Shivamma Vs Janani Tours & Resorts Pvt. Ltd.

2 . THE BRANCH MANAGER FUTURE GENERAL INSURANCE CO.LTD., PASADENA NO.18/1,(OLD NO.125/A), 3^RD FLOOR, ASHOKA PILLAR ROAD, 1^ST BLOCK, JAYANAGARA, BENGALURU – 560 082.

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…RESPONDENTS

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(SRI. O MAHESH, ADVOCATE FOR R2; VIDE ORDER DATED 05.07.2024, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD PASSED BY THE SENIOR CIVIL JUDGE & MACT, MALAVALLI IN MVC NO.1187/2017 ON 23.01.2019 THEREBY ENHANCING THE COMPENSATION SUITABLY WITH INTEREST, FIXED ENTIRE LIABILITY ON THE RESPONDENT AND GRANT SUCH OTHER RELIEFS IN FAVOUR OF THE APPELLANT IN THE CIRCUMSTANCE OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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In M.F.A NO.4321 OF 2019:

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BETWEEN:

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THE BRANCH MANAGER FUTURE GENERAL INSURANCE COMPANY LIMITED., PASADENA NO.18/1(OLD NO.125/1), 3^RD FLOOR, ASHOKA PILLAR ROAD, 1^ST BLOCK, JAYANAGARA, BENGALURU - 560 080

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NOW AT FUTURE GENERAL INDIA INSURANCE CO. LTD, NO.31, 3^RD FLOOR, ABOVE GROMA SHOWROOM SHRAVANEE KRISHNA MANSION, 100 FEET ROAD, II BLOCK, JAYANAGARA, BENGALURU - 560 011.

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...APPELLANT

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(BY SRI. O MAHESH, ADVOCATE)

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AND

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1 . SMT. SHIVAMMA AGE 52 YEARS W/O LATE NAGARAJA B R/O GOWDAGERE VILLAGE KASABA HOBLI, MALAVALLI TALUK, MANDYA DISTRICT – 571 401.

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2 . POSHITHA SBN, AGED 25 YEARS D/O LATE NAGARAJA B

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3 . BASAMMANI SBN, AGE 20 YEARS, D/O LATE NAGARAJA B

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4 . GURUMALLAMMA AGE 72 YEAR W/O LATE BASAVAIAH

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RESPONDENT NOS.2 TO 4 ARE RESIDING AT # 164/1, BASAPPA FLOUR MILL, 4^TH CROSS, TANK ROAD, NES, NEW EXTENTION, MALAVALLI TOWN MALAVALLI, MANDYA DISTRICT – 571 428.

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5 . JANANI TOURS AND RESORTS PRIVATE LIMITED., MANAGING DIRECTOR, NO.L-170, 171, JANANI, 6^TH SECTOR, RING ROAD, HSR LAYOUT, BENGALURU - 560 102.

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…RESPONDENTS

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(SRI. KRISHNA SWAMY S, ADVOCATE FOR R1 TO R4; R5 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THE APPEAL AS PRAYED FOR SETTING ASIDE THE JUDGMENT AND AWARD DATED 23.01.2019 PASSED BY THE SENIOR CIVIL JUDGE AND MOTOR VEHICLE ACCIDENT CLAIM TRIBUNAL, MALAVALLI, IN MVC NO.1187/2017, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 17.04.2025, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE T.M.NADAF

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CAV JUDGMENT

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These two appeals are listed for Admission, with the consent of both parties, the same are taken up for final disposal.

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These two appeals are filed against the judgment and award dated 23.01.2019 passed in MVC No.1187/2017, by the Senior Civil Judge and MACT Malavali. MFA No.3259/2019 is filed by the claimants seeking for an enhancement and MFA No.4321/2019 is by the insurance company on liability, as well as on quantum.

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The parties will be referred to as per their ranking

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before the Court below for easy reference.

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The brief outline of the facts leading to filing of these appeals are as under:

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In a road traffic accident occurred on 07.06.2017 at about 3.00 p.m., in front of KSRTC bus stand at Halaguru, the husband of the claimant No.1 and father of claimant Nos.2 and 3 and son of claimant no.4 by name B. Nagaraja, who was proceeding on a TVD XL Moped bearing No.KA-11-EA-8995 from Malavalli towards Halaguru on the left side of NH 209 main road, was hit by the driver of Chavrolet Tavera Car Bearing No.KA 01 AD 1218, who as driving the car in a rash and negligent manner dashed from the hind side and dragged the rider as well as the moped upto some distance. In the accident, Nagaraja sustained fatal injuries and succumbed to the injuries on the way to the hospital.

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As per the claimants the deceased was aged 61 years old at the time of the accident and was earning Rs.20,000/- per month from agriculture and was doing milk vending business, hiring his tractor and also receiving pension in a sum of

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Rs.30,000/- p.m. The claimants lost an earning member of the family, which has caused loss of love and affection and dependency.

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The claimants filed a claim petition under Section-166 of MV Act, seeking compensation of Rs.50 lakhs against the owner of the vehicle and the insurer i.e., Future General Insurance Company Limited. Upon service of notice, respondent No.1 though served remained absent and was placed exparte, whereas respondent No.2 appeared through its counsel and filed objection contending that the driver of the offending vehicle was not possessing valid and effective driving licence as on the date of the accident, in respect of the particular type of offending vehicle, as such violated the policy condition.

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It is further contended that the accident has occurred solely due to the negligence on the part of the deceased. The offending vehicle was not having fitness certificate permit as on the date of the accident and also contended that the amount of compensation claimed is highly exaggerated and exorbitant and seeks for dismissal of the petition.

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The Tribunal subsequent to the completion of the pleadings, framed the following issues:

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“i. Whether the petitioners prove that, the accident was taken place solely due to rash and negligent driving of the driver of offending vehicle?

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ii. Whether the petitioners prove that, due to the said impact the deceased succumbed to injuries?

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iii. Whether the petitioners are entitled for compensation as claimed? If so, to what extent and from whom?

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iv. What order or award?”

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In order to prove the case the claimant No.1 was examined as PW-1 and one witness by name Madappa was examined as PW-2, produced 16 documents and marked as Exhibits-P1 to P16. Though the second respondent filed the written statement, neither led any evidence nor produced any documents. The Tribunal upon considering the evidence both oral and documentary, and on the arguments of the learned counsel for the parties, answered issue Nos.1 and 2 in affirmative and issue No.3 partly in affirmative and thereby passed a judgment awarding a sum of Rs.20,51,816/-, along with interest at 9% per

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annum from the date of the petition till the date of realization under various heads as shown in the tabular column at para – 12

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of the judgment, which reads as follows:

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1	Loss of dependency	:	Rs.	18,66,816
2	Loss of consortium	:	Rs.	25,000
3	Loss of love and affection	:	Rs.	1,00,000
4	Obsequies and 11^th day ceremony expenses	:	Rs.	25,000
5	Loss of estate	:	Rs.	15,000
6	Loss of expectancy	:	Rs.	20,000
	TOTAL	:	Rs.	20,51,816

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It is this judgment and award passed is called in question in the two appeals supra.

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Heard Sri.Sreenivasan M.Y., learned counsel for the appellants/claimants and Sri.O.Mahesh learned counsel for the insurance company.

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Prior to dwelling upon the appeal seeking for

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enhancement, it is apt to decide the contentions of the insurance

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company in the appeal filed challenging the liability in MFA No.4321/2019.

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Sri.O.Mahesh, learned counsel called in question the judgment and award of the Tribunal on the ground of liability on two contentions. Firstly, that there was no compliance of the mandatory provision under Section–134(c) of the MV Act either by the insured or under Section-158(6) of MV Act by the insured and the concerned investigating police officer, the insurance company was kept in darkness about the alleged accident. Secondly, the Tribunal has missed the point of contributory negligence, attributable to the rider of the vehicle i.e., deceased who has suddenly stopped his moped all of a sudden without giving any signal or indication in front of the KSRTC Bus Stand.

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So far as the quantum is concerned, he submits that the Tribunal has committed serious error in awarding Rs.18,66,816/-. Considering the income of the deceased at Rs.29,632/- per month, ignoring the fact that the wife was paid Rs.17,780/- per month as family pension. That apart, deducting 1/4^th towards ‘personal expenses’ and applying multiplier of 7 is erroneous and sought to modify the award. In order to

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substantiate his arguments, he has referred to the crossexamination of PW-1, contending that she has admitted that she is receiving Rs.13,000/- as family pension and she has also admitted that she has not produced any documents in support of income from the agriculture.

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Per contra, Sri.Sreenivasan learned counsel submitted that except filing the statement of objections, the insurance company has not taken any effort to substantiate the contentions stated in the statement, by adducing oral evidence and producing documents to that effect. Even in the cross-examination of both the witnesses, nothing worthwhile is elicited. The insurance company failed to establish defense of contributory negligence and so far as other contentions stated supra, in the absence of any evidence, the contentions of the appellants remains only a contention without there being any legal support.

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So far as the contention of the learned counsel for the insurance company regarding the family pension being paid to the wife and the same should have been taken note of while considering the loss of dependency, Sri.Sreenivasan submitted that the contentions does not hold any water, in view of the law

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laid down by the Hon’ble Apex Court in the case of SEBASTIANI LAKRA AND OTHERS vs. NATIONAL INSURANCE COMPANY

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LIMITED AND ANOTHER.¹ The Hon’ble Apex Court in the case at paragraph Nos.12 and 14 has held that the pension is paid on account of the services rendered by the deceased to his employer and the said amount cannot be deducted, the same reads as under:

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“12. The law is well-settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to 'just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased

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1 AIR 2018 SC 5034

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even though these amounts may go into the hands of the dependents only after his death.

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xxx

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14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted.”

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REGARDING QUANTUM:

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So far as the quantum of compensation is concerned, he has submitted that the Tribunal has not considered the income from the agriculture so also not awarded proper compensation under the conventional heads. With this he sought for modification of the award by enhancing the compensation.

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Having heard the learned counsel for the appellants, the point that arise for consideration in these appeals are:

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i) Whether the Tribunal was right in answering the issue No.1 in affirmative i.e., against the insurance company?

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ii) Whether the Tribunal is right in considering the entire pension of the deceased, while awarding compensation under the head ‘loss of dependency’?

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iii) Whether the compensation awarded by the Tribunal requires any modification calling for enhancement?

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My answer to the above point for consideration is:

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Point No.1 :Affirmative

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Point No.2 :Affirmative

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Point No.3 : Partly in affirmative for the following reasons:

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The contention of Sri.Mahesh, regarding the contributory negligence is outwardly to be rejected for the simple reason that the same has not been substantiated before the Tribunal, either by oral or documentary evidence. A perusal of the cross-examination of both the witnesses, nothing worth is elicited to throw some light that the deceased has contributed

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negligence to the accident even in the slightest way. Admittedly, the charge-sheet is filed against the driver of the offending vehicle, which is not denied by the insurance company. As rightly pointed out by Sri.Sreenivasan learned counsel, the insurance company except filing the statement of objections, neither stepped into the witness box nor substantiated the defence either by oral evidence or in confrontation of the claimants witnesses. In the absence of any clinching evidence, it becomes very hard to accept the contentions of the learned counsel for the insurance company that the deceased has contributed to the accident. Therefore, the same is liable to be rejected and accordingly, it is rejected.

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So far as the consideration of the entire pension by the Tribunal is concerned, the law is now well-settled by the judgment of the Hon’ble Apex Court supra that it is an established principles of service jurisprudence that the pension and gratuity are the property of the deceased. The law on this point is no more res-integra. In view of the settled position of law, the contentions of Sri. O. Mahesh does not hold any water and is liable to be rejected and accordingly rejected.

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REGARDING QUANTUM OF COMPENSATION:

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So far as the quantum of compensation is concerned, this Court finds that the Tribunal has rightly awarded the compensation under the head of ‘loss of dependency’. The Tribunal has awarded a sum of Rs.18,66,816/- (Rs.29,632 – ¼ = 22,224 x 12 x 7) . This Court feels that the same does not call for interference.

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Further, in view of the judgment of the Hon’ble Apex Court in the case of RASMITA BISWAL & OTHERS VS.

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DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER² , there shall be an enhancement of 10% on the conventional heads for every three years. Taking into consideration the same, the compensation awarded by the Tribunal towards ‘loss of consortium’, being Rs.1,60,000/-, the escalation at 10%+10% works out to Rs.16,000/- + Rs.16,000. Accordingly, the appellants / claimants are entitled for a sum of Rs.1,92,000/- (Rs.40,000 x 4 + 10% + 10%) towards ‘Loss Of Consortium’ including Loss Of Love And Affection’.

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2 (2022) 2 SC 767

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Further, a compensation of Rs.15,000/- each is awarded under the head ‘Loss Of Estate’ And ‘Funeral And Transportation’ respectively, along with 10% + 10% escalation. Therefore, Rs.36,000/- (Rs.15,000 x 2 x 10% + 10%) towards ‘Loss Of Estate’ And ‘Funeral And Transportation’.

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REGARDING INTEREST:

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So far as interest is concerned, the Tribunal has awarded 9% interest per annum, without there being any material on record and discussion in the judgment. In the absence of any specific material regarding the rate of interest, the interest on the compensation would be at 6% per annum.

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Thus, in all the appellants/claimants are entitled for

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enhanced compensation as follows:

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Loss Dependency	:	Rs.	18,66,816/-
Loss of Consortium	:	Rs.	1,92,000/-
Loss of Estate & Funeral Expenses	:	Rs.	36,000/-
TOTAL	:	Rs.	20,94,816/-

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The total compensation re-determined by this Court works out to Rs.20,94,816/- as against Rs.20,51,816/- awarded

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by the Tribunal. The appellants – claimants are entitled for an additional compensation of Rs.43,000/- (Rs.20,94,816 – Rs.20,51,816) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance company is directed to deposit the enhanced compensation within Six Weeks from the date of receipt of the certified copy of this judgment.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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i) The appeals are Allowed-In-Part ;

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ii) The judgment and award passed by the Tribunal dated 23.01.2019, in MVC No.1187/2017, by the Senior Civil Judge and MACT Malavali is modified;

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iii) MFA No.3259/2019 is allowed in part. The appellants – claimants in, are entitled for an additional compensation of Rs.43,000/(Rs.20,94,816 – Rs.20,51,816) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal;

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iv) MFA No.4321/2019 filed by the insurance company is allowed in part only so far as the interest is concerned which is reduced from 9% to 6% per annum;

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v) The amount in deposit before this Court shall be transmitted to the concerned Tribunal for disbursement.

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vi) The enhanced compensation along with balance compensation amount shall be deposited by the Insurance company, within Six weeks from the date of receipt of a copy of this order;

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v) Disbursement as well as apportionment of the compensation amount shall be as per the impugned order of the Tribunal;

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v) No order as to cost.

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Sd/(T.M.NADAF) JUDGE

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JJ

Shivamma v. Janani Tours & Resorts Pvt. Ltd.

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Shivamma v. Janani Tours & Resorts Pvt. Ltd.

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