Dismissed

United India Insurance Co. Ltd., v. Surekha

Karnataka HC23 Aug 2024MFA/8510/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed appeals filed by United India Insurance Co. Ltd. against Motor Vehicle Accident tribunal awards setting compensation for deceased claimants. The Court held that the calculated quantum by the tribunal was not excessive and any marginal difference did not warrant interference.

What did the court decide?

Both appeals were dismissed; the deposit amount ordered to be transmitted to the Tribunal for payment.

United India Insurance Co. Ltd., Vs Surekha — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:35679 MFA No. 8510 of 2018 C/W MFA No. 8509 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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MISCELLANEOUS FIRST APPEAL NO. 8510 / 2018 (MV-D)

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C/W

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MISCELLANEIOUS FIRST APPEAL NO.8509/2018 (MV-D)

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IN MFA NO.8510/2018:

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., 1^ST FLOOR, JEWELLERY PLAZA, MARUTHI VEETHIKA, UDUPI TALUK AND DISTRICT REP BY ITS DIVISIONAL MANAGER, UDUPI-576101.

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND:

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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1 . SUREKHA,

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AGED ABOUT 27 YEARS, W/O VASANTHA @ VASANTHA POOJARI, PERMANENT ADDRESS: D/O SEENA POOJARI, SHRI KRUPA LAKSHMI, RAJIV NAGAR, HEBRI KARKALA TALUK, UDUPI DISTRICT-576112.

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2 . RATHNA, AGED ABOUT 55 YEARS, W/O NAGAPPA POOJARI,

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3 . NAGAPPA POOJARI, AGED ABOUT 57 YEARS,

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NC: 2024:KHC:35679 MFA No. 8510 of 2018 C/W MFA No. 8509 of 2018

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S/O LATE SHESHA POOJARI,

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4 . PREETHI,

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AGED ABOUT 17 YEARS, D/O NAGAPPA POOJARI, MINOR AND REP BY HER NATURAL GUARDIAN / MOTHER RATHNA,

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ALL ARE R/AT SHIVAPRASAD NILAYA, MALEBETTU, SHIVAPURA POST, KARKALA TALKUK, UDUPI DISTRICT-576112.

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5 . THE PRESIDENT, TRANSPORT/CO-OPERATIVE SOCIETY LTD., KOPPA TALUK, CHIKKAMAGALUR DISTRICT - 577 126.

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…RESPONDENTS

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[BY SRI K. SHASHIKANTH PRASAD, ADV. FOR C/R1 TO R4; C/R4 IS MINOR REP. BY C/R2;

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NOTICE TO R5 IS D/W V/O DATED 25.10.2018]

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.05.2018 PASSED IN MVC NO.600/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.23,82,588/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL FULL AND FINAL REALIZATION.

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IN MFA NO.8509 / 2018:

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., 1^ST FLOOR, JEWELLERY PLAZA, MARUTHI VEETHIKA, UDUPI TALUK AND DISTRICT REP BY ITS DIVISIONAL MANAGER, UDUPI-576101.

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND:

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1 . RATHNA, AGED ABOUT 53 YEARS, W/O NAGAPPA POOJARI.

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2 . NAGAPPA POOJARI, AGED ABOUT 60 YEARS, S/O LATE SHESHA POOJARI,

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3 . PREETHI, AGED ABOUT 17 YEARS, D/O NAGAPPA POOJARI, MINOR AND REP BY HER NATURAL GUARDIAN / MOTHER RATHNA,

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ALL ARE R/AT SHIVAPRASAD NILAYA, MALEBETTU, SHIVAPURA POST, KARKALA TALKUK, UDUPI DISTRICT-576112.

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4 . THE PRESIDENT, TRANSPORT/CO-OPERATIVE SOCIETY LTD., KOPPA TALUK, CHIKKAMAGALUR DISTRICT - 577 126.

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…RESPONDENTS

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[BY SRI K. SHASHIKANTH PRASAD, ADVOCATE FOR C/R1, R2 & R3; NOTICE TO R4 IS D/W V/O DATED 25.10.2018]

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.05.2018 PASSED IN MVC NO.599/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.16,00,800/-WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL FULL AND FINAL REALIZATION.

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THESE APPEALS, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2024:KHC:35679 MFA No. 8510 of 2018 C/W MFA No. 8509 of 2018

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging common judgment and award dated 29.05.2018 passed by Principal Senior Civil Judge and Additional MACT, Udupi, in MVC no.600/2017 (MFA no.8510/2018) and MVC no.599/2017 (MFA No.8509/2018), these appeals are filed by Insurance Company.

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Sri Ravish Benni, learned counsel for appellants submitted, appeal was by Insurer on quantum. It was submitted, occurrence of accident involving insured vehicle due to its rash and negligent driving, death of Vasantha Poojary and Guruprasad Poojary in said accident, filing of claim petitions by their legal representatives and tribunal passing awards against insurer were not in dispute.

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It was submitted, in MFA No.8510/2018 though claimants had stated that deceased Vasanth Poojary was an Electrician, earning Rs.30,000/- per month, they had failed to substantiate same. Though, notional income for year 2016 was Rs.9,500/-, tribunal had taken it at Rs.12,000/- per month, which was excessive. It also ignored that claimant no.4 was

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sister of deceased, who would be dependent on father. Therefore, deduction towards personal expenses of deceased was erroneous. On above grounds, sought for allowing appeal.

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In MFA No.8509/2018:

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It was submitted, in their petition claimants had asserted that deceased Guruprasad Poojary was owner and driver of auto-rickshaw bearing Registration no.KA-20-D-6083 and earning Rs.25,000/- per month, but failed to substantiate same. Though, notional income for year 2016 was Rs.9,500/-, tribunal had taken it at Rs.11,000/- per month, which was excessive. It also ignored that claimant no.3 was sister of deceased, who would be dependent on father. Therefore, deduction towards personal expenses of deceased was erroneous. On above grounds, sought for allowing appeal.

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On other hand, Sri K. Shashikant Prasad, learned counsel appearing for respondents-claimants opposed both appeals. Insofar as MFA no.8510/2018, it was submitted, deceased was an Electrician earning Rs.30,000/- per month. Ex-P9 - Certificate issued by Department of Industry, Energy and Labour, Government of Maharastra, would establish that he was Electrician. Further, Ex-P10 issued by Construction

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Company certified that he was working as Electrical Contractor since six years and earning Rs.30,000/- per month. Taking note of same, tribunal had assessed notional income at Rs.12,000/-. Further, claimant no.4 was unmarried minor sister of deceased and therefore dependent on him.

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Likewise in MFA no.8509/2018, deceased Guruprasad Poojary was auto-rickshaw driver earning Rs.25,000/- per month. To substantiate his income, claimants produced Registration Certificate of auto-rickshaw and his Driving Licence as Ex.P8. Therefore, tribunal was justified in taking his income at Rs.11,000/-. On above grounds sought for dismissal.

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Heard learned counsel for appellant and perused impugned judgment and award.

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In view of above submissions, as appeal by insurer is only on quantum, point that would arise for consideration is:

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"Whether assessment of compensation by tribunal was excessive and called for reduction?"

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From above, occurrence of accident involving insured vehicle leading to death of Vasantha Poojary and Guruprasad Poojary, filing of claim petition and award against

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insurer as well as award insofar as liability are not in dispute. Appeals are on quantum, on ground of assessment of higher monthly income of deceased.

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While passing impugned award in MFA

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8510/2018 , tribunal noted, deceased Vasantha Poojary was 30 years of age, holder of Electrician Certificate issued by Department of Industry, Energy and Labour, Government of Maharastra and earning Rs.30,000/- per month.

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Disbelieving same, while passing award, tribunal

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had taken his income at Rs.12,000/- on ground that claimants had not produced income tax returns or other documents to substantiate income. Accident has occurred in year 2016. Notional income of unskilled worker is Rs.9,500/- per month. In view of fact that claimants had produced, Electrician certificate as Ex.P9, income of deceased would have to be assessed as a skilled self-employee. In absence of specific proof about exact income, recourse to some guess work based on available material would be inevitable. Applying same, it can be taken at slightly higher than notional income at Rs.11,000/per month.

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As per decision of Hon'ble Supreme Court in

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National Insurance Company Ltd., Vs. Pranay Sethi

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and Others reported in AIR 2017 SC 5157 , future prospects at 40% have to be added to income. Further, as claimants are wife, parents and unmarried sister, who is said to be school going and thus dependant on her brother, number of dependants would be ‘four’. Therefore, deduction towards personal expenses will have to be at '1/4^th' . And multiplier corresponding to age of deceased would be '17'. Thus, compensation under head loss of dependency would be Rs.23,56,200/-. (Rs.11,000+40%-1/4 X 12 X 17). To said amount, if appropriate compensation under conventional heads are added, total award would be more than compensation determined by Tribunal. Hence, there would be no scope for reduction.

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Point for consideration is answered in negative .

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Likewise, in MFA no.8509/2018, deceased

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Guruprasad Poojary was aged 29 years, driving/owning auto-rickshaw and earning Rs.25,000/- per month. But, there are no specific records to substantiate income. In absence of

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specific proof of income, tribunal assessed it notionally at Rs.11,000/- per month. But, notional income as for year 2016 was Rs.9,500/- per month. Though claimants have stated that deceased owned and running auto-rickshaw, after his death, auto-rickshaw would remain with them, i.e. income therefrom would continue.

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But considering fact that deceased himself would have used auto-rickshaw more efficiently and earned slightly higher income, instead of hired driver, it would be appropriate to consider his income as Rs.10,000/- per month, which would be slightly higher than notional income in case of unskilled worker. Claimants are parents and school going minor sister of deceased. There is no specific evidence regarding parents and younger sister residing separately. Therefore, there would be no justification for treating claimant no.3 as not dependant on deceased.

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Deceased was 29 years of age and self-employed. As per ratio in Pranay Sethi 's case (supra), 40% has to be added to his monthly income towards future prospects, deduction towards personal expenses would be at ' 50%' and

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multiplier applicable would be '17'. Thus, compensation towards loss of dependency would be :

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Rs.10,000/- + 40% - 50% X 12 X 17 = Rs.14,28,000/-.

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As per decision in Pranay Sethi ’s case (supra) and Magma General Insurance Company Ltd. v. Nanu Ram

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Alias Chuhru Ram & Others, reported in 2018 (18) SCC 130, claimants no.1 to 3 would be entitled to Rs.40,000/- each towards loss of filial consortium. Apart from same, they would also be entitled for Rs.15,000/- towards funeral expenses and like sum towards loss of estate. Since more than three years have lapsed after decision in Pranay Sethi ’s case (supra) an addition of 10% has to be made to award under conventional heads. Therefore, total award would be:

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Heads of Compensation	Amount
Loss of dependency	Rs.14,28,000/-
Consortium at Rs.40,000/- each	Rs.1,20,000/-
Funeral Expenses	Rs.15,000/-
Loss of Estate	Rs.15,000/-
Addition of 10% to award under conventional heads	Rs.15,000/-
TOTAL	Rs.15,93,000/-

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17. It is seen, tribunal has awarded compensation of Rs.16,00,800/-. And there would be difference of Rs.7,800/only. This Court in Harishchandra Hegde v. T.P. Krishnamurthy reported in 1983 SCCOnLine Kar 139 has held where difference in amount is marginal, there would be no scope for interference in appeal.

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18. In view of above, point for consideration in both appeals is answered in negative . Consequently, following:

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ORDER

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