Partly allowed

Sri Devaraj v. Hdfc Ergo Gen. Insurance

Karnataka HC24 Aug 2022MFA/830/2015

Case brief

AI extract

What is this about?

This first appeal against an MCAT award was partly allowed. The Court enhanced the compensation by correcting the multiplier calculation based on the deceased's age for loss of dependency, recalculating it at 40% instead of the Tribunal's 50%, and awarding Rs.40,000 per dependent under loss of consortium.

What did the court decide?

Enhanced total compensation of Rs.15,51,004/- awarded (additional Rs.3,42,400/-), along with interest at 6% per annum from the date of petition to deposit, excluding the delayed period.

Sri Devaraj Vs Hdfc Ergo Gen. Insurance — 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 24^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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MISCELLANEOUS FIRST APPEAL NO.830/2015(MV)

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BETWEEN:

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SRI. DEVARAJ

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S/O LATE SHANTAPPA SANDEKAR AGED ABOUT 43 YEARS

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SMT. LEELAVATHI W/O DEVARAJ AGED ABOUT 38 YEARS

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SUMALATHA

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D/O DEVARAJ AGED ABOUT 23 YEARS

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SUNIL KUMAR S/O DEVARAJ AGED ABOUT 20 YEARS ALL THE APPELLANTS ARE R/AT KANNUR, GOWTHAMAPURA POST, SAGARA TALUK SHIMOGA DISTRICT

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APPELLANT NO.4 BEING MINOR REPTD. BY HIS FATHER/ NATURAL GUARDIAN SRI. DEVARAJ

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...APPELLANTS

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(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)

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AND:

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HDFC ERGO GEN. INSURANCE CO. LTD., EMBASSY CLASSIC 3^RD FLOOR, NO.11, VITTAL MALLYA ROAD, BENGALURU- 560001 BY ITS MANAGER

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SRI. KRISHNA S/O RAMAPPA R/AT MUNIREDDY BUILDING VIJINAPURA, BENGALURU- 560016

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…RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R1 R2- NOTICE DISPENSED WITH V/O DATED 26.02.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.08.2014 PASSED IN MVC NO.6445/2012 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, 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, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1) of the Motor Vehicles Act (‘MV Act’ for brevity) by the appellants-claimants challenging the judgment and award dated 08.08.2014, passed in MVC No.6445/2012, on the file the Motor Accident Claims Tribunal, II Additional Small Causes Judge and XXVIII ACMM (SCCH-13), Bengaluru, seeking enhancement of compensation.

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Brief facts:

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It is stated that on 29.08.2012 at about 12.30 p.m., the deceased was traveling in Tata Ace vehicle bearing No.KA-53-A7118 on Hebbala Main Road near Yogeshnagara Cross, Bengaluru, the driver of said Tata Ace drove the vehicle in a rash and negligent manner and dashed against the lorry which was going in front of it.

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It is further stated that due to the said accident he had sustained grievous injuries and he was shifted to Baptist Hospital wherein he was treated as an inpatient but, in spite of best treatment he succumbed to the injuries on 03.09.2012. The deceased was aged about 19 years as on the date of the accident and working as a Salesman in Dodla Dairy and earning Rs.9,000/- per month. On service of summons, respondent No.1- Insurance Company appeared before the Tribunal through its counsel. Respondent No.2 remained absent and hence placed ex parte .

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Hence, a claim petition was filed by the appellants under Section-166 of the M.V. Act, claiming compensation. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.12,08,604/along with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held respondent No.1Insurance company is liable to pay the compensation.

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Heard arguments of the learned counsel for the appellants and the learned counsel for the respondents and perused the materials on record.

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The learned counsel for the appellants-claimants submitted that the quantum of compensation awarded, which is on lesser side. The Tribunal has taken notional income on lesser side and the same is to be enhanced by taking into consideration notional income of Rs.7,000/- per month. But the Tribunal found error in taking income of Rs.6,000/- per month.

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Further, submitted that the claimants are parents, one brother and one sister, all these were dependents on the income

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of the deceased. Even though the deceased was a bachelor, by considering his family 1/3 would be deducted in the place of percentage.

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Further, submitted that the Tribunal has committed error in choosing multiplier according to the age of the parents. The multiplier is to be taken as per the age of the deceased. The amount of compensation under the head of loss of avocation and loss of consortium is on lesser side and the same is to be enhanced. Hence, on all these grounds prays for enhancement of compensation.

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On the other hand, the learned counsel for respondent No.1- Insurance Company submitted that the amount of compensation awarded is correct and proper. Therefore, there is no ground to interfere with the quantum. Hence, requests for dismissal of the appeal.

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The compensation awarded by the Tribunal is as follows:

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Loss of Dependency	:	Rs.	8,64,000/-
Loss of Estate	:	Rs.	20,000/-
Loss of Love and affection	:	Rs.	12,000/-
Funeral expenses	:	Rs.	25,000/-
Medical expenses	:	Rs.	2,87,604/-
TOTAL	:	Rs.	12,08,604/-

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In the present case, the Tribunal has awarded compensation of Rs.8,64,000/-, under the head of loss of dependency by holding notional income of Rs.6,000/- per month and adding 50% income towards loss of future prospects by applying multiplier '16' according to the age of the mother.

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The accident was occurred on 29.08.2012. The notional income of Rs.7,000/- per month ought to be taken as per the notional income recognized by the Karnataka State Legal Services Authority in the absence of any proof of income. The Tribunal has committed error in choosing multiplier according to the age of the mother. As per the dictum of Hon'ble Apex Court in the case of SARLA VERMA AND OTHERS -v- DELHI TRANSPORTATION AND ANOTHER reported in 2009(6) SCC Page 121 and NATIONAL INSURANCE CO. LTD. -v- PRANAY

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SETHI AND OTHERS [AIR 2017 SC 5157] , the multiplier is applicable according to the age of the deceased. In the present case the deceased was aged 19 years. Therefore, appropriate multiplier is '18'. The other contentions raised by the learned counsel for the appellants that the deceased was a bachelor and there are 4 dependents on the deceased. Hence, 1/3 amount would be deducted instead of 1/2 of the income. But this contention of the learned counsel for the appellant cannot be accepted and the Tribunal has not chosen multiplier according to the age of the deceased as per judgments of the Hon'ble Apex

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Court in the case of SARLA VERMA (supra) and Pranay Sethi (supra).

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Further, as per judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), 40% of income is to be added to the income of the deceased considering the age of the deceased as 19 years. But the Tribunal has committed error in adding 50% of amount towards future prospects. Hence, 40% of income is to be added towards loss of dependency as per the decision of the Hon'ble Apex Court as stated supra and Loss of dependency

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is recalculated and quantified as follows: Rs.7,000/- + 2,800 (40% of Rs.7,000/-) X 1/2 X 18 X 12 = Rs.10,58,400/- . Accordingly, Rs.10,58,000/- is awarded under the head of 'Loss

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of dependency '.

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The Tribunal awarded a compensation of Rs.2,87,604/towards medical expenses as per actual bills produced by the claimants. As per the medical records produced by the appellants, it is seen that there is no reason to enhance the quantum of this amount since the Tribunal upon considering the medical bills has correctly awarded the compensation. There is no need to make enhancement on the medical expenses and therefore needs no interference.

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The Tribunal awarded a compensation of Rs.20,000/towards loss of estate and Rs.25,000/- towards funeral expenses which is found to be correct. Therefore, there is no need for interference.

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Further, the Tribunal awarded compensation of Rs.12,000/- towards loss of love and affection which is meager.

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As per the judgment of the Hon’ble Supreme Court in the case of

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MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM

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[2018 ACJ 2782], the loss of love and affection and loss of consortium are more or less one and the same and overlapping to each other. Therefore, legal dependents such as father, mother, brother and sister of the deceased were entitled to a sum of Rs.40,000/- each. Accordingly, a sum of Rs.40,000/- X 4 = Rs.1,60,000/- is awarded under the head of 'Loss of

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Consortium' .

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Hence, the appellants are entitled for a total enhanced

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compensation, under various heads as follows:

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Loss of Dependency	:	Rs.	10,58,400/-
Loss of Estate	:	Rs.	20,000/-
Loss of love and affection/ Consortium	:	Rs.	1,60,000/-
Funeral expenses	:	Rs.	25,000/-
Medical Expenses	:	Rs.	2,87,604/-
TOTAL	:	Rs.	15,51,004 - 12,08,604
		Rs.	3,42,400/-

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Therefore, the appellants are awarded a total compensation of Rs.15,51,004/- as against the compensation awarded by the Tribunal at Rs.12,08,604/- . Hence, the appellants are entitled for an additional compensation of Rs.3,42,400/- (Rs.15,51,004 – Rs.12,08,604), along with interest at 6% per annum from the date of filing of the petition till deposit. The other terms observed by the Tribunal in the judgment are kept intact.

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19. Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part .

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ii. The judgment and award dated 08.08.2014, passed In MVC No.6445/2012, on the file the Motor Accident Claims Tribunal, II Additional Small Causes Judge and XXVIII ACMM (SCCH-13), Bengaluru, is hereby modified and the appellants are entitled for an enhanced compensation of Rs.3,42,400/- (Rs.15,51,004 – Rs.12,08,604), along with interest

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at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal, in addition to what has been awarded by the Tribunal.

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iii. Registry is directed to transmit the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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iv. There is a delay of 58 days in filing the appeal. Therefore, the appellants are not entitled to interest for this delayed period of 58 days.

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v. Draw the award accordingly.

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Sd/JUDGE

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SKS

Sri Devaraj v. Hdfc Ergo Gen. Insurance

Case brief

What is this about?

What did the court decide?

Sri Devaraj v. Hdfc Ergo Gen. Insurance

Case brief

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What did the court decide?

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