Partly allowed

S D Hanuman v. Srinivas S

Karnataka HC9 Jan 2024MFA/8517/2016

Case brief

AI extract

What is this about?

The Andhra Pradesh High Court (Note: Text says Karnataka) allowed the first appeal to the extent of enhancing compensation. The court recalculated loss of dependency using the correct notional income and multiplier, awarding a total of Rs. 13,60,200/- instead of Rs. 8,31,000/-, while affirming amounts for love and affection and funeral expenses.

What did the court decide?

Appeal allowed to the extent of enhancing compensation from Rs. 8,31,000/- to Rs. 13,60,200/-; denial of interest for delay due to late filing.

S D Hanuman Vs Srinivas S — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:1075-DB MFA No. 8517 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 8517 OF 2016 (MV-D)

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BETWEEN:

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S.D.Hanuman

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S/o Dodda Hanumaiah, Aged about 58 years,

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T.Dayamani, W/o S.D.Hanuman Aged about 44 years,

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Digitally signed by VEENA KUMARI B Location: High Court of Karnataka

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Both are R/o No.295, 4^th Main Road, 1^st Stage, Manjunath Nagara, Bengaluru-560 010.

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…Appellants

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(By Sri. Chethan D T., Advocate)

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AND:

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Srinivas S S/o Sridhar S.T., Major, R/o Kithiganur, K.R.Puram Post, Bengaluru-560 036.

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NC: 2024:KHC:1075-DB MFA No. 8517 of 2016

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Bharti Axa, General Insurance Co.Ltd., Pride Quadra, No.30, 3^rd Floor, Bellary Road, Hebbal, Bengaluru-560 024.

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…Respondents

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(By Sri. Krishna Kishore S., Advocate for R-2, And R-1 served - unrepresented)

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This Miscellaneous First Appeal is filed under Section 173(1) of M.V.Act praying to call for the records in MVC.No.3335/2014, on the file of Motor Vehicle Accident Claims Tribunal, SCCH-14, at Bengaluru City and modify the judgment and award dated 06.04.2015, by allowing this appeal, with costs and grant such other and further reliefs, as this Hon'ble Court deems fit to grant in the facts and circumstances of the case, in the interest of justice and equity.

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This Miscellaneous First Appeal coming on for Admission through Physical Hearing/Video Conferencing, this day, Dr.H.B.Prabhakara Sastry, J., delivered the following:

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JUDGMENT

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The present appeal is filed by the claimants under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned XVI Addl.Judge, Court of Small Causes & and Motor Accidents Claims Tribunal, (SCCH-14), Bengaluru, (hereinafter for brevity referred to as ‘the Tribunal’),

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in its judgment and award dated 06.04.2015, in M.V.C.No.3335/2014.

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The summary of the case of the present appellants as claimants before the Tribunal was that, the claimants are the parents of the deceased Shashidhar, who was said to be aged 20 years at the time of the accident and was a student. On the date 24.06.2014, at about 12.45 p.m., while the deceased was travelling in Toyota Innova Car bearing registration No.KA-53-N-7776, along with his friends to Davanagere from Bengaluru, near SSIM Hospital, Railway Underpass Bridge, Davanagere, due to the rash and negligent driving by the driver of the said motorcar, it dashed against a Tractor-Trailor bearing registration No.KA-17-TA-7115 and MEW 8891. Due to the said road traffic accident, deceased Shashidhar sustained grievous injuries on his head, chest and other parts of the body. Though he was immediately shifted to

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the nearest SSIM Hospital, however, he succumbed to the injuries while being taken to the hospital. The contention of the claimants being the parents of the deceased

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Shashidhar is that, prior to the accident, the deceased was studying in Engineering course and was also working as a part-time Data Operator and Sales Executive in M/s.Olympic Sports and earning more than 30,000/- per month. Due to the untimely death of deceased Shashidhar, the parents are put to great loss and mental agony. With this, the claimants have claimed compensation of a sum of 35 lakhs with interest thereupon from respondent Nos.1 and 2, arraying them as the owner and insurer of the alleged offending vehicle i.e., Toyota Innova Car bearing registration No.KA-53-N-7776.

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In response to the notice, it is only respondent No.2-Insurance Company, appearing through its learned counsel, filed its written statement and the respondent No.1 had remained ex parte. In its written statement, the respondent No.2-Insurance Company denied the manner of occurrence of road traffic accident, the age and the alleged studentship of the deceased. However, it admitted the issuance of policy in favour of respondent No.1 with

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respect to Toyota Innova Car bearing registration

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No.KA-53-N-7776.

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Before the Tribunal, the claimant No.1 got himself examined as PW-1 and also examined one Darshan D., as PW-2 and got marked documents from Exs.P-1 to P-11.

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On behalf of the respondents, neither any witnesses were examined nor any documents were produced.

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After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:

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Sl. No.	Particulars	Amount in`
1	Loss of dependency	7,56,000/-
2	Love and affection	50,000/-
3	Transportation of dead body and funeral expenses	25,000/-
	Total	8,31,000/-

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The Tribunal awarded compensation of a sum of

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8,31,000/- with interest at 9% per annum thereupon

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from the date of petition till the date of realisation, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimants have filed this appeal seeking enhancement of compensation.

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The respondent No.2 herein (insurer) is represented by its counsel. Though the respondent No.1 is served, but, he has remained unrepresented.

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Records from the Tribunal pertaining to the matter

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were called for and the same are placed before the Court.

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Though this appeal is posted for admission, with

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the consent from both parties, the matter was taken up for arguments on main on merits.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Tribunal.

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Heard the arguments of learned counsel for the appellant and learned counsel for respondent No.2-

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Insurance Company. Perused the materials placed before this Court, including memorandum of appeal, impugned judgment and also the records of the Tribunal.

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The learned counsel for the appellants (claimants) in his argument submitted that the present appeal is for the enhancement of the compensation. Even though the notional income prevailing for the relevant year 2014 was 8,500/- per month, however, the Tribunal has taken the income only at 6,000/- per month, which is a meager sum. With this, he contended that taking the income of the deceased at a minimum of `8,500/- per month, the quantum of compensation if calculated, it exceeds more than what the Tribunal has awarded in the impugned judgment. With this, he prayed to allow the appeal.

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Per contra, learned counsel for respondent No.2Insurance Company in his argument submitted that the deceased was only a student of Engineering, as such, the Tribunal has rightly taken the income at `6,000/- per

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month. Under the said circumstances, the impugned judgment and award does not warrant any interference at the hands of this Court.

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The present appeal being the claimants appeal and respondent No.2 (insurer) having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimants and also the alleged rash and negligent driving on the part of the driver of the motorcar is not in dispute.

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The claimants in support of their claim petition examined two witnesses, among whom, the first witness i.e., PW-1 was the claimant No.1. They also got examined

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one Darshan D., as PW-2 alleging him to be an eye witness to the accident. Both PW-1 and PW-2 in their evidence have stated that the road traffic accident in question has occurred solely due to the rash and negligent driving of the Toyota Innova Car bearing registration No.KA-53-N-7776 by its driver. Among these two witnesses, PW-2 claims himself to be an eye witness to the

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accident. On behalf of the claimants, the documents from Exs.P-1 to P-11 were marked, which inter alia includes copies of FIR, complaint, charge sheet, scene of offence panchanama, rough sketch of scene of offence, inquest panchanama, post mortem report and the Motor Vehicle Inspector’s report from Exs.P-1 to P-7.

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In the cross-examination of PW-1 and PW-2,

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nothing could be elicited to weaken the case of the claimants regarding the occurrence of road traffic accident and the manner of occurrence of road traffic accident. The

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police documents, more particularly, the complaint at Ex.P-1 shows that the allegation is made against the driver of the motorcar. After investigation, the Davanagere Traffic Police have filed a charge sheet in their Station Crime No.29/2014 against one Arjun G., showing him to be the alleged driver of the offending Toyota Innova Car bearing registration No.KA-53-N-7776 for the offences punishable under Sections 279, 304-A, 337, 338 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC').

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The inquest panchanama at Ex.P-5 also shows that the panchas have opined that the deceased Shashidhar sustained fatal injuries in the alleged road traffic accident and succumbed to the same. The post mortem report at Ex.P-6, after enlisting the injuries found on the deceased has opined that the death of deceased H.Shashidhar was due to rupture of heart following blunt force trauma to the chest. Thus, the medical evidence corroborates the evidence of PW-2, the alleged eye witness that the deceased Shashidhar suffered fatal injuries in the road traffic accident. The Motor Vehicle Inspector's report at Ex.P-7 also shows that the road traffic accident was not due to any mechanical defect with either of the vehicles. As such, the occurrence of the road traffic accident on the date, time and place as contended by the claimants in their claim petition stands proved by the evidence of PW-1 and PW-2 and Exs.P-1 to P-7.

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Admittedly, the respondent No.2 is the insurer of the alleged offending vehicle Toyota Innova Car bearing registration No.KA-53-N-7776. The driver of the offending

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vehicle has been charged with the offences punishable under Sections 279, 304-A, 337, 338 of IPC. As such, it stands established that in the road traffic accident occurred on the date, time and place as contended by the claimants, the deceased Shashidhar sustained grievous injuries and succumbed to it. The said road traffic accident was due to the rash and negligent driving of the Toyota Innova Car bearing registration No.KA-53-N-7776. As such, the respondent No.1 being the owner of the vehicle and respondent No.2 being the insurer of the vehicle are jointly and severally liable to pay the compensation to the claimants whose parenthood upon the deceased Shashidhara is not in dispute. Thus, the only question that remains to be considered is about the quantification of the compensation, which according to the claimants/appellants is inadequate.

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In order to show the age of the deceased Shashidhar, the claimants have produced the deceased's SSLC Marks Card in its original and got it marked at Ex.P-8. The same shows the date of birth of deceased as

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NC: 2024:KHC:1075-DB MFA No. 8517 of 2016

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19.08.1994. As per the said educational document, the age of the deceased as on the date of the accident in question comes to 20 years. The post mortem report at Ex.P-6 has also shown the age of the deceased as at 20 years only. Therefore, the age of the deceased is established as 20 years as on the date of the accident.

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The claimants claim themselves to be the parents of the deceased and they stated that due to the death of the deceased, they had suffered huge financial loss, apart from loss of love and affection. Though the claimants contend that the deceased apart from pursuing his studies as student in Engineering, was also doing a part-time job in M/s.Olympic Sports and getting a salary of a sum `30,000/- per month. However, to support the said contention of the alleged part-time job of the deceased and his income from his alleged part-time job, except oral statement, there is nothing on record to believe the same. The respondent-Insurance Company has vehemently denied the income of the deceased from his alleged part-time job. Thus, it is only the notional income

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prevailing for the relevant period is required to be considered.

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The Tribunal though has considered these aspects and proceeded to take the notional income of the deceased as his income, but, it has taken the income at 6,000/- per month. According to the learned counsel for the appellants, the notional income prevailing for the relevant period and as has been considered and accepted by the majority of the Tribunals in the State is 8,500/per month for the relevant year 2014. The learned counsel for respondent No.2 who initially opposed for taking the said notional income, however, fairly concedes that the State Legal Services Authority has recommended the notional income for the relevant year 2014 at 8,500/per month. Under the said circumstances, we are of the view that the income of the deceased is required to be taken at 8,500/- per month.

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As per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited -vs-

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Pranay Sethi and Others reported in ( 2017) 16 SCC 680 ,

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the income of the deceased has to be computed adding the future prospects at 40% to the same. Accordingly, when the income of the deceased is taken at 8,500/- per month, when 40% is added towards future prospects, which is 3,400/-, which comes to `11,900/- per month.

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Admittedly, the deceased was a Bachelor and the

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claimants are his parents. Except them, there are no other dependents on the deceased. As rightly considered by the Tribunal, 50% of the alleged income is to be deducted towards personal expenses of the deceased. Thus, the balance of 50% would comes to 5,950/- per month. The multiplier applicable for the age of the deceased is ‘18’. Thus, towards loss of dependency’, the quantum of compensation to which the claimants are entitled is to a sum of 5,950/- x 12 x 18=12,85,200/-. However, the Tribunal apart from taking the income of the

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deceased at a lower rate, has also miscalculated the multiplier by taking the age of one of the parents. As such, the compensation awarded by the Tribunal under the

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NC: 2024:KHC:1075-DB MFA No. 8517 of 2016

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head `loss of dependency' amounting to a sum of

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`7,56,000/-, deserves to be enhanced.

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The claimants having lost their young and growing-up son are entitled for compensation towards love and affection. The Tribunal after considering the same, since has awarded a reasonable compensation of a sum of `50,000/- towards the same, we do not find any reason to modify the same.

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Similarly, the claimants are also entitled for compensation towards transportation of dead body and funeral expenses. The Tribunal has awarded a sum of `25,000/- towards the same, we do not find any reason to modify the same.

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Thus, in total, the claimants are entitled for a compensation of a sum of 13,60,200/-. Since the Tribunal has awarded compensation of a sum of 8,31,000/- only, the claimants/appellants are entitled for a differential amount of `5,29,200/- as enhancement.

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Thus the claimants would be entitled to the total

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compensation as tabulated below:

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Sl. No.	Particulars		Amount in`
1	Loss of dependency		12,85,200/-
2	Love and affection		50,000/-
3	Towards transportation of bodyand funeral expenses	dead	25,000/-
		Total	13,60,200/-

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Barring the above, the claimants are not entitled

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for compensation under any other heads or enhancement

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or modification of compensation under the existing heads.

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Thus, from out of the total compensation of a

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sum of `13,60,200/-, after deducting the compensation

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awarded by Tribunal, which is at 8,31,000/-, the enhancement to which the claimants/appellants are entitled to would be a sum of 5,29,200/-. It is only to this extent, the impugned judgment and award deserves interference and modification at the hands of this Court.

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Accordingly, we proceed to pass the following :

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ORDER

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[i] The Appeal filed by the claimants stands allowed in part ;

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[ii] The impugned judgment and award dated 06.04.2015, passed by the learned XVI Addl.Judge, Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru City (SCCH-14), in M.V.C.No.3335/2014, awarding a total compensation of 8,31,000/to the appellants herein is modified and enhanced by a sum of 5,29,200/-, thus, bringing the total entitlement of compensation by the appellants/claimants at a sum of `13,60,200/-.

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[iii] The rest of the order of the Tribunal

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with respect to fixing the liability upon the respondents and directing the respondent No.2 - Insurance Company to deposit the awarded amount, awarding the interest, its rate,

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apportionment, terms regarding release of the amount awarded etc., shall remain unaltered.

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[iv] However, as per the order dated 01.08.2022, the appellants/claimants are not entitled for interest for the delayed period of 520 days in filing the present appeal.

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Draw the modified award accordingly.

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Registry to transmit a copy of this judgment along with records to the concerned Tribunal without delay.

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Sd/JUDGE

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Sd/JUDGE

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List No.: 1 Sl No.: 37

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S D Hanuman v. Srinivas S

Case brief

What is this about?

What did the court decide?

S D Hanuman v. Srinivas S

Case brief

What is this about?

What did the court decide?

What the court decided

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