Partly allowed

Sri. Dal Bahaudur v. Sri. Thimma Poojary

Karnataka HC8 Jun 2023MFA/7180/2016

Case brief

AI extract

What is this about?

In a Motor Vehicles First Appeal, the Karnataka High Court modified the lower Tribunal's award for loss of dependency and awarded separate heads for consortium to the deceased's parents and funeral expenses, allowing the appeal partly to increase the total compensation to Rs. 5,45,000/-.

What did the court decide?

Awarded total compensation of Rs. 5,45,000/- including consortium to parents and funeral expenses, with interest at 6% p.a.

Sri. Dal Bahaudur Vs Sri. Thimma Poojary — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:19722 MFA No. 7180/2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 8^TH DAY OF JUNE, 2023

¶5

PRESENT

¶6

THE HON'BLE MRS JUSTICE K.S.MUDAGAL

¶7

AND

¶8

THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

¶9

MISCELLANEOUS FIRST APPEAL NO. 7180/2016 (MV-D)

¶10

BETWEEN:

¶11

SRI. DAL BAHAUDUR AGED ABOUT 41 YEARS W/O. LATE UJALIYA

¶12

SMT. SUNITHA AGED ABOUT 33 YEARS W/O. DAL BAHAUDUR

¶13

KUMARI KAUSHALYA AGED ABOUT 16 YEARS D/O. BAHAUDUR

¶14

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

¶15

KUMARI SANGEETHA AGED ABOUT 13 YEARS D/O DAL BAHAUDAR

¶16

APPELLANT NOS.3 AND 4 ARE MINORS REP. BY THEIR FATHER THE 1^ST APPELLANT SRI.DAL BAHAUDUR

¶17

ALL ARE R/AT NAGAYYA SHETTY COMPOUND NEAR SHABARI HOTEL HANGALORE VILLAGE KUNDAPURA TALUK

¶18

UDUPI DISTRICT – 576 217 … APPELLANTS

¶19

(BY SRI.NAGARAJA HEGDE , ADVOCATE)

¶20

¶21

NC: 2023:KHC:19722 MFA No. 7180/2016

¶22

AND:

¶23

SRI. THIMMA POOJARY MAJOR S/O. GANAPA POOJARY R/AT GAGANASIRI HOUSE MARGOLLI, BASRUR VILLAGE KUNDAPURA TALUK UDUPI DISTRICT – 576 211

¶24

THE UNITED INSURANCE CO. LTD., KUNDAPURA BRANCH SLN COMPLEX, N.H.- 66, VADERHOBLI, KUNDAPURA – 576 201 REP. BY ITS BRANCH MANAGER … RESPONDENTS

¶25

(BY SRI.RAVISH BENNI, ADVOCATE FOR R2; R1- SERVED)

¶26

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2016 PASSED IN MVC NO.562/15 ON THE FILE OF THE SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶27

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

¶28

JUDGMENT

¶29

“Whether the compensation awarded to the

¶30

appellants/claimants under the impugned award is just?” is the question involved in this case.

¶31

The appellants were claimant Nos.1 to 4 and

¶32

respondents were respondents No.1 and 2 in MVC No.562/2015 on the file of the Senior Civil Judge and Addl.

¶33

¶34

NC: 2023:KHC:19722 MFA No. 7180/2016

¶35

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

¶36

Claimant Nos.1 and 2 are the father and mother, claimant Nos.3 and 4 are the elder sisters of deceased Ranjit who was aged 9 years. On 25.05.2015 at about 10.00 p.m. when Ranjit was riding his bicycle near Koni Panchayat within the limits of Kundapura traffic Police Station the mini bus bearing No.KA-20-D-1688 hit him and caused him grievous injuries. The victim was shifted to Kundapura Government Hospital. He succumbed to the injuries on 26.05.2015 in the hospital. At the relevant time, respondent Nos.1 and 2 were the registered owner and Insurer of the mini bus bearing registration No.KA-20-D-1688.

¶37

Regarding the accident, claimant No.1 filed complaint in Kundapura Police Station against the driver of the bus. Based on the said complaint Kundapura Traffic Police registered FIR as per Ex.P1 in Crime No.59/2015 of their Police Station.

¶38

The claimants filed MVC No.562/2015 before the Tribunal claiming that due to the accident and consequential

¶39

¶40

NC: 2023:KHC:19722 MFA No. 7180/2016

¶41

death of Ranjit, they have suffered damages and thus claimed compensation of Rs.26,05,000/-. Respondent No.2-Insurer alone contested the claim petition denying the occurrence of the accident, actionable negligence on the part of the driver of the lorry, age of the victim and its liability to pay compensation.

¶42

In support of their claim, claimant No.1 was examined as PW.1 and Exs.P1 to P10 were marked. Respondent No.2 did not lead any evidence.

¶43

The Tribunal on hearing the parties, by the impugned award held that the accident occurred due to actionable negligence on the part of the driver of the bus bearing registration No.KA 20 D 1688. The Tribunal based on Ex.P6 the study certificate of the victim considered his age as 9 years. Relying on the judgment of the Hon’ble Supreme Court in Kishan Gopal and another vs. Lala and others¹ , the Tribunal notionally assessed the income of the deceased at Rs.30,000/- per annum, applied 15 multiplier and awarded compensation of Rs.4,50,000/- on the head of loss of

¶44

1 (2014)1 SCC 244

¶45

¶46

NC: 2023:KHC:19722 MFA No. 7180/2016

¶47

dependency. Further, the Tribunal awarded Rs.50,000/- on the conventional heads.

¶48

Sri Nagaraja Hegde, learned counsel for the appellants/claimants submits that the notional income considered in Kishan Gopal’s case was for the accident of the year 1991, in view of the inflation, the Tribunal should have considered the notional income more than Rs.30,000/-. He further submits that the Tribunal ought to have awarded compensation on the head of consortium and conventional heads as per the judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi² .

¶49

Per contra learned counsel for the

¶50

respondent/Insurer submits that the compensation awarded on the head of loss of dependency based on the judgment of the Hon’ble Supreme Court in Kishan Gopal ’s case does not warrant interference of this Court. He submits that in case of death of child aged 9 years, the awarding of the compensation on the head of consortium and funeral expenses is not permissible.

¶51

2 AIR 2017 SC 5157

¶52

¶53

NC: 2023:KHC:19722 MFA No. 7180/2016

¶54

Analysis

¶55

10. Challenging the finding of the occurrence of the

¶56

accident due to the actionable negligence of the driver or age of the victim and its liability to pay the compensation, none of the respondents have filed any appeal. The Hon’ble Supreme Court in Kishan Gopal ’s case referred to supra in case of minor aged 10 years considered the notional income at Rs.30,000/- per annum and applied the multiplier of 15. The same was reiterated in the latest judgment of the Hon’ble Supreme Court dated 13.10.2022 in Meena Devi vs. Nunu Chand Mahto³ . In that case also, the annual income of the deceased was taken at Rs.30,000/-. That was the case of death of child aged 12 years in the accident occurred on 29.07.2003. In the light of the aforesaid two consistent judgments, this Court does not find any irregularity or illegality in the finding of the Tribunal with regard to the notional income and the multiplier of 15.

¶57

So far as awarding the consortium the Hon’ble Supreme Court in Magma General Insurance Company

¶58

3 (2023)1 SCC 204

¶59

¶60

NC: 2023:KHC:19722 MFA No. 7180/2016

¶61

Ltd. v. Nanu Ram⁴ in para 21.3 of the judgment held that filial consortium is right of the parents in case of accidental death of a child. Para 21.3 of the said judgment reads as follows:

¶62

“21.3 Filial Consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose the child during their life time. Children are valued for their love, affection, companionship and their role in the family unit.”

¶63

While making the above observation the Hon’ble Supreme Court has not qualified the filial consortium to the parents by the age of the child or its earning capacity. Therefore, there is no merit in the contention that filial consortium can be awarded only in case of earning child. In the aforesaid judgment, it was further held that the consortium payable is only in case of spouse, parent and the children and not for the siblings that too in case of minor siblings. Therefore, claimant Nos.3 and 4 are not entitled to

¶64

4 2018 (18) SCC 130

¶65

¶66

NC: 2023:KHC:19722 MFA No. 7180/2016

¶67

any consortium. Under the head of consortium, claimant Nos.1 and 2 are entitled to compensation at the rate of Rs.40,000/- each.

¶68

Similarly, having regard to the ratio of judgment of the Hon’ble Supreme Court in Pranay Sethi ’s case the claimants are entitled to compensation of Rs.15,000/- on the head of funeral expenses. Therefore, the just compensation payable is as follows:

¶69