Partly allowed
Smt Shanthamma v. P K Vijaykumar
Karnataka HCMFA/7678/2015
Case brief
from the order text
What is this about?
2024:KHC:44785-DB MFA No.7678/2015 C/W MFA…
What the court decided
AI extract
2024:KHC:44785-DB MFA No.7678/2015 C/W MFA…
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:44785-DB MFA No.7678/2015 C/W MFA No.7555/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2024 PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.7678/2015 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.7555/2015 (MV-D)
IN M.F.A. No. 7678/2015:
BETWEEN:
Digitally signed by K S RENUKAMBA Location: High Court of Karnataka
BOTH ARE R/AT CHANNAPPA COLONY FCI MAIN ROAD, VIJINAPURA BENGALURU-560 016.
…APPELLANTS (BY SRI. A.K. BHAT, ADV., A/W SRI. RAJU S, ADV.,)
AND:
…RESPONDENTS
(BY SRI. R. SHASHIDHAR, ADV., FOR R1 SRI. L. SREEKANTA RAO, ADV., FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING JUDGMENT AND AWARD PASSED IN MVC NO.244/2010, DATED 07.07.2015, ON THE FILE OF ADDL. SENIOR CIVIL JUDGE, RAMANAGARA.
IN M.F.A. NO.7555/2015:
BETWEEN:
NATIONAL INSURANCE COMPANY LTD., BANGALORE DIVISION NO.40, LAKSHMI COMPLEX, ST. MARKS ROAD BANGALORE-560 001 NOW REPRESENTED BY ITS ASSISTANT MANAGER MATHSAUCHAN V. GUDI REGIONAL OFFICE NO.144, SHUBHARAM COMPLEX M.G. ROAD, BENGALURU-560 001.
...APPELLANT
(BY SRI. L. SREEKANTA RAO, ADV.,)
AND:
BOTH ARE R/AT. CHANNAPPA COLONY FCI MAIN ROAD, VIJINAPURA BANGALORE-560 016.
3RD RESPONDENT IS A MINOR REPRESENTED BY HER GRAND MOTHER AS MINOR GUARDIAN SMT. SHANTHAMMA.
...RESPONDENTS
(BY SRI. A.K. BHAT, ADV., A/W SRI. RAJU S, ADV., FOR R1 & R2 R3 MINOR REPRESENTED BY R1 SRI. R. SHASHIDHAR, ADV., FOR R4)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT PASSED IN MVC NO.244/2010 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE,
RAMANAGARA DATED 07.07.2015 AND ALLOW THE APPEAL WITH COST & ETC.
THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)
Challenging the award in MVC No.244/2010 on the file of
Addl. Senior Civil Judge and MACT, Ramanagara, the insured has preferred MFA No.7555/2015 and the claimants have preferred MFA No.7678/2015.
the minor daughter as her next friend. He as respondent No.1 did not contest the petition.
of future prospects considering the age of the deceased as 28 years, deducted 50% of the same towards personal expenses of the deceased, applied '17' multiplier and awarded compensation of Rs.15,30,000/- under the head of loss of dependency. The Tribunal, in all awarded compensation on different heads as follows:
| Compensation Heads | Compensation amount |
|---|---|
| 1. Loss of dependency | Rs.15,30,000/- |
| 2. Loss of estate | Rs. 20,000/- |
| 3. Funeral expenses | Rs. 10,000/- |
| 4. Loss of love and affection |
Rs. 10,000/- |
| TOTAL | Rs.15,70,000/- |
deceased. The compensation awarded on all heads is on the higher side. He further submits that the claimants unduly dragged this matter since 2015, therefore, they are not entitled to any interest on the compensation for period occupied in this appeal.
NC: 2024:KHC:44785-DB MFA No.7678/2015 C/W MFA No.7555/2015
i) Whether the representation of minor claimant No.4 through claimant No.3 - her father has vitiated the entire proceedings? ii) Whether the compensation awarded is just one?
ANALYSIS
that if a person files the case as next friend of the plaintiff / petitioner and if his interest is adverse to that of minor or he is adversary party in the case, he cannot act as the next friend of plaintiff/petitioner. However, before the Tribunal such contention was not taken. It was only contended that claimant No.3 cannot maintain the petition as the next friend of claimant No.4. Still claimant No.4 could have maintained the petition. Only thing is that claimant No.4 ought to have been represented through a next friend as per Order XXXII Rule 3(1) of CPC. However, even the Tribunal lost sight of that fact.
It was the responsibility of the Tribunal also to get the said error rectified. Subsequently, in this appeal, the same is rectified by appointing claimant No.1 as the next friend of claimant No.4. Therefore, if there was any irregularity in the proceedings before the Tribunal by not appointing claimant No.1 as the next friend of claimant No.4, the same stood rectified. The question of taking away the petition under Order XXXII Rule 3 of the CPC does not arise as the appeal is the continuation of the proceedings before the Tribunal. Protecting the interest of the minor is the paramount consideration even for the Court. The irregularity in claimant No.4 being represented through an improper next friend, by rectification in appeal proceedings stood regularized. In such circumstance the initial error in the proceedings does not deprive claimant No.4 of her substantial right.
even choose to examine the author of Ex.P9. Therefore, the Tribunal notionally assessed her income. However, the fact that deceased was a MBBS Degree holder is proved by Ex.P8her degree certificate. That was not disputed also. In the year 2010, the salary of a qualified doctor that too in a city like Bengaluru could not have been less than Rs.25,000/- p.m. The Tribunal was in error in assessing her income only at Rs.10,000/- p.m. without any basis for the same.
and having regard to the age and occupation of the deceased,
1 (2009) 6 SCC 121
2 (2018) 16 SCC 680
40% of the income of the deceased has to be superadded to the same and not 50% as determined by the Tribunal. At that rate, her monthly income comes to Rs.25,000/- + Rs.10,000/(40%) = Rs.35,000/- and annual income comes to Rs.35,000/x 12 = Rs.4,20,000/-. Out of that, as per Finance Act 2010, the tax payable during that period was Rs.38,000/-. Therefore, her annual income comes to Rs.4,20,000 - Rs.38,000 = Rs.3,82,000/-.
NC: 2024:KHC:44785-DB MFA No.7678/2015 C/W MFA No.7555/2015
Hon'ble Supreme Court in Pranay Sethi's case referred to supra and Magma General Insurance Company Limited Vs. Nanu Ram & Others3 . As per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case referred to supra , claimant Nos.1, 2 and 4 are entitled to compensation of Rs.15,000/- + Rs.15,000/- with escalation at 10% under the heads of loss of estate and funeral expenses. Therefore, just
compensation payable is as follows:
| Sl. No. |
Particulars | Compensation awarded in Rs. |
|---|---|---|
| 1. | Loss of dependency | 43,29,339/- |
| 2. | Loss of consortium | 1,32,000/- |
| 2. | Loss of estate | 16,500/- |
| 3. | Transportation of dead body/Funeral expenses |
16,500/- |
| TOTAL | 44,94,339/- | |
| Compensation awarded by the Tribunal |
15,70,000/- | |
| Enhancement | 29,24,339/- |
19. Learned counsel for the claimants relying on the
judgment of this Court in Sanjeevini Anand Awate Vs. Managing Director, Hiranyakesh Sahakari Sakkare Karkhane4 , submits that interest has to be awarded as per the
3 (2018) 18 SCC 130
4 2002 ACJ 1814
bank lending rate and that was 8% p.a. First of all, the claimants ought to have led in evidence to show bank lending rate was 8% but no such evidence was adduced. Even in the judgment in Sanjeevini Anand Awate's case referred to supra, it is held that variation from the rate of 8% p.a. is permissible by the special facts or circumstances of the case supported by reasons. In the instant case, no evidence was adduced to show that bank lending rate was 8% p.a. Therefore, the Tribunal was justified in granting 6% p.a. We do not find any justification to interfere with the same. Learned counsel for the insurer submits that the claimants themselves were grossly negligent in conducting the case. Initially, claimant No.4 was represented through a person who was not eligible to represent as her next friend. When that was questioned before this Court, the matter was prolonged due to claimants filing application for change of the next friend and review petition from 2019 to 2023 etc., therefore, the insurer is not liable to pay the interest for the said period. We find force in the submissions of the learned counsel for the insurer because respondent No.1 himself being the tort-feasor has created mess in the proceedings before the Tribunal and even
before this Court. Therefore, interest if any pending in these appeals has to be paid by him. Insurer cannot be saddled with the interest for the lapses of respondent No.1. Therefore, both
the appeals deserve to be allowed-in- part. Hence, the following:
ORDER
i. MFA No.7555/2015 and MFA No.7678/2015 are allowed-in-part.
ii. It is held that claimant Nos.1, 2 and 4 are entitled to enhanced compensation of Rs.29,24,339/- with interest thereon at 6% p.a. from the date of petition till its realization.
iii. Respondent No.2 shall deposit the compensation amount with interest at 6% p.a. from the date of petition till the date of impugned award.
iv. Respondent No.1, the tort-feasor is liable to pay the accrued interest from the date of award till the date of deposit of the amount by respondent no.2/insurer.
v. Both respondent Nos.1 and 2 shall deposit their part of liability within four weeks from the date of receipt of copy of the judgment.
NC: 2024:KHC:44785-DB MFA No.7678/2015 C/W MFA No.7555/2015
vi. Out of the compensation awarded, claimant Nos.1 and 2 are entitled to Rs.44,000/- each with accrued interest thereon and rest of the amount shall be invested in the name of claimant No.4, Avani the minor daughter of the deceased, till she attains majority. Claimant No.1 shall be her next friend in such fixed deposit and liberty is reserved to draw the accrued interest for the expenses of the minor.
Sd/(K.S.MUDAGAL) JUDGE
Sd/(VIJAYKUMAR A. PATIL) JUDGE
RV
List No.: 2 Sl No.: 1
Colour shows how this judgement treated each authority
Sarla Verma and Others Vs. Delhi Transport Corporation and AnotherApplied¶17
(2009) 6 SCC 121 · Who else cites this
National Insurance Company Limited Vs. Pranay SethiApplied¶17
(2018) 16 SCC 680 · Who else cites this
Magma General Insurance Company Limited Vs. Nanu Ram & OthersApplied¶18
(2018) 18 SCC 130 · Who else cites this
Sanjeevini Anand Awate Vs. Managing Director, Hiranyakesh Sahakari Sakkare KarkhaneDistinguished¶19
2002 ACJ 1814
3 provisions across 3 enactments
Smt. Shanthalamma
Mallikarjuna
Kum. Avani
P.K. Vijaykumar
The National Insurance Co. Ltd.
K.S.Mudagal
Vijaykumar A. Patil
As recorded by the court registry
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