Partly allowed

The Oriental Insurance Co. Ltd. v. Ranjitha M K

Karnataka HC5 Nov 2024MFA/8270/2022

Case brief

AI extract

What is this about?

The High Court modified an award in a motor vehicle accident claim. The court held that a married sister living with the deceased is not entitled to loss of dependency but is entitled to greater loss of estate (50%) and loss of consortium. Compensation was reduced from Rs.22,22,000 to Rs.11,31,500.

What did the court decide?

Appeal partly allowed; compensation modified to Rs.11,31,500 including loss of estate, consortium, and funeral expenses with 6% interest.

The Oriental Insurance Co. Ltd. Vs Ranjitha M K — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:44540-DB MFA No.8270/2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF NOVEMBER, 2024 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 VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.8270/2022 (MV-D)

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BETWEEN:

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THE ORIENTAL INSURANCE CO., LTD., NEW MUSLIM HOSTEL COMPLEX IN FRONT OF FIRE BRIGADE 1ST MAIN, SARASWATHIPURAM MYSORE CITY, MYSORE.

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

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THROUGH ITS REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD, BANGALORE-560 025 REP BY ITS MANAGER.

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(BY SRI. JANARDHAN REDDY, ADV.,)

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…APPELLANT

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AND:

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RANJITHA M.K. D/O LATE KUMARA AGED ABOUT 22 YEARS R/AT HALEBEEDU VILLAGE MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT.

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PUNEETH H.S. S/O SWAMYGOWDA AGED ABOUT 24 YEARS

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NC: 2024:KHC:44540-DB MFA No.8270/2022

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HEGGADAHALLI VILAGE MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT (OWNER OF THE M/C NO.KA-11-EQ-8579).

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…RESPONDENTS

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(BY SRI. VIJAY KUMAR T, ADV., FOR R1 V/O/DTD:19.3.2024 NOTICE TO R2 IS HELF SUFFICIENT)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC NO.85/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, AT PANDAVAPURA EXAMINE THE SAME AND MODIFY THE AWARD DATED 19.10.2022 IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR FINAL DISPOSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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"Whether the compensation awarded to respondent No.1

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under the impugned award in MVC.No.85/2022 passed by the Additional Senior Civil Judge & MACT, Pandavapura is just?" is the question involved in this case"

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The appellant was respondent No.2, respondent No.1 was the sole claimant and respondent No.2 was respondent No.1 in MVC.No.85/2022 before the tribunal. For

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NC: 2024:KHC:44540-DB MFA No.8270/2022

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the purpose of convenience, the parties are referred to henceforth according to their ranks before the tribunal.

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Claimant is the younger sister of deceased M.K.

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Ranjan. On 28.08.2021, when M.K. Ranjan was traveling as a pillion rider with the rider Shivaraja S/o. Eregowda on motorcycle bearing No. KA-11-EQ-8579, the said motorcycle met with an accident near Heggadahalli Village, near land of Mayigowda within the limits of Melukote police station. Due to the injuries suffered in the accident, M.K. Ranjan died at the spot. At the relevant time, respondent Nos.1 and 2 were the registered owner and the insurer of Bajaj Pulsar motorcycle bearing No. KA-11-EQ-8579.

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Claimant filed MVC.No.85/2022 against the respondents claiming compensation of Rs.38,50,000/- alleging that the deceased was earning Rs.30,000/- per month by agriculture and she was solely dependent on his income. She further alleged that due to his untimely death, she is subjected to destitution and respondents are liable to compensate the same.

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Respondent No.1 did not contest the matter. Respondent No.2/insurer alone contested the matter denying the occurrence of the accident due to the negligence on the part of the rider of the motorcycle. Respondent No.2 further contended that the claimant is a married sister and not a dependent of the deceased. Therefore, the petition is not maintainable. It was further alleged that the claimant in collusion with the police and others has created some documents and filed a false claim petition. Respondent No.2 sought dismissal of the petition.

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Before the tribunal, in support of her case, the claimant got examined herself as PW.1 and got marked the FIR, complaint, charge sheet, inquest mahazar, spot mahazar, property list, post mortem report, Indemnity bond, bank pass book etc., together as Ex.P1. On behalf of respondent No.2 its official was examined as RW.1 and Exs.R1 to R3 were marked. The tribunal on hearing the parties by the impugned judgment and award held that the accident and consequential death occurred due to the actionable negligence on the part of the rider of motorcycle No. KA-11-EQ-8579. The Tribunal further held that the claimant was dependant of the deceased. The

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tribunal considered the age of the deceased as 26 years and notionally assessed his income as Rs.15,000/- per month. Added 40% for the same by way of future prospects, deducted 50% out of the same for the personal expenses of the deceased, applied 17 multiplier and awarded compensation of Rs.21,42,000/- on the head of loss of dependency. The tribunal in all awarded compensation at Rs.22,22,000/- on different

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heads as follows:

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Monthly income of the deceased	Rs. 15,000/-
After adding 40% towards future	Rs. 21,000/-
prospects as per directions of Hon'ble High Court.
Less 1/2 towards personal expenses	Rs. 10,500/-
Actual income of the deceased	Rs.10,500/-
Multiplier as per Sarla Verma case	17
Loss of Dependency	Rs.10,500/- x 12 x 17	Rs.21,42,000/-
Loss of Estate		Rs. 20,000/-
Funeral Expenses		Rs. 20,000/-
Brother Consortium to petitioner	Rs.40,000/-	Rs. 40,000/-
	Total	Rs.22,22,000/-

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Insurer has challenged the said award in the above

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appeal. Sri. Janardhan Reddy, learned counsel for the appellant/Insurer reiterating the grounds of appeal submits that evidence on record clearly shows that the claimant was married to the rider of the motorcycle itself, before the accident and they were living together. Therefore, she does not become the dependent of the deceased. At the most, compensation could have been awarded under the head of loss of estate. In support of his submission he relies on the judgment of this Court in

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A. Manavalagan v. A. Krishnamurthy & Others¹ .

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8. Per contra, Sri. Vijay Kumar T., learned counsel for respondent No.1/claimant justifying the impugned award submits that even the married sister and brothers based on the circumstances of the case have to be treated as dependents of the deceased. Therefore, the compensation awarded on the head of loss of dependency is just one. In support of his submission he relies on the judgment in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai & Another² .

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1 ILR 2004 KAR 3268

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2 (1987) 3 SCC 234

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It is not disputed that the deceased was the elder brother of the claimant and both of them had lost their parents. The claimant contended that at the time of the accident she was unmarried, she was dependent on the income of the deceased and subsequently, she married the offender himself. However, the inquest mahazar produced by the claimant herself contains the statements of one Dharmesh and T.D. Ravi, the blood relatives of the deceased and the claimant. In those statements they have clearly stated that after the demise of his parents, the deceased had performed the marriage of the claimant with Shivaraja (the rider of the motorcycle) and they were all living together. Learned counsel for the respondent/claimant submits that those persons were not examined therefore, those statements cannot be relied. The inquest report which contains the statements was produced by the claimant herself. Therefore, that becomes the part of her evidence. Hence, learned counsel for respondent/claimant cannot seek to rely only on one part of the said document which is favorable to him and reject the other part of the said document. He cannot approbate and reprobate simultaneously.

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This view of ours is supported by the judgment of the Hon'ble

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Supreme Court in Oriental Insurance Company Ltd. v. Premlata Shukla & Others³ .

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In addition to that PW.1 in her cross-examination

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has clearly admitted that she has become graduate and she is well conversant with English language. In the chief examination she has stated that her occupation is agriculture and animal husbandry, but still she claims to be the dependent of the deceased. Reading of the judgment in Ramanbhai's case shows that there the maintainability of the petition by the brothers of the deceased itself was disputed claiming that they will not become the legal representatives of the deceased. In that context, the Hon'ble Supreme Court interpreting the term legal representative held that the brothers also become legal representatives and can maintain the petition. In this case the insurer is not disputing the maintainability of the petition at all. Further, as the claimant as the sole surviving heir of the deceased, becomes his class II heir. But the question is whether she is the dependent of the deceased. When the claimant was already married and she has some gainful

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3 (2007) 13 SCC 476

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occupation by no stretch of imagination she can be called as dependent of the deceased. However, the records show that the claimant, her husband and the deceased were living together. Deceased was aged 26 years and able bodied person. Therefore, he would have earned some income and spent out of

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the same for his sister's family also. In the similar circumstances, this Court in A. Manavalagan's case referred to supra has held that though such family member is not entitled to compensation on the head of loss of dependency, they will be entitled to compensation on the head of loss of estate. In that case, if they were living separately loss of estate has to be considered as 25%, if they were living together the contribution of the deceased to the family would be 50% and that becomes loss of estate. Therefore, the said judgment is aptly applicable to this case.

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As there was no proof of actual income of the deceased, the tribunal has considered the same as Rs.15,000/per month and the claimant has not challenged the same. By adding 40% to the same by way of future prospects (Rs.6,000/-) his monthly income comes to Rs.21,000/- (15,000 + 6,000). In view of the judgment of the Hon'ble Supreme

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Court in Sarala Verma & Others v. Delhi Transport Corporation & Another⁴ 's case and as the deceased was bachelor, 50% has to be deduced for his personal expenses. Therefore, his savings comes to (21,000x50%) is Rs.10,500/-. The applicable multiplier is 17. 50% of the savings has to be taken towards the loss of estate to the claimant. Hence, the compensation payable on the head of loss of estate comes to Rs.10,71,000/- (10,500 x 12 x 17 x 50/100). In view of the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi⁵ and Magma General Insurance Company Limited v. Nanu Ram & Others⁶ , the claimant is entitled to compensation of Rs.15,000/- on the head of funeral expenses and transportation of dead body with escalation of 10% and consortium of Rs.40,000/- with escalation at 10%. Therefore, the just

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compensation payable is as follows:

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1.	Loss of estate	Rs.10,71,000/-
2.	Loss of consortium	Rs. 44,000/-
3.	Loss of funeral expenses and transportation of dead body	Rs. 16,500/-
	Total	Rs.11,31,500/-

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4 (2009) 6 SCC 121

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5 2017 (16) SCC 680

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6 (2018) 18 SCC 130

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The same shall carry interest at 6% per annum and the compensation is payable by the appellant/insurer. For the aforementioned reasons, the appeal deserves to be allowed in part. Hence, the following;

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ORDER

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i. The appeal is partly allowed.

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ii. The impugned award in MVC.No.85/2022 on the file

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of the Additional Senior Civil Judge & MACT, Pandavapura is modified as follows:

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a. The claimant is entitled to compensation of Rs.11,31,500/- with interest thereon at 6% from the date of the petition till its realization.

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b. The respondent No.2/insurer shall deposit the same before the tribunal, on adjusting the amount already deposited, if any.