Partly allowed

Mr Byrashetty v. Smt Nagarathna

Karnataka HC16 Nov 2023MFA/6774/2021

Case brief

AI extract

What is this about?

In an MVCA appeal, the High Court modified the compensation awarded by the Lower Tribunal in a motor vehicle accident case. The Court held that the notional income assessed was too low and increased compensation for loss of dependency, loss of filial consortium, and funeral expenses.

What did the court decide?

Compensation enhanced to Rs.16,91,800/- with 6% interest. Insurer directed to deposit enhanced amount within six weeks.

Mr Byrashetty Vs Smt Nagarathna — Insurance | Karnataka HC (2023)

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- 1 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF NOVEMBER 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 K.V.ARAVIND

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MISCELLANEOUS FIRST APPEAL NO.6774/2021(MV-D)

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BETWEEN:

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MR.BYRASHETTY S/O BASAPPA AGED ABOUT 63 YEARS

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MS.NEELAMMA W/O BYRASHETTY AGED ABOUT 48 YEARS

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BOTH ARE R/AT KAMENAHALLI HOBLI SAKRAYAPATTANA HOBLI

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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KADUR TALUK CHICKMAGALUR DISTRICT PRESENTLY R/AT GANESH NAGARA BAGUR ROAD,

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CHANNARAYAPATNA TOWN …APPELLANTS

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(BY SRI RAJARAM SOORYAMBAIL, ADVOCATE)

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AND:

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SMT NAGARATHNA W/O LATE PRADEEP MAJOR

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MR EESHWARAPPA S/O RANGAPPA

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MAJOR

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R1 & R2 ARE R/AT BAGIVALU VILLAGE GANDASI HOBLI, ARASIKERE

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2 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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REGIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., C- 22 MAJIMAL, COMMERCIAL COMPLEX LHH ROAD, HAMPANAKATTE MANGALURU …RESPONDENTS

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(BY SRI B PRADEEP, ADVOCATE FOR R3; NOTICE TO R1 & R2 D/W V/C/O DATED 18.02.2022)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 25.10.2021 PASSED BY IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, SITTING AT CHANNARAYAPATNA, HASSAN IN MVC NO.1485/2018 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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“Whether the compensation awarded to the appellants/claimants by the impugned award in M.V.C.No.1485/2018 passed by the IV Additional District & Sessions Judge, Hassan Sitting at Channarayapatna is just”? is the question involved in this case.

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The appellants were the claimants and the respondents were the respondents before the Tribunal. For

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3 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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The claimants are the father and mother of the deceased Manu @ K.B.Vishwanath (for short ‘Manu’). On 31.12.2017 at 7.00 p.m. when the deceased was proceeding along with his friends in Alto Car bearing No.KA-04-MT-6520 near Y.Shingenahalli Gate on Channarayapatna - Arasikere Road, the car met with an accident. Manu died at the spot due to the injuries suffered by him in the accident. The said car was driven by one Pradeep. Driver Pradeep also died in the accident. He was also the registered owner of the offending car. Respondent Nos.1 and 2 being his parents represent his estate. Respondent No.3 is the Insurer of the car.

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Regarding the incident, on the basis of the complaint Ex.P2, Channarayapatna Rural Police registered the first information report as per Ex.P1 in Crime No.232/2017 against the driver of the car. On investigation, the said police filed the charge sheet as per Ex.P4.

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The claimants filed M.V.C.No.1485/2018 against the respondents contending that the deceased was earning

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NC: 2023:KHC:40809-DB MFA No. 6774/2021

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Rs.50,000/- per month from agriculture, animal husbandry and milk vending and they were dependant on his income. They further contended that due to his untimely death, they

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have suffered emotionally and financially. They claimed compensation of Rs.40,00,000/- from the respondents.

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Respondent Nos.1 and 2 contested the petition

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denying actionable negligence on the part of the driver of the car, age, occupation, income of the deceased and their liability to pay compensation. Respondent No.3 contended that there was breach of terms and conditions of the insurance policy, therefore it was not liable to pay the compensation.

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On the basis of the pleadings, the Tribunal

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framed the following issues:

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i. Whether petitioners prove that on 31.12.2017 at about 7.00 p.m., when deceased Manu @ K.B.Vishwanath along with his friends were proceeding in a Alto Car bearing registration No.KA-04-MT-6520 towards Bagevalu and when the said Car reached near Y. Shingenahalli Gate on Channarayapatna – Arasikere Road, the driver of the said Car by name Pradeep drove it in rash and negligent

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NC: 2023:KHC:40809-DB MFA No. 6774/2021

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manner and made the said Car to topple on the road, due to which Manu @ K.B.Vishwanatha, who was the inmate of the said Car sustained injuries and died at the spot itself?

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ii. Whether 3^rd respondent proves that owner of the offending Car has violated terms and conditions of the insurance policy?

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iii. Whether petitioners are entitled for the compensation?

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iv. What Order?

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To substantiate the claim of the claimants, claimant No.1 was examined as PW.1 and Exs.P1 to P15 were marked. The respondents did not lead any evidence.

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The Tribunal on hearing the parties and considering the oral and documentary evidence held that the accident and the consequential death of Manu occurred due to actionable negligence on the part of the driver of Alto car bearing No.KA-04-MT-6520. The Tribunal based on Ex.P12 the postmortem report considered the age of the deceased as 28 years, notionally assessed his income at Rs.7,000/- per month, deducted 50% of the income of the deceased towards his personal expenses, applied 17 multiplier and awarded compensation of Rs.7,14,000/- on the head of loss of

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NC: 2023:KHC:40809-DB MFA No. 6774/2021

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dependency. The Tribunal in all awarded compensation of

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Rs.8,44,000/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	7,14,000/-
2.	Loss of Estate	15,000/-
3.	Loss of love and affection	1,00,000/-
4.	Funeral and conveyance	15,000/-
	Total	8,44,000/-

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Sri S.Rajaram, learned Counsel for the claimants reiterating the grounds of the appeal assails the impugned award on the ground that notional income considered by the Tribunal is on the lower side.

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Sri B.Pradeep, learned Counsel for respondent No.3 justifies the impugned award on the ground that there was no proof of actual income.

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Analysis

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Challenging the award the respondents have not preferred any appeal. Therefore the findings of the Tribunal with regard to the death of Manu due to actionable negligence on the part of the driver of the car bearing No.KA-04-MT-6520 and the liability of the insurer to indemnify the damages have attained finality. The only

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7 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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question is whether the compensation awarded by the Tribunal on different heads is just one.

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As rightly pointed out by the Tribunal, the claimants did not adduce any evidence in proof of actual income of the deceased. Therefore the Tribunal was justified in assessing the income notionally. However, the question is whether the notional income assessed is just one. The accident occurred in the year 2017. The deceased was aged 28 years. It is not the case of any of the parties that he had any mental disability. Considering the age of the deceased, prevailing wage rates and cost of living during the relevant period, income at Rs.7,000/- considered by the Tribunal is on the lower side. The Tribunal should have reasonably assessed the income at Rs.11,000/- per month.

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Admittedly the deceased was a bachelor. As per the judgment of the Hon'ble Supreme Court in Sarla Varma v. Delhi Transport Corporation¹ 50% of his income has to be deducted towards his personal expenses. Therefore the monthly income comes to Rs.11,000/- x 50/100= Rs.5,500/-.

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1 AIR 2009 SC 3104

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8 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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Having regard to the age of the deceased, nature of his work and in view of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi² the Tribunal should have superadded 40% of the income of the deceased towards future prospects which comes to Rs.5,500/- x 40/100= 2,200/-. Therefore the monthly income of the deceased comes to Rs.5,500/- + 2,200/-= 7,700/-.

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As per the judgment of the Hon’ble Supreme Court in Sarla Varma’s case referred to supra , the applicable multiplier for his age is 17. Therefore, the compensation payable on the head of loss of dependency comes to (Rs.7,700/- x 12 x 17=) Rs.15,70,800/- .

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The claimants being aged parents of the deceased were entitled to compensation on the head of loss of filial consortium. As per 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 case, they are entitled to compensation of Rs.40,000/- each with

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2 AIR 2017 SC 5157

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3 2018 (18) SCC 130

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9 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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escalation of 10% on the head of filial consortium which comes to Rs.88,000/-.

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As per the aforesaid judgment, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- for funeral expenses and transportation with escalation at 10%. The compensation payable on the said heads comes to Rs.33,000/-. Therefore just compensation payable to the claimants in this case is as

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follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	15,70,800/-
2.	Loss ofconsortium	88,000/-
3.	Loss of estate & funeral expenses	33,000/-
	Total	16,91,800/-

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For the aforesaid reasons, the appeal deserves to

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be allowed in part. Hence, the following:

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ORDER

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The appeal is partly allowed. The award in M.V.C.No.1485/2018 passed by the IV Additional District & Sessions Judge, Hassan Sitting at Channarayapatna is modified as follows:

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10 - NC: 2023:KHC:40809-DB MFA No. 6774/2021

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(i) The claimants are entitled to compensation of Rs.16,91,800/- with interest thereon at 6% p.a. from the date of petition till the date of its realization.

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(ii) Respondent No.3 being the Insurer shall deposit the enhanced compensation before the Tribunal on adjusting the compensation already deposited, if any, within six weeks from the date of receipt of copy of this order.

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(iii) The award of the Tribunal with regard to apportionment and investment is maintained.

Sd/JUDGE

Sd/JUDGE

KSR

List No.: 1 Sl No.: 32

Mr Byrashetty v. Smt Nagarathna

Case brief

What is this about?

What did the court decide?

Mr Byrashetty v. Smt Nagarathna

Case brief

What is this about?

What did the court decide?

What the court decided

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