Partly allowed

Vanajakshi v. Gagan Enterprises

Karnataka HC3 Jul 2023MFA/4894/2017

Case brief

AI extract

What is this about?

In a miscellaneous First Appeal, the High Court enhanced compensation awarded for a motor vehicle accident. The Court applied the deceased's actual income derived from income tax returns and adjusted for future prospects, modifying the Tribunal's lower award and directing the insurance company to deposit the enhanced amount with interest.

What did the court decide?

The appeal was allowed in part; compensation enhanced by Rs. 5,31,168 along with interest at 6% p.a. to be deposited by the insurance company.

Vanajakshi Vs Gagan Enterprises — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:23070 MFA No. 4894 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 4894 OF 2017 (MV-D)

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BETWEEN:

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VANAJAKSHI, W/O LATE S M SUBRAMANYA, AGED ABOUT 48 YEARS.

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S.PUNITA,

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S/O LATE S M SUBRAMANYA AGED ABOUT 31 YEARS.

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S.DESHRAJ,

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S/O LATE S M SUBRAMANYA, AGED ABOUT 29 YEARS,

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

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ALL ARE R/O: SABBANAKUPPE VILLAGE, K.SHETTAHALLI HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT-571 438.

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…APPELLANTS

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(BY SRI V N MADHAVA REDDY, ADVOCATE)

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AND:

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GAGAN ENTERPRISES,

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K.R.S. AGRAHARA, B.M.ROAD, KUNIGAL TOWN, TUMUKURU DISTRICT.

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THE MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD.,

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NC: 2023:KHC:23070 MFA No. 4894 of 2017

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R/AT #36/D, 1ST FLOOR, MYSORE TRADE CENTER, OPP TO KSRTC BUS STAND, MYSURU-571 001.

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…RESPONDENTS

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(BY SRI B.C. SHIVANNE GOWDA, ADVOCAT FOR SRI B PRADEEP, ADVOCATE FOR R2;

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NOTICE TO R1 IS D/W V/O DATED 29.11.2018)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.04.2016 PASSED IN MVC NO.135/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the petitioners is directed against the judgment and award in MVC No.135/2014 passed by learned Additional Senior Civil Judge and MACT, Srirangapatna, dated 12-4-2016, whereby, compensation of Rs.14,72,444/- has been awarded.

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The petitioners who are the legal heirs of the deceased S.M.Subramanya, approached the Tribunal seeking compensation contending that on 9-12-2013 at 5.30 p.m. while the deceased Subramanya was proceeding on a motor cycle

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3 - NC: 2023:KHC:23070 MFA No. 4894 of 2017

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with his son i.e. petitioner No.3 as pillion rider on MysoreBangalore road at North Cauvery Bridge, the driver of Tipper Lorry bearing No.KA.06.D.0457 drove the same in a rash and negligent manner and dashed the two wheeler from behind, resulting in fatal injuries to the deceased Subramanya. He was shifted to Srirangapatna General Hospital, thereafter, to Columbia Asia Hospital, where he succumbed to the injuries on 21-12-2013. They contended that the deceased Subramanya was an agriculturist and also running Hotel and earning Rs.50,000/- per month and the petitioners were dependent upon the deceased. They had to spend huge amount towards medical expenses and as such, claimed compensation from the owner and insurer of the Tipper Lorry.

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On being issued with the notice, respondent Nos. 1 and 2 appeared before the Tribunal and filed objection statements. Respondent Nos. 3 and 4 not appeared before the Tribunal and they were placed exparte.

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The respondent No.1 contended that he is not aware of the age, income and occupation of the deceased and that the deceased had sustained injuries in the accident. He also

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4 - NC: 2023:KHC:23070 MFA No. 4894 of 2017

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contended that he is ignorant about the relationship of the deceased with the petitioners and termed the claim of the petitioners as highly exorbitant, excessive, baseless and unreasonable. However, he contended that the vehicle was insured with the respondent No.2 and the driver of the vehicle was having the valid driving licence and as such, the liability be fastened upon the respondent No.2.

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Respondent No.2 raised similar contentions terming

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the claim as highly exorbitant, imaginary, excessive etc., and denying the relationship of the petitioners with the deceased. It also denied the claim by contending that the terms and conditions of the policy were violated by respondent No.1 and he may be permitted to take up the defences available under Section 170 of MV Act.

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The Tribunal on the basis of the above pleadings, framed appropriate issues and the petitioner No.2 was examined as PW1 and one witness was examined as PW2 and Exs.P1 to P70 were marked. Respondents have not led any evidence.

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5 - NC: 2023:KHC:23070 MFA No. 4894 of 2017

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After hearing the arguments, the Tribunal awarded

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compensation of Rs.14,72,444/- under the following heads:

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1.Loss of dependency for petitioners who are the wife, children and motherofdeceased	Rs. 6,16,044/-
2. On traditional heads:
A Loss of consortium	Rs. 1,00,000/-
B Loss of estate	Rs. 1,00,000/-
C. Loss of love and affection	Rs. 50,000/-
D Towards funeral expenses	Rs. 25,000/-
3. Medical expenses	Rs. 5,81,400/-
Total	Rs.14,72,444/-

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In coming to such conclusion, the Tribunal held that the evidence of the petitioners regarding the income of the deceased was not acceptable and therefore, it adopted the notional income of Rs.7,000/- per month and applying the multiplier of '11' for the age of 54 years, calculated the compensation.

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Being aggrieved by the judgment and award, the petitioners have approached this Court in appeal.

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On issuance of notice, the respondent No.2 has appeared through its counsel and notice to the respondent No.1 was dispensed with.

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6 - NC: 2023:KHC:23070 MFA No. 4894 of 2017

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The learned counsel appearing for the appellants contend that the Tribunal has not considered the income depicted in the income tax returns filed by the deceased for the previous years and it directly jumped to the conclusion to apply the notional income. It is submitted that even the record of rights at Ex.P68 of the agricultural lands were also not considered by the Tribunal.

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Per contra , learned counsel for the respondent No.2 has defended the impugned judgment and submitted that the compensation arrived by Tribunal is just and proper.

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The fact that the Tipper Lorry insured by the respondent No.2 had met with the accident and the driver of the lorry faced criminal prosecution for negligent driving is not in dispute. The fact that there were no discernable breach of the conditions of the policy is also not in dispute. Therefore, the question is only in respect of the assessment of the income of the deceased.

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The perusal of Ex.P58 discloses that, the income tax returns for the year 2011-12 and 2012-13 show income of Rs.1,55,320/- and Rs.1,76,320/- respectively. Therefore, the

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7 - NC: 2023:KHC:23070 MFA No. 4894 of 2017

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average of the income would be Rs.1,65,820/- per annum. This would show that the monthly income of the deceased was Rs.13,818/-.

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The Tribunal has considered the RTC and came to the conclusion that there was no mention of the crops and as such, held that the income from the lands is not proved. Any how, the land has devolved upon the petitioners and therefore, there is no necessity of considering the income from the lands.

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The monthly income of the deceased has to be added with the future prospects at 10% owing to the fact that he was aged 54 years at the time of the accidental death. Thus, the effective income would be Rs.13,818/- + 1,381/-= 15,199/-. By deducting 1/3rd towards the personal expenses and by adopting the Multiplier of '11' for the age of 54 years, the loss of dependency is calculated as: Rs.15,199/- x 12 x 11 x 2/3 = Rs.13,37,512/-.

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The Tribunal has awarded a sum of Rs.5,81,400/towards the medical expenses based on the actual which do not require any reassessment.

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8 - NC: 2023:KHC:23070 MFA No. 4894 of 2017

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The petitioner No.1 is the wife of the deceased and therefore, the petitioners are entitled for a sum of Rs.48,400/under the head of loss of consortium, a sum of Rs.18,150/each towards loss of estate and funeral expenses. Thus, the petitioners are entitled for a total compensation of

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Rs.20,03,612/- as below:

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Loss of dependency		Rs.13,37,512/-
Loss of consortium/love affection	and	Rs. 48,400/-
Loss of estate		Rs. 18,150/-
Funeral expenses		Rs. 18,150/-
Medical expenses		Rs. 5,81,400/-
Total		Rs. 20,03,612/-
Less: awarded by Tribunal		Rs. 14,72,444/-
Enhancement		Rs. 5,31,168/-

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Thus, the petitioners are entitled for a enhanced compensation of Rs.5,31,168/- together with interest at 6% p.a. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed by the

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Tribunal is modified by awarding enhanced compensation of Rs.5,31,168/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization.

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NC: 2023:KHC:23070 MFA No. 4894 of 2017

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(iii) The respondent No.2-Insurance company is directed to deposit the compensation amount within four weeks from today.

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(iv) Out of the total compensation amount of Rs.20,03,612/-, the petitioner No.2 and 3 are entitled for a sum of Rs.1,00,000/- each along with accrued interest and the petitioner No.1 is entitled for rest of the amount along with the accrued interest.

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(v) Rest of the order of the Tribunal remains unaltered.

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Sd/JUDGE

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tsn*

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List No.: 1 Sl No.: 105

Vanajakshi v. Gagan Enterprises

Case brief

What is this about?

What did the court decide?

Vanajakshi v. Gagan Enterprises

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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