Ganesh K Vs Subramanya H

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.09.06.2020 IN MVC NO.525/2016 ON THE FILE OF THE COURT OF ADDITIONAL SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant being aggrieved by the judgment and award dated 09.06.2020 passed by the Judge, Addl.Court of Small Causes and Senior Civil Judge, MACT, Mysuru (for short `Tribunal'), in MVC No.525/2016.

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

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The brief facts of the case of both the parties before the Tribunal were that :

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On 28.12.2015, at about 8.00 a.m. the mother of the claimant Smt. Nagamma met with an accident due to rash and negligent driving of the car bearing registration

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HC-KAR

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No.KA-09-MA-3389. Due to the impact, Smt. Nagamma sustained injuries and while undergoing treatment she succumbed to the injuries on the same day.

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It is the further case of the claimants that the deceased was aged 55 years and earning Rs.25,000/p.m, by working as a Sweeper at Mysuru City Corporation, Mysuru. She was contributing her earnings for maintenance of the family. Claimants are the children of the deceased. With these reasons, they prayed to award compensation of Rs.25,35,000/-.

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Respondent No.1 was the owner and

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respondent No.2 was the insurer of the offending car. Respondent Nos.1 and 2 filed their respective written statements denying the contentions of the claimant and respondent No.2 denied its liability to pay the compensation and prayed to dismiss the petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues, for its determination.

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HC-KAR

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The claimants to prove their case examined one

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witness as PW-1 and marked 10 documents, as per Exs.P1 to P-10. Respondents examined two witness as RW-1 and RW-2 and marked Exs.R-1 to R-3.

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The Tribunal after hearing both parties and appreciating the evidence on record, awarded following compensation:

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Particulars	Amount in Rs.
Loss of love and affection	50,000
Loss of estate	15,000
Transportation and funeral expenses	25,000
Loss of dependency	21,06,500
Total	21,96,500

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T he deceased was employed as a sweeper with the Mysuru City Corporation, Mysuru. The Corporation paid exgretia compensation of ₹3,00,000/- to the claimants due to death of Nagamma in the accident, which was deducted by the Tribunal while awarding the total compensation. Dissatisfied with the said findings of the Tribunal, the claimants have filed the present appeal.

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HC-KAR

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9. Heard the arguments of the learned counsel appearing for the claimants as well as learned counsel for respondents.

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10. The learned counsel for the appellant submits that the Tribunal has not awarded compensation towards 'loss of consortium' and the Tribunal ought not to have deducted Rs.3,00,000/- that was paid as exgratia payment to claimants by the Corporation due to death of Nagamma during discharge of her work from the amount of compensation awarded. Appellants were relied on the judgment of Hon'ble Apex Court in the case of National Insurance Co., Ltd., vs. Mannat Johal and Ors¹ . Considering the same, prayed to pass suitable order.

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11. Learned counsel for respondent No.2 - Insurer vehemently contends that the said amount of Rs.3,00,000/- was paid due to death of mother of the claimant by the Mysuru City Corporation, therefore, the

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1 2020(1) SCC (CRL) 264

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HC-KAR

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Tribunal has rightly deducted the said amount from the compensation awarded and there is no error in the said findings. He further contended that the claimants were not dependant on the earnings of the deceased. Therefore, they are not entitled for compensation under the head loss of dependency. He further contended that the Tribunal has awarded compensation both under the head 'loss of love and affection'. T he claimant cannot seek compensation both under the heads of 'loss of love and affection' and 'loss of consortium', as held in the case of National Insurance Co. Ltd Vs. Pranay Sethi and Ors² . Therefore, the claimants are not entitled for compensation under the head 'loss of consortium'. The Tribunal has rightly appreciated the material on record and has awarded a just amount of compensation. This does not call for any interference by this Court.

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2 (2017) 16 SCC 680

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HC-KAR

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12. The fact of the accident and death of

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Smt. Nagamma, the mother of the claimants in the said accident are not in dispute. The contentions of the insurer that the claimants are not entitled for compensation under

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two heads 'loss of consortium', and loss of love and affection; and awarding of compensation under the head loss of dependency are not proper is not tenable since it has not filed any appeal challenging the same. The said findings were based on the materials available on record. Hence, no need to interfere.

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13. The Mysuru City Corporation paid an ex-gratia amount of ₹3,00,000/- to the dependants of the deceased, Smt. Nagamma, due to her sudden death in the accident, while she was on duty. This payment is in no way related to the liability of the insurer to pay compensation under insurance policy. It was an additional benefit given by the employer to the legal representatives of deceased, may be

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as per terms of employment. Hence, deduction of the said amount by the Tribunal is incorrect.

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HC-KAR

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Learned counsel for the appellant relied on the judgment of National Insurance Company Ltd. vs. Mannat Johal and others. In the said judgment, the Hon'ble Apex Court relied on its earlier judgment in the case of Reliance

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General Insurance Company Ltd. v. Shashi Sharma & others³ , Helen C. Rebello & Ors. vs. Maharashtra State Road Transport⁴ , United India Insurance Co. Ltd., and Ors. vs. Patricia Jean Mahajan and Ors.,⁵ and observed as under:

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"However, while dealing with the scheme the court held that applying a harmonious approach and to determine a just compensation payable under the Motor Vehicles Act it would be appropriate to exclude the amount received under the said Rules under the head of 'pay and other allowances' last drawn by the employee. We may note that on principle this court has not disagreed with the proposition laid down in Helen C. Rebello or in Patricia Jean Mahajan (supra), but while arriving at a just compensation, it had ordered the deduction of the salary received under the statutory Rules."

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12.2. In the present case too, it has not been shown if the ex gratia amount received by the claimants had been under any Rules of service and would be of continuous assistance, as had been the case in Shashi Sharma (supra) as per the Rules of 2006 considered therein. In an overall analysis and with reference to the decision in Sebastiani Lakra (supra), we are clearly of the view that the decision in Shashi Sharma would not

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3 2016 ACJ 2723 (SC)

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4 1999 ACJ 10 (SC)

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5 2002 ACJ 1441 (SC)

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HC-KAR

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apply to the facts of the present case and no deduction in the amount awarded by the High court appears necessary."

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(Emphasis supplied)

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Therefore, the contention of the insurer that

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Rs.3,00,000/- paid to the claimants by Mysuru City Corporation, Mysuru shall be deducted from the compensation payable by the respondent is not tenable and findings of the Tribunal in this regard is incorrect. The said exgratia payment appears to be part of service

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benefit. Hence, the said amount cannot be deducted from the total amount of compensation payable by the respondent.

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16. The Tribunal awarded compensation of Rs.50,000/- under the head 'loss of love and affection'. The Tribunal has not awarded compensation under the head 'loss of consortium'; instead, it has awarded compensation under the head 'loss of love and affection'. In view of the law laid down in the case of Pranay Sethi (supra), and Magma General Insurance Company

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HC-KAR

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Limited Vs. Nanu Ram alias Chuhru Ram⁶ , the claimants are entitled to compensation under the head

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'loss of consortium' instead of 'loss of love and affection'.

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17. Accordingly, the following compensation is

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awarded:

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Particulars	Amount in Rs.
Loss of consortium	80,000
Loss of estate	15,000
Funeral expenses and transportation	25,000
Loss of dependency	21,06,500
Total	22,26,500
Amount awarded by the Tribunal	21,96,500
Enhancement-	30,000

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The Tribunal has deducted Rs.3,00,000/- on the

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above stated ground, which is erroneous. Therefore, the claimants in all are entitled to total amount of compensation of Rs.3,30,000/-.

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Accordingly, this Court proceed to pass the following:

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6 (2018) ACJ 2782

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HC-KAR

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ORDER

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i) The appeal is allowed in part .

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ii) The judgment and award dated 09.06.2020 passed by the Judge, Addl. Court of Small Causes & MACT., Mysuru in MVC.No.525/2016, stands modified.

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iii) Respondent Nos.1 and 2 shall pay Rs.3,30,000/- with interest @ 6% per annum on the said amount, from the date of the petition till its realization.

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