Partly allowed

The Legal Manager v. Chikkamuniswamy

Karnataka HC26 Jul 2023MFA/7181/2017

Case brief

AI extract

What is this about?

The High Court dismissed the insurer's appeal and partly allowed the cross-objection, enhancing motor accident compensation from Rs.16.25 lakhs to Rs.17.03 lakhs by recalculating dependency loss at 40% prospects and adjusting funeral/estate heads.

What did the court decide?

Enhancement of compensation by Rs.78,100/- with interest at 6% p.a., to be deposited by the Insurance Company.

The Legal Manager Vs Chikkamuniswamy — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:26544 MFA No. 7181 of 2017 C/W MFA.CROB No. 168 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH 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. 7181 OF 2017 (MV-D)

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C/W

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MFA CROSS OBJECTION NO. 168 OF 2017 (MV-D)

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IN M.F.A. NO. 7181 OF 2017 BETWEEN:

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THE LEGAL MANAGER, SHRI RAM GIC LTD, NO. 1, 3RD FLOOR, MONARK CHAMBER, INFANTRY ROAD, BANGALORE. NOW REP. BY THE LEGAL MANAGER, LEGAL MANAGER, SHRIRAM GENERAL INS. CO. LTD., NO. 5/4, 3RD FLOOR, S.V.ARCADE, BELEKALHALLI MAIN ROAD, OPP. BANNERGHATTA ROAD, LIMB POST, BANGALORE-76.

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

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…APPELLANT

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(BY SRI PRADEEP B, ADVOCATE)

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AND:

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CHIKKAMUNISWAMY, S/O. NERAGATI YAMANNA, NOW AGED ABOUT 55 YEARS.

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ADILAKSHMAMMA, W/O. CHIKKAMUNISWAMY, NOW AGED ABOUT 48 YEARS.

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NC: 2023:KHC:26544 MFA No. 7181 of 2017 C/W MFA.CROB No. 168 of 2017

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NARASIMHAMURTHY

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S/O. CHIKKAMUNISWAMY, NOW AGED ABOUT 11 YEARS, SINCE MINOR REP. BY HIS FATHER NATURAL GUARDIAN 1ST RESPONDENT

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ALL ARE R/AT: JULAPALYA VILLAGE AND POST, MITTEMARI HOBLI, BAGEPALLI TALUK -563 159.

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NAGAIAH REDDY M.R, S/O. RAMAPPA, MAJOR, R/AT: KANIVENARAYANAPURA VILLAGE, MUDDENAHALLI POST, CHIKKABALLAPUR TALUK AND DIST-562 101.

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…RESPONDENTS

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(BY SMT. SUGUNA R REDDY, ADVOCATE FOR R1 TO R3; V/O DATED 15.02.2018, R4 IS DECEASED AND THE LR'S ARE NOT REQUIRED IN THIS PROCEEDINGS)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2017 PASSED IN MVC NO.425/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT CHICKBALLAPUR, AWARDING COMPENSATION OF RS.16,25,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA.CROB NO. 168 OF 2017

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BETWEEN:

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1 . SRI CHIKKAMUNISWAMY, S/O. NERAGATI YAMANNA, AGED ABOUT 55 YEARS.

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2 . SMT. ADILAKSHMAMMA, W/O. CHIKKAMUNISWAMY, AGED ABOUT 48 YEARS.

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NC: 2023:KHC:26544 MFA No. 7181 of 2017 C/W MFA.CROB No. 168 of 2017

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3 . MASTER NARASIMHAMURTHY, S/O. CHIKKAMUNISWAMY, AGED ABOUT 11 YEARS.

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THE CROSS-APPELLANT NO.3 IS MINOR REPRESENTED BY HIS NATURAL GUARDIAN CHIKKAMUNISWAMY, THE CROSS APPELLANT NO.1

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ALL ARE R/AT: JULAPALYA VILLAGE, MITTEMARI HOBLI, BAGEPALLI TALUK, CHICKBALLAPUR DISTRICT.

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...CROSS OBJECTORS

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(BY SMT. SUGUNA R REDDY, ADVOCATE)

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AND:

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1 . THE NAGAIAH REDDY M.R, S/O RAMAPPA, MAJOR IN AGE, R/AT: KANIVE NARAYANAPURA VILLAGE, MUDDENAHALLI POST, CHICKBALLAPURA TALUK, CHICKBALLAPURA DISTRICT-561 203.

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2 . THE BRANCH MANAGER, SHRI RAM GENERAL INSURANCE CO.LTD., NO.1, 3RD FLOOR, MONARK CHAMBER, INFANTRY ROAD, BANGALORE-560 002.

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…RESPONDENTS

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(BY SRI PRADEEP B, ADVOCATE FOR R2)

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THIS MFA.CROB IN MFA NO.7181/2017 IS FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 15.06.2017 PASSED IN MVC NO. 425/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THE APPEAL AND CROSS OBJECTION, COMING ON FOR ORDERS ON IA, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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By consent of learned counsel for the parties, the matters are taken up for final disposal though, they are slated for 'Hearing on IA' and heard the learned counsel for both the sides.

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MFA No.7181/2017 preferred by the Insurance Company and MFA CROB.168/2017 preferred by the petitioners are arising out of the judgment and award dated 15.06.2017 passed in MVC No.425/2014 by the learned II Additional Senior Civil Judge and MACT, Chickballapur.

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The petitioners who are the father, mother and minor brother of the deceased Suresh Babu filed a claim

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NC: 2023:KHC:26544 MFA No. 7181 of 2017 C/W MFA.CROB No. 168 of 2017

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petition before the Tribunal claiming compensation of Rs.30,00,000/- contending that on 29-7-2014 at about 9.00 p.m. while the deceased Suresh Babu was going on two wheeler bearing No.KA.05.HZ.3444 near Sadahalli Cross, NH 8, met with an accident and died. It was contended that Tipper vehicle bearing Reg.No.KA.40.9013 came from Bagepalli side in rash and negligent manner and dashed against the two wheeler resulting in spot death of the deceased. It was contended that the deceased was aged 28 years at the time of the accident and was working as waterman in Bangalore Water Supply and Sewerage Board, Jayanagar Service Station, SouthEast -2 for about 8 years prior to the accident and was earning Rs.12,000/- per month. Deceased Suresh Babu was married and his wife was alive at the time of accident and after 15 days of the death of Suresh Babu, she also died due to depression and shock. It was contended that the deceased was contributing his income to the family of the petitioners and his wife and therefore, the petitioners are entitled for the just compensation in the matter.

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NC: 2023:KHC:26544 MFA No. 7181 of 2017 C/W MFA.CROB No. 168 of 2017

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On issuance of notice, respondent No.2 Insurance Company appeared through its counsel and filed its objections. Owner of tipper lorry i.e. respondent No.1 did not appear despite service of notice and therefore, he was placed exparte.

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Respondent No.2-Insurance Company contended that there was a violation of the terms and conditions of the policy and that the compensation claimed is highly exorbitant, imaginary and untenable in law. It was also contended that the accident was not due to the negligence on the part of the driver of the lorry and it was on account of the negligence on the part of the deceased himself. Hence, it has sought for considering the contributory negligence of the deceased as well as for dismissal of the

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petition.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and the petitioner No.1 was

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examined as PW1 and Exs.P1 to P16 were marked in evidence. Respondent No.2 has not adduced any evidence.

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After hearing the arguments by both the sides, the Tribunal awarded the compensation of Rs.16,25,000/under different heads as below:

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1.	Towards loss of dependency	Rs.12,24,000/-
2.	Towards transportation of Dead Body, funeral ceremony	Rs.25,000/-
3.	Towards love and affection	Rs.80,000/-
4.	Towards loss of estate	Rs.2,96,000/-
	Total	Rs.16,25,000/-

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Being aggrieved by the said judgment,

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respondent No.2- Insurance Company has approached this Court in MFA No.7181/2017 and the petitioners have approached this Court in MFA CROB No.168/2017.

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In MFA No.7181/2017, the appellant/Respondent No.2- Insurance Company has contended that the Tribunal committed an error in taking future prospects at 50%

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while calculating the loss of dependency as the deceased

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had no stable job and the same is not sustainable in the

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eye of law. It was further contended that the Tribunal committed an error in deducting 1/3rd towards the personal expenses instead of 50% since the deceased had left behind him his parents and the minor brother. It has also contended that the Tribunal was not justified in awarding excessive compensation under the conventional heads especially, under the head of loss of estate.

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In MFA CROB No.168/2017, the petitioners have contended that the compensation awarded by the Tribunal is meager and the Tribunal should have considered the income of the deceased as per Exs.P14 and 15. Hence, they sought for enhancement of compensation.

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The Tribunal records have been secured and I have gone through the same.

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The learned counsel appearing for the Insurance Company contends that though the deceased was married, his wife died after about 15 days of the accident and

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therefore, she was not a claimant before the Tribunal and as such, the petitioners were the only dependants. He contended that the Tribunal should have deducted 50% towards the personal expenses of the deceased and there was no justification to deduct 1/3rd towards the personal expenses.

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The decision of the Apex Court in the case of Kirti and another Vs. Oriental Insurance Company

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Limited¹ had an occasion to consider the similar situation. In the said case, one of the parent of the deceased died subsequent to the accident and the Apex Court held that the rights or liabilities of the parties crystallizes at the time of the accident itself. Therefore, the subsequent death of a dependent cannot result in reduction of the compensation amount. In para Nos.9 and 10 it was observed as below:

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"9. Learned Counsel for the respondent insurer, on the other hand, has sought to forestall any increase in compensation, including under the ground of future

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1 2021 (2) SCC 166

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10 -

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NC: 2023:KHC:26544 MFA No. 7181 of 2017 C/W MFA.CROB No. 168 of 2017

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prospects. It is claimed that the High Court’s decision was a consent order, and that the counsel for the appellants had conceded to a lower computation under the head of loss of dependency, which thus cannot be challenged before this Court.

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We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceased’s dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto."

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In view of the above dictum, it is settled that if the deceased had left behind his wife and parents and minor brother to look after, the personal expenses which he could have spent for himself was 1/3rd only. If the deceased was alive, it is possible that wife could have also survived. Therefore, such situation which the present petitioners could have enjoyed had the deceased alive cannot be equated to a situation where even if the deceased was alive if wife has died. Under these circumstances, the contentions taken up by the learned counsel for the appellant- Insurance Company is not sustainable in law.

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The second contention by the learned counsel appearing for the Insurance Company is that, the Tribunal erred in adding 50% of the notional income towards future prospects of the deceased. The decision in the case of National Insurance Company Limited Vs. Pranay Sethi and others,² laid down that in the matters where the fixed income is not proved, the future prospects are to be taken at 40%. In the case on hand, the Tribunal has taken the notional income at Rs.6,000/- and deducted 1/3rd of the same towards the personal expenses and then added 50% of it towards the future prospects and calculated the loss of dependency.

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It is worth to note that the claimants/petitioners have also approached this Court in Cross objeciton seeking enhancement of compensation and they have contended that the notional income is not properly assessed. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok

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2 AIR 2017 SC 5157

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Adalat prescribe the notional income of Rs.8,500/- for the year 2014. In umpteen number of decisions, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner is accepted as Rs.8,500/- per month. While calculating the dependency, the future prospects has to be added. In the case on hand, the petitioners/claimants contends that deceased was a waterman. However, the

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perusal of Exs.P14 and P15 show that the deceased was only a security personnel and there is nothing on record which shows that he was on permanent employment. Ex.P14 was issued by the General Manager (Operations), Navodaya Service Centre but not by the BWSSB as contended by the petitioner. It is not known what role the said Navodaya Service Centre had in the affairs of

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BWSSB. Ex.P15 shows that one of the officer of the BWSSB has requested the Airport Authorities to allow the deceased to enter the Airport. These two documents no

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way show that he was on the permanent role of BWSSB as an employee. Under these circumstances, I find considerable force in the submission of the learned counsel for the Insurance Company that deceased was not under the permanent employment. As a consequence, the future prospects had to be added at 40% but not 50%. Hence, the effective multiplicand would come to Rs.8,500/- + Rs.3,400/- = 11,900/-.

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The deceased was aged 28 years which is not in dispute. Therefore, the proper multiplier would be '17'. Hence, the loss of dependency is calculated as Rs.11,900 x 12 x 17*2/3 = 16,18,400/-.

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In view of the decision in the case of Pranay Sethi (Supra), the petitioners who are parents and brother of the deceased are entitled for compensation under the head of ' loss of filial love and affection' to the extent of Rs.40,000/-. There has to be two escalations in view of the directions contained in the above constitutional

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Bench decision. Hence, the compensation under the head of 'loss of filial love and affection' would be Rs.48,400/-.

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Similarly, the compensation under the head of 'loss of estate' and 'funeral expenses' would be

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Rs.18,150/- each.

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Learned counsel for the petitioners submit that each of the petitioners are entitled for a compensation under the head of 'loss of filial love and affection'. Pursuant to the decision in the case of Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru

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Ram and others³ . However, in the subsequent decision in the case of Shri Ram General Insurance Company

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Limited Vs. Bhagat Singh Rawat and others⁴ there shall be a cap on the compensation under the head of 'loss of filial love and affection or loss of consortium'. Therefore, the contention of the learned counsel appearing for the petitioners/Cross objectors cannot be accepted.

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3 2018 SCC Online SC 1546

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4 SLP (c)11669-11671/2020 disposed of on 27-3-2023

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15 -

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The Tribunal has awarded a sum of

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Rs.2,96,000/- under the head of loss of estate by making

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its own calculation. I am afraid, such calculation do not hold the ground. In para No.17 of the judgment, it has taken 1/4th of the notional income of the deceased then again multiplied the same with the multiplier of '17' and has awarded a sum of Rs.2,96,000/- This calculation appears to be bereft of any reasons. Hence, the same cannot be accepted.

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Hence, the petitioners are entitled for a compensation of Rs.17,03,100/- under the following heads:

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1.	Towards loss of dependency	Rs.16,18,400/-
2.	Towards loss of love and affection	Rs. 48,400/-
3.	Towards funeral expenses	Rs. 18,150/-
4.	Towards loss of estate	Rs. 18,150/-
	Total	Rs.17,03,100
	Less: Awarded by Tribunal	Rs.16,25,000/-
	Enhancement	Rs. 78,100/-

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In view of the above, there shall be an enhancement of the compensation of Rs.78,100/- and in

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the result, the appeal filed by the Insurance Company deserves to be dismissed and the cross-objection filed by the petitioners deserves to allowed in part. Hence, the following:

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ORDER

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(i) The appeal filed by the Insurance Company in MFA No.7181/2017 is dismissed.

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(ii) The Cross objection filed by the petitioners/cross objectors in MFA CROB No.168/2017 is allowed in part.

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(iii) The impugned judgment and award passed by the Tribunal is modified by awarding a sum of Rs.78,100/in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit

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(iv) The Insurance Company is directed to deposit the compensation amount within six weeks from the date of receipt of the copy of this order.

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