Allowed

The United India Insurance v. Smt Thulasamma

Karnataka HC5 Oct 2023MFA/4710/2016

Case brief

AI extract

What is this about?

High Court disposed of four Miscellaneous First Appeals arising from motor vehicle accident claims involving deceased husband and injured wife. The court recalculated compensation, awarding reduced amounts to both the claimants and the insurer, adjusting figures for dependency and future earning capacity.

What did the court decide?

Compensation reduced to Rs.11,76,580 for deceased claimants and Rs.4,74,313 for injured claimant with 6% interest from date of petition.

The United India Insurance Vs Smt Thulasamma — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:38487-DB MFA No. 4710 of 2016 C/W MFA No. 4709 of 2016 MFA No. 4813 of 2016 MFA No. 4817 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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MISCELLANEOUS FIRST APPEAL NO.4710 OF 2016 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.4709 OF 2016 (MV-D) C/W

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MISCELLANEOUS FIRST APPEAL NO.4813 OF 2016 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.4817 OF 2016 (MV-I)

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IN MFA No.4710/2016:

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BETWEEN:

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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THE UNITED INDIA INSURANCE COMPANY LIMITED, NO.1260, II FLOOR VINOBA ROAD, SHIVARAMPET, MYSURU-570 001. NOW REPRESENTED BY ITS DEPUTY MANAGER K. N. SURESH REGIONAL OFFICE, UNITED INDIA INSURANCE COMPANY LIMITED, 5^TH FLOOR, KRUSHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE-560 001.

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…APPELLANT

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(BY SRI L SREEKANTA RAO, ADVOCATE)

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AND:

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SMT. THULASAMMA W/O LATE DASAIAH, AGED ABOUT 33 YEARS, R/AT RANGAIAHNA KOPPALU, MYSURU TALUK, MYSURU.

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ADIL SHARIFF S/O CHOTA SAB, AGED ABOUT 38 YEARS R/AT 724, 3^RD CROSS, INDIRA GANI ROAD, LASHKAR MOHALLA, MYSURU.

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SHABEER AHAMED S/O AHAMED SHARIFF, AGED ABOUT 61 YEARS R/AT 227,FIRST STAGE, RAJEEVNAGARA, MYSURU.

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…RESPONDENTS

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(BY SRI SYED ABDUL SABOOR, ADVOCATE FOR R1; vide order dated 27.04.2017, notice to R2 and R3 is dispensed with)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 11.02.2016 PASSED IN MVC NO.1098/13 ON THE FILE OF THE JUDGE, ADDITIONAL SMALL CAUSES & SENIOR CIVIL JUDGE, MYSURU, AWARDING COMPENSATION OF RS.7,56,613/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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NC: 2023:KHC:38487-DB MFA No. 4710 of 2016 C/W MFA No. 4709 of 2016 MFA No. 4813 of 2016 MFA No. 4817 of 2016

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IN MFA No.4709/2016:

BETWEEN:

…APPELLANT

(BY SRI L SREEKANTA RAO, ADVOCATE)

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AND:

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1 . SMT. THULASAMMA W/O LATE DASAIAH, AGED ABOUT 33 YEARS.

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2 . SUDHARSHAN S/O LATE DASAIAH, AGED ABOUT 19 YEARS.

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3 . SHRUJA S/O LATE DASAIAH, AGED ABOUT 18 YEARS, ALL ARE R/AT RANGAIAH KOPPALU, MYSURU TALUK, MYSURU.

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4 . ADIL SHARIFF S/O CHOTA SAB AGED ABOUT 38 YEARS, R/AT 724, 3^RD CROSS, INDIRA GANDHI ROAD, LASHKAR MOHALLA, MYSURU.

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5 . SHABEER AHAMED

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S/O AHAMED SHARIFF, AGED ABOUT 61 YEARS, R/AT 227, FIRST STAGE, RAJEEVANAGARA, MYSURU.

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…RESPONDENTS

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(BY SRI SYED ABDUL SABOOR, ADVOCATE FOR R1 TO R3)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 11.02.2016 PASSED IN MVC NO.1096/13 ON THE FILE OF THE JUDGE, ADDITIONAL COURT OF SMALL CAUSES, MYSURU, AWARDING COMPENSATION OF Rs.12,55,000/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA No.4813/2016:

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BETWEEN:

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1 . SMT. THULASAMMA W/O LATE DASAIAH, AGED ABOUT 33 YEARS.

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2 . SUDHARSHAN S/O LATE DASAIAH, AGED ABOUT 19 YEARS.

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3 . SHRUJAN

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S/O LATE DASAIAH, AGED ABOUT 18 YEARS, ALL ARE R/AT RANGAIAHNA KOPPALU, MYSURU TALUK, MYSURU.

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…APPELLANTS

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(BY SRI SYED ABDUL SABOOR, ADVOCATE)

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AND:

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ADIL SHARIFF S/O CHOTA SAB AGED ABOUT 38 YEARS, R/T 724, 3^RD CROSS, INDIRA GANDHI ROAD, LASHKAR MOHALLA, MYSURU-570 001.

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…RESPONDENT

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(BY SRI L.SREEKANTA RAO, ADVOCATE FOR R3; vide order dated 25.06.2019, notice to R1 and R2 is dispensed with)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 11.02.2016 PASSED IN MVC NO.1096/13 ON THE FILE OF THE JUDGE, ADDITIONAL SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING THE CLIAM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA No.4817/2016:

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BETWEEN:

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SMT. THULASAMMA W/O LATE DASAIAH, AGED ABOUT 33 YEARS, RANGAIAHNA KOPPALU, MYSURU TALUK, MYSURU.

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…APPELLANT

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(BY SRI SYED ABDUL SABOOR, ADVOCATE)

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AND:

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1 . ADIL SHARIFF S/O CHOTA SAB, AGED ABOUT 38 YEARS, R/AT 724, 3^RD CROSS, INDIRA GANDHI ROAD, LASHKAR MOHALLA, MYSURU.

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2 . SHABEER AHAMED S/O AHAMED SHARIFF, AGED ABOUT 61 YEARS, R/AT 227, FIRST STAGE RAJEEV NAGAR, MYSURU - 570 019.

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3 . UNITED INDIA ASSURANCE CO. LTD., NO.1260, II FLOOR, VINOBHA ROAD, SHIVARAMPET, MYSURU - 570 001.

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…RESPONDENTS

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(BY SRI L.SREEKANTA RAO, ADVOCATE FOR R3; vide order dated 21.01.2021, notice to R1 and R2 is dispensed with)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 11.02.2016 PASSED IN MVC NO.1098/13 ON THE FILE OF THE JUDGE, ADDITIONAL SMALL CAUSES, SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, UMESH M ADIGA J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Above said Appeals arises out of judgment and award passed by Small Causes Court and MACT, Mysuru dated 11.02.2016 in MVC No.1096/2013 and 1098/2013.

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Insurer/Insurance company has challenged judgment and award passed in MVC No.1098 of 2013 in MFA No.4710 of 2016 and similarly claimants in the said case have filed appeal in MFA No.4817 of 2016 claiming for enhancement of compensation. The insurer in MVC No.1096 of 2013 has filed MFA No.4709 of 2016

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challenging the amount of compensation awarded by the Tribunal and claimant in the said case has filed MFA No.4813 of 2016 praying for enhancement of compensation. The Tribunal has clubbed MVC No.1096 of 2013 and 1098 of 2013 tried together and passed common judgment. Accordingly, all the four appeals referred above are taken up together for disposal.

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All these four appeals are slated in the cause list under orders and with the consent of learned advocates appearing for both the side, the matter is taken up for final disposal.

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We refer the parties as to their rank before the Tribunal for convenience.

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It is a case of claimants in both the cases that, on 17.06.2011, claimant in MVC No.1096 of 2013, along with her husband deceased Dasaiah were going in motorcycle bearing registration number KA-45-J-5313 from Bellikare towards Rangaiahna Koppalu, on Hunsur to

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Mysuru road. Deceased Dasaiah was rider of motorcycle and claimant Smt. Tulasamma was pillion rider. At Kuppe Rangaiahna Koppalu, they met with an accident due to rash and negligent driving of lorry bearing registration number KA.14-3535 by its driver, as a result of which Dasaiah had sustained grievous injuries and succumbed to the injuries and claimant Smt.Tulasamma had sustained grievous injuries. Smt.Tulasamma was admitted in Seetha Ranga Hospital and thereafter taken treatments at BGS Apollo Hospital, Mysuru, NIMHANS Hospital at Bengaluru, K.R.Hospital, Bengaluru and Bowring and Lady Curzon Hospital, Bengaluru as inpatient.

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It is a further case of claimants in MVC

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No.1096 of 2013 that deceased Dasaiah was aged 36 years and he was a mason and earning Rs.15,000/- per month as coolie. Claimants in the said case are wife and minor children of deceased Dasaiah; they were depending upon earnings of the deceased. With these reasons, they prayed to award compensation of Rs.26,50,000/-.

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It is a case of claimant in MVC No.1098 of

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2013 that she had spent more than Rs.5 lakhs towards medical expenses and she is suffering from permanent disability. She was aged about 30 years at the time of accident and she was working as a mason and earning Rs.15,000/- per month as wages. Due to permanent disability, she is unable to do her work and lost her earnings. With these reasons, she prayed to award compensation of Rs.39,50,000/-.

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Respondent Nos. 1 and 2 in their common written statement denied contents of claim petitions. They contend that accident was taken place due to rash and negligent riding of motorcycle by deceased. The said Lorry was insured with Respondent No.3 and it is liable to pay compensation, if petition is allowed.

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Respondent No.3 has also denied all the content of the claim petition. It has further stated that its liability is restricted to terms and conditions of policy of insurance and holding of valid and effective driving license

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by driver of the lorry and with these reasons it prayed to dismiss the claim petition against it.

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In both cases, the tribunal had framed necessary issues for its consideration.

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Claimants examined PW.1 to 3 and got

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marked Ex.P1 to 36. Respondent No.3 had examined one witness as RW.1 and did not mark any documents.

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The Tribunal after hearing both the parties and appreciating pleading and evidence on record partly allowed both the petitions and awarded compensation of Rs.12,55,000/in MVC No.1096 of 2013 and Rs.7,56,613/- in MVC No.1098 of 2013, by the impugned judgment and award dated 11.02.2016.

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Amount of compensation awarded by the Tribunal in MVC.No.1096/2013:

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1. Loss of dependency	Rs.10,80,000/-
2. Loss of consortium	Rs.50,000/-
3. Loss of filial love	Rs.1,00,000/-

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Funeral expenses Rs.15,000/- Total Rs.12,55,000/-

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Amount of compensation awarded by the Tribunal in MVC.No.1098/2013:

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1.	Loss of future income	Rs.3,30,480/-
2.	Pain, shock and sufferings	Rs.2,00,000/-
3.	Loss of amenities of life, happiness and frustration	Rs.20,000/-
4.	Conveyance, attendant charges, food and nourishment	Rs.50,000/-
5.	Loss of income during laid of period	Rs.60,000/-
6.	Medical expenses	Rs.66,133/-
7.	Future medical expenses	Rs.10,000/-
8.	Loss of expectation of life	Rs.20,000/-
6.	Total	Rs.7,56,613/-

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The same are challenged by claimants as well as

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insurer in the present appeals.

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We have heard the arguments of learned

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advocate for claimants as well as insurer.

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The learned advocate for insurer has

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contended that the Tribunal has taken income of claimant as Rs.6,000/- without any basis and on the said premise the Tribunal has awarded compensation on other heads which is on higher side. Therefore, prayed for recalculating the amount of compensation awarded under different heads. The learned advocate for claimant has submitted

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that income taken by the Tribunal is on lower side. According to case of claimants, deceased as well as claimant in MVC No.1098 of 2013 were mason and earning Rs.15,000/- per month and without any basis the Tribunal

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had taken income of them as Rs.6,000/- per month, which is on much lower side. The Tribunal has not assessed compensation on other heads properly and meager amount of compensation is awarded under other heads. Therefore, prayed to enhance amount of compensation awarded by the tribunal.

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From the contentions of both the parties, the following questions arises for our determination:

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“Whether claimants are entitled for enhancement of compensation?”

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The Tribunal on appreciation of evidence on

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record held that accident had taken place due to rash and negligent driving of lorry by its driver. The Tribunal has properly appreciated the materials on record and held about negligence of driver of Lorry; for causing accident. This finding is not seriously challenged by owner, driver including insurer. Therefore, there is no need to reconsider the same.

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Assessment of compensation in MFA

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No.4709 of 2016 and 4813 of 2016:

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Both these appeals arises out of judgment and award passed in MVC No.1096 of 2013 filed by the legal heirs of deceased Dasaiah who died in the said accident. It is not in serious dispute that deceased was aged 36 years at the time of accident. The claimants had contended that deceased was working as a mason and

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earning Rs.15,000/- per month. Except self-serving statement of PW.1, there are no other evidence on record to accept the said evidence. Therefore, the Tribunal had rightly rejected the said contention of claimant and assessed notional income of the deceased.

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Normally, while settlement of motor vehicle claim petitions before the Lok-Adalath for the accident of year 2011, income of a victim of an accident is taken as Rs.6,500/- per month and same could be applied in the present case. Accordingly, income of deceased is taken as Rs.6,500/- per month. Deceased died at the age of 36 years. As held in the case of National Insurance Company Limited Vs. Pranay Sethi¹ , 40% of income has to be added towards future prospects, which amount to Rs.2,600/-. Deceased left behind him his widow and two minor children, and hence 1/3^rd of his income has to be deducted towards personal expenses, which amount to

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1 2017 ACJ 680

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Rs.3,033/-. And hence net income on which claimants might be depending was Rs.6,067/- p.m.

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Undisputedly, the multiplier applicable between age group of 35 to 40 years is Rs.15. By multiplication of the above, i.e., Rs.6,067X12X15= Rs.10,92,060/-, shall be the amount of compensation under the head loss of dependency.

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As held in the case of National Insurance

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Company Limited Vs. Pranay Sethi (referred Supra), as well as unreported Judgment of Hon’ble Apex Court in the case of SHRI RAM GENERAL INSURANCE COMPANY LIMITED Vs. BHAGAT SINGH RAWAT & OTHERS² , the amount of compensation needs to be awarded under the heads loss of consortium, loss of estate and funeral expenses. Accordingly, following amount of compensation is awarded.

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2 Civil Appeal Nos.2410-2412/2023 dated 27.03.2023

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1. Loss of dependency	Rs.10,92,060/-
2. Loss of consortium	Rs.48,400/-
3. Loss of estate	Rs.18,150/-
4. Funeral expenses	Rs.18,150/-
Total	Rs.11,76,580/-

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As against Rs.12,55,000/- awarded by the Tribunal i.e., Rs.78,240/- has to be deducted from the amount of compensation awarded by the Tribunal.

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Compensation in MFA No.4710 of 2016 and 4817 of 2016, which arises out of MVC No.1098 of 2013:

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This case is pertaining to injury to Smt. Tulasamma, who is claimant No. 1 in MFA, MVC No.1096 of 2013. The Tribunal assessed age of claimant as 30 years, her income as Rs.6,000/- per month, applied multiplier as 17 and assessed disability as 18% to the whole body and awarded following amount of compensation under different heads:-

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1.	Loss of future income	Rs.3,30,480/-
2.	Pain and suffering	Rs.2,00,000/-
3.	Loss of amenities	Rs.20,000/-
4.	Loss of income during laid up period	Rs.60,000/-
5.	Food, nourishment, conveyance charges, attendant charges, transport charges, etc.,	Rs.50,000/-
6.	Medical expenses	Rs.66,133/-
7.	Future medical expenses	Rs.10,000/-
8.	Loss of expectation of life	Rs.20,000/-
	Total	Rs.7,56,613/-

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Claimant in the present appeal is contending that

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the said amount of compensation awarded is on lower side, on the contrary, the insurer in the said case filed appeal contending that the amount of compensation awarded is exorbitant. Let us consider the same.

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The claimant had sustained head injury as well as fracture of both the bones of right forearm. She underwent surgery to said fracture of both the bones of

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right forearm. It appears due to head injuries, there were complications, which are noted by the tribunal in the impugned judgment. Claimant had examined PW.2 and 3 who were treated doctors to her and they have stated about disability of claimant both physical as well as mental. The Tribunal in the impugned judgment at Paragraph Nos.31 to 33, had discussed these facts and rightly held that claimant has been suffering from permanent disability to an extent of 18% of the whole body. It does not call for Interference.

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It is not in serious dispute that claimant was aged about 30 years at the time of accident and multiplier applicable between age group of 26 to 30 is ‘17’. There is no serious dispute in this regard.

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There is serious dispute in respect of income of claimant. According to contentions of claimant, she was a mason and earning Rs.15,000/- per month and except her self-serving statement, there is no materials on record to prove her contention. As already held in the

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above two appeals, it can be accepted that her income as Rs.6,500/- per month.

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The main grievance of the insurer is that the Tribunal has added 50% of her income towards future prospects. The learned counsel for insurer has vehemently contended that the benefit of future prospect has to be added, when a victim of an accident is 100% disabled or he died in an accident. And in case of injuries which resulted in 10 or 20% of disability, future prospects cannot be added to notional income of the claimant. The said submission of learned advocate for insurer is acceptable and the finding of the Tribunal to add 50% of her income towards future prospects cannot be sustained. On that basis, loss of future earning capacity due to permanent disability of claimant has to be calculated.

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As rightly submitted by learned advocate for insurer, the tribunal had awarded exorbitant compensation under other heads without there being sufficient evidence

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on record. Therefore, the said amount of compensation

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also needs to be recalculated.

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For aforesaid discussions, following amount

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of compensation is awarded under different heads:-

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1. Loss of future earning capacity due to permanent disability	Rs.2,38,680/-
2. Pain and suffering	Rs.60,000/-
3. Loss of amenities	Rs.40,000/-
4. Loss of income during laid up period	Rs.19,500/-
5. Food, nourishment, conveyance charges, attendant and transport charges	Rs.40,000/-
6. Medical expenses	Rs.66,133/-
7. Future medical expenses	Rs.10,000/-
Total	Rs.4,74,313/-

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The Tribunal had awarded compensation of

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Rs.7,56,613/- which has to be recalculated and claimant is entitled for compensation of Rs.4,74,313/- and an amount

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of Rs.2,82,300/- has to be deducted from the above said compensation amount awarded to the claimant.

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It is not in dispute that insurer is liable to pay the amount of compensation.

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For the aforesaid discussions, we pass

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following:

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ORDER

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i. Appeals in M.F.A.Nos.4709 of

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2016, 4813 of 2016 and 4710 of 2016 and 4817 of 2016 are disposed off.

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ii. The judgment and award passed

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in M.V.C.No.1096 of 2013 and M.V.C.No.1098

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of 2013 by the Tribunal dated 11.02.2016 is modified as under:

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a. In MVC No.1096 of 2013, claimants are entitled for compensation of Rs.11,76,580/as against Rs.12,55,000/- awarded by the Tribunal and Rs.78,420/- is reduced from the

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compensation awarded by the Tribunal and claimants are entitled for interest on the said amount of compensation at the rate of 6% per annum from the date of petition till its payment.

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b. In MVC No.1098 of 2013, claimant is entitled for compensation of Rs.4,74,313/- as against Rs.7,56,613/awarded by the Tribunal and an amount of Rs.2,82,300/- shall be reduced from the compensation awarded by the Tribunal. The claimant is entitled for interest at the rate of 6% per annum on the above said amount of compensation from the date of petition till its payment.

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c. Apportionment, deposit and release of the compensation amount are as ordered by the Tribunal in the impugned judgment.

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d. The amount of compensation deposited by insurer in MFA No.4709 of 2016 and 4710 of 2016 are ordered to be transmitted to the Tribunal for

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