Partly allowed

Smt. Sunitha v. Smt. Shivamma

Karnataka HC11 Mar 2024MFA/3890/2021

Case brief

AI extract

What is this about?

High Court of Karnataka allowed an accident claimant's appeal to enhance compensation from Rs.11,60,200 to Rs.18,74,280 by adding future prospects and consortium amounts applicable under Supreme Court precedents, while dismissing the insurance company's challenge.

What did the court decide?

Compenhension enhanced to Rs.18,74,280/- to be paid by the insurance company with interest @ 6% p.a.

Smt. Sunitha Vs Smt. Shivamma — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO.3890 OF 2021 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.6947 OF 2019(MV-D)

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IN MFA NO.3890/2021:

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BETWEEN:

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SMT.SUNITHA

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W/O.LATE RANGANATHA AGED ABOUT 36 YEARS

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SOWMYA

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D/O.LATE RANGANATHA AGED ABOUT 17 YEARS

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VIDYA

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D/O.LATE RANGANATHA AGED ABOUT 15 YEARS

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SAHANA

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D/O.LATE RANGANATHA AGED ABOUT 13 YEARS

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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YASHAVANTHA S/O.LATE RANGANATHA AGED ABOUT 10 YEARS

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SINCE A-2 TO A-5 ARE MINORS, THEY ARE REPRESENTED BY THEIR NATURAL GUARDIAN AND NEXT FRIEND I.E. MOTHER, APPELLANT NO.1-SMT.SUNITHA W/O.LATE RANGANATHA AGED ABOUT 36 YEARS

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NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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RAMAKRISHNAIAH S/O.LATE GUNDAIAH AGED ABOUT 63 YEARS

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LAKKAMMA W/O.RAMAKRISHNAIAH AGED ABOUT 58 YEARS

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ALL ARE OLD RESIDENT OF VIVEKANANDA NAGARA MUNUYURE, TURUVEKERE TALUK

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NOW ALL ARE RESIDENT OF VADDARAHALLY VILLAGE KASABA HOBLI, TUMAKURU TALUK AND DISTRICT-577 101

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…APPELLANTS

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(BY SRI M.B.RYAKHA, ADVOCATE)

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AND:

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SMT.SHIVAMMA W/O.GANGANNA AGED ABOUT 55 YEARS R/AT DWARANAHALLI SHETTIGANAHALLI POST MAYASANDRA HOBLI TURUVEKERE TALUK TUMAKURU DISTRICT-577 101

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THE MANAGER BAJAJ ALLIANZ GEN. INSURANCE CO.LTD. GROUND FLOOR, NO.31 JBR TOWER, 1^ST CROSS NEW MISSION ROAD NEAR BENGALURU STOCK EXCHANGE BENGALURU-560 010

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…RESPONDENTS

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(BY SRI P.B.RAJU, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED V/O. DATED 23.05.2022)

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3 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 17.06.2019 PASSED IN MVC NO.572/2012 BY VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TUMAKURU.

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IN MFA NO.6947 OF 2019:

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BETWEEN:

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BAJAJ ALLIANZ GEN.INSURANCE CO.LTD. GROUND FLOOR, NO.31 JBR TOWER, 1^ST CROSS MISSION ROAD NEAR BENGALURU STOCK EXCHANGE BENGALURU - 560 010

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REP.BY ITS MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. 4^TH FLOOR, GOLDEN HEIGHTS NO.1/2, 59^TH 'C' CROSS 4^TH M-BLOCK, RAJAJINAGAR BENGALURU-560 010

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…APPELLANT

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(BY SRI P.B.RAJU, ADVOCATE)

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AND:

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SMT. SUNITHA W/O.LATE RANGANATHA AGED ABOUT 35 YEARS

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SOWMYA D/O.LATE RANGANATHA AGED ABOUT 16 YEARS

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VIDYA D/O.LATE RANGANATHA AGED ABOUT 14 YEARS

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SAHANA D/O LATE RANGANATHA AGED ABOUT 12 YEARS

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NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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YASHAVANTHA S/O.LATE RANGANATHA AGED ABOUT 09 YEARS

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SINCE R-2 TO 5 ARE MINORS, THEY ARE REPRESENTED

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BY THEIR NATURAL GUARDIAN AND NEXT FRIEND I.E. MOTHER, APPELLANT NO.1-SMT.SUNITHA W/O.LATE RANGANATHA AGED ABOUT 35 YEARS

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RAMAKRISHNAIAH S/O.LATE GUNDAIAH AGED ABOUT 62 YEARS

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LAKKAMMA W/O.RAMAKRISHNAIAH AGED ABOUT 57 YEARS

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ALL ARE RESIDENT OF VIVEKANANDANAGARA MUNUYURE, TURUVEKERE TALUK

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NOW ALL ARE RESIDENT OF VADDARAHALLY VILLAGE KASABA HOBLI TUMAKURU TALUK & DISTRICT-577 101

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SMT.SHIVAMMA W/O.GANGANNA AGED ABOUT 54 YEARS R/AT DWARANAHALLI SHETTIGANAHALLI POST MAYASANDRA HOBLI TURUVEKERE TALUK TUMAKURU DISTRICT 577 101

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…RESPONDENTS

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(BY SRI M.B.RYAKHA, ADVOCATE FOR R-1 TO R-7; R-8 IS SERVED)

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5 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 17.06.2019 PASSED IN MVC NO.572/2012 BY VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TUMAKURU.

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THESE APPEALS ARE COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals are preferred by the claimants as well as the Insurance Company challenging the judgment and award dated 17.06.2019 passed in MVC.No.572/2012

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by the Court of VI Additional District and Sessions Judge, Tumakuru (for short, 'the tribunal').

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The appeal preferred by the claimants is on the premise of inadequate and meager compensation awarded by the tribunal, whereas, the appeal preferred by the Insurance Company is on the ground of arbitrary and unreasonable judgment and award passed by the tribunal.

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Though these matters are listed for admission, with consent of learned counsels for parties, they are taken up for final disposal.

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NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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Parties to this appeal shall be referred to as per

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their status before the Tribunal.

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Brief facts of the case are as under:

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On 23.12.2011 at about 10.00 a.m., one Ranganatha

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and Lakshmana were doing coolie under owner of tractortrailer bearing registration No.KA-44-T-4524-4525 as loaders. They have loaded ragi-gross to the trolley and they were travelling by sitting in the trailer. The driver of the said tractor drove the same with high speed, in a rash and negligent manner and dashed against the road side old tree, due to which, the tractor overturned, as a result of which, the deceased Ranganatha along with Lakshmana

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fell down and the deceased Ranganatha sustained grievous injuries. Immediately he was shifted to Shettigondanahally Government Hospital, where he took first aid treatment and thereafter, he was shifted to Government Hospital, Turuvekere. But, unfortunately, on the way he succumbed to the injuries.

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5.1 It is stated that the deceased was hale and healthy prior to the occurrence of accident. He was aged about 32 years. He was doing petty shop business and agriculture and earning a sum of Rs.10,000/- per month. Due to the sudden and untimely death of the deceased, the claimants who are none other than the unfortunate widow, four minor children and parents of the deceased Ranganatha filed claim petition seeking compensation against the respondents.

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5.2 On service of notice, respondent No.1 did not appear and was placed ex parte . Respondent No.2Insurance Company appeared through its counsel and filed its written statement denying the averments made in the claim petition and sought for dismissal of the claim petition on the ground that the petition is not maintainable as it is a false and fictitious case. It has also denied the age, avocation, income and negligence attributed as against the driver of the tractor. It has also pleaded that the driver did not possess a valid and effective Driving Licence to drive

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8 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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the transport vehicle. Therefore, there was no permission or facility for the deceased to sit on the tractor-trailer and having sat at his own risk and negligence, entire negligence has to be fastened as against the deceased himself and accordingly, sought for dismissal of the claim petition.

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5.3 On the basis of pleadings, the tribunal framed the relevant issues for consideration.

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5.4 In order to substantiate the issues and to establish the case, claimant No.1 got examined a witness as PW.1 and another witness as PW.2 and got marked documents as Exs.P1 to P9. On the other hand, respondent No.2 got examined a witness as RW.1 and got marked documents as Exs.R1 to R3.

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5.5 On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsels for both parties, the tribunal awarded compensation of Rs.11,60,200/- with interest @ 6% p.a. fastening the liability jointly against respondent Nos.1 and

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9 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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2 and directed respondent No.2 to deposit the

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compensation with interest within a period of three months from the date of the award.

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5.6 Being aggrieved by the same, the claimants are before this Court in MFA.No.3890/2021 seeking enhancement of compensation and the Insurance Company is also before this Court in MFA.No.6947/2019 seeking to set aside the judgment and award passed by the tribunal on the ground of it being erroneous.

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It is the vehement contention of learned counsel for claimants that the tribunal has committed an error in awarding meager compensation. Hence, he seeks to enhance the compensation.

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Per contra , learned counsel for Insurance Company vehemently contends that the tribunal has erred in awarding exorbitant compensation, which calls for interference at the hands of this Court. Hence, he seeks to allow his appeal by setting aside the judgment and award passed by the tribunal.

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10 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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Having heard the learned counsel for the claimants and learned counsel for Insurance Company and perused the impugned judgment and award, it is seen that Exs.P1 to P8, the Police records clearly depict filing of FIR would clearly depict the registration of FIR and laying of chargesheet against the driver of the offending vehicle i.e. tractor-trailer and the same has not been disputed or challenged. Therefore, the negligence is rightly attributed as against the driver of the offending vehicle.

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Now coming to the age, avocation, income and the liability, it is seen that the deceased was aged 32 years as on the date of occurrence of accident and the tribunal applied the multiplier of '16', which does not call for interference and the same is retained. The tribunal has assessed the income of the deceased at Rs.7,000/- per month and has deducted 1/5^th towards personal and living expenses, which do not call for interference and the same are retained. However, the tribunal has failed to add 40% towards future prospects. Therefore, I am in agreement

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NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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with learned counsel for claimants that 40% would have to be added towards future prospects even if there is no proof of income and age being less than 40 years. Hence, 40% will have to be added towards future prospects to the notional income awarded by the tribunal. Therefore, the claimants would be entitled to the compensation of Rs.15,05,280/- (Rs.7,000/- + 40% = Rs.9,800/- - 1/5^th = Rs.7,840/- x 12 x 16) towards loss of dependency as against Rs.10,75,200/- awarded by the tribunal.

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The tribunal awarded Rs.15,000/- towards loss of love and affection and Rs.40,000/- towards loss of consortium, which requires interference. As per the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680, Rs.40,000/- to be awarded to each dependents towards loss of consortium along with 10% escalation for one block period on the same. In the present case, there are seven dependants. Therefore,

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NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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this Court deems it appropriate to award Rs.2,80,000/(Rs.40,000/- x 7) along with 20% escalation for two block period, which would come to Rs.56,000/(Rs.2,80,000/- x 20%). In all, the claimants would be entitled to Rs.3,36,000/- towards loss of consortium.

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The tribunal awarded Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. In all, Rs.30,000/- awarded by the tribunal towards conventional heads, which does not call for interference and the same is retained. However, as per the aforesaid decision, 10% escalation on the same to be awarded under this head, which would come to Rs.33,000/- (Rs.30,000/- + 10%).

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In view of the above, the claimants would be entitled to a total compensation of Rs.18,74,280/- as against Rs.11,60,200/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of dependency	15,05,280-00
Loss of consortium	3,36,000-00
Transportation of dead body,	33,000-00
funeral and obsequies ceremony
expenses
TOTAL	18,74,280-00

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Learned counsel for Insurance Company

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contended that in view of the tractor-trailer weigh more

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than 7500 kgs. unladen weight, pay and recovery required to be ordered as against the owner of the offending vehicle. The tribunal has considered this aspect relying on the decision of the Hon'ble Apex Court in the case of

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Mukund Dewangan v. Oriental Insurance Company

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Limited reported in AIR 2017 SC 3668 and held that the owner and the Insurer are jointly and severally liable to pay the compensation and directed the Insurance Company to pay the compensation to the claimants. Therefore, I do not find any cogent and good reason to interfere with the said finding with regard to the liability of

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the Insurance Company to pay compensation. Hence, the contention raised by the Insurance Company is negatived.

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Accordingly, I pass the following:

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ORDER

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i) The appeal preferred by the claimants is

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allowed-in-part;

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14 - NC: 2024:KHC:9998 MFA No. 3890 of 2021 C/W MFA No. 6947 of 2019

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ii) The appeal preferred by the Insurance Company is dismissed;

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iii) The judgment and award dated 17.06.2019 passed in MVC.No.572/2012 by the Court of VI Additional District and Sessions Judge, Tumakuru, is modified;

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iv) The claimants are entitled to the compensation of Rs.18,74,280/- as against Rs.11,60,200/awarded by the tribunal;

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v) The balance compensation amount shall be paid with interest @ 6% p.a. by the Insurance Company within a period of four weeks from the date of receipt of a copy of this order.

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vi) The compensation amount shall be released in favour of the claimants in accordance with the terms of the tribunal, upon proper verification;

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vii) The original records shall be transmitted to the jurisdictional tribunal forthwith;

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viii) All other terms and conditions stipulated by the tribunal with regard to release, deposit and apportionment shall stand intact.

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Sd/JUDGE

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List No.: 1 Sl No.: 55

Smt. Sunitha v. Smt. Shivamma

Case brief

What is this about?

What did the court decide?

Smt. Sunitha v. Smt. Shivamma

Case brief

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What did the court decide?

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