Partly allowed

The Manager v. Smt Shakuntala

Karnataka HC23 Aug 2024MFA/9118/2018

Case brief

AI extract

What is this about?

Insurer appealed against a motor accident death award and claimants sought enhancement. The High Court recomputed notional income at Rs.11,000 per month with 10% future prospects, deducted one-fourth for personal expenses, applied multiplier 11, and revised consortium heads per Supreme Court precedent, reducing total compensation to Rs.14,27,900 with interest at 6% p.a.

What did the court decide?

Tribunal award reduced from Rs.17,65,000 to Rs.14,27,900 payable by insurer with interest at 6% p.a. from filing till realization, deposit within six weeks.

The Manager Vs Smt Shakuntala — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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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 H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 9118 OF 2018 (MV-D)

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C/W

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MFA CROSS OBJECTION NO. 58 OF 2019 (MV-D) IN MFA NO.9118/2018:

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BETWEEN:

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THE MANAGER ROYAL SUNDARAM GENERAL INSURANCE CO LTD., VISHRANTHI TOWERS NO.2/319, RAJIV GANDHI SALAI (OMR) KARAPAKKAM, CHENNAI - 600 097.

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Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY REGIONAL OFFICE NO.30, 3^RD FLOOR, JNR CITY CENTRE RAJARAM MOHAN ROY ROAD, SAMPANGIRAMA NAGAR BANGALORE - 560 027 BY ITS STATE HEAD LEGAL MR. S.K.SANDEEP.

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…APPELLANT

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(BY SRI. RAVI S SAMPRATHI.,ADVOCATE)

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AND:

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SMT SHAKUNTALA W/O LATE PRAKASH AGED ABOUT 46 YEARS,

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SRI VIKARAM S/O LATE PRAKASH, AGED ABOUT 28 YEARS,

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SRI VISHWAS S/O LATE PRAKASH, AGED ABOUT 27 YEARS,

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SRI VIJITH P S/O LATE PRAKASH, AGED ABOUT 24 YEARS,

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SMT. NIROSHA D/O LATE PRAKASH, AGED ABOUT 22 YEARS,

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SRI PRASAD S SHETTY S/O SURESH SHETTY AGED ABOUT 27 YEARS,

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R/AT A/18, FLAT NO.102 ORCHID SQUARE, CHICKOLI AMBARNATH WEST, AMBERNATH - 421 501 MAHARASHTRA STATE.

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…RESPONDENTS

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(BY SRI. NAGARAJA HEGDE.,ADVOCATE FOR R1 TO R5; NOTICE TO R6 IS D/W VIDE ORDER DATED 24.07.2019)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 30.08.2018 PASSED IN MVC NO.1098/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, AMACT, KARKALA, AWARDING COMPENSATION

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OF RS.17,65,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA CROB. NO.58/2019

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BETWEEN:

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SMT SHAKUNTALA W/O LATE PRAKASH AGED ABOUT 47 YEARS,

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SRI VIKARAM S/O LATE PRAKASH, AGED ABOUT 29 YEARS,

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SRI VISHWAS S/O LATE PRAKASH, AGED ABOUT 28 YEARS,

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SRI VIJITH P S/O LATE PRAKASH, AGED ABOUT 24 YEARS,

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SMT. NIROSHA D/O LATE PRAKASH, AGED ABOUT 23 YEARS,

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ALL ARE R/AT HOUSE NO.1-25/52C, SRI DURGA COLONY, PARANEERU BANGLEGUDDE KARKALA TALUK UDUPI DISTRICT.

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… CROSS OBJECTORS

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(BY SRI. NAGARAJA HEGDE., ADVOCATE)

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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AND:

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SRI. PRASAD S. SHETTY S/O SURESH SHETTY AGED ABOUT 28 YELARS R/AT A/18, FLAT NO.102, ORCHID SUARE, CHICKLOLI AMBERNATH 421 501 MAHARASHTRA.

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THE MANAGER

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ROYAL SUNDARAM GENERAL INSURANCE CO LTD., VISHRANTHI TOWERS NO.2/319, RAJIV GANDHI SALAI (OMR) KARAPAKKAM CHENNAI - 600 097 REPRESENTED BY BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI.RAVI S SAMPRATHI., ADVOCATE FOR R2;

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NOTICE TO R1 IS DIESPENSED WITH)

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THIS MFA CROB IN MFA NO.9118/2018 FILED UNDER ORDER 41 RULE 22 R/W SEC. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.08.2018 PASSED IN MVC NO.1098/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEAL AND CROSS OBJECTION, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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5 - NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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The appeal in MFA No.9118/2018 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the Insurance Company challenging the judgment and award dated 30.08.2018 passed by the Senior Civil Judge and MACT in MVC No.1098/2018 and MFA CROB No.58/2019 under Order 41 Rule 22 read with Section 173 (1) of the Act has been filed by the claimants for enhancement of compensation.

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Facts giving rise to the filing of the appeal/cross objection briefly stated are that on 02.05.2017, when the deceased Prakash was proceeding on a motorcycle bearing registration No.KA-20-EN-4446 from Manchakal towards Belman side, at that time, a car bearing registration No.MH-05-DE-0166, which was being driven in a rash and negligent manner, dashed against the deceased. As a

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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Upon service of notice, the respondent No.2 - insurance company appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimants, in order to prove the case, examined claimant No.1 as PW-1, and got exhibited documents namely Ex.P1 to Ex.P.8. On behalf of respondents, they have not adduced any oral evidence and

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got exhibited one document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.17,65,000/- along with interest at the rate of 8% p.a. and directed the insurance company to deposit the compensation amount along with interest. Being aggrieved, the appeal and the cross objection have been filed.

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The learned counsel for the Insurance Company has raised the following contentions: a) Firstly, although the claimants claim that the deceased was earning Rs.40,000/- per month, they have failed to substantiate their claim with supporting documents. The Tribunal while assessing the notional income of the deceased has considered the income of Rs.12,000/- per month which is on the higher side.

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b) Secondly, as per the voter ID issued by the Election Commission produced as Ex.R1, age of the deceased as on the date of the accident is 51 years. The Claims Tribunal has considered the age of the deceased as 47 years which is contrary to the material available on record.

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c) Lastly, the compensation awarded by the Tribunal under the heads 'loss of consortium', 'loss of love and affection' and 'loss of estate' and 'funeral expenses' is contrary to the decision of the Apex Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157] , and ‘MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] and in light of the Division Bench decision of this Court in the case of MS.JOYEETA BOSE AND OTHERS -

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V- VENKATESHAN.V AND OTHERS (MFA 5896/2018

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AND CONNECTED MATTERS DISPOSED OF ON 24.8.2020), the rate of interest awarded by the Tribunal at 8% p.a. on the compensation amount is on the higher side.

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With the above contentions, the learned counsel sought to allow the appeal and dismiss the cross objection.

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On the other hand, the learned counsel for the claimants has raised the following contentions:

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a) Firstly, at the time of accident the deceased was earning Rs.40,000/- per month as a centering contractor. The Tribunal has assessed the notational income of the deceased was Rs.12,000/- per month which is on the lower side.

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b) Secondly, there are five claimants depending on the income of the deceased. The Tribunal instead of deducting 1/4^th of the income of the deceased for personal expenses has deducted only 1/3^rd .

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c) Lastly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is inadequate and on the lower side.

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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With the above contentions, the learned counsel sought to allow the cross objection and dismiss the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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9. It is not in dispute that Sri Prakash died in the road

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traffic accident occurred on 02.05.2017 due to rash and negligent driving of the offending vehicle by its driver.

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The claimants claim that deceased was earning Rs.40,000/- per month as centering contractor, but failed to produce supporting documents to substantiate their claim. In the absence of proof of income, the notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2017, the notional income of the deceased shall be taken at Rs.11,000/- p.m.

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The respondents have produced voter ID card of the deceased Prakash as Ex.R1. As per Ex.R1 as on the date of

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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the accident age of the deceased was 51 years. In view of the law laid down by the Constitution Bench of the Supreme Court in NATIONAL INSURANCE CO. LTD. -vPRANAY SETHI AND OTHERS [AIR 2017 SC 5157] , 10% has to be added on account of future prospects. Thus, the monthly income comes to Rs.12,100/-. Since there are 5 dependents, it is appropriate to deduct 1/4^th of the income of the deceased towards personal expenses and remaining amount has to be taken as his contribution to the family. The deceased was aged about 51 years at the time of the accident and multiplier applicable to his age group is ‘11’. Thus, the claimants are entitled to compensation of Rs.11,97,900/- (Rs.11,000 + Rs.1,100 = Rs. 12,100/4 = Rs.90751211) on account of ‘loss of dependency’.

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In addition, the claimants are entitled to compensation of Rs.15,000/- on account of ‘loss of estate’ and compensation of Rs.15,000/- on account of ‘funeral expenses’. Claimant No.1, wife of the deceased is

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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entitled for compensation of Rs.40,000/- under the head

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of 'loss of spousal consortium'.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE CO. LTD. –VNANU RAM [2018 ACJ 2782] , claimant Nos.2 to 5, children of the deceased are entitled for compensation of

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Rs.40,000/- each under the head of ‘loss of parental consortium’.

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Thus, the claimants are entitled to the following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	1,197,900
Loss of estate	15,000
Loss of spousal consortium	40,000
Loss of Parental consortium	160,000
Funeral expenses	15,000
Total	1,427,900

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NC: 2024:KHC:34054 MFA No. 9118 of 2018 C/W MFA.CROB No. 58 of 2019

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In the result, the following order is passed:

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ORDER

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a) The appeal in MFA No.9118/2018 filed by the Insurance Company and the Cross Objection in MFA CROB No.58/2019 filed by the claimants are disposed of.

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b) The judgment of the Claims Tribunal is modified.

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c) The claimants are entitled to a total compensation of Rs.14,27,900/- as against Rs.17,65,000/- awarded by the Tribunal.

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d) Following the judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the total compensation shall carry interest at 6% per annum.

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e) The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment.

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