged accident, the driver of the vehicle was holding a valid and effective driving license. In the event of granting any compensation, respondent No.2 is liable to pay the same.

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Respondent No.2 admit that the vehicle was covered by policy issued by it. However, it has denied that

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the accident was due to the rash or negligent driving by the driver of the offending vehicle. It has also disputed the age, occupation, income of the deceased and also that petitioners were dependent on her. Being the husband and father of the deceased and able bodied persons, petitioners were never dependent on the deceased and as such they are not entitled for compensation for loss of dependency.

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Based on these pleadings, the Tribunal has framed the issues.

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During the enquiry, petitioners got themselves examined as PW.1 and 2 and relied upon Ex.P1 to P8.

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On behalf of respondents no oral and

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documentary evidence is placed on record.

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Vide the impugned judgment and award, the Tribunal has partly allowed the petition and granted compensation in a sum of Rs.9,04,000/- and ordered that

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petitioner No.1 is entitled for 60% and petitioner No.2 is

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entitled for 40% of the compensation as detailed below;

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Heads	Amount In Rs.
Towards loss of dependency	8,64,000
Towards funeral expenses and	20,000
conveyance
Towards loss of love and affection	20,000
TOTAL	9,04,000

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Being aggrieved by the impugned judgment and award, petitioners have filed this appeal contending that the Tribunal has erred in taking the notional income of the deceased as Rs.6,000/- instead of Rs.8,000/- and loss of future prospects is not granted.

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On the other hand the learned counsel representing the respondent No.2 argued that since the petitioners have not proved that the deceased was employed and earning, they are not entitled for any compensation under the head loss of future prospects.

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Interest granted at the rate of 8% is on the higher side and it has to be restricted to 6%.

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Heard the arguments and perused the records.

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Respondent No.2 has taken up the specific

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contention that being the husband and father of the deceased, petitioners were never dependent on her and as such they are not entitled for compensation under the head loss of dependency. As evident from the claim petition, petitioner No.1 is aged 30 years whereas petitioner No.2 is aged 49 years. Admittedly, petitioners are able bodied persons. They have not pleaded that they are not earning and they were entirely dependant on the income of the deceased. Moreover, they have failed to prove that deceased was employed and was getting any income and they were dependent on her.

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It is relevant to note that in the written statement, respondent No.1 has specifically contended that deceased was not at all living with petitioners and she was

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staying in Tumakuru in a hostel; she had filed matrimonial cases against respondent No.1; and in fact they have not at all taken care of her while she was undergoing treatment due to the accidental injuries. To show that deceased was living with them, petitioners have not produced any documents, including medical bills to show that when deceased was undergoing treatment due to the accidental injuries, they took care of her. This fact also supports that contention of respondents that petitioners were not dependent on the deceased.

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According to the petitioners, deceased was employed in a garment factory and earning Rs.12,000/p.m. As rightly observed by the Tribunal, they have not produced any document to evidence the said fact. If at all she was working in a garment factory, they could have produced some documents such as employment order, employment card, salary slip, etc. In the absence of the same, the Tribunal has taken her income on notional basis.

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When the petitioners have failed to prove that the deceased was employed and was earning and consequently, they have also failed to prove that they were dependent on her. As noted earlier, they have also failed to plead and prove that for whatever reason, they are not at all earning and were totally dependent on the deceased.

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When once, it is held that the petitioners are not dependant on the deceased, the next question would be whether they are entitled for any compensation under the head loss of dependency. If not, whether the petitioners are entitled for any compensation under any other head would be the question that would fall for consideration of this Court.

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Similar question arose before the Division Bench of this Court in ILR 2004 KAR 3268¹ . In that case petitioner was husband and he sought for compensation on account of death of his wife aged 37 years, a highly

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1 A.Manavalagan Vs. A. Krishnamurthy and Others

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qualified person working as Senior Lecturer in Zoology at Chikkanna Government Arts College, Tirupuru. The petitioner was also working as Assistant Manager in a Milk Dairy. The Tribunal held that petitioner and his wife were financially independent of each other and therefore petitioner is not entitled for compensation on the basis of loss of dependency. However, the Tribunal proceeded to grant compensation on the premise that on account of death of his wife, the petitioner has suffered loss of estate which he would have enjoyed, but for the untimely death of his wife.

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Upholding the order of the Tribunal that the petitioner is entitled for compensation under the head loss of estate, the Division Bench of this Court observed that "law contemplates two categories of damages on the death of a person - the first is the pecuniary loss sustained by the dependent members of his family - the second is the loss caused to the estate of the deceased. In the first category,

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the action is brought by the legal representatives, as trustees for the dependents beneficially entitled. In the second category the action is brought by the legal representatives on behalf of the estate of the deceased and the compensation when recovered, forms part of the assets of the estate. In case of compensation granted under the head loss of dependency, the Tribunal may also specify how it should be distributed. However, where the compensation is granted for loss of estate no such adjustments or alteration of shares is permissible and the entire amount has to be awarded to the benefit of the estate. In case of compensation granted on account of loss of dependency, a conventional amount is awarded towards loss of expectation of life under the head loss to estate. However, where the compensation awarded is under the second category i.e, loss to estate i.e. on account of loss of savings by the untimely death, a conventional sum for loss of expectation of life is to be added".

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At paragraph No.16 of the above referred

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judgment the Division Bench observed that “when the petitioner is not dependent on the deceased, obviously, the question of awarding any amount under the head loss of dependency would not arise, as there was no financial dependency. In such a case, the main head of compensation will be loss to estate under Section 2 of Fatal Accidents Act, 1855. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently, what is to be awarded under the head loss of dependency under Section 1-A of Fatal Accidents Act, 1855, would be nil as there is no real pecuniary loss to the members of the family”.

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At paragraph No.19 while summarizing the principles enunciated, at (iv) the Division Bench held that “procedure for determination of loss to estate is broadly the same as the procedure for determination of loss of

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dependency. Both involve ascertaining the multiplicand and capitalizing by multiplying it by an appropriate multiplier. But the significant difference is in the figure arrived at as multiplicand in cases where petitioners who are dependents claim loss of dependency and in cases where petitioners who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in case of loss of dependency, where as the annual savings of the deceased becomes the multiplicand in case of loss to estate. The method of selection of multiplier is however the same in both cases”.

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At paragraph No.20 the Division Bench observed and held that “though the quantum of savings will vary from person to person, there is a need to standardize the quantum of savings for determining the loss to estate (where the petitioners are not dependents) in the absence of specific evidence to the contrary. The quantum of savings can be taken as 1/3^rd of income of the deceased

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where the spouses are having a common establishment and 1/4^th where the spouses are having independent establishment. The above will apply where the family consists of non-dependent spouse/children/parents. Where the petitioners are non-dependent brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages is of course subject to any specific evidence to the contrary lead by the petitioners”.

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Keeping in mind, the above principles the just compensation which the petitioners are entitled is to be determined. As discussed earlier, since the petitioners are the husband and father of the deceased and able bodied persons, they cannot be treated as dependents on the deceased and therefore, as held by the Hon’ble Division Bench of this Court Manavalagan’s case, referred to supra , 15% of the earnings of deceased is considered as basis for calculating the loss of estate.

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Loss of estate: Petitioners claim that the

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deceased was aged 21 years. Before the Tribunal, the petitioners have not produced any document to prove the age of the deceased. Therefore, based on the PM Report, the Tribunal has held the age of the deceased as 21 years. Therefore, the 18 multiplier taken by the Tribunal is correct. In the absence of document to prove her income, the Tribunal has taken the notional income of deceased as Rs.6,000/-. Since, the accident is of the year 2016, as per the Lok Adalath chart which is based on minimum wages, the notional income is required to be taken at Rs.8,000/p.m.

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25.1 In the light of the decision of the Hon'ble Supreme Court in Pranay Sethi's case which is reiterate in Magma General Insurance case , in order to calculate loss of dependency/loss to estate as the case may be, future prospects are to be added. Since the income of the deceased is taken on notional basis and as she was aged 21

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years i.e., less than 40 years, 40% of the notional income is to be added to the monthly income to arrive at the basis for calculating the compensation. 40% of Rs.8,000/- comes to Rs.3,200/-. Therefore, the notional income of deceased is to be calculated as Rs.11,200/- per month. As per Manavalagan's decision referred to supra 15% of the income of the deceased is to be taken as basis for calculating loss to the estate. Taking the income as Rs.11,200/- and 18 as the multiplier, the loss of estate at 15% of her income would be 11,200 x 12 x 18 x 15% = Rs.3,62,800/-.

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Loss of consortium: The Tribunal has granted compensation in a sum of Rs.20,000/- under the head loss of love and affection. However, as per Pranay Sethi’s case, in case of parents, spouse and children, compensation is required to be granted at the rate of Rs.40,000/- each under the head loss of consortium. Since, petitioners are

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husband and father, they are entitled for compensation at the rate Rs.40,000/- each under this head.

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Funeral expenses: Under this head, the Tribunal

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has granted compensation in a sum of Rs.20,000/-. However, as per the decision of Pranay Seti’s case, when major compensation is granted under the head loss of dependency/loss to estate, under the conventional head a sum of Rs.15,000/- is to be granted towards funeral expenses, which also includes transportation charges and therefore, compensation under this head is restricted to Rs.15,000/-.

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Loss of expectation of life: As held in the Manavalagan’s case referred to supra , since the major compensation is granted under the head loss to estate, under the conventional head petitioners are entitled for compensation in a sum of Rs.15,000/- under the head loss of expectation of life.

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Thus, as per the above calculations, the petitioners are entitled for compensation in a sum of Rs.4,72,800/- only. However, the compensation granted by the Tribunal in a sum Rs.9,04,000/- is higher than what is determined by this Court. As the respondent No.2 Insurance company has not challenged the impugned judgment and award, the compensation granted by the Tribunal cannot be reduced and therefore the same is maintained. However, petitioners are not entitled for any enhancement.

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