Partly allowed

Smt. Hemavathi v. Sri. Vasanth Kumar.M

Karnataka HC15 Jun 2023MFA/7298/2015

Case brief

AI extract

What is this about?

High Court modified a Tribunal award in a motor vehicle accident case. The court enhanced compensation from Rs.5,78,000 to Rs.6,94,100 by reassessing the deceased's notional income and applying statutory future prospects and escalation for the widowed claimant.

What did the court decide?

The appeal allowed in part; compensation increased to Rs.6,94,100 with 6% interest; insurer ordered to deposit amount within four weeks.

Smt. Hemavathi Vs Sri. Vasanth Kumar.M — Writ and Judicial Review | Karnataka HC (2023)

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NC: 2023:KHC:20690 MFA No. 7298/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JUNE, 2023 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.7298 /2015 (MV-D)

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BETWEEN:

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SMT. HEMAVATHI W/O. LATE CHIKKANARASAIAH, AGED ABOUT 46 YEARS, RESIDING AT UPPINAKERE VILLAGE, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT-573428. …..APPELLANT

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(BY SRI. ANANDA K, ADV.)

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AND:

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

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SRI. VASANTH KUMAR.M S/O SRI.MAHADEVA, MAJOR, RESIDING AT ALAGUDU VILLAGE, T.NARASIPURA TALUK, MYSURU DISTRICT-571 123.

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THE DIVISIONAL CONTROLLER.

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THE BRANCH MANAGER

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ICICI LOMBARD GENERAL INSURANCE CO.LTD., MYTHRI ARCADE, SARASWATHIPURAM, MYSURU-571107.

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…..RESPONDENTS

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(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2; R1 UNREPRESENTED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 1.6.2015 PASSED IN MVC NO.1206/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, AT MADDUR, BY ENHANCING THE TOTAL COMPENSATION AS CLAIMED BY THE APPELLANT IN HER CLAIM PETITION BY ALOWING THIS APPEAL IN THE INTEREST OF JUSTICE.

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

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JUDGMENT

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“Whether the compensation awarded to the claimant under the impugned award is just ?” is the question involved in this case.

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Appellant was claimant no.1 and her son Sunil U.C., was claimant no.2 in MVC No.1206/2014 on the file of Senior Civil Judge, MACT, Maddur. Respondent Nos. 1 and 2 were respondents before the Tribunal.

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

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Claimant Nos. 1 and 2 are the wife and major son of Chikkanarasaiah. On 11.06.2014 at 7.15 a.m. when Chikkanarasaiah was proceeding on his bicycle near

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NC: 2023:KHC:20690 MFA No. 7298/2015

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Goravanahalli, Maddur Road within the limits of Maddur Police, Tata Ace vehicle bearing No. KA-55/4903 loaded with iron rods hit him and caused accident. Chikkanarasaiah suffered grievous injuries and died on the spot.

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Regarding the accident, one Siddaraju filed complaint before Maddur Police alleging that the accident occurred due to the actionable negligence on the part of the driver of Tata ACE Goods vehicle bearing No.KA-55/4903. Based on that, Maddur Police registered FIR as per Ex.P1 against the driver of the said vehicle. On investigation, police charge-sheeted the said driver as per Charge sheet Ex.P6 for the offences punishable under Sections 279, 304A of IPC read with Section 134(A) and (B) and Section 187 of IMV Act.

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The claimants filed MVC No.1206/14 against the respondents claiming a compensation of Rs.24,10,000/- on the ground that they were dependent on the income of deceased Chikkanarasaiah and due to his death they have suffered damages. They further claimed that accident occurred due to actionable negligence on the part of the driver of Tata Ace

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vehicle No.KA-55/4903. Respondent Nos.1 and 2 being the

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owner and insurer are liable to pay the compensation.

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Respondent No.1 did not contest the petition. Respondent no.2 contested the petition denying the occurrence of the accident, actionable negligence on the part of the driver of Tata Ace vehicle, age, occupation, income of the deceased and its liability to pay the compensation. In support of their case, claimants examined PW.1 to 3 and got marked Ex.P1 to P11. On behalf of respondent, RW.1 was examined and Ex.R1 to R4 were marked. There was no dispute with regard to respondent no. 2 covering the vehicle under the Policy Ex.R1.

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The Tribunal, on hearing the parties, by the impugned award, held that the accident occurred due to the actionable negligence on the part of the driver of Tata Ace KA55/4903. The Tribunal further held that the claimant no.2 was major and had independent income, therefore, he cannot be considered as dependent of the deceased. Since there was no proof of actual income of the deceased, the Tribunal considered Rs.6,000/- as notional income, his age as 51 years, deducted 1/3rd of his income for his personal expenses, applied 11

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multiplier and awarded compensation of Rs.5,28,000/- under

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the head `loss of dependency'.

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The Tribunal in all awarded compensation of

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Rs.5,78,000/- on different heads as per the table below:

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Sl. No.	HEAD	AMOUNT IN Rs.
1.	Loss of dependency	5,28,000/-
2.	Funeral and Transportation Expenses	15,000/-
3.	Loss of Love and Affection	10,000/-
4.	Loss of Estate	15,000/-
5.	Loss of companionship	10,000/-
	TOTAL	5,78,000/-

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Challenging the said award, claimant no.2 has not

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preferred any appeal. Claimant no.1 alone has preferred the appeal questioning the adequacy of the compensation awarded by the Tribunal.

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Submissions of Sri Ananda K, learned counsel for the appellant:

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The Tribunal was not justified in rejecting the evidence of PW.3 regarding employment of deceased in Petrol Bunk and salary certificate. The income of the deceased

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considered by the Tribunal is on the lower side. The Tribunal has not awarded compensation towards future prospects. The compensation awarded on the other heads is also on the lower side.

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Submissions of Sri A.N.Krishnaswamy, learned Standing Counsel for respondent No.2/Insurance Company:

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The evidence of PW.3 and Ex.P8 are not reliable documents. The compensation awarded is just one.

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ANALYSIS

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The Insurer has not preferred any appeal challenging any of the findings of the Tribunal. Relationship of the deceased with the claimants is not disputed. As per the claimants’ own documents Ex.P5 PM report and Ex.P11-Election ID Card of the deceased, at the time of accident, deceased was aged 51 years.

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Though PW.3 deposed that the deceased was working in their Petrol Bunk as Watchman, no documents like attendance register, wage register maintained by the employer were produced. PW.3 himself admitted in the crossexamination that they have maintained attendance register of

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their 14 employees in their establishment. Still those documents were not produced. Therefore, the Tribunal was justified in rejecting the contention of the claimants that deceased was working as the Watchman in the establishment of PW.3 and earning salary of Rs.5,000/- per month.

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So far as agricultural income of the deceased, Ex.P7-RTC shows that the said land measures 14 guntas, was not cultivated and no crops were grown. Though Ex.P9, a document purportedly issued by the Milk Producers Cooperative Society was produced to claim that the deceased was doing milk vending business, the author of the said document was not examined. Under the said circumstances, the Tribunal was justified in considering the income of the deceased notionally. The accident occurred in the year 2014. Having regard to the age of deceased, prevailing wage rates and cost of living during the said period, the income of Rs.6,000/assessed by the Tribunal is on the lower side, the Tribunal should have taken it at Rs.8,500/- per month.

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The second claimant was major son. He did not enter the witness box to prove that he was dependent on his

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father. He has not preferred any appeal against the said finding. Therefore, the Tribunal's finding that he was not a dependent of deceased needs no interference. In such case, claimant no.1 alone becomes the dependent of the deceased. Therefore, as per the judgment of Hon'ble Apex Court in Sarla

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Verma and others vs. Delhi Transport Corporation & another¹ , half of the income of the deceased has to be deducted for his personal expenses. As per judgment in National Insurance Co. Ltd., vs. Pranay Sethi² having regard to the age of the deceased, the Tribunal should have added 10% to his income by way of future prospects. Therefore, the monthly contribution of the deceased to family comes to Rs.8500/2 = 4250+425 = 4675/-. The applicable multiplier is 11. Therefore, compensation payable on the head of `Loss of Dependency' comes to Rs.6,17,100/-. (4675 x 12 x 11).

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As per the judgments of Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd., vs. Nanu Ram.³ , both claimants

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1 (2009)6 SCC 121

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2 2017 (6) SCC 680

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3 2018 (18) SCC 130

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were entitled to compensation of Rs.40,000/- on the head of Consortium with escalation of 10%. However the son has not challenged the award. Therefore, compensation on that head has to be restricted only to the 1^st claimant.

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Similarly in the light of the judgment in Pranay

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Sethi’s case referred to supra , the claimants are entitled to compensation of Rs.15,000/-on the head of funeral expenses and for transportation and Rs.15,000/- on the head of loss of estate with escalation at 10%, which comes to Rs.33,000/-.

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Therefore just compensation payable is as follows:

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