Partly allowed

Smt. Kamalakshamma v. Shivananda M v

Karnataka HC3 Aug 2022MFA.CROB/66/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka heard competing appeals challenging a Motor Accident Claims Tribunal award of Rs. 14,04,400. The High Court recalculated the compensation based on the deceased's age, notional income, and application of Supreme Court guidelines, reducing the total award and modifying the interest rate.

What did the court decide?

Compensation reduced to Rs. 11,94,400/- with interest at 6% p.a.; insurors appeal partly allowed; claimants cross object dismissed.

Smt. Kamalakshamma Vs Shivananda M v — 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 03^RD DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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MFA NO.8521 OF 2017 (MV) C/W MFA CROB NO.66/2018 (MV)

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IN MFA NO.8521/2017

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BETWEEN:

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SR. MANAGER CLAIMS, CHOLAMANDALAM M S GIC LTD., NO.1/2, GOLDEN HEIGHTS, BRANCH NO AT 4, 9TH FLOOR, 59TH C CROSS, INDUSTRIAL SUBURB 4TH N BLOCK, RAJAJINAGAR, BANGALORE-10.

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…APPELLANT

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(SRI. PRADEEP B., ADVOCATE)

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AND:

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KAMALAKSHAMMA W/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 45 YEARS,

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2. SIDDESH

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S/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 28 YEARS,

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SATHEESH S/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 26 YEARS,

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NAGARATHNAMMA D/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 24 YEARS

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ALL ARE R/AT MARSHETTIHALLI, KADABA HOBLI, GUBBI TALUK, TUMKUR DIST-572 101.

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SHIVANANDA M.V. S/O VENKATARAMANAPPA K. OM SHAKTHI TEMPLE ROAD, HEGGANAHALLI, 3RD CROSS, SHIVAJI NAGAR, BANGALORE-91.

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…RESPONDENTS

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(SRI. SATHISHA T., ADVOCATE FOR R1 TO R4 NOTICE TO R5 IS DISPENSED WITH V/O DATED 09.03.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.08.2017 PASSED IN MVC NO.216/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, GUBBI, AN AWARDING AMOUNT OF RS.14,04,400/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA CROB NO.66/2018

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BETWEEN:

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SMT. KAMALAKSHAMMA W/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 46 YEARS,

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SIDDESHA S/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 29 YEARS,

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SATHEESH S/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 27 YEARS,

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SMT. NAGARATHNAMMA D/O LATE M.B. BOREGOWDA, NOW AGED ABOUT 25 YEARS

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ALL ARE RESIDENTS OF MARASHETTIHALLI, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572 216.

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…CROSS OBJECTORS

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(SRI. SATHISHA T., ADVOCATE)

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AND:

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SHIVANANDA M.V. S/O VENKATARAMANAPPA K, AGED ABOUT 50 YEARS, OM SHAKTHI TEMPLE ROAD, 3RD CROSS,

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HEGGANAHALLI, SANJIVINI NAGARA, BENGALURU-560 091.

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CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, NO.4, 9TH FLOOR, GOLDEN HEIGHTS COMPLEX, 59TH C CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR 4N BLOCK, BENGALURU-560 010.

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…RESPONDENTS

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(SRI. PRADEEP B., ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DATED 25.03.2022)

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THIS MFA.CROB IN MFA NO.8521/2017 FILED UNDER ORDER XLI RULE 22 OF THE CPC AGAINST THE JUDGMENT AND AWARD DATED 14.08.2017 PASSED IN MVC NO. 216/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFA AND MFA CROB ARE COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.8521/2017 is filed by the Insurance Company for reduction of compensation amount and MFA CROB No.66/2018 is filed by the claimants for seeking enhancement of compensation amount under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short), being aggrieved by the judgment dated 14.08.2017 passed by the Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Gubbi in MVC No.216/2014.

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Facts giving rise to the filing of these appeals briefly stated are that on 12.08.2013, at about 2.45 p.m., when the deceased was proceeding on the left side of the road by pulling his TVS XL bearing registration No.KA-06/R-7025, at that time, a Mini goods vehicle bearing registration No.KA-02/AB9605 which was being driven in a rash and negligent

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manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondents appeared through their counsel and respondent No.2 filed written statement in which the averments made in the petition were denied.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.3 Satheesh as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P47. On behalf of respondents, neither any witness was examined nor

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any documents were exhibited. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.14,04,400/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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6. The learned counsel for the Insurance Company has raised the following contentions:

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Firstly, he submitted that the amount of compensation awarded by the Tribunal is on higher side for the reason that the age of the deceased was 53 years as per the ration card produced by the

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claimants themselves. The proper multiplier applicable to his age group is '11' but the Tribunal has taken multiplier as '13'.

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Secondly, even though the claimants claim that the deceased was earning Rs.20,00,000/- per annum, the same is not established by the claimants by producing documents. Under these circumstances, considering the year of accident i.e. 2013, the notional income has to be assessed for Rs.8,000/- but the Tribunal is erred in assessing income of deceased as Rs.12,000/-.

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Thirdly, he submits that the interest awarded by the tribunal at 9% is on higher side. Hence, he prays for reduction of compensation amount on these grounds.

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On the other hand learned counsel for cross objector-claimants submits that the

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compensation awarded is meager and deceased was earning Rs.20,00,000/per annum by doing agriculture work like coconut, arecanut and milk vending business. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.12,000/-, which is on lower side. Hence, he prays for enhancement of compensation amount.

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In the present case, the tribunal has awarded compensation under various heads as

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follows:

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Sl. No.	Head of Compensation	Amount/Rs
1	Loss of dependency	12,48,000-00
2	Transportation charges	15,000-00
3	Funeral expenses	10,000-00
4	Loss of love and affection	40,000-00
5	Loss of estate	30,000-00
6	Loss of consortium	25,000-00

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7	Medical expenses	36,400-00
	Total	14,04,400-00

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Heard the learned counsel for the parties

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and perused the records.

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It is not in dispute that deceased Boregowda died in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The Tribunal has adopted notional income of Rs.12,000/- per month but there is no evidence to prove the income of the deceased. There are only document evidence which are the RTCs produced at Ex.P.24 to 38 and Ex.P.39 & 40, which are the letters received from Milk Co-Operative Society, Marashettihalli. There is a proof that the deceased was doing some work as agriculturist and milk vending business but there is no evidence to prove the

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income. Therefore, on these grounds it is the contention of the Insurance Company that in the absence of proof of income, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. But on the other hand the learned counsel for the claimants submitted that the deceased was doing agriculture work like coconut, arecanut and milk vending business. Therefore, income ought to have been taken for Rs.20,000/- per month.

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Considering these rival submissions, it is undisputed fact that the claimants have not produced any evidence regarding proof of income of the deceased. By RTCs and letters of Milk co-operative society, it can be said that the nature of work of the deceased. If at all the deceased was doing milk vending business by supplying milk to Milk Cooperative Society then the claimants atleast ought to

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have produced passbook/ card of society or bank passbook showing the income of the deceased but bank passbook is not produced to prove how much quantity of milk was supplying to Milk Co-operative Society. When considering nature of the avocation of the deceased and the deceased was cultivating commercial crops like arecanut and coconut and doing milk vending business, it is easy for the claimants to produce bank passbook showing the income of the deceased, but they have not produced the same. Under thus circumstances, considering the avocation of the deceased as agriculturist and supplying milk to Milk co-operative Society, as per the documents above discussed, it is also not just and proper to take exact notional income of Rs.8,000/- per month and it is also on higher side as Tribunal has taken Rs.12,000/- per month. Therefore, in absence of proof of income but considering the avocation of the deceased, it is just

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and proper to take notional income of Rs.10,000/- per month for the reasons stated above.

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Further considering the age of deceased as 53 years, to the aforesaid income, 10% has to be added on account of loss of future prospects as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY

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SETHI AND OTHERS [AIR 2017 SC 5157] . Ex.P.23

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Election I.D. card of the deceased and Ex.P.43- Copy of Ration card, which proves the fact that the election identity card showing the age of the deceased as 53 years. Therefore, considering the accident occurred in the year 2013, as on that day, the deceased was proved to be 53 years. Accordingly, it is held that deceased was 53 years and multiplier applicable to his age group is '11'. The Tribunal has found claimants No.3 and 4 are not legally dependant for assigning the reasons that the claimant No.3 is married and residing

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separately from the deceased and claimant No.4 is daughter residing along with her husband in her husband's house. The said findings cannot be discarded. Therefore, considering these aspects, it is appropriate to deduct 1/3rd of the income of the deceased towards personal expenses and remaining amount has to be taken as his contribution to the family. Thus, the compensation under 'loss of dependency' is recalculated for Rs.9,68,000/(Rs10,000+1000 [10% of 10000] x 2/3 x 11 x 12).

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The Tribunal has awarded compensation on other conventional heads like transportation charges at Rs.15,000/-, Funeral expenses at Rs.10,000/-, loss of love and affection at Rs.40,000/- loss of estate at Rs.30,000/- and loss of consortium at Rs.25,000/-. In all totally Rs.1,20,000/- has been awarded under these conventional heads but as per the case of ' PRANAY SETHI' (supra) each claimants are entitled

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for Rs.40,000/- each under the head of loss of consortium, which comes to Rs.1,60,000/- and further a sum of Rs.30,000/- added towards transportation charges, funeral expenses and loss of estate that it is as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] . Accordingly on these conventional heads I enhance Rs.1,90,000/-.

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The Tribunal awarded compensation of Rs.36,400/- towards medical expenses, which is the amount spent for making survival of the deceased. As he suffered various injuries but unfortunately succumbed to the injuries even after giving medical treatment and for this whatever amount is spent, the claimants has produced medical evidence and the Tribunal has awarded compensation of Rs.36,400/towards medical expenses, which is found to be correct and needs no modification.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	9,68,000
Loss of consortium	1,60,000
Transportation charges, Funeral expenses and	30,000
loss of estate
Medical expenses	36,400
Total	11,94,400

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The tribunal has awarded interest @ 9% p.a. Learned counsel for the insurance company submitted that simple interest @ 6% p.a. may be awarded. Therefore, he prays for reduction of rate of interest @ 6% p.a. In this regard, the order of Tribunal granting interest @ 9% p.a. is modified and interest @ 6% p.a. is awarded on the entire amount from the date of petition till its realization. Hence, I pass the following:

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ORDER

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(a) MFA No.8521/2017 filed by the Insurance Company is allowed in part.

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(b) MFA CROB No.66/2018 file by the claimants is hereby dismissed.

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(c) The judgment and award dated 14.08.2017 passed in MVC No.216/2014 by the Court of the Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal at Gubbi is modified and the appellants/claimants are entitled for the compensation of Rs.11,94,400/- in total with interest @ 6% p.a. from the date of petition till its realization.

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(d) The amount deposited by the insurance company shall be transmitted to the Tribunal along with the trial Court records and copy of this order, forthwith.

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(e) No order as to costs.

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(f) Draw award accordingly.

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Sd/JUDGE

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Smt. Kamalakshamma v. Shivananda M v

Case brief

What is this about?

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Smt. Kamalakshamma v. Shivananda M v

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