Partly allowed

Sri Lokesh v. Mohammed Firoz

Karnataka HC7 Mar 2022MFA/6721/2016

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded to the legal heir of a deceased in a motor vehicle accident. It held that since the heir was not dependent, compensation was due under loss of estate, calculating 50% of notional income with a multiplier of 9. Consortium and funeral expenses were also adjusted based on precedence.

What did the court decide?

Compensation enhanced to Rs.3,37,300 comprising loss of estate Rs.2,67,300, consortium Rs.40,000, funeral Rs.15,000, and expectation of life Rs.15,000 with 6% interest.

Sri Lokesh Vs Mohammed Firoz — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^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.6721/2016 (MV)

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BETWEEN:

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SRI. LOKESH S/O RAME GOWDA AGED ABOUT 28 YEARS R/OF DIVANA HOUSE VITTAL PADNUR VILLAGE BANTWAL TALUK D.K. DISTRICT-575018

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… APPELLANT

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(BY SRI. K. RAVISHANKAR, ADVOCATE)

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AND:

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MOHAMMED FIROZ

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S/O MOHAMMED PROP: T.M. PAULTRY FARM FISH MARKET KASARGOD KASARGOD TALUK AND DISTRICT-671121

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THE ORIENTAL INSURANCE CO. LTD., CITY POINT BUILDING PRESS CLUB JUNCTION, M.G. ROAD KASARGOD TALUAK AND DISTRICT-671121

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(V/O DTD 07.03.2022 NOTICE TO R1 D/W; BY SRI. R. GUNASHEKAR, ADVOCATE FOR R2)

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...RESPONDENTS

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 25.06.2016 PASSED IN MVC NO.1364/2014 ON THE FILE OF THE 4^TH ADDITIONAL DISTRICT JUDGE, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPNESATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this matter is listed for admission, with the consent of learned counsel for the parties the same is taken up for final disposal.

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This is petitioner's appeal seeking enhancement of 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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Petitioner filed petition under Section 166 of MV Act seeking compensation in a sum of Rs.5,00,000/- with interest at 9% p.a. in respect of death of his mother Smt.Kusuma in a motor vehicle accident.

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It is the case of the petitioner that on 19.08.2013 at about 1.15 p.m. deceased Kusuma was travelling along with other passengers in an auto rickshaw bearing registration No.KA 19/B 9923. The driver of the auto rickshaw was driving the same slowly and cautiously. Near Kalladka-Vittal road, Etcher lorry bearing registration No.KL 14-K 6543 (hereinafter referred to as

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offending vehicle), driven by its driver in a rash or negligent manner came on the extreme right side of the road and dashed against the auto rickshaw. Deceased sustained severe injuries and died while being shifted to the hospital.

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At the time of accident, deceased was aged 56 years. She was rolling beedis and earning Rs.4,500/- p.m. Her six daughters are married. Petitioner being the son and legal heir of the deceased was dependent on her and hence, the petition.

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Respondent No.1 has remained Ex-parte.

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Respondent No.2 has appeared and filed written statement admitting that at the time of alleged accident the vehicle was covered by a valid policy issued by it. However, it has denied that the accident occurred due to the rash or negligent driving by the driver of the offending vehicle. Respondent No.2 has also disputed the age, occupation and income of the deceased and that petitioner was dependent on her. Being a major son of the deceased he is not entitled for compensation.

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Based on the pleadings, the Tribunal has framed the

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issues.

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During the enquiry, petitioner has examined himself as PW.1 and one witness as PW.2 and Exs.P1 to P10 are marked. Respondent No.2 has not led any oral evidence, but got marked Ex.R1.

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The Tribunal held that the accident was due to rash or negligent driving by the driver of the offending vehicle and it was duly covered by a valid policy issued by respondent No.2. However, the Tribunal has come to the conclusion that the petitioner has not proved that deceased was earning and therefore, refused to grant any compensation under head loss of dependency. It has granted compensation in a sum of Rs.25,000/- under the head funeral expenses and Rs.1,00,000/-

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under the head loss of love and affection as detailed below;

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Heads	Amount In Rs.
Funeral expenses	25,000
Loss of love and affection	1,00,000
TOTAL	1,25,000

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Being aggrieved by the impugned judgment and award, the petitioner has filed this appeal contending that the Tribunal has committed error in rejecting the claim of the petitioner in respect of loss of dependency and loss of estate. It

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has also erred that deceased was not earning. The compensation granted is on the lower side.

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Heard the arguments and perused the records.

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Petitioner is aged 26 years when the petition was filed. He is the major son of deceased, who was aged 56 years at the time of accident. The evidence placed on record establish the fact that deceased was travelling in an auto rickshaw when the accident took place involving the offending vehicle. The six daughters of deceased are all married. Since, petitioner is a major and able bodied person, he cannot be termed as dependent. However, he is representing the estate of the deceased as her legal heir.

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When once, it is held that the petitioner is not dependant on the deceased, the next question would be whether he is entitled for any compensation under the head loss of dependency. If not, whether the petitioner is 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 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, the action is 1 A.Manavalagan Vs. A. Krishnamurthy and Others

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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 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,

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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 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

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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 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 petitioner is entitled is to be determined. Since deceased was 56 years of age and as

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petitioner is a major and able bodied son of the deceased, he cannot be treated as dependent on the deceased and as discussed earlier, in fact he has failed to establish that he was dependent on the deceased. Therefore, as held by the Hon’ble Division Bench of this Court in Manavalagan’s case referred to supra , a specific portion of the earnings of deceased is to be considered as basis for calculating the loss of estate. In Manavalagan’s case since both the petitioner and deceased were employed and living at their respective place of work setting up separate residence, the Hon’ble Bench of this Court considered 15% of the savings of the deceased as loss of estate. In the present case as the petitioner claims to be residing with deceased in the same residence, taking into consideration of the fact that he is a major and able bodied son, petitioner would also be contributing to the family expenses, it would be reasonable to take 50% of the income of the deceased as contributing to the assets and therefore, I hold that 50% of the income of the deceased is taken into consideration as the basis for calculating loss of estate.

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Loss of estate: According to the petitioner, at the time of accident, deceased was aged 56 years. However, he has not produced any document to prove the age of the deceased. As per PM report as per Ex.P3, the age of the deceased is stated as 56 years. Therefore, in the absence of any other material, the age of the deceased is taken as 56 years. Consequently, the appropriate multiplier would be 9. The incident has taken place on 19.08.2013. The petitioner has stated that deceased was earning Rs.4,500/- per month. No evidence is placed on record to prove the same. As per the Lok Adalath chart based on minimum wages during the year 2013 the notional income is to be considered as Rs.8,000/- per month. Since the income of deceased as claimed by the petitioner is less than this, the income of the deceased is taken at Rs.4,500/- p.m.

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22.1 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 56 years, 10% of the

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notional income is to be added to the monthly income to arrive at the basis for calculating the compensation. 10% of Rs.4,500/- comes to Rs.450/-. Therefore, the income of deceased is to be calculated as Rs.4,950/- per month. As per Manavalagan's decision referred to supra 50% of the income of the deceased is taken as basis for calculating loss to the estate. Taking the income as 4,950/-, and 9 as the multiplier, the loss of estate at 50% of her income would be 4,950 x 12 x 9 x 50% = Rs.2,67,300/-. Therefore, petitioner is entitled for compensation in a sum of Rs.2,67,300/- under the head loss of estate.

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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 Pranay Sethi’s case, the consortium which could be granted to the parents, spouse and children is required to be restricted to Rs.40,000/- each. Therefore, compensation of Rs.1,00,000/- granted to the petitioner under the head loss of love and affection is on the higher side. Being the son, petitioner is entitled for compensation of in a sum of Rs.40,000/- under the head loss of filial consortium as against Rs.1,00,000/- granted by the Tribunal.

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Funeral expenses: Under this head, the Tribunal has granted Rs.50,000/- which includes shifting of the body. No evidence is placed on record to prove the same. However, as per the Pranay Seti’s case, this is required to be restricted to Rs.15,000/- which also includes the transportation charges. Therefore, petitioner is entitled for Rs.15,000/- under this head as against Rs.50,000/- granted by the Tribunal.

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

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Thus, in all the petitioner is entitled for compensation in a sum of Rs.3,37,300/as against

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Rs.1,25,000/- granted by the Tribunal as detailed below:

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Particulars	Amount
Loss of estate	2,67,300
Loss of consortium	40,000
Funeral expenses	15,000
Loss of expectation of life	15,000
TOTAL	3,37,300

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Of course petitioner is entitled for interest at the rate of 6% p.a. on the enhanced compensation. Accordingly, I proceed to pass the following

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ORDER

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(a) Appeal is allowed in part.

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(b) Appellant/petitioner is entitled for compensation in a sum of Rs.3,37,300/- as against Rs.1,25,000/granted by the Tribunal, with interest at 6% p.a. from the date of petition till realization (minus the amount already paid/deposited)

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(iii) The respondent No.2 Insurance company shall deposit the compensation amount within a period of six weeks from the date of this order.

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

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Sd/JUDGE

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Sri Lokesh v. Mohammed Firoz

Case brief

What is this about?

What did the court decide?

Sri Lokesh v. Mohammed Firoz

Case brief

What is this about?

What did the court decide?

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