Partly allowed

Smt Chikkamma v. Mr Nikhil N M

Karnataka HC18 Jul 2023MFA/367/2022

Case brief

AI extract

What is this about?

The Karnataka High Court modified a Motor Accident Claims Tribunal award, enhancing compensation from Rs.12.90 lakhs to Rs.18.41 lakhs against an insurer. The Court increased notional income and awarded consortium damages, allowing an appeal for Rs.5.51 lakhs with interest.

What did the court decide?

Appeal partly allowed; total compensation enhanced to Rs.18,41,000 with 6% interest from the date of filing.

Smt Chikkamma Vs Mr Nikhil N M — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:24965-DB MFA No. 367/2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.367/2022 (MV-D)

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BETWEEN:

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SMT CHIKKAMMA W/O LATE RANGEGOWDA AGED ABOUT 59 YEARS

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MR SOMASHEKARA S/O LATE RANGEGOWDA AGED ABOUT 37 YEARS

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MR PARAMESHA S/O LATE RANGEGOWDA AGED ABOUT 36 YEARS

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ALL ARE R/AT ATTAVARA VILLAGE DUDDA HOBLI, HASSAN TALUK …APPELLANTS

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Digitally

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signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SRI RAJARAM SOORYAMBAIL, ADVOCATE)

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AND:

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MR NIKHIL N M MAJOR S/O MANJAIAH R/AT NAGARAHALLI VILLAGE GANDASI HOBLI ARSIKERE TALUK HASSAN DISTRICT

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MR DHARMA MAJOR S/O VENKATARAMEGOWDA R/AT BANAVASE VILLAGE CHOWLAGALA POST

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NC: 2023:KHC:24965-DB MFA No. 367/2022

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BAGURU HOBLI CHANNARAYAPATNA TALUK

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THE MANAGER CHOLA MANDALAM M S GENERAL INSURANCE CO. LTD., CAUVERI COMPLEX S A E NO.1632 BESIDE KADAMBA COMFORTS B M ROAD, HASSAN CITY HASSAN …RESPONDENTS

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(BY SRI MURALIDHAR N, ADVOCATE FOR R3; NOTICE TO R1 DISPENSED WITH V/O DTD:08.11.2022; R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 07.08.2021 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN MVC NO.1352/2019 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, K.S.MUDAGAL.J, DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the matter is listed for admission, with the

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consent of both side, the matter is taken up for final disposal.

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Heard.

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Challenging the quantum of compensation

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awarded, the claimants in MVC No.1352/2019 on the file of II Additional District and Sessions Judge & MACT, Hassan have preferred this appeal.

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NC: 2023:KHC:24965-DB MFA No. 367/2022

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The appellants were claimant Nos.1 to 3 and

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respondent Nos.1 to 3 were respondent Nos. 1 to 3 in MVC No.1352/2019 before the Tribunal. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the mother and claimant Nos.2 and 3 are the major brothers of deceased Shivanna. On 30.07.2019 at 9.00 p.m. when he was riding Motor cycle bearing registration No.KA-13/EA-5148 along with

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Madhu/pillion rider on Hassan Tiptur road, near Gandasi Hand Post, Tata Ace vehicle bearing No.KA-13/B-1919 hit the said motor cycle and caused the accident. In the accident Shivanna suffered grievous injuries. Immediately he was shifted to Hassan Institution of Medical Sciences, Hassan. From there he was shifted to NIMHANS, Bengaluru where he succumbed to the injuries.

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On the basis of the complaint/Ex.P2, FIR Ex.P1

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was registered against the driver of Tata Ace vehicle. On investigation, the charge sheet as per Ex.P13 was filed against the driver of Tata Ace vehicle for the offences punishable under Section 304A of IPC. At the relevant time

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NC: 2023:KHC:24965-DB MFA No. 367/2022

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respondent No.1 was the registered owner, respondent No.2

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was the Insured and respondent No.3 was the Insurer of Tata Ace vehicle bearing No.KA 13/B 1919.

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The claimants filed MVC No.1352/2019 against the

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respondents alleging that the accident and the consequent death of Shivanna was due to the actionable negligence on the part of the driver of Tata Ace vehicle No.KA-13/B-1919. They further contended that they were depending on the income of the deceased and due to his death they have suffered damages and respondents are liable to compensate the same.

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Respondent Nos.1 and 2 did not contest the petition. Respondent No.3 alone contested the petition denying occurrence of the accident due to actionable negligence on the part of the driver of Tata Ace bearing No. No.KA-13/B-1919, age, occupation, income of the deceased and its liability to pay the compensation. Respondent No.3 further contended that the petition is bad for non-joinder of the owner and insurer of motor cycle bearing No.KA-13/EA5148. Respondent No.3 further denied the dependency of the claimants on the deceased.

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5 - NC: 2023:KHC:24965-DB MFA No. 367/2022

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Before the Tribunal the claimants alone adduced

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evidence by examining PWs.1 to 3. Exs.P1 to P14 were marked on their behalf. Respondents did not adduce any evidence. On hearing the parties, by the impugned award the Tribunal held that the accident occurred due to actionable negligence on the part of the driver of the Tata Ace vehicle No.KA-13/B-1919.

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The Tribunal relying on the driving licence produced before it, considered the age of the deceased as 34 years, assessed his income notionally at Rs.10,000/- per month, deducted 50% from the same for the personal expenses of the deceased, added 40% to his income by way of future prospects, applied 15 multiplier and awarded compensation of Rs.12,60,000/- on the head of loss of dependency.

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The Tribunal in all awarded compensation of

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Rs.12,90,000/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	12,60,000/-
2.	Loss of estate	15,000/-
3.	Funeral expenses	15,000/-
	Total	12,90,000/

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NC: 2023:KHC:24965-DB MFA No. 367/2022

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Sri Rajaram Sooryambail, learned Counsel for the

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claimants submits that the notional income assessed by the Tribunal is on the lower side. He further submits that the compensation awarded on other heads is also on the lower side and the Tribunal committed error in not awarding any compensation on the head of consortium.

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Per contra, Sri Muralidhar.N, learned Counsel for the insurer justifies the impugned award on the ground that claimant Nos.2 and 3 being major brothers of the deceased cannot be called as dependants and that they are not entitled to any compensation on the head of consortium. He further submits that since there was no proof of actual income of the deceased, the Tribunal assessed the same at Rs.10,000/- per month. Thus he seeks dismissal of the appeal.

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Considering the submissions of both side, the point that arises for determination of the Court is “whether the compensation awarded to the claimants is just one?”

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ANALYSIS

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Challenging the finding of the Tribunal regarding

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occurrence of the accident due to actionable negligence on the

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7 - NC: 2023:KHC:24965-DB MFA No. 367/2022

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part of the driver of Tata Ace No.KA-13/B-1919, the respondents have not filed any appeal. Similarly, the finding of the Tribunal with regard to the age of the deceased and his relationship with the claimants are also not in dispute. Therefore the only question is whether the notional income assessed and the compensation awarded by the Tribunal is just and fair one?

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Though the claimants contended that the deceased was earning Rs.30,000/- per month, there was no proof of his actual income. The deceased was aged 34 years. There was no dispute that the deceased had some interest in the land shown in RTCs marked at Exs.P10 to P12. Having regard to his age, prevailing wage rates during the relevant time, Exs.P10 to P12 RTCs and cost of living during the relevant time, notional income at Rs.10,000/- per month assessed by the Tribunal is on the lower side. The Tribunal should have considered the same at Rs.14,000/- per month.

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As the deceased was self employed and having regard to his age, employment and in the light of the

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judgment of the Hon’ble Supreme Court in National

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8 - NC: 2023:KHC:24965-DB MFA No. 367/2022

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Insurance Company Limited vs. Pranay Sethi¹ the Tribunal rightly added 40% of the income of the deceased by way of future prospects. On such addition, his monthly income comes to Rs.14,000 + 5,600= Rs.19,600/-.

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Since the deceased was Bachelor, as per the

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judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation² 50% from his income has to be deducted for his personal expenses. Therefore his monthly contribution to the family comes to Rs.19,600/- x 50/100= Rs.9,800/- per month. For the age of the deceased, the applicable multiplier was 15. Therefore the compensation payable on the head of loss of dependency comes to Rs.9,800 x 12 x 15 = Rs.17,64,000/-.

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In view of the judgments of the Hon'ble Supreme Court in Pranay Sethi’s case and Magma General Insurance Company Ltd. v. Nanu Ram³ , claimant No.1 being mother of the deceased is entitled to filial consortium at Rs.40,000/with escalation at 10% which comes to Rs.44,000/-. Claimant Nos.2 and 3 being major brothers aged 37 and 36 years are

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1 AIR 2017 SC 5157

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2 AIR 2009 SC 3104

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3 2018 (18) SCC 130

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not entitled to any compensation on the head of loss of

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consortium.

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As per the aforesaid judgments, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of

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estate and Rs.15,000/for funeral expenses and transportation with escalation at 10% which comes to Rs.33,000/.- Therefore, the just compensation payable to the

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claimants in this case is as follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	17,64,000/-
2.	Loss of consortium	44,000/-
3.	Loss of estate & funeral expenses	33,000/-
	Total	18,41,000/
	Less awarded by the Tribunal	12,90,000/-
	Enhanced Compensation	5,51,000/-

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The enhanced compensation viz., (18,41,000 – 12,90,000) Rs.5,51,000/- shall carry interest at 6% per annum. For the aforesaid reasons, the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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The appeal is partly allowed. The impugned award is modified as follows:

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NC: 2023:KHC:24965-DB MFA No. 367/2022

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(i) The claimants are entitled to compensation of

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Rs.18,41,000/- with interest at 6% p.a. on enhanced compensation from the date of petition till the date of deposit.

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(ii) Respondent No.3/Insurer shall deposit the enhanced compensation before the Tribunal within four weeks from the date of receipt of copy of this order.

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(iii) On such deposit, the Tribunal shall release the enhanced compensation with accrued interest to claimant No.1 digitally on furnishing the required documents.

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Sd/JUDGE

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Sd/JUDGE

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AKC,KSR List No.: 1 Sl No.: 34

Smt Chikkamma v. Mr Nikhil N M

Case brief

What is this about?

What did the court decide?

Smt Chikkamma v. Mr Nikhil N M

Case brief

What is this about?

What did the court decide?

What the court decided

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