Partly allowed

Gopala v. Nagaveni K

Karnataka HC16 Jan 2023MFA/2308/2017

Case brief

AI extract

What is this about?

The High Court held the husband entitled to compensation under loss of estate as no children existed. It enhanced the death benefit, modified interest to 6%, and adjusted the apportionment between the husband (60%) and parents (40%) of the deceased.

What did the court decide?

Enhanced compensation awarded under loss of estate; interest reduced to 6%; apportionment modified to 60% for husband and 40% for parents.

Gopala Vs Nagaveni K — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JANUARY, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

¶6

MISCELLANEOUS FIRST APPEAL NO.2308 OF 2017 C/W MISCELLANEOUS FIRST APPEAL NO.5975 OF 2016

¶7

MISCELLANEOUS FIRST APPEAL NO.5976 OF 2016 (MV-D)

¶8

IN MFA.NO.2308/2017:

¶9

BETWEEN:

¶10

GOPALA

¶11

Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

¶12

S/O PUTTASWAMY GOWDA, AGED ABOUT 29 YEARS, R/O FLAT NO.901, KASABA HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT – 571419.

¶13

…APPELLANT

¶14

(BY SRI. SREENIVASAN M.Y., ADVOCATE)

¶15

AND:

¶16

NAGAVENI K

¶17

W/O LATE SRINIVAS K AGED ABOUT 58 YEARS R/O FLAT NO.901, BALMATTA ROAD, HAMPAN KATTA, MANGALORE – 575 001.

¶18

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶19

¶20

BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD., R/P BY MANAGER, 1ST FLOOR, G E PLAZA, AIR PORT ROAD, YERAWADA PUNE, MAHARASTRA – 411006.

¶21

KRISHEGOWDA S/O SUBBEGOWDA, AGED ABOUT 60 YEARS, R/O BOMMENAHALLI VILLAGE, NAGAMANGALA TALUK, MANDYA DIST-571432

¶22

KEMPAMMA W/O KRISHNEGOWDA, AGED ABOUT 55 YEARS, R/AT BOMMENAHALLI VILLAGE, NAGAMANGALA TALUK, MANDYA DIST.571432.

¶23

(AMENDMENT CARRIED OUT VIDE COURT ORDER DT:19.11.2021)

¶24

…RESPONDENTS

¶25

(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2, V/O DATE 07/03/2018, NOTICE TO R1 D/W, V/O DT:13/08/2021 SRI. MAYANNAGOWDA N.R., ADVOCATE FOR IMPLEADING R3 & R4)

¶26

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.04.2016 PASSED IN MVC NO.950/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT.,NAGAMANGALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶27

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶28

¶29

IN MFA NO.5975/2016

¶30

BETWEEN:

¶31

BAJAJ ALLIAZ GENERAL INSURANCE CO., LTD., I FLOOR, G E PLAZA, AIRPORT ROAD, YERAWADA, PUNE, MAHARASTRA - 411 006 NOW REPRESENTED BY BAJAJ ALLIANZ GENENERAL INSURANCE CO., LTD., GOLDEN HIEGHTS 4TH FLOOR, #1/2, 59TH C CROSS, 4TH M BLOCK, RAJAJINAGAR, BANGALORE - 560 010.

¶32

…APPELLANT

¶33

(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE)

¶34

AND:

¶35

GOPALA S/O PUTTASWAMY GOWDA, NOW AGED ABOUT 28 YEARS, R/AT FLAT NO.901, KASABA HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT - 571 425.

¶36

SMT. NAGAVENI K W/O LATE SRINIVAS K, NOW AGED ABOUT 57 YEARS, R/AT FLAT NO. 901, BALMATTA ROAD, HAMPAN KATTA, MANGALURU-575001.

¶37

…RESPONDENTS

¶38

(BY SRI. M.Y.SREENIVASAN, ADVOCATE FOR R1, V/O DT:16/4/2018, NOTICE TO R2 D/W)

¶39

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.04.2016 PASSED IN MVC NO.950/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT,

¶40

¶41

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶42

NAGAMANGALA, AWARDING COMPENSATION OF RS.13,40,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION WHICH IS EARLIER.

¶43

IN MFA NO.5976/2016

¶44

BETWEEN:

¶45

BAJAJ ALLIANZ GENERAL INSURANCE CO LTD., I FLOOR, G E PLAZA, AIRPORT ROAD, YERAWADA, PUNE, MAHARASTRA-411 006.

¶46

NOW REPRESENTED BY BAJAJ ALLIANZ GEN INS CO. LTD., GOLDEN HEIGHT, 4TH FLOOR, #1/2, 59^TH C CROSS, 4^TH M BLOCK, RAJAJINAGAR, BANGALORE-560 010.

¶47

…APPELLANT

¶48

(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)

¶49

AND:

¶50

KRISHNEGOWDA S/O SUBBEGOWDA, NOW AGED ABOUT 55 YEARS,

¶51

SMT.KEMPAMMA W/O KRISHNEGOWDA, AGED ABOUT 50 YEARS, BOTH R/AT BOMMENAHALLI, NAGAMANGALA TALUK, MANDYA DISTRICT-571425.

¶52

SMT.NAGAVENI K W/O LATE SRINIVAS K,

¶53

¶54

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶55

AGED ABOUT 57 YEARS, R/AT FLAT NO.901, BALMATTA ROAD, HAMPAN KATTA, MANGALURU-575 001.

¶56

…RESPONDENTS

¶57

(BY SRI MAYANNAGOWDA N.R., ADVOCATE FOR R1 & R2, V/O DT:16/4/2018 NOTICE TO R3 IS D/W)

¶58

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.04.2016 PASSED IN MVC NO.1406/14 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, NAGAMANGALA, AWARDING COMPENSATION OF RS.13,40,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION WHICH IS EARLIER.

¶59

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

¶60

JUDGMENT

¶61

MFA.No.2308/2017 is filed by the claimant

¶62

challenging the judgment and award dated 29.04.2016 passed in MVC.No.950/2014 by the Senior Civil Judge and MACT, Nagamangala, questioning the apportionment made

¶63

and also for seeking enhancement of compensation.

¶64

MFA.No.5975/2016 is filed by the Insurance Company challenging the judgment and award dated 29.04.2016

¶65

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶66

¶67

passed in MVC.No.950/2014 by the Senior Civil Judge and MACT, Nagamangala, for reducing the quantum of compensation.

¶68

MFA.No.5976/2016 is filed by the Insurance

¶69

Company challenging the judgment and award dated 29.04.2016 passed in MVC.No.1406/2014 by the Senior Civil Judge and MACT, Nagamangala, for reducing the quantum of compensation.

¶70

Brief facts of the case are that, on 16.05.2014

¶71

at about 4.30 am., when Kempamma was taking her daughter Shruti to the hospital for delivery in autorickshaw bearing No.KA-11-5778 near Devihalli village of Nagamangala Taluk, the driver of the car bearing No.KA-19-MD-1321 drove it on NH.75 in a rash and negligent manner and hit to the above said autorickshaw

¶72

¶73

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶74

from back side. Due to which, Shruti sustained grievous injuries and succumbed to the injuries.

¶75

Learned counsel for the claimant-husband

¶76

submitted that the quantum of compensation awarded by the Tribunal is on the lower side. Hence, prays for enhancement of the same. Further submitted that respondent Nos.3 and 4 are the father-in-law and motherin-law of the claimant, hence, they are not entitled for compensation under the head loss of dependency, since their daughter after marriage goes to her husband’s house. Therefore, the parents of the daughter (in case of death) are not dependent. Therefore, awarding 50% of determined compensation amount to the parents of deceased who are respondent Nos.3 and 4 is not correct. But parents of the deceased are entitled for compensation under the head loss of consortium only, but not under the head loss of dependency. Therefore, prays for modification

¶77

¶78

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶79

of the judgment and award passed by the Tribunal in this regard.

¶80

On the other hand, learned counsel for the Insurance Company submitted that the claimant-husband cannot be construed as strictly depending upon the income of his wife. Therefore, he is not dependant. Therefore, the compensation granted under the head loss of dependency is not permissible and entitled for compensation under the head loss of estate. Therefore, prays for modification of the award.

¶81

On the other hand, learned counsel for respondent Nos.3 and 4 (impleaded) submitted that the apportionment made by the Tribunal between the claimant-husband and respondent Nos.3 and 4 (father-inlaw and mother-in-law) is correct, which needs no interference. Therefore, prays to confirm the same.

¶82

¶83

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶84

In the present case, the deceased is the wife of

¶85

the appellant-husband and daughter of respondent Nos.3 and 4. It is stated that the deceased was working as a beautician and tailor and was earning Rs.20,000/- per month. Therefore, the appellant-claimant is depending upon her income. It is admitted in the cross-examination

¶86

by the claimant that after the death of his wife, he re-married. Therefore, the question as to whether the appellant-husband is entitled for compensation under the head loss of dependency or not. Even though, it is contended that his wife was working as a beautician and tailor, but there is no proof. Therefore, in respect of avocation and income of the deceased, there is no proof. In such an event, notional income is to be taken into consideration. As per Section 166 of the Motor Vehicle

¶87

Act, even though, there is no word used that the compensation to be granted under the head loss of dependency and on other heads, but it is stated that the

¶88

10 -

¶89

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶90

compensation is to be awarded to the legal representatives of the deceased. Section 168 of the Motor Vehicle Act stipulates determination of compensation and persons to whom compensation is to be paid. But under which head compensation is to be determined is provided in a set of precedents by the Hon’ble Supreme Court and of this Court. Therefore, compensation is to be determined under the head loss of dependency. In the present case, there is no evidence with regard to income of the deceased.

¶91

Therefore, even if the deceased (wife) was working and earning, it cannot be said that the claimant being husband is depending on the income earned by the deceased. Therefore, even if, it can be construed as wife was working and earning and what she has saved after deducting expenses that would be the loss to estate. The deceased might have contributed her income to the family,

¶92

11 -

¶93

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶94

but in the present case, there are no children to the claimant and deceased. Therefore, the claimant-husband is entitled for compensation under the head loss to estate. If the deceased and claimant had children, then for the children, compensation can be granted under the head loss of dependency, then it is construed as children also depending upon their mother and her income. Therefore, in the present case, as discussed above, the claimant is entitled for compensation under the head loss to estate instead of loss of dependency.

¶95

Therefore, the compensation is to be

¶96

determined under the head loss to estate by taking the notional income. The accident was caused in the year 2014, hence, the notional income would be Rs.8,500/- per month as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority and 40% of income is to be added towards loss of future prospects in

¶97

12 -

¶98

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶99

life as per the judgment of the Hon’ble Supreme Court in the case of National Insurance Co., Ltd., Vs. Pranay Sethi¹ . Since, the quantum of compensation is to be determined under the head loss to estate, then the savings of the deceased would be deemed to have been considered as 50% out of her earnings. Therefore, 50% of income is to be considered. The deceased was aged 22 years, hence, the appropriate multiplier applicable is ‘18’. Therefore, the compensation under the head loss to estate is determined as follows:

¶100

Rs.8,500/-+ Rs.3,400/- (40% of Rs.8,500/-)=Rs.11,900/-

¶101

Rs.11,900/- x 50% x 18 x 12=Rs.12,85,200/-

¶102

Accordingly, compensation of Rs.12,85,200/- is awarded under the head loss to estate.

¶103

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶104

13 -

¶105

9. The compensation of Rs.25,000/- awarded

¶106

under the head transportation of dead body and funeral expenses is found to be correct. Hence, it is kept in tact.

¶107

As per the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others² , the appellant who is the husband of the deceased is entitled for compensation of Rs.40,000/- and respondent Nos.3 and 4 who are the parents of the deceased are entitled for Rs.80,000/- with 10% escalation towards loss of consortium including loss of love and affection. Accordingly, compensation of Rs.1,32,000/- [appellant-husband is entitled to Rs.44,000/(Rs.40,000/+ 10% escalation) and respondent Nos.3 and 4 who are parents of the deceased are entitled to Rs.88,000/(Rs.80,000/+ 10%

¶108

2 2018 ACJ 2782

¶109

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶110

14 -

¶111

escalation)] is awarded under the head loss of consortium

¶112

including loss of love and affection.

¶113

Thus, in all, this Court determines the enhanced

¶114

compensation as follows:

¶115

1	Loss to estate	Rs.	12,85,200/-
2	Transportation of dead body and funeral expenses	Rs.	25,000/-	Kept in tact
3	Loss of consortium including loss of love and affection (appellant-husband is entitled to Rs.44,000/- and respondent Nos.3 and 4 who are parents of the deceased are entitled to Rs.88,000/-)	Rs.	1,32,000/-
	Total	Rs.	14,42,200/-

¶116

The Tribunal has granted interest at 9% p.a.,

¶117

and the same is scaled down to 6% p.a.

¶118

15 -

¶119

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶120

The Tribunal has awarded compensation of Rs.13,40,000/-, but the appellant-claimant who is the husband of the deceased and respondent Nos.3 and 4 who

¶121

are the parents of the deceased are entitled to total compensation of Rs.14,42,200/- as against the compensation amount determined by the Tribunal along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶122

Regarding apportionment of compensation:

¶123

The Tribunal has determined the compensation in MVC.No.950/2014 and MVC.No.1406/2014, out of which, 50% of compensation amount is awarded to the claimant-husband and 50% is awarded to respondent Nos.3 and 4 who are parents of the deceased.

¶124

With regard to apportionment as above stated, this Court deems it appropriate to modify the same to the

¶125

16 -

¶126

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶127

extent that the appellant-claimant who is the husband of the deceased is entitled to 60% of compensation amount and respondent Nos.3 and 4 who are parents of the deceased are entitled to 40% of compensation amount determined by this Court.

¶128

Accordingly, I proceed to pass the following

¶129

ORDER

¶130

i. MFA.No.2308/2017 filed by the appellantclaimant is allowed-in-part.

¶131

ii. MFA.Nos.5975/2016 and 5976/2016 filed by the Insurance Company are allowed-in-part.

¶132

iii. The impugned judgment and award dated 29.04.2016 passed in MVC.No.950/2014 and MVC.No.1406/2014 by the Senior Civil Judge and MACT, Nagamangala, is modified. Therefore, the appellant-claimant who is the

¶133

17 -

¶134

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶135

husband of the deceased and respondent Nos.3 and 4 who are the parents of the deceased are entitled to total compensation of Rs.14,42,200/- as against the compensation amount determined by the Tribunal along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶136

iv. The appellant-claimant who is the husband of the deceased is entitled to 60% of total compensation amount and respondent Nos.3 and 4 who are parents of the deceased are entitled to 40% of total compensation amount determined by this Court. However, the appellant-claimant is not entitled for interest for the delay period of 225 days in filing MFA.No.2308/2017.

¶137

v. No order as to costs.

¶138

MFA No. 2308 of 2017 C/W MFA No. 5975 of 2016 MFA No. 5976 of 2016

¶139

18 -

¶140

vi. The amount in deposit made by the Insurance Company shall be transmitted to the Tribunal forthwith.

¶141

vii. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.

¶142

viii. Draw award accordingly.

¶143

Sd/JUDGE

¶144

¶145

List No.: 2 Sl No.: 12

Gopala v. Nagaveni K

Case brief

What is this about?

What did the court decide?

Gopala v. Nagaveni K

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Susheelamma @ Susheela Vs K H Eshwarappa

Mr Shankarappa @ Basu @ Shankar Vs Sri M Mohammed

L. Pinto Vs Smt. Appi

The Divisional Manager Vs Seena

Kiran Kumar N Vs M/S Cipl Easy Transport Solution Pvt. Ltd.

Kashinath S/O Malakajappa Hebbal Vs the State and Anr.