Partly allowed

The Manager v. Smt.Sumithra

Karnataka HC12 Jul 2023MFA/2123/2020

Case brief

AI extract

What is this about?

High Court modified a Motor Accident Claims Tribunal award by reducing total compensation from Rs.19.92 lakhs to Rs.18.80 lakhs. The court applied the Supreme Court's Pranay Sethi guidelines, consolidating loss of consortium and love and affection, while adjusting the statutory head of compensation based on KSLSA guidelines.

What did the court decide?

Impugned judgment modified; compensation reduced to Rs. 18,80,200 with 6% interest; insurer directed to deposit within six weeks.

The Manager Vs Smt.Sumithra — Money Laundering | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 12^TH DAY OF JULY, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE C M JOSHI

¶7

MISCELLANEOUS FIRST APPEAL NO. 2123 OF 2020 (MV-D)

¶8

C/W

¶9

MFA CROSS OBJECTION NO. 81 OF 2022 (MV-D)

¶10

IN MFA. NO. 2123/2020 :

¶11

BETWEEN:

¶12

Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

¶13

THE MANAGER, THE HDFC ERGO GIC LTD., DHARWAD BRANCH, PLOT NO.07, JANATA HOUSE, GOKUL DHAM, GUDIHAL ROAD, HUBLI, HEAD POST OFFICE, HUBLI DHARWAD - 580 020. NOW REP. BY, HDFC ERGO GIC. LTD., 2ND FLOOR, NO. 25/1, BUILDING NO. 2, SHANKARANARAYANA BUILDING, M G ROAD, BANGALORE-560 001.

¶14

(BY SRI PRADEEP B., ADVOCATE)

¶15

…APPELLANT

¶16

AND:

¶17

SMT.SUMITHRA, W/O. LATE LOHITH SHETTY, AGED ABOUT 40 YEARS.

¶18

PRATHEEKSHA, D/O. LATE LOHITH SHETTY, AGED ABOUT 9 YEARS.

¶19

¶20

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶21

PRANEEKSHA, D/O. LATE LOHITH SHETTY, AGED ABOUT 8 YEARS.

¶22

SINCE RESPONDENT NO. 2 AND 3 ARE MINORS, WILL BE REPRESENTED BY THEIR MOHTER/NG I.E, SUMITHRA RESPONDENT NO.1

¶23

ANTHAYYA, S/O. LATE MANJAYYA SHETTY, AGED ABOUT 80 YEARS.

¶24

SUBBAMMA, W/O. ANTHAYYA, AGED ABOUT 69 YEARS.

¶25

ALL ARE R/AT 1-153, KUNJALLI, YADTHARE VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT.

¶26

MAHANTHESHA, S/O. CHENABASAPPA, AGED ABOUT 33 YEARS, GANIGERU, MALEKOPPA VILLAGE AND POST, YALABURGA TALUK, KOPPALA DISTRICT.

¶27

KALIL AHAMMED, S/O. GANISAB, AGED ABOUT 45 YEARS, GOKULADAM, UDALA ROAD, FLAT NO. 7, KARAVARA ROAD, HALE HUBLI, HUBLI DISTRICT.

¶28

…RESPONDENTS

¶29

(BY SRI. RUDRAPPA P., ADVOCATE FOR R-1 TO R-5; V/O DATED 17.06.2022 NOTICE TO R-6 AND R-7 IS D/W)

¶30

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.11.2019 PASSED IN MVC

¶31

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶32

¶33

NO.187/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA, AWARDING COMPENSATION OF RS. 19,92,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

¶34

IN M.F.A. CROB. NO. 81/2022:

¶35

BETWEEN:

¶36

SMT. SUMITHRA, W/O. LATE LOHITH SHETTY, AGED ABOUT 43 YEARS.

¶37

PRATHEEKSHA, D/O. LATE LOHITH SHETTY, AGED ABOUT 12 YEARS,

¶38

PRANEEKSHA, D/O. LATE LOHITH SHETTY, AGED ABOUT 11 YEARS,

¶39

SINCE APPELLANT NO. 2 AND 3

¶40

ARE MINORS, WILL BE REPRESENTED BY THEIR MOTHER /NG I.E., SUMITHRA APPELLANT NO. 1

¶41

ANTHAYYA, S/O. LATE MANJAYYA SHETTY, AGED ABOUT 83 YEARS.

¶42

SUBBAMMA, W/O. ANTHAYYA, AGED ABOUT 72 YEARS, ALL ARE R/AT 1-153, KUNJALLI,

¶43

YADTHARE VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT.

¶44

…CROSS OBJECTORS

¶45

(BY SRI. RUDRAPPA P., ADVOCATE)

¶46

¶47

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶48

AND:

¶49

THE MANAGER, HDFC ERGO GIC LTD., DHARWAD BRANCH, PLOT NO.7, JANATA HOUSE, GOKUL DHAM, GUDIHAL ROAD, HUBLI HEAD POST OFFICE, HUBLI, DHARWAD-580 020.

¶50

NOW REP BY HDFC ERGO GIC LTD., 2ND FLOOR, NO. 25/1, BUILDING NO. 2, SHANKARAYANA BUILDING, M G ROAD, BANGALORE-560 001.

¶51

MAHANTHESHA, S/O CHENABASAPPA, AGED ABOUT 35 YEARS, GANIGERU, MALEKOPPA VILLAGE & POST, YALABURGA TALUK, KOPPALA DISTRICT - 583 212.

¶52

KALIL AHAMMED, S/O GANISAB, AGED ABOUT 47 YEARS, GOKULADAM, UDALA ROAD, FLAT NO. 7, KARAVARA ROAD, HALE HUBLI, HUBLI DISTRICT - 580 002.

¶53

…RESPONDENTS

¶54

(BY SRI B. PRADEEP, ADVOCATE FOR R-1;

¶55

V/O DATED 10.07.2023, NOTICE TO R-2 AND R-3 IS D/W)

¶56

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶57

¶58

THIS MFA. CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC AGAINST THE JUDGMENT AND AWARD DATED 30.11.2019 PASSED IN MVC NO. 187/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶59

THE APPEAL AND THE CROSS OBJECTION COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶60

JUDGMENT

¶61

Though these matters are listed today for orders, by

¶62

the consent of learned counsel for both the parties, they are taken up for final disposal.

¶63

MFA No.2123/2020 preferred by the Insurance Company and MFA CROB.No.81/2023 preferred by the petitioners/cross objectors are directed against the judgment and award in MVC No.187/2017 passed by the learned Senior Civil Judge and Additional MACT, Kundapura, on 30-11-2019.

¶64

By the impugned judgment and award, the Tribunal

¶65

has awarded a compensation of Rs.19,92,000/- to the

¶66

¶67

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶68

petitioners on account of the death of one Lohith Shetty and

¶69

directed the insurance company to deposit the same.

¶70

The petitioners contended that on 22-11-2016 at 9.45 p.m. while Lohith Shetty was standing on the side of NH 66 near Petrol Bunk, Neergadde, Shiruru Village, Kundapura Taluk, the driver of the lorry bearing No.KA.25.1859 belonging to the respondent No.1 came from Byndoor side in rash and negligent manner and hit against the said Lohith Shetty. As a result, he suffered injuries and on the way to the hospital, he succumbed to the injuries.

¶71

It was contended that the deceased was aged 35 years at the time of the accident and he was working as Mason and earning Rs.20,000/- per month. The petitioners being the wife, minor children and parents of the deceased have approached the Tribunal for just and reasonable compensation from the driver, owner and insurer of the offending vehicle.

¶72

7 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶73

On issuance of notice, respondent Nos. 1 and 2 did not appear before the Tribunal inspite of service of notice and they are placed exparte. The respondent No.3Insurance Company appeared through its counsel and filed objections.

¶74

Respondent No.3 contended that the compensation claimed is highly arbitrary, imaginary, baseless and untenable in law. It was further contended that the terms and conditions of the policy were violated and driver of the lorry was not shaving the valid driving license. However, the insurance company has issued the policy.

¶75

The Tribunal on the above pleadings, framed appropriate issues. The petitioner No.1 was examined as PW1 and one witness was examined as PW2 and Exs.P1 to P16 were marked in evidence. The respondent No.3 has not led any evidence.

¶76

After hearing both the sides, the Tribunal has

¶77

awarded the compensation under different heads as below:

¶78

¶79

NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶80

1.	Towards loss of dependency (8,000+40%-1/4th 1215)	15,12,000-00
2.	Loss of consortium to petitioners No.1 to 5	2,00,000-00
3.	Towards loss of love and affection to the petitioners No. 1 to 5	2,50,000-00
4.	Towards loss of estate	15,000-00
5.	Towards funeral, obsequies expenses and transportation of dead body	15,000-00
	Total	Rs.19,92,000-00

¶81

Being aggrieved by the said judgment and award, the Insurance Company has preferred MFA No.2123/2020 contending that the compensation awarded by the Tribunal is on the higher side and awarding the compensation to the extent of Rs.2,00,000/- under the head of 'consortium' and Rs.2,50,000/- under the head of 'loss of love and affection' is not justifiable in view of the judgment of the Apex court

¶82

in the case of Shri Ram General Insurance Company

¶83

Limited Vs. Bhagat Singh Rawat and others¹ .

¶84

1 SLP (c)11669-11671/2020 disposed of on 27-3-2023

¶85

9 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶86

Being aggrieved by the said judgment of the Tribunal, the petitioners have approached this Court in MFA CROB No.81/2022 contending that the compensation awarded by the Tribunal is meager, abysmally low and same needs to be enhanced. It is contended that the notional income of the deceased has not been properly considered by the Tribunal and as such, the loss of dependency calculated by the Tribunal is erroneous and requires enhancement.

¶87

On issuance of notice in both the appeals, the rival parties have appeared through their counsel.

¶88

The arguments by both sides were heard.

¶89

The decision in Shri Ram General Insurance Company Limited Vs. Bhagat Singh Rawat and others lays down that the conclusion reached by the Tribunal relying on the case of Magma General Insurance Company Limited Vs. Nanu ram alias Chuhru Ram

¶90

10 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶91

and others² was in the teeth of Constitution Bench Judgment in the case of National Insurance Company Limited Vs. The Pranay Sethi and others³ . Therefore, the Apex Court held that there shall be a cap to the extent of Rs.40,000/- in respect of the loss of consortium. However, it did not notice that the judgment in Pranay Sethi and others do not recognize the compensation under the head of 'love and affection' as a separate entity than the 'loss of consortium'. Therefore, the learned counsel for the insurance company submits that the compensation under the conventional heads is laid down in Pranay Sethi

¶92

and others's case and the same can be granted.

¶93

I find considerable force in the said submission of the learned counsel for appellant Insurance Company. It is pertinent to note that the Constitution Bench Decision of the Apex Court in Pranay Sethi and other's case holds the field and it is more pervasive as it lays down that ratio

¶94

2 2018 SCC Online SC 1546

¶95

3 (2017) 16 SCC 680

¶96

11 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶97

on which the compensation under the head of loss of love and affection as well as the consortium has to be awarded. However, the decision in Magma General Insurance Company Limited's case recognized the grant of compensation under the head of 'loss of love and affection' as well as 'consortium' to each of the petitioners. Therefore, this finding in the case of Magma General Insurance Company Limited is directly in the teeth of Constitution Bench judgment and as such, the ratio in the Constitution Bench judgment prevails and has to be followed by this Court.

¶98

In the light of the above conclusions, the compensation needs to be re assessed by this Court.

¶99

The Tribunal has taken the notional income of the deceased at Rs.8,000/- per month. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok Adalat prescribe

¶100

the notional income of Rs.9,500/- for the year 2016. In umpteen number of decisions, this Court has held that the

¶101

12 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶102

guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner is accepted as Rs.9,500/- per month. The future prospects is calculated at 40% and thus, the multiplicand would be Rs.13,300/(Rs.9,500 + 3800).

¶103

Under these circumstances, the loss of

¶104

dependency is calculated as Rs.13,300/- x 12 x 15 x 3/4 =17,95,500/- by taking the multiplier of 15 for the age of 35 years and by deducting 1/4th towards personal expenses.

¶105

In addition to the above compensation amount, the petitioners are entitled for the compensation of Rs.48,400/- under the head of 'loss of consortium or filial love and affection', Rs.18,150/- each under the heads of loss of estate and funeral expenses. Therefore, the petitioners are entitled for a total compensation of

¶106

13 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶107

Rs.18,80,200/- instead of Rs.19,92,000/- together with

¶108

interest at 6% p.a. as below:

¶109

1.	Towards loss of dependency	17,95,500/-
2.	Towards Loss of consortium	48,400/-
3.	Towards loss of estate	18,150/-
5.	Towards funeral expenses,	18,150/-
	Total	Rs.18,80,200/-

¶110

In the result, the appeal filed by the Insurance

¶111

Company deserves to be allowed in part and the cross objection filed by the claimants deserves to be dismissed. Hence, the following:

¶112

ORDER

¶113

(i) The appeal filed by the Insurance Company in MFA No.2123/2020 is allowed in part.

¶114

(ii) The cross objection filed by the cross objectors in MFA CROB No.81/2022 is dismissed.

¶115

(iii) The impugned judgment passed by the Tribunal is modified. The petitioners are entitled for a sum of Rs.18,80,200/- instead of Rs.19,92,000/- awarded by the

¶116

14 - NC: 2023:KHC:24442 MFA No. 2123 of 2020 C/W MFA.CROB No. 81 of 2022

¶117

Tribunal together with interest at 6% p.a. from the date of petition till its realization.

¶118

(iv) The insurance company is directed to deposit the compensation amount together with interest at 6% p.a. from the date of petition till its deposit within six weeks from the date of receipt of the copy of this judgment.

¶119

(v) The rest of the conditions regarding the apportionment and fixed deposit ordered by the Tribunal remain unaltered.

¶120

(vi) The amount in deposit before this Court in MFA No.2123/2020 shall be transmitted to the Tribunal forthwith.

¶121

(vii) Send back the records along with the copy of this judgment.

¶122

List No.: 1 Sl No.: 56

¶123

Sd/JUDGE

¶124

tsn*