Partly allowed

Sri. Kumar v. Sri. C. Nagappa

Karnataka HC11 Nov 2024MFA/708/2020

Case brief

AI extract

What is this about?

Claimants sought enhancement of Tribunal awards for deaths of a mother and her infant daughter in an auto-lorry collision where liability was apportioned 50:50. The High Court held that in composite negligence claimants may recover whole damages from any tort-feasor, set aside the 50% cap, and enhanced compensation using notional income and its minor-death guidelines.

What did the court decide?

Appeals allowed in part; insurer directed to pay enhanced compensation of Rs.20,48,372/- (Varalakshmi) and Rs.12,78,087/- (Bhavya) with 6% interest; liberty reserved to recover from auto owner.

Sri. Kumar Vs Sri. C. Nagappa — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA MISCELLANEOUS FIRST APPEAL NO. 708 OF 2020

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 1953 OF 2020

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(MV-D)

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IN MFA No. 708/2020:

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BETWEEN:

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SRI. KUMAR S/O LATE NANJAPPA NOW AGED ABOUT 32 YEARS

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NARAYANAMMA W/O LATE NANJAPPA NOW AGED ABOUT 64 YEARS

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Digitally signed by KIRAN KUMAR R Location: High Court of Karnataka

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BOTH ARE RESIDING AT JODIKRISHNAPURA VILLAGE, NARASAPURA POST, KOLAR TALUK AND DISTRICT.

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…APPELLANTS

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(BY SRI. GOPAL KRISHNA N., ADVOCATE)

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AND:

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SRI. C. NAGAPPA S/O CHINNAPPA MAJOR BY AGE, RESIDING AT BETTAGERANAHALLI VILLAGE, HANUMANAHALLI POST, MULBAGAL TALUK,

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NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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KOLAR DISTRICT-563131.

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M/s NATIONAL INSURANCE COMPANY LTD REGIOANL OFFICE SHUBARAM COMPLEX, M.G.ROAD, BENGALURU-560001 BY ITS MANAGER

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SMT. JOTHI S W/O KUMAR, MAJOR BY AGE, RESIDING AT NO.52/C, 12^TH CROSS, MAGADI ROAD, BENGALURU-560023.

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…RESPONDENTS

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(BY SRI. K.N.SRINIVASA., ADVOCATE FOR R-2; R-1 IS SERVED AND UNREPRESENTED; VIDE ORDER DATED:07.03.2023, NOTICE TO R-3 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.09.2018 PASSED IN MVC NO. 8009/2016 ON THE FILE OF THE VIII ADDITIONAL SCJ AND XXXIII ACMM, MEMBER, MACT, BENGALURU (SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 1953/2020:

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BETWEEN:

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SRI. KUMAR S/O LATE NANJAPPA NOW AGED ABOUT 32 YEARS RESIDING AT JODIKRISHNAPURA VILLAGE, NARASAPURA POST, KOLAR TALUK AND DISTRICT.

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...APPELLANT

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(BY SRI. GOPAL KRISHNA N.,ADVOCATE)

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3 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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AND:

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SRI. C. NAGAPPA S/O CHINAPPA, MAJOR BY AGE, RESIDING AT BETTAGERANAHALLI VILLAGE, HANUMANAHALLI POST, MULABAGAL TALUK, KOLAR DISTRICT-563131.

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M/s NATIONAL INSURANCE COMPANY LTD REGIONAL OFFICE, SHUBARAM COMPLEX, M G ROAD, BENGALURU-560001.

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SMT. JOTHI S, W/O KUMAR MAJOR BY AGE RESIDING AT NO.52/C, 12^TH CROSS, MAGADI ROAD, BENGALURU-560023.

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...RESPONDENTS

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(BY SRI. K.N.SRINIVASA., ADVOCATE FOR R-2; NOTICE TO R-3 IS DISPENSED WITH VIDE ORDER DATED:08.11.2023; R-1 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 17.09.2018 PASSED IN MVC NO.8010/2016 ON THE FILE OF THE VIII ADDITIONAL SCJ AND XXXIII ACMM, MEMBER, MACT, BENGALURU SCCH-5, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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THESE APPEALS, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA

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4 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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ORAL JUDGMENT

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The claimants are in appeal being dissatisfied with the

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quantum of compensation awarded by the Tribunal.

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These appeals arise out of an accident which occurred on 21.10.2016 when Smt.Varalakshmi, a 23 year old and her daughter Kum.Bhavya, a 01 year old were killed in the accident. Both of them were inmates in an Auto Rickshaw which collided with a lorry that had been insured by respondent No.2/insurer.

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It is stated that the Auto Rikshaw in which the deceased were traveling was not insured, and it is only the lorry which was insured. The claimants proceeded to initiate proceedings against the insurer of the lorry as well as the owner of the Auto Rikshaw.

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The Tribunal has come to the conclusion that both the driver of Auto Rikshaw and the driver of lorry were responsible for the accident in equal proportions. It has thereafter proceeded to award a sum of

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5 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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Rs.11,29,000/- for the death of Varalakshmi, and a sum of Rs.5,75,000/- for the death of Bhavya.

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The Tribunal has made the insurer of the lorry liable to the extent of only 50%.

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Being aggrieved by this attribution of negligence to the extent of 50% and, in the alternative, the direction to the claimants to proceed only against the lorry to the extent of 50%, the claimants are in appeal.

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The learned counsel for the claimants placed reliance on the judgment rendered by the Hon’ble Supreme Court in Khenyei’s case¹ in which the Apex Court has held as follows:

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“22. What emerges from the aforesaid discussion is as follows :

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22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to

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1 Khenyei vs. New India Assurance Company Limited & others, (2015) 9 SCC 273

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NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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recover the entire compensation as liability of joint tort feasors is joint and several.

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22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment / extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.”

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He submits that even though the claimants had arrayed both the tort-feasors as respondents in the

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7 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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claim petitions, the claimants would be entitled to proceed against any one of the tort-feasors and the tort-feasor who is made liable to pay the compensation can recover this amount from the other tort-feasor in an execution proceeding.

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He therefore submits that restricting the liability of the insurer of the lorry to the extent of only 50% would be contrary to said decision.

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In my view, the Hon’ble Supreme Court has clearly stated that in a case of composite negligence, it would be open for the claimants to recover the whole damages from any one of the tort-feasors and the apportionment that is done by the Tribunal was only to determine the inter se liability and to facilitate one tort-feasor to proceed against the other tort-feasor in an execution proceeding.

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In that view of the matter, the finding of the Tribunal that the insurer of the lorry would be liable only to the

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8 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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extent 50% cannot be sustained and accordingly, it is

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set aside .

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In MFA No. 708 of 2020:

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As far as the compensation is concerned, as noticed

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above, Varalakshmi was a 23 year old as on the date of accident and there was no proof of her actual income. As the accident occurred in the year 2016 , her notional income could have been taken as Rs.9,500/- and to that 40% (Rs.3,800/-) would have to be added as future prospects (Rs.13,300/-) and 1/3^rd (Rs.4,433/-) have to be deducted towards her personal expenses. Her net income would be Rs.8,867/- . Consequently, claimant No.1 would be entitled to a sum of Rs.19,15,272/- (Rs.8,867/- x 12 x ‘18’) towards loss of dependency .

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Appellant/claimants, being the husband and motherin-law, would each be entitled to a sum of

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Rs.48,400/- i.e., Rs.96,800/- towards loss of love

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9 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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and affection, and a sum of Rs.36,300/- towards

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conventional heads .

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Consequently, the award of the Tribunal is modified

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and the claimants would be entitled to the following

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compensation:

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Sl. No.	Nature of Heads	As awarded by the Tribunal (In Rs.)	As awarded by this Court (In Rs.)
1	Loss of Dependency	10,59,000/-	19,15,272/- (Rs.8,867/- x 12 x ‘18’)
2	Loss of love and affection	40,000/-	96,800/-
3	Loss of estate	15,000/-	36300/-
3	Funeral expenses	15,000/-	,
	Total	11,29,000/-	20,48,372/-

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Thus, claimants are held entitled to the total compensation of Rs.20,48,372/- as against Rs.11,29,000/-, along with interest at the rate of six per cent per annum from the date of petition till its realization.

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Out of the total compensation, appellant/claimant No.1 is entitled to a sum of Rs.19,99,972/- and

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10 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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claimant No.2 is entitled a sum of Rs.48,400/- along with proportionate interest.

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The Insurance Company is directed to deposit the amount of compensation awarded within two months from the date of receipt of a certified copy of this judgment. Liberty is reserved to the insurer to proceed against the owner of the auto-rikshaw to recover the same.

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On such deposit being made, a sum of Rs.10,00,000/shall be invested in the name of claimant No.1 in any nationalized bank / post office deposit initially for a period of five years and he is entitled to receive the periodical interest accrued thereon. Balance amount shall be released in his favour on proper identification.

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The entire sum awarded to claimant No.2 with proportionate interest shall be released in her favour on proper identification.

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11 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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In MFA No. 1953 of 2020:

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As far as the claim in relation to death of Kum.Bhavya, the one year old girl is concerned, this Court in MFA No.11440 of 2011² has laid down guidelines for determination of compensation in respect of minors who are killed in a motor vehicle accident and it has also tabulated a ready reckoner chart indicating the compensation to be awarded in case of claim petition by a single parent for the death of a minor below the age of 15 years.

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As per Table No.3.1³ of said judgment, since the accident is of the year 2016 and the deceased—

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2 MFA No.11440 of 2011 connected with MFA No.206 of 2018 [Lakshminarayanappa @ Moogappa and others vs. Royal Sundaram Allianz Ins.co.Ltd. and another], disposed on 12.09.2024 Coram: Hon'ble Mr.Justice N S Sanjay Gowda.

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FO	T R MINORS BELOW 15	able – 3.1 YEARS WITH A	SINGLE PARENT
A	B	C	D
YEAR	1^STMETHOD *(‘15’ multiplier)	2^NDMETHOD	AVERAGE OF THE 1^ST& 2^NDMETHODS
2016	10,61,620	14,21,953	12,41,787

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12 -

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NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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Bhavya was aged one year old, her father (being a single parent) would be entitled for a compensation of a sum of Rs. 12,41,787 /-.

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Apart from above, the claimant would also be entitled to a sum of Rs.36,300/- under

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conventional heads .

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Consequently, the award of the Tribunal is modified and the claimant would be entitled to the following compensation:

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Sl. No.	Nature of Heads	As awarded by the Tribunal (In Rs.)	As awarded by this Court (In Rs.)
1	Loss of Dependency	5,10,000/-
2	Loss of Love and affection	50,000/-	12,41,787/-
3	Funeral expenses	15,000/-	36,300/-
	Total	5,75,000/-	12,78,087/-

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Thus, the claimant is held entitled to the total compensation of Rs.12,78,087/- as against Rs.5,75,000/-, along with interest at the rate of six

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13 - NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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per cent per annum from the date of petition till its realization.

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This sum shall be invested in a ‘Cumulative Fixed Deposit’ in a nationalised bank of the choice of the claimant till he reaches the age of 60 years. The accumulated amount shall be paid to him thereafter.

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It is made clear that it will be open for the claimant to approach the Tribunal and seek partial or complete withdrawal of the accumulated sum at any point in time by producing material or attendant circumstances which would satisfy the Tribunal that there is an overwhelming need of money for him.

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The Insurer shall also issue a Medical Insurance

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Policy in the name of appellant No.1 in MFA No.708 of 2020 to the extent of Rs.10 lakhs, which would come into effect from the date on which the parent attains the age of 60 years. An option to purchase an additional cover by the parents, at their own cost

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14 -

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NC: 2024:KHC:45594 MFA No. 708 of 2020 C/W MFA No. 1953 of 2020

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(popularly termed as “ Top-up Cover ” by the Insurers), shall also be provided.

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The Insurance Company is directed to deposit the amount of compensation awarded within two months from the date of receipt of a certified copy of this judgment

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Liberty is reserved to the insurer to proceed against he owner of the auto-rikshaw to recover the same.

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30. These appeals are, accordingly, allowed in part .

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Sd/(N S SANJAY GOWDA) JUDGE

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List No.: 1 Sl No.: 18

Sri. Kumar v. Sri. C. Nagappa

Case brief

What is this about?

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Sri. Kumar v. Sri. C. Nagappa

Case brief

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