Partly allowed

Smt Anjali @ Geethamma v. Thalavar Siddappara Devaraj

Karnataka HC10 Feb 2023MFA/7290/2019

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal allowed compensation enhancement awarded by the Trial Court for a motor vehicle accident resulting in death. The High Court reassessed damages based on notional income and guidelines, increasing total compensation.

What did the court decide?

Compensation enhanced from Rs.15,29,989/- to Rs.18,36,991/- with 6% interest; Insurer directed to deposit within four weeks.

Smt Anjali @ Geethamma Vs Thalavar Siddappara Devaraj — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 7290 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 7290 OF 2019 (MV-D)

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BETWEEN:

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SMT. ANJALI @ GEETHAMMA W/O. LATE SUBHASHCHANDRA

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AGE:33 YEARS,

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MASTER HARISH S/O. LATE SUBHASHCHANDRA, AGE 5 ½ YEARS, MINOR REP BY HIS MOTHER THE APPELLANT NO.1 AND NATURAL GUARDIAN

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

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SMT.NAGAMMA W/O. SHIVAPPA KOTEHAL 53 YEARS,

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ALL ARE RESIDENTS OF BANUVALLI VILLAGE, HARIHAR TALUK, DAVANAGERE DISTRICT - 577 601. A-4 DEAD BY LRS I.E. APPELLANTS 1 TO 3

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...APPELLANTS

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(BY SRI. MAHESH R.UPPIN & SRI.PRAVEEN KUMAR.N., ADVOCATES)

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AND:

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THALAVAR SIDDAPPARA DEVARAJ S/O. PARAMESHWARAPPA AGE 30 YEARS RIDER OF MOTOR BIKE BEARING REG.NO.KA-27-U-7655 KADARNAIKANAHALLI VILLAGE,

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MFA No. 7290 of 2019

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HARIHAR TALUK, DAVANAGERE DISTRICT - 577 601.

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PRABHU S/O. CHENNABASAPPA, AGE: 30 YEARS, OWNER OF MOTOR BIKE BEARING REG.NO.KA-27-U-7655 R/O KUNCHUR VILLAGE, HIREKERUR TALUK, HAVERI DISTRICT - 581 111.

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BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD SUDAMGI CHAWL, ASHOK CIRCLE, APMC ROAD, RANEBENNUR HAVERI DISTRICT - 581 115.

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…RESPONDENTS

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(BY SRI. V.B.SIDDARAMAIAH, ADVOCATE FOR R1 & R2, SRI.RAVISH BENNI, ADVOCATE FOR R3)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.05.2019 PASSED IN MVC NO.12/2016 ON THE FILE OF THE SENIOR CIVIL AND JMFC JUDGE, ADDITIONAL M.A.C.T.,HARIHARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPESNATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCE AT DHARWAD BENCH, THIS DAY, C.M.JOSHI J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by the judgment and award dated

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28.05.2019 passed in MVC No.12/2016 by the learned

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Senior Civil Judge and JMFC and Additional MACT, Harihar, whereby the petition filed by the petitioners came

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MFA No. 7290 of 2019

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to be allowed in part and a sum of Rs.15,29,989/- has been awarded as compensation, the petitioners/appellants herein have filed this appeal urging various grounds.

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The parties are referred to as per their

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nomenclature before the Tribunal for the sake of convenience.

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The brief facts of the case are as below:

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The petitioners are the wife, minor son and parents of deceased Subhaschandra. The petitioners contended that on 17.02.2015 at about 7.30 p.m. while he was returning to his village Banuvalli from Nandigudi on his motorcycle bearing Reg.No.KA-17/J-7600 near K.N.Halli on the left side of the road, at that juncture respondent No.1 came from opposite direction on his motorcycle bearing Reg.No.KA-27/U-7655 in a high speed and negligent manner and dashed to the motorcycle of the deceased Subhaschandra. As a result, the deceased Subhaschandra fell down and sustained injuries and he

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MFA No. 7290 of 2019

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was shifted to C.G.Hospital, Davangere and thereafter he was shifted to S.S.I.M.S. Hospital. However, the deceased Subhaschandra died due to the injuries sustained in the accident on 25.02.2015 and the petitioners had to spent a sum of Rs.2,25,000/- towards treatment.

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The petitioners further contended that the deceased was aged 38 years and was working as LIC agent as well as running hotel at Banuvalli, earning Rs.20,000/- per month. They have also contended that due to the untimely death of Subhaschandra the petitioners have suffered mentally and economically. He was the sole earning member of the family. It is contended that the motorcycle ridden by respondent No.1 was owned by respondent No.2

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and insured by respondent No.3 and therefore, the respondents are liable to pay the compensation to the petitioners.

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On issuance of summons by the Tribunal,

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respondent Nos.1 to 3 have appeared through their

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MFA No. 7290 of 2019

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respective counsels and filed their separate written statements.

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Respondent No.1 in his objection statement contended that the accident had occurred due to the negligence on the part of the deceased and therefore, he

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is not liable to pay any compensation. Further, he contended that as on the date of accident, he was having valid driving licence and therefore, any liability has to be fastened upon respondent No.3.

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Respondent No.2 contended that the vehicle

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was insured with respondent No.3 and respondent No.1 - rider had a valid driving licence as on the date of accident

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and therefore any liability has to be fastened upon respondent No.3. He also contended that the accident was due to the negligence of the deceased.

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Respondent No.3 – Insurance Company contended that respondent No.1 was not having valid driving licence as on the date of accident and even though

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MFA No. 7290 of 2019

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this fact was known to respondent No.2, he had entrusted the vehicle to respondent No.1 and therefore, there is violation of the conditions of the policy and therefore, respondent No.3 is not liable to pay any compensation to the petitioners.

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On the basis of the pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration. Petitioner No.1 was examined as PW.1 and one witness was examined as PW.2 and documentary evidence of Exs.P.1 to P.14 were marked in evidence. Respondent No.3 produced copy of policy and the same was marked by consent as Ex.R.1 and no ocular evidence was led on behalf of the respondents.

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After hearing both sides, the Tribunal partly allowed the claim petition awarding a sum of Rs.15,29,989/- together with interest at 6% p.a. from the date of petition till its deposit excluding interest from 2410-2017 to 16-7-2018 and fastened the liability upon respondent No.3.

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MFA No. 7290 of 2019

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Aggrieved by said judgment and award passed by the Tribunal, the petitioners have approached this Court in this appeal urging several grounds.

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The petitioners contended that the

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compensation awarded by the Tribunal is meager and the Tribunal erred in assessing the compensation in a proper way. They contended that the Tribunal failed to consider the income of the deceased and therefore, the impugned judgment and award suffer from illegalities and quantum of compensation is to be reassessed by this Court.

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On issuance of notice, respondent Nos. 1 and 2 have appeared through their counsel and respondent No.3 – Insurance Company appeared through its counsel. The trial court records have been secured.

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We have heard the arguments by the learned counsel appearing for the appellants and respondents.

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The fact that there was an accident involving the motorcycle ridden by the deceased and respondent

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MFA No. 7290 of 2019

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No.1 is not in dispute. The Tribunal in its impugned judgment has considered this aspect in para No.11 and came to the conclusion that the police papers clearly depict that the negligence was on the part of respondent No.1. It has perused the police papers concerning to Crime No.27/2015 by Malebennur police and also considered the ocular evidence in this regard while coming to such a conclusion.

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The only point that is urged before this Court is in respect of quantum of compensation awarded by the Tribunal. The fact that respondent No.1 was having valid driving licence as on the date of accident is also not in dispute. The only other contention that was raised by respondent No.3 was that the owner and insurer of the motorcycle ridden by the deceased were not made parties to the petition. Obviously this contention is not sustainable as the deceased could not have maintained a petition under Section 166 of the Motor Vehicles Act against his

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MFA No. 7290 of 2019

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own insurer and there was no statutory liability that

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existed between them.

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The Tribunal has considered the notional

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income of the deceased Subhaschandra as Rs.8,000/- per month and has calculated the compensation under various

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heads as below:

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Heads	Amount in (Rs.)
Loss of dependency	13,43,998/-
Loss of estate	15,000/-
Transpiration of dead body and cremation	15,000/-
Towards Loss of Consortium	40,000/-
Towards Medical Expenses	1,15,991/-
Total	15,29,989/-

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It is relevant to note that the guidelines issued

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by the Karnataka State Legal Services Authority (KSLSA)

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for settlement of disputes before Lok-Adalath suggested

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the notional income for various years. Such guideline indicated that the income of the deceased for the year

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MFA No. 7290 of 2019

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2015 is Rs.9,000/- per month. Obviously the said notional income is also in consonance with that income fixed in the Minimum Wages Act and also by considering various other factors that are relevant. The evidence on record discloses that no cogent evidence was placed on record by the petitioners showing the income of the deceased. Except the oral testimony of PW.1, no other documents were available to prove the income of the deceased. There cannot be any doubt that the deceased was also a LIC agent and as depicted in Ex.P.10 and therefore the petitioners could have very well produced material to show the income of the deceased by cogent evidence. There is no material on record to show that the deceased was also running a hotel and was earning from such business. Therefore, the Tribunal was justified in holding that the notional income has to be considered in assessing the compensation.

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The guidelines issued by the KSLSA prescribe notional income of Rs.9,000/- per month and therefore the

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MFA No. 7290 of 2019

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same is taken into consideration. The petitioners are entitled for addition of 40% towards future prospects, on account of the deceased being aged about 38 years as per the documentary proof. Then it comes to Rs.9,000 + Rs.3,600/- = Rs.12,600/- per month. Obviously the deceased has left behind him the petitioners and therefore 1/3^rd of the income has to be deducted towards his personal expenses and as such the effective multiplicand comes to Rs.8,400/- (Rs.12,600 – 1/3^rd ). The appropriate multiplier for the age of 38 years would be 15. Therefore, the compensation payable towards loss of dependency is calculated as under:

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Rs.8,400 x 12 x 15 = Rs.15,12,000/- .

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The Tribunal has awarded a sum of Rs.15,000/-

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under the head of loss of estate and Rs.15,000/- towards transportation of dead body and cremation expenses. It has awarded a sum of Rs.40,000/- towards loss of consortium and Rs.1,15,991/- towards medical expenses.

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MFA No. 7290 of 2019

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The decision in the case of Rasmita Biswal

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and Others vs. Divisionl Manager, National Insurance Company Limited and Another¹ has laid down that observation in the case of National Insurance Company Limited vs. Pranay Sethi² that there should

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be an increase of 10% for every three years has to be considered while determining the compensation. Further, the decision in the case of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram³ lays down that each of the dependants are entitled for compensation under the head of loss of filial love and affection and as well as consortium.

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Learned counsel appearing for respondent No.3

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– Insurance Company has submitted that petitioner No.4 has died after filing of the petition and therefore he is not entitled for compensation under the head of loss of filial love and affection. It is pertinent to note that if the petitioner No.4 has died after filing of the petition,

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1 (2022) 2 SCC 767

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2 (2017) 16 SCC 680

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3 2018 ACJ 2782

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MFA No. 7290 of 2019

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naturally the rights and interest vested in him devolve upon petitioner Nos.1 to 3. Simply because petitioner No.4 had died during the pendency of the petition, it cannot be said that the rights vested in him would vanish. Therefore, we are unable to accept this contention of respondent No.3.

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In view of the above proposition laid down, each of the petitioners i.e. petitioner Nos.1 to 4 are entitled for a sum of Rs.44,000/- and therefore they are entitled for a sum of Rs.1,76,000/- under the head of loss of filial love and affection or consortium.

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The petitioners have spent amount for the funeral and other expenses and therefore they are entitled for Rs.16,500/- under the said head. Similarly, the petitioners are also entitled for a sum of Rs.16,500/- under the head of loss of estate. The Tribunal has awarded Rs.1,15,991/- towards medical expenses. Since the same is based on documentary evidence, the same is kept intact. Hence, the compensation is reassessed as below:

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MFA No. 7290 of 2019

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Heads	Amount in (Rs.)
Loss of dependency	15,12,000/-
Loss of filial love and affection or consortium	1,76,000/-
Funeral and other expenses	16,500/-
Loss of estate	16,500/-
Medical Expenses	1,15,991/-
Total	18,36,991/-

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Thus, the petitioners are entitled for a sum of Rs.18,36,991/- with interest at 6% p.a. as against Rs.15,29,989/- awarded by the Tribunal. Hence, we pass

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the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award dated 28.05.2019 passed in MVC No.12/2016 by the Tribunal is modified awarding compensation of Rs.18,36,991/ - with interest at 6% p.a. as against Rs.15,29,989/-.

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MFA No. 7290 of 2019

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(iii) The other terms of the Tribunal regarding

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payment of interest, apportionment and deposit remain unaltered.

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(iv) Insurance Company is directed to deposit the compensation amount including the enhanced compensation amount with interest within four weeks from the date of receipt of a copy of this order.

Sd/JUDGE

Sd/JUDGE

List No.: 19 Sl No.: 3

Smt Anjali @ Geethamma v. Thalavar Siddappara Devaraj

Case brief

What is this about?

What did the court decide?

Smt Anjali @ Geethamma v. Thalavar Siddappara Devaraj

Case brief

What is this about?

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