Partly allowed

Munishyamappa Alias Muniswamy v. M/S Chamundeshwari Transport

Karnataka HC12 Jun 2023MFA/7015/2021

Case brief

AI extract

What is this about?

This decision modifies motor accident compensation awards for the death of a husband and wife. The High Court enhanced the compensation amounts based on Supreme Court guidelines regarding income assessment, future prospects, and multiplier application, allowing the appeals in part.

What did the court decide?

Compensation enhanced to Rs.11,13,036/- for the husband's death and Rs.11,10,000/- for the wife's death; interest at 9% awarded.

Munishyamappa Alias Muniswamy Vs M/S Chamundeshwari… — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 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.7015/2021(MV-D)

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C/w

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MISCELLANEOUS FIRST APPEAL No.7016/2021(MV-D)

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BETWEEN:

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MUNISHYAMAPPA ALIAS MUNISWAMY

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SINCE DEAD BY LRS.

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GIRISH

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S/O.MUNISHYAMAPPA ALIAS MUNISWAMY AGED ABOUT 25 YEARS

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KUMARI ANUSHA D/O.MUNISHYAMAPPA ALIAS MUNISWAMY AGED ABOUT 20 YEARS

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

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ALL ARE R/AT SOLUR DINNE VISHWANATHAPURA DEVANAHALLI

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BANGALORE RURAL DISTRICT - 562 110 …APPELLANTS (COMMON)

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(BY SRI SRIKANTH N V, ADVOCATE)

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AND:

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M/S CHAMUNDESHWARI TRANSPORT R/AT NO.10, LAKSHMI MANSION 2^ND CROSS, PAS LANE, COTTONPET

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BENGALURU – 560 053 REP. BY PROPRIETOR REGISTERED OWNER OF ASHOK LEYLAND LORRY BEARING REG. NO. KA-43-6398

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THE NATIONAL INSURANCE COMPANY LIMITED OFFICE AT VIJAYAPURA BUSINESS CENTER R/AT NO.786, 1^ST FLOOR VIJAYAPURA CROSS, DEVANAHALLI BANGALORE RURAL DISTRICT- 562 110 …RESPONDENTS (COMMON)

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(BY SRI NATARAJU B HALEMANE, ADVOCATE FOR R1; SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R2)

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THESE MISCELLANEOUS FIRST APPEALS ARE FILED U/S 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 08.09.2020 PASSED BY V ADDITIONAL DISTRICT AND SESSIONS JUDGE & MACT, DEVANAHALLI, BENGALURU RURAL DISTRICT IN M.V.C.NO.67/2017 AND M.V.C.NO.68/2017 RESPECTIVELY PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Though the matters are listed for admission, with consent of both side, they are taken up for final disposal.

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These two matters arise out of common award. Therefore they are connected to each other and taken up together for final disposal.

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M.V.C.No.67/2017 and M.V.C.No.68/2017 on the file of V Additional District & Sessions Judge and MACT, Bangalore Rural District, Devanahalli were filed by the claimants seeking compensation for the death of Bhagyamma and Harish. Claimant Nos.2 and 3 are the son and daughter of

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claimant No.1. After passing of the award and before these appeals were preferred, claimant No.1 died. Therefore claimant Nos.2 and 3 have filed the appeals in the capacity as legal representatives of claimant No.1 also. The deceased Bhagyamma and Harish were wife and son of claimant No.1 and mother and sibling of claimant Nos.2 and 3.

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On 20.05.2017 at 8.30 p.m. when Harish was proceeding on his motorcycle bearing No.KA-43-R-1421 at Devanahalli with Bhagyamma as pillion rider near Laxmipura within the limits of Vishwanathapura police station, motorcycle of Harish rammed into lorry bearing No.KA-43-6398. Due to the injuries suffered in the accident, both Harish and Bhyagamma died at the spot.

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Regarding the incident, on the complaint of one N.Prabhu, the jurisdictional police registered first information report as per Ex.P1. On investigation, the police charge sheeted the driver of the lorry for the offences punishable under Sections 279, 304A of IPC.

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The claimants filed M.V.C.No.67/2017 claiming compensation for the death of Harish. M.V.C.No.68/2017 was filed claiming compensation for the death of Bhagyamma. The

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claimants contended that Harish was working as trolley operator and earning Rs.8,401/-. Bhagyamma was earning Rs.15,000/- by milk vending business. They contend that they

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were all dependant on the income of the deceased. They further contended that the accident occurred solely due to the actionable negligence on the part of the driver of the lorry. They contended that respondent Nos.1 and 2 being the registered owner and insurer of the lorry are liable to pay the compensation.

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Respondent No.2 insurer alone contested the

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petition denying actionable negligence on the part of the driver of the lorry, age, occupation and income of the deceased and its liability to pay the compensation.

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To substantiate the claim of the claimants, PWs.1

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to 3 were examined and Exs.P1 to P11 were marked. On behalf of respondent No.2, its Official was examined as RW.1 and Exs.R1 and R2 were marked.

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The Tribunal on hearing the parties in M.V.C.No.67/2017 by the impugned award held that the driver of the lorry contributed 80% of negligence to the accident and the deceased Harish contributed 20% of negligence for

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occurrence of the accident. The Tribunal relying on the evidence of PW.3 the employer of the deceased Harish considered the income of Harish at Rs.8,401/- added 50% to

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the same by way of future prospects, deducted ½ for his personal and living expenses, applied 18 multiplier and awarded compensation of Rs.9,52,636/- towards loss of dependency. The Tribunal in all awarded a sum of Rs.10,22,636/on different heads. Out of the said compensation amount, the Tribunal deducted 20% towards contributory negligence.

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In case of M.V.C.No.68/2017, the Tribunal considered the income of the deceased Bhagyamma at Rs.7,000/- added 25% of the same towards future prospects, deducted 1/3^rd for personal and living expenses, applied 14 multiplier and awarded compensation of Rs.9,80,112/- on the head of loss of dependency. The Tribunal in all awarded total compensation of Rs.10,50,112/- on different heads. The Tribunal in both the cases awarded interest at 9% per annum.

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None of the respondents have challenged the award. The claimants have challenged the award on the ground of inadequacy of compensation.

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Reiterating the grounds of appeal, the claimants’ Counsel Sri Srikanth N.V., seeks enhancement of the compensation. Whereas Sri S.V.Hegde Mulkhand, learned Counsel for respondent No.2 justifies the impugned award on the ground that the Tribunal has awarded just compensation in both cases.

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Reg. M.F.A.No.7015/2021 (M.V.C.No.67/2017):

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The relationship of the claimants with the deceased Harish and Bhagyamma is not in dispute. Ex.P9 the aadhar card shows that at the time of the accident, Harish was aged 19 years. The evidence of PW.3 the representative of the employer of the deceased and Ex.P7 the salary certificate shows that the deceased was earning Rs.8,401/- by way of monthly salary.

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Since the deceased is not in any permanent job, in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi¹ , 40% of the income has to be super added by way of future prospects, which comes to Rs.11,761/- (Rs.8,401/- + 40/100 of 8,401/-).

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1 AIR 2017 SC 5157

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Since the deceased was a bachelor, as per the judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation² for his personal expenses and living expenses, 50% of his income has to be deducted. Therefore, his monthly income comes to Rs.5,881/(Rs.11,761 - 50% of Rs.11,761/-). The applicable multiplier for his age is 18. Therefore, the compensation payable on the head of loss of dependency comes to Rs.12,70,296/(Rs.5,881/- x 12 x 18).

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Since claimant No.3 was the younger sibling of the

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deceased, herself and claimant No.1 father of the deceased alone are entitled to compensation on the head of consortium. As per the judgment of the Hon'ble Supreme Court in Pranay

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Sethi’s case and Magma General Insurance Company Ltd. v. Nanu Ram³ case, they are entitled to compensation of Rs.40,000/with escalation of 10% which comes to Rs.88,000/- on the head of consortium. As per the said judgments, 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%.

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2 AIR 2009 SC 3104

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3 2018 (18) SCC 130

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Therefore, the just compensation payable to the claimants in

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this case is as follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	12,70,296/-
2.	Loss of consortium	88,000/-
3.	Loss of estate & funeral expenses	33,000/-
	Total	13,91,296/-

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The Tribunal relying on the materials on record rightly held that the driver of the lorry applied brake negligently and suddenly stopped the vehicle. At the same time, the victim Harish did not maintain respectable distance from the lorry as required under road regulations and attributed 20% of contributory negligence. That does not warrant any interference. Therefore the just compensation payable in M.V.C.No.67/2017 comes to Rs.11,13,036.80/rounded to Rs.11,13,036/- (Rs.13,91,296/- x 80%)

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Reg. M.F.A.No.7016/2021 (M.V.C.NO.68/2017):

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In this case, Bhagyamma was the wife of claimant No.1 and mother of claimant Nos.2 and 3. As per the postmortem report, her age was 45 years. Though it was

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contended that she was doing milk vending business and earning Rs.15,000/-, per month, no proof of such occupation or income was produced. Therefore the Tribunal was justified in assessing her income notionally.

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The accident occurred in the year 2017. Having regard to the wage rates prevailing during the said period, age, occupation of the deceased, the Tribunal should have considered her income notionally at Rs.9,000/- instead of Rs.7,000/-.

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In view of the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi’s case referred to supra , 25% of her income has to be super added by way of future prospects, which comes to Rs.11,250/- (Rs.9,000/- + 25% of 9,000/-). Claimant No.1 husband had his independent income and claimant No.2 was major son. Therefore the Tribunal ought to have deducted 50% out of the income of the deceased Bhagyamma for her personal and living expenses. Therefore her monthly income comes to Rs.5,625/(Rs.11,250-5,625). The applicable multiplier was 14. Therefore compensation payable on the head of loss of dependency comes to Rs.9,45,000/- (Rs.5,625 x 12 x 14).

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Claimant No.1 being spouse and claimant Nos.2 and 3 being children of Bhagyamma are entitled to compensation on the head of consortium. As per the judgment

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of the Hon'ble Supreme Court in Pranay Sethi’s case and Nanu Ram’s case referred to supra , each of the claimants are entitled to compensation of Rs.40,000/- with escalation of 10% which comes to Rs.1,32,000/-. on the head of consortium. As per the said judgments, 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%. Therefore, the just compensation payable to claimants in this case is as follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	9,45,000/-
2.	Loss of consortium	1,32,000/-
3.	Loss of estate & funeral expenses	33,000/-
	Total	11,10,000/-

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Reg: Liability:

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The Tribunal has fastened the liability to respondent No.1 on the ground that he has failed to prove that the driver of the lorry was holding valid driving licence.

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However, relying on the judgment of the Hon’ble Supreme Court in Pappu v. Vinod Kumar Lamba⁴ and National Insurance Company Ltd. v. Swaran Singh⁵ case, the Tribunal held that respondent No.2 insurer shall pay the compensation amount and recover the same from respondent No.1. That finding does not warrant any interference.

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For the aforesaid reasons, both the appeals deserve to be allowed in part. Hence, the following:

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ORDER

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The appeals are partly allowed. The award in M.V.C.No.67/2017 and M.V.C.No.68/2017 are modified as follows:

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(i) The claimants in M.V.C.No.67/2017 are entitled to compensation of Rs.11,13,036/- with interest thereon at 9% p.a. from the date of petition till the date of deposit.

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(ii) The claimants in M.V.C.No.68/2017 are entitled to compensation of Rs.11,10,000/- with interest thereon with 9% p.a. from the date of petition till date of realization.

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4 (2018) 3 SCC 208

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5 (2004) 3 SCC 297

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(iii) Respondent No.2 Insurer is liable to pay the said compensation. However, respondent No.2 shall deposit the said compensation before the Tribunal on adjusting the compensation already deposited, if any, within four weeks from the date of receipt of copy of this order and recover the same from respondent No.1.

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(iv) The awards of the Tribunal with regard to apportionment, investment and release of the amount are maintained. However the share of claimant No.1 shall be paid to claimant Nos.2 and 3 in equal shares.

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(v) Registry shall transmit the records to the Tribunal

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forthwith.

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(vi) Sri S.V.Hegde Mulkhand, learned Counsel is permitted to file vakalat in the Registry within two weeks.

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Sd/JUDGE

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Sd/JUDGE

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KSR