Partly allowed

Suvarna S B v. Rangadas @ Ranganatha

Karnataka HC16 Aug 2023MFA/9341/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the first appeal in part, enhancing death compensation to Rs.10,59,500/- and fastening liability jointly on the driver, vehicle owner, and insurer, setting aside the Tribunal's decision to exempt the insurer.

What did the court decide?

Compensation enhanced to Rs.10,59,500/- payable by driver, owner, and insurer jointly; insurer directed to pay within six weeks with liberty to recover from owner if policy violated.

Suvarna S B Vs Rangadas @ Ranganatha — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC:29284 MFA No. 9341 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 9341 OF 2013 (MV-D)

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BETWEEN:

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SUVARNA S.B W/O LATE SADANANDA AGED ABOUT 36 YEARS HOOTAGALLI, MYSURU TALUK MYSURU DISTRICT

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DARSHAN S/O LATE SADANANDA AGED ABOUT 11 YEARS MINOR WHEREFORE HIS MOTHER SUVARNA IS NATURAL GUARDIAN R/AT DOOR NO. 116 NEAR KUNTAMMA TEMPLE HOOTAGALLY, MYSURU-570001

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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NITHIN S/O LATE SADANANDA AGED ABOUT 5 YEARS MINOR WHEREFORE HIS MOTHER SUVARNA IS NATURAL GUARDIAN R/AT DOOR NO. 116 NEAR KUNTAMMA TEMPLE HOOTAGALLY, MYSURU-570 001

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…APPELLANTS

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(BY SRI.SHRIPAD V SHASTRI .,ADVOCATE (APPEARED THROUGH V.C)

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AND:

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RANGADAS @ RANGANATHA S/O VEERANNA AGED ABOUT 48 YEARS R/AT DOOR NO. 175 K N PURA, NEAR MANASA CONVENT KYATHAMARANAHALLY MYSURU - 570 001

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P K ANIL KUMAR S/O P.P.KRISHNAPPA AGED ABOUT 40 YEARS PUTTAMANE GADDEHALLA SUNTIKOPPA, COORG KODAGU KARNATAKA - 571 250

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THE DIVISIONAL MANAGER RELIANCE GEN.INSU. CO. LTD L-36/D, IST FLOOR MYSORE TRADE CENTRE OPP. K.S.R.T.C. BUS STAND BENGALURU -NILAGIRI ROAD MYSURU -570 001

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PUTTARAJU S S/O SHIVASHANKAR MAJOR R/AT DOOR NO. 1851/2 RATHANSINGH STREET MANDI MOHALLA MYSURU - 570 001

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KUSUMA W/O LATE BASAVARAJU AGED ABOUT 70 YEARS R/AT BESANAGARA VILLAGE ARSAL POST HOSANAGARA TALUK SHIVAMOGGA DISTRICT - 577 201

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…RESPONDENTS

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(BY SMT.M.R.SHALAMALA, FOR SRI.S N ASSTS FOR R1; SRI M.S.PURUSHOTHAM RAO, ADVOCATE FOR R-2; SRI H.S.LINGARAJ, ADVOCATE FOR R-3 (APPEARED THROUGH V.C);NOTICE TO R-4 IS HELD SUFFICIENT V.O.D 28.03.2017; SRI B.N.GIRISH, ADVOCATE FOR R-5)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.11.2012 PASSED IN MVC NO.53/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I & MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND TO FASTEN THE LIABILITY ON THE INSURANCE COMPANY FOR PAYMENT OF COMPENASTION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by the appellants who were the claimants before the Fast Track Court-I & Additional Motor Accidents Claims Tribunal, Mysore (hereinafter referred to as 'the Tribunal' ) being aggrieved by the impugned judgment and award dated 30^th November 2012 in MVC No.53/2012. The appellants/claimants are before this Court being dissatisfied with the inadequate and meager compensation awarded by the Tribunal and to fasten the liability on the

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respondent No.3/Insurance Company, the insurer of the offending vehicle - Tata Indica car bearing Registration No.KA04/P-9106.

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Parties to this appeal shall be referred to as per their status before the Tribunal.

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Brief facts of the case are as under:

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That on 13.1.2008 at about 4.45 p.m. the husband of 1^st claimant; father of claimant Nos.2 & 3; and son of 5^th respondent by name Sadananda was proceeding in a motor cycle bearing Registration No.KA-09/K-8561 towards K.R.S from Mysore. When he reached behind the Infosys Company, KIDB Road, Belagola Hobli, a Tata Indica car bearing Registration No.KA-04/P-9106 came from his behind in a rash and negligent manner and dashed against his motorcycle, due to which he fell down from the motorcycle and unfortunately died at the spot. Immediately, the dead body was taken to JSS Medical College Hospital, Mysore for post-mortem and thereafter, it was handed over to the claimants.

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3.1 It is the case of the claimants that they have spent

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huge amount towards conveyance, funeral & obsequies ceremonies and that the deceased Sadananda was the only earning member of the family and the family was dependent on his source of income for their survival and maintenance. It is also stated that the deceased was working as a Contractor and earning about Rs.9,000/- per month. On account of sudden and unfortunate death caused due to the accident, the claimants have sustained severe financial loss, emotional loss and lost love & affection of the deceased Sadananda. It is further case of the claimants that the accident occurred due to the rash and negligent driving of the Tata Indica Car bearing Registration No.KA-04/P-9106. The Respondent No.1 is the driver; Respondent Nos.2 and 4 are the owners; and Respondent No.3 is the insurer of the Tata Indica car, the offending vehicle. In view of death of the deceased Sadananda, the claimants filed the claim petition before the Tribunal seeking compensation.

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3.2 On notice being issued, Respondent Nos.1 and 3 filed their written statement, wherein they denied all the allegations

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made in the claim petition and sought for dismissal of the claim petition.

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3.3 On the basis of the pleadings, the Tribunal framed relevant issues for consideration. In order to substantiate the issues and to establish their case, the claimants got examined the 1^st claimant as PW.1 and got marked 10 documents as per Ex.P1 to Ex.P10 on their behalf, whereas the 2^nd respondent and Deputy Manager of the 3^rd respondent/Insurance Company have been examined as RWs.1 and 2 respectively and got marked Ex.R1 to Ex.R3 on their behalf.

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3.4 On the basis of oral and documentary evidence adduced by the parties, the Tribunal allowed the claim petition in part and awarded compensation of Rs.5,72,000/- with interest at 6% per annum from the date of petition till the date of realization. The Tribunal passed the award as against Respondent Nos.1 and 4 i.e., the driver and owner of the Tata Indic car, the offending vehicle, whereas against Respondent Nos.2 and 3, the Tribunal dismissed the claim petition. The respondent No.4, the owner of the offending vehicle was directed to deposit the compensation within two months.

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3.5 Aggrieved by the impugned judgment & award of the Tribunal, the present appeal is preferred by the appellants/claimants seeking enhancement of compensation and also to fasten the liability on the respondent No.3/Insurance company.

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It is the vehement contention of Sri Shripad V Shastri, learned counsel appearing for the appellants/claimants that the judgment & award passed by the Tribunal is illegal, arbitrary and against the principles of settled law and therefore the same requires to be enhanced and modified. Learned counsel further contends that the Tribunal committed a gross error in exonerating the Insurance Company from payment of compensation on the ground that the offending vehicle viz., Tata Indica car was taken on hire by the complainant and his friend as per the averments made in the complaint and the car was used for commercial purpose and have violated the terms and conditions of the policy. Learned counsel further contends that the Tribunal has failed to take into consideration that the deceased Sadananda was riding his motorcycle when the accident occurred due to the rash and negligence of the 1^st respondent/driver of the offending vehicle. It is further

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contended by the learned counsel for the appellants/claimants that the deceased was a 3^rd party and not a party to the contract of insurance entered into between the insurance company and the owner of the vehicle and therefore, the insurance company cannot absolve itself of the statutory liability of payment of the compensation as the deceased was not an inmate in the car, but the rider of the motorcycle which however would not affect the policy, which is entered into between the owner of the vehicle and the insurance company. Learned counsel has also canvassed about the salary certificate with regard to salary of the deceased Sadananda which is produced at Ex.P9, but however in the course of arguments, learned counsel submits that since the salary certificate has not been proved in accordance with law, the notional income as per the chart prescribed by the Karnataka State Legal Services Authority can be taken for computation of compensation. It is also contended by the learned counsel for the appellants/claimants that the Tribunal failed to take into consideration the addition of 40% towards loss of future prospects. In view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited -vs-

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Pranay Sethi and others reported in (2017)16 SCC 680 and the appeal having not been decided, 40% towards future prospects requires to be added to the income of the deceased while computation of compensation amount. It is also contended by learned counsel that the compensation awarded under the head of loss of consortium and other conventional heads, is meager and the same requires to be awarded in accordance with the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi stated supra. On these grounds, learned counsel seeks to allow the appeal and consequently enhance the compensation and fasten the liability on the Respondent No.3/Insurance Company as well as the owner of the offending vehicle.

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Learned counsel - Sri H.S. Lingaraj representing the Insurance Company vehemently controverts the arguments putforth by the learned counsel for the appellants/claimants and contends that the judgment and award passed by the Tribunal is fair, sustainable in law and does not call for any interference at the hands of this Court. He further contends that the Tribunal has rightly taken income of the deceased to be Rs.4,000/- per month in the absence of there being any

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cogent material evidence with regard to salary that was drawn by the deceased Sadananda and negatived Ex.P9/salary certificate and Ex.P10/salary disbursement record, in view of the fact that the same have not been proved in accordance with law and the author of the documents has not been examined. Learned counsel further contends that the Tribunal has not committed any error with regard to assessment of age of the deceased to be 38 years and since the number of dependants being 4, rightly deducted one-fourth of the income towards personal expenses of the deceased and adopted the proper multiplier of '15' applicable to the age of the deceased. Therefore, he contends that the impugned judgment and award passed by the Tribunal is sustainable in law and the same does not call for interference. Accordingly, he seeks for dismissal of the appeal.

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Learned counsel for the Respondent No.1/driver of the offending vehicle, is present who does not have much say in the matter as the compensation fastened against the owner of the vehicle and the insurance company.

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Having heard learned counsel for the appellants/claimants and the learned counsel for the respondents, the points that would arise for consideration before this Court in the present appeal are:

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i) Whether the appellants/claimants have made out a valid case for enhancement of compensation ?

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ii) Whether the appellants/claimants have made out a case for fastening liability on Respondent No.3/Insurance company for payment of compensation with liberty to recover from the owner of the offending vehicle, if there is any violation of terms and conditions of the policy ?

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It is not in dispute that the accident occurred on 13.1.2008 at 4.45 p.m. when the deceased Sadananda was proceeding on his motorcycle. It is also not in dispute that in view of accident having occurred between the motorcycle in which he was traveling and the Tata Indica car, the deceased Sadananda fell down from the motorcycle and died at the spot. It is also not in dispute that the FIR came to be registered

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against the Respondent No.1/driver of the offending vehicle and he was charge sheeted for the offences punishable under Sections 279, 337 and 304A of IPC. All these aspects have been proved by the claimants by production of Ex.P1 to Ex.P7, which are not in dispute and they clearly depict that the FIR was registered and the charge sheet was laid against the driver of the offending vehicle. It is submitted across the Bar by the learned counsel representing the 1^st respondent/driver of the offending vehicle that the 1^st respondent has been acquitted in the criminal case on the charges leveled against him. Be that as it may, the acquittal of driver of the offending vehicle in criminal case for the penal offences of the motor accident would not absolve the liability of the owner/Insurance Company in payment of compensation in the claim petition filed by the claimants.

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In view of the above admitted facts, it is clearly evident that the accident occurred due to the involvement of two vehicles on the public road and the Tata India car was insured with the 3^rd respondent - Insurance company and driven by the 1^st respondent/driver. It is also not in dispute

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that the deceased was a rider of the motorcycle and was not an inmate in the car.

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Ex.P8, Ex.P9 and Ex.P10 are the death intimation, salary certificate and salary disbursement record of the deceased Sadananda and the same are produced by the claimants. Though it is stated by the claimants that the deceased Sadananda was drawing a salary of Rs.9,000/- per month and has produced Ex.P9 and Ex.P10, the same are not proved in accordance with law by examining the author of Ex.P9. Therefore, the amount so stated by the claimants with regard to the income of the deceased Sadananda to be Rs.9,000/- cannot ex facie be taken for consideration. In view of the claimants having not placed cogent evidence to prove the fact of his income, this Court will have to rely on the notional income chart prescribed by the Karnataka State Legal Services Authority, wherein for the accident occurred in between 2008 and 2009, the notional income requires to be taken. In the present case, accident having occurred on 13.1.2008, Rs.4,500/- would have to be taken as income of the deceased in accordance with the chart.

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In view of the deceased being below 40 years of age, 40% has to be added towards future prospects. Of course, the Tribunal did not have the opportunity to take into consideration addition of 40% towards future prospects for the simple reason that the judgment of the Hon'ble Apex Court in the case of Pranay Sethi was not available as on the date of pronouncement of the judgment by the Tribunal. In view of the fact that appeal having not been decided, pursuant to the judgment in the case of Pranay Sethi , 40% will have to be added to the income as future prospects. Therefore, Rs.1,800/- (40% of Rs.4,500) will have to be added to Rs.4,500/-, which would come to Rs.6,300/-. It is also not in dispute that the deceased left behind four dependants i.e, wife, two minor children and mother and therefore, one-fourth would have to be deducted towards personal and living expenses of the deceased. On deduction of one-fourth towards personal and living expenses, it comes to Rs. 4725/- (Rs.6300 minus Rs.1575). Since the deceased was aged 38 years as on the date of the accident, the proper and appropriate multiplier applicable would be '15' as per the judgment in the case of

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Sarla Verma and others -vs- Delhi Transport Corporation

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and another reported in (2009)6 SCC 121. Therefore, loss of dependency in the present case would be Rs.8,50,500/(Rs.4,725 x 12 x 15).

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The deceased left behind four dependants i.e, wife, two minor children and mother (claimants and Respondent No.5) and the Tribunal has awarded meager compensation of Rs.10,000/- towards loss of consortium. As held by the Ho’ble Apex Court in the case of Pranay Sethi stated supra , which has been subsequently followed by the Hon’ble Apex Court in the cases of Magma General Insurance Co.Ltd. vs. Nanu Ram and others, reported in (2018) 18 SCC 130 and United

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India Insurance Co. Ltd. v. Satinder Kaur Alias Satwinder

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Kaur reported in AIR 2020 SC 3076 , the claimants-dependents would be entitled to Rs.40,000/- per head and there being four dependents, Rs.1,60,000/- (Rs.40,000/- x 4) would be the loss of consortium in the present case.

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Based on the material available on record, another sum of Rs.15,000/- towards funeral expenses and Rs.15,000/towards loss of estate has to be awarded which comes to Rs.30,000/-.

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Apart from this, in view of the judgment of the Hon'ble Apex Court in the case of Pranay Sethi stated supra, 10% of the amount awarded under the conventional heads has

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to be added for one block period, which would come to Rs.19,000/- (i.e., 10% of Rs.1,90,000).

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In view of the above discussion, the

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appellants/claimants would be entitled to a total compensation of Rs.10,59,500/- as mentioned in the table below.

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Sl.No.	Head of compensation	Amount of compensation awarded
1	Loss of dependency	Rs.8,50,500=00
2	Loss of consortium	Rs.1,60,000=00
3	Funeral expenses	Rs. 15,000=00
4	Loss of Estate	Rs. 15,000=00
5	10% of compensation awarded under the conventional heads	Rs. 19,000=00
	Total	Rs.10,59,500=00

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The Tribunal has exonerated the Insurance Company from payment of compensation on the ground that the offending vehicle viz., Tata Indica car was taken on hire by the complainant and his friend as per the averments made in the complaint and the car was used for commercial purpose and has violated the terms and conditions of the policy. Hence, the Tribunal has come to the conclusion that the Insurance Company would not be liable to pay compensation. However, the finding of the Tribunal with regard to absolving the 3^rd respondent/Insurance Company from payment of compensation, cannot be accepted in the present facts and circumstances of the case for the reason that the deceased was not an inmate of the car and neither was it hired by the deceased. On the contrary, the deceased was traveling in a motorcycle which met with the accident against the offending vehicle, Tata Indica car. It is also not in dispute that the Tata Indica car was insured with the 3^rd respondent/Insurance Company. That being the case, the Tribunal is not right in my opinion in exonerating the insurance company from payment of compensation to the claimants. In view of the finding given herein, the Tribunal dismissing the case as against 3^rd

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respondent/Insurance Company is set aside. The liability is required to be fastened on the 3^rd respondent/Insurance Company and it is liable to pay compensation to the appellants/claimants. However, liberty is reserved to the 3^rd insurance company to recover from the owner of the offending vehicle, if there is any violation of the terms and conditions of the policy. It is made clear that it is an inter se claim and that would have to be made by the insurance company with the owner of the offending vehicle, if at all the insurance company is able to prove breach of the terms and conditions of the policy. However, the same would not affect the claimants' right of compensation.

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For the reasons stated above, the points raised in the present appeal are answered as under:

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i) The 1^st point is answered in the affirmative holding that the appellants/claimants have made out a valid case for enhancement of compensation.

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ii) The 2^nd point is answered in the affirmative holding that the appellants/claimants have made out a case for fastening liability on

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Respondent No.3/Insurance company with liberty to recover from the owner of the offending vehicle, if there is any violation of terms and conditions of the policy.

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In view of the above, I proceed to pass the following:

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O R D E R

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i) The appeal is allowed in part .

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ii) The appellants/claimants would be entitled to total compensation of Rs.10,59,500/- (Rupees ten lakhs fifty-nine thousand five hundred only) as against Rs.5,72,000/awarded by the Tribunal alongwith interest at the rate of 6% per annum.

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iii) The liability is fastened against Respondent Nos.1,3 and 4 jointly. However Respondent No.3/Insurance company is directed to pay the compensation to the appellants/claimants alongwith interest within a period of six weeks from the date of receipt of copy of this judgment. The Respondent No.3/Insurance

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Company would be at liberty to recover the same from the owner of the offending vehicle i.e., Respondent No.4, if there is any violation of the terms and conditions of the policy.

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iv) The impugned judgment & award passed by the Tribunal is accordingly modified .

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iv) The Original Records shall be transmitted to

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the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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GSS

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List No.: 1 Sl No.: 60

Suvarna S B v. Rangadas @ Ranganatha

Case brief

What is this about?

What did the court decide?

Suvarna S B v. Rangadas @ Ranganatha

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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