Dismissed

The Regional Manager Cholamandalam Ms Gic Ltd. v. Tulasi

Karnataka HC6 Dec 2023MFA/6637/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka held that the Motor Accident Claims Tribunal was justified in finding actionable negligence based on the police charge sheet and in awarding compensation of Rs. 27,84,160/- calculated based on notional income and statutory guidelines.

What did the court decide?

Miscellaneous First Appeal and Cross Objection dismissed; Tribunal award of Rs. 27,84,160/- with interest affirmed.

The Regional Manager Cholamandalam Ms Gic Ltd. Vs… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE K. V. ARAVIND MISCELLANEOUS FIRST APPEAL No. 6637/2023 (MV-D)

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C/W

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MFA CROSS OBJECTION No.106/2023

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IN MFA No.6637/2023

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BETWEEN:

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THE REGIONAL MANAGER CHOLAMANDALAM MS GIC LTD GOLDEN HEIGHTS COMPLEX 59^TH C CROSS, 4^TH M BLOCK RAJAJINAGAR BANGALORE-560010

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…APPELLANT

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(BY SRI PRADEEP B., ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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TULASI

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W/O LATE SANNASWAMY AGED ABOUT 31 YEARS

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BHAVANI D/O LATE SANNASWAMY AGED ABOUT 14 YEARS

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YASHWANTH KUMAR S/O LATE SANNASWAMY AGED ABOUT 12 YEARS

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LAKSHMI D/O LATE SANNASWAMY AGED ABOUT 6 YEARS

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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SINCE 2^ND TO 4^TH RESPONDENTS ARE MINOR WILL BE REPRESENTED BY THEIR MOTHER AND N/G i.e., TULASI - 1^st RESPONDENT.

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LAKSHMAMMA W/O LATE SANNAIAH AGED ABOUT 63 YEARS ALL ARE R/AT ANEKANNABADI VILLAGE HALLIMYSURU HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT.

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T. A. MANJUNATHA S/O ANNAIAH AGED ABOUT 41 YEARS R/AT MAHADESHWARA COLONY HALLIMYSURU HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT.

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SANDIPA B. R S/O RANGASWAMY AGED ABOUT 26 YEARS R/AT BETTADASATHENAHALLI BAGIVALU VILLAGE HALEKOTE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT …RESPONDENTS

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(BY SRI. SRINIVASA D. C., ADVOCATE FOR R1 TO R5; R2 TO R4 ARE MINORS REPRESENTED BY R1;

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NOTICE TO R6 AND R7 ARE DISPENSED WITH VIDE ORDER DATED 4.10.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.12.2022 PASSED IN MVC NO. 1703/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOLENARASIPRA, AWARDING COMPENSATION OF RS. 27,84,160/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA CROB No.106/2023

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BETWEEN:

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1 . SMT. TULASI W/O LATE SANNASWAMY AGED ABOUT 32 YEARS

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3 - NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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2 . KUMARI BHAVANI D/O LATE SANNASWAMY AGED ABOUT 15 YEARS

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3 . MASTER YASHWANTH KUMAR S/O LATE SANNASWAMY AGED ABOUT 13 YEARS

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4 . KUMARI LAKSHMI D/O LATE SANNASWAMY AGED ABOUT 7 YEARS

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THE CROSS OBJECTORS No.2 TO 4 ARE MINORS, REPRESENTED BY THIER NATURAL GUARDIAN AND MOTHER SMT. TULASI VIZ., (APPELALNT No. 1 HEREIN)

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5 . SMT. LASKSHMAMMA W/O LATE SANNAIAH AGED ABOUT 64 YEARS

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ALL ARE R/AT ANEKANNABADI VILLAGE HALLIMYSURU HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT 573210 ...CROSS OBJECTORS

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(BY SRI SRINIVASA D. C., ADVOCATE)

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AND:

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1 . SRI T.A. MANJUNATHA S/O ANNAIAH AGED ABOUT 42 YEARS R/AT MAHADESHWARA COLONY HALLIMYSORE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT 573210.

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2 . SRI SANDIPA B. R S/O RANGASWAMY AGED ABOUT 27 YEARS R/AT BETTADASATHENAHALLI BAGIVALU VILLAGE HALEKOTE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT 573211

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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3 . M/S CHOLAMANDALAM M. S BENERAL INSURANCE CO. LTD. BY ITS REGIONAL MANAGER GOLDEN HEIGHT COMPELX 59-C CROSS, 4^TH M BLOCK RAJAJINAGARA BENGALURU 560010 …RESPONDENTS

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(BY SRI B. PRADEEP, ADVOCATE FOR R3;

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NOTICE TO R1 AND R2 IS DISPENSED WITH VIDE ORDER DATED 06.12.2023)

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THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.12.2022 PASSED IN MVC NO. 1703/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MOTOR ACCIDENTS CLAIMS TRIBUNAL AT HOLENARASIPURA, AWARDING COMPENSATION OF Rs.27,84,160/WITH INTEREST AT 6% P.A. AND ENHANCE THE COMPENSATION PAYABLE TO CROSS OBJECTORS AS PER LAW AS ORIGINALLY CLAIMED BY THEM IN CLAIM PETITION.

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THIS MISCELLANEOUS FIRST APPEAL AND MFA CROB COMING ON FOR ORDERS THIS DAY, K. S. MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The matter is taken-up for final disposal with the consent of both parties.

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Challenging the award in MVC No.1703/2021 passed by the Senior Civil Judge and JMFC, MACT at Holenarasipura, the insurer has preferred MFA No.6637/2023 and the claimants have preferred the aforesaid cross-objection.

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Appellant in MFA No.6637/2023 was the third respondent, respondent Nos.1 to 5 were the petitioners and

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respondent Nos.6 and 7 were respondent Nos.1 and 2 in MVC No.1703/2021 before the Tribunal.

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For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the widow, claimant Nos.2 to 4 are the minor children and claimant No.5 is the aged mother of the deceased Sannaswamy. On 21.03.2021 at 4.00 p.m. when Sannaswamy was proceeding on motorcycle bearing registration No.KA-45-X-4402 near Muslim cemetery within the limits of Malliganahalli village, Holenarasipura Taluk, TATA ACE Goods vehicle bearing registration No.KA-13-C-9528 hit the motorcycle of Sannaswamy and caused the accident. He suffered grievous injuries and succumbed to such injuries on the spot.

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Regarding the accident, complaint as per Ex.P2 was filed against the driver of the TATA ACE No.KA-13-C-9528. On that basis, the FIR/Ex.P1 was registered. On investigation, the concerned police filed charge sheet as per Ex.P9 against the driver of the TATA ACE No.KA-13-C-9528 alleging that the accident and the consequential death of Sannaswamy occurred

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due to the actionable negligence on the part of the driver of the said vehicle. At the relevant time, respondent Nos.1, 2 and 3 were the owner, insured and the insurer respectively of the TATA ACE No.KA-13/C-9528.

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Claimants filed MVC No.1703/2021 contending that the accident and consequential death of Sannaswamy occurred due to actionable negligence on the part of the driver of TATA ACE No.KA-13-C-9528. They further contended that Sannaswamy was earning Rs.20,000/- per month from coolie work and dairy work and Rs.25,000/- from the agriculture. They contended that they were all dependent on the income of Sannaswamy and due to his death, they have suffered damages. They claimed compensation of Rs.60,00,000/- from the respondents.

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Respondent Nos.1 and 2 did not contest the petition. Respondent No.3 alone contested the petition denying the occurrence of the accident due to the actionable negligence of the driver of TATA ACE No.KA-13-C-9528. Respondent No.3 contended that the accident occurred due to the negligence of the deceased Sannaswamy himself. Respondent No.3 denied the age, occupation, income of the deceased and its liability to

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pay the compensation. On behalf of the claimants, claimant No.1 was examined as PW.1 and Exs.P1 to P16 were marked. Respondents did not lead any evidence.

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The Tribunal on hearing the parties by the impugned award relying on the evidence of PW.1 and Exs.P1 to P9 the police records held that, the accident occurred due to the actionable negligence of the driver of TATA ACE goods vehicle No.KA-13-C-9528. The Tribunal relying on the postmortem report Ex.P6 assessed the age of the deceased as 40 years and notionally assessed his income at Rs.15,000/- per month. The Tribunal deducted 1/4^th from the same for living expenses of the deceased, added 25% of the same by way of future prospects, applied 15 multiplier and awarded compensation of Rs.25,31,160/- on the head of loss of dependency.

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The tribunal in all awarded compensation of Rs.27,84,160/- with interest at 6% per annum by the insurer

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on different heads as per the table below:

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Sl.	Particulars	Compensation
No.		awarded in
		Rs.
1.	Loss of dependency	25,31,160/-
2.	Funeral Expenses	16,500/-

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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3.	Loss of estate			16,500/-
4.	Loss of spousal thepetitioner No.	consortium 1	to	44,000/-
5.	Loss of parental the petitioner (44,000/- each)	consortium Nos.2 to	to 4	1,32,000/-
6.	Loss of Filial con petitioner No.5	sortium to	the	44,000/-
	Tot	al		27,84,160/-

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The insurer challenges the award on the ground of

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quantum as well as negligence. The cross objection is filed questioning the adequacy of compensation awarded.

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Sri B.Pradeep, learned Counsel for the insurer

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submits that PW.1 was not the eyewitness, no eyewitness was examined and the accident occurred due to contributory negligence of the deceased also. He submits that notional income assessed is on the higher side and the compensation awarded on all other heads is also on the higher side.

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Per contra Sri Srinivasa.D.C, learned Counsel for the claimants submits that respondent Nos.1 to 3 did not contest the matter denying the negligence on the part of the driver of the insured vehicle nor insurer examined the said driver. Therefore, the Tribunal relying on the charge sheet rightly held that the driver of TATA ACE No.KA-13-C-9528

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guilty of negligence. He submits that notional income assessed by the Tribunal is on the lower side and compensation awarded on the other heads is also on the lower side.

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Having regard to the submissions of both side and on examining the records, the questions that arise for consideration of the Court are:

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(i) Whether the finding of the Tribunal that the accident and consequential death of Sannaswamy occurred due to actionable negligence of the driver of TATA ACE No.KA-13-C-9528 is sustainable?

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(ii) Whether the compensation awarded is just one?

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ANALYSIS

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Reg. Point No.1/actionable negligence:

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Respondent Nos.1 and 2 the owner and insured of TATA AE goods vehicle No.KA-13-C-9528, did not dispute the occurrence of the accident and actionable negligence on the part of the driver of the said vehicle. Respondent No.3 also does not dispute the occurrence of the accident, but according to respondent No.3 the deceased Sannaswamy also contributed for occurrence of the accident. It may be true that the charge sheet is not the conclusive proof of negligence. However, that

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carries a presumptive value in view of Section 114(e) of the Indian Evidence Act, 1872. On the complaint, after investigation police charge sheeted only the driver of TATA ACE No.KA-13-C-9528. As the charge sheet has a presumptive value, the burden was on the respondent to rebut the same.

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As already pointed out, respondent Nos.1 and 2 the owner and insured did not dispute the actionable negligence on the part of the driver of the vehicle. Even respondent No.3 did not examine the driver of the said vehicle to claim that the deceased also contributed for the occurrence of the accident. Therefore, the presumption with regard to charge sheet Ex.P9 was not rebutted. Hence, the Tribunal was justified in holding that the accident and consequential death of Sannaswamy took place due to actionable negligence of the driver of TATA ACE No.KA-13-C-9528.

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Reg. quantum:

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The relationship of the claimants with the deceased Sannaswamy was not disputed. The claimants did not produce any documents regarding proof of actual age of the deceased. Therefore, the Tribunal was justified in relying on postmortem report and considering his age as 40 years based on the same.

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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Multiplier of 15 applied is as per the judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation¹ .

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Claimants though contended that the deceased was doing coolie work, dairy work and agriculture, except their selfserving statement, no evidence was adduced in proof of such occupation or income of the deceased. Therefore, the Tribunal was justified in assessing his income notionally. The accident occurred in the year 2021. Considering prevailing wage rates, cost of living at the relevant time, age of the deceased and notional income of the deceased assessed by the Tribunal at Rs.15,000/- per month is just one.

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The Tribunal relying on the judgment of the Hon’ble Supreme Court in Sarla Varma’s case referred to supra rightly deducted 1/4^th of the income of the deceased for his personal expenses as he had five dependents. Therefore, his monthly income comes to (Rs.15,000–3750)=11,250/- as the deceased was aged 40 years and had no permanent employment, as per the judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi² , 25% has to be

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1 AIR 2009 SC 3104

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2 AIR 2017 SC 5157

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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added to his income by way of future prospects. Though the Tribunal added 25%, it appears by typographical error it is mentioned as 10%. 25% of Rs.11,250 comes to Rs.2,812/-. Therefore, his monthly contribution to the family come to (Rs.11,250+2812)=14,062/-. Therefore, compensation payable on the head of loss of dependency comes to (Rs.14,062 x 12 x 15) = 25,31,160/-.

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The Tribunal relying on the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd. v. Nanu Ram³ , has rightly awarded compensation of Rs.40,000/- on the head of spousal, parental and filial consortium to claimant Nos.1 to 5 with escalation at 10%. Similarly, the compensation on the head of funeral expenses, transportation and loss of estate was awarded as per the ratio laid down in the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra . Therefore, entire compensation awarded by the Tribunal was in accordance with the principles laid down by the aforesaid judgments and the evidence on record. Thus, compensation awarded was just one. It cannot be said that the

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32018 (18) SCC 130

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NC: 2023:KHC:44073-DB MFA No.6637/2023 C/W MFA.CROB No.106/2023

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same was either on the lower side or on the higher side as contended by the parties. Therefore, the appeal and crossobjection deserve no merit and dismissed accordingly.

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Sd/JUDGE

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Sd/JUDGE

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VBS,PKN List No.: 1 Sl No.: 16

The Regional Manager Cholamandalam Ms Gic Ltd. v. Tulasi

Case brief

What is this about?

What did the court decide?

The Regional Manager Cholamandalam Ms Gic Ltd. v. Tulasi

Case brief

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