Smt Jyothi v S Vs Manager

SMT. JYOTHI V. S., W/O MAHADEVAIAH M, NOW AGED ABOUT 32 YEARS, R/AT: NO 75, 7^TH CROSS, ARUNODAYA SCHOOL MAIN ROAD, VIGNESHWAR NAGAR, SUNKADAKATHE, BENGALURU-560 091.

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…APPELLANT

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(BY SRI. TEJAS N, ADVOCATE)

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AND:

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MANAGER, MEGA TRAVELS, OFFICE AT: NO 637, 8^TH MAIN, 14^TH CROSS, 3^RD PHASE,

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NC: 2025:KHC:45544-DB MFA No. 3536 of 2024 C/W MFA No. 3298 of 2024 MFA No. 4499 of 2024

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HC-KAR

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J.P. NAGAR,

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BENGALURU SOUTH-560 078.

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THE MANAGER, RELIANCE GENERAL INSURANCE CO., NO 28, EAST WING, 5^TH FLOOR, CENTENARY BUILDING, MG ROAD, BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI. D. VIJAYAKUMAR, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT 1989, PRAYS TO: MODIFY AND ENHANCE THE COMPENSATION AWARDED IN JUDGMENT AND AWARD DATED 04-04-2024 PASSED IN M.V.C. NO.1704 OF 2020 BY THE HON’BLE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, M.A.C.T., BENGALURU (SCCH-14) IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO. 3298/2024

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BETWEEN:

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SRI. NANJUNDAIAH B S/O. LATE. KEMPA BORAIAH, AGED ABOUT 70 YEARS,

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SMT. GANGAMMA W/O. NANJUNDAIAH. B, AGED ABOUT 64 YEARS, BOTH ARE RESIDING AT, RESIDING AT NO.75, 7TH CROSS, ARUNODAYA SCHOOL MAIN ROAD, VIGNESHWARA NAGARA, SUNKADDA KATTE, BENGALURU - 560 091.

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...APPELLANTS

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(BY SRI. TEJAS N.,ADVOCATE)

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HC-KAR

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AND:

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MANAGER,

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MEGA TRAVELS, OFFICE AT: NO.637, 8^TH MAIN, 14^TH CROSS, 3RD PHASE,

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J.P. NAGAR, BENGALURU SOUTH - 560 078.

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THE MANAGER,

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RELIANCE GENERAL INSURANCE CO., NO.28, EAST WING, 5^TH FLOOR, CENTENARY BUILDING, MG ROAD, BENGALURU - 560 001.

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...RESPONDENTS

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(BY SRI. D. VIJAYKUMAR, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT 1989 PRAYED TO: MODIFY AND ENHANCE THE COMPENSATION AWARDED IN JUDGMENT AND AWARD DATED:04-04-2024 PASSED IN M.V.C No.1703 of 2020 BY THE HON’BLE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, M.A.C.T., BENGALURU (SCCH-14) IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO. 4499/2024

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BETWEEN:

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THE MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD, NO.28, EAST WING,5^TH FLOOR, CENTENARY BUILDING, M.G. ROAD, BENGALURU-560 001 REP BY ITS MANAGER LEGAL.

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...APPELLANT

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HC-KAR

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(BY SRI. D VIJAYAKUMAR, ADVOCATE)

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AND:

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SRI B. NANJUNDAIAH, S/O LATE KEMPA BORAIAH, AGED ABOUT 70 YEARS,

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SMT. GANGAMMA W/O B. NANJUNDAIAH AGED ABOUT 64 YEARS,

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BOTH ARE R/AT NO.75, 7^TH CROSS, ARUNODAYA SCHOOL MAIN ROAD, VIGNESHWARA NAGARA, SUNKADDA KATTE, BANGALORE-560 091.

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THE MANAGER, MEGA TRAVELS, OFF/AT. NO.637, 8^TH MAIN, 14^TH CROSS,3^RD PHASE, J. P. NAGAR, BANGALORE SOUTH-560 078.

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...RESPONDENTS

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(BY SRI. TEJAS N, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT 1989, PRAYS TO: TO SET ASIDE THE COMMON JUDGMENT AND AWARD DATED: 04.04.2024, PASSED IN MVC NO.1703/2020 ON THE FILE OF MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL, BANGALORE CITY, (SCCH-14) & (MEMBER, MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES,

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HC-KAR

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BENGALURU) AND TO PASS SUCH SUITABLE ORDER IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD AND HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)

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These appeals are against the common judgment and award dated 04.04.2024 in MVC.No.1703/2020 and MVC.No.1704/2020. The appeals in MFA.No.3298/2024 and

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MFA.No.4499/2024 are from the claim petition in MVC.No.1703/2020, and the other appeal in MFA.No.3536/2024 is from the claim petition in MVC.No.1704/2020.

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The claim petition in MVC.No.1703/2020 is by the maternal grandparents of the deceased Prema, who has died in a road accident on

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HC-KAR

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13.02.2020. The claim petition in

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MVC.No.1704/2020 is by the injured who has

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suffered in the same accident. Ms. Prema and the appellant in MFA.No.3536/2024 [ who are referred to as ‘Ms. Prema’ and ‘the Claimant’ respectively ] were traveling on a scooter when there is an accident involving the offending vehicle. The offending vehicle is insured with the appellant in MFA No.4499/2024, and this appellant is referred to as ‘ the Insurer’ . The Insurer has not denied its liability under the policy.

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The Tribunal in allowing the claim petition

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in MVC.No.1703/2020 has awarded a sum of Rs.29,41,800/- along with interest at 6% per annum from the date of petition till the date of deposit. This

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award is under the following heads:

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Sl.	Heads	Amount
No.
1.	Loss of consortium	Rs. 88,000/-
2.	Loss of Love and Affection	Rs. 50,000/-
3.	Loss of estate	Rs. 16,500/-
4.	Funeral Expenses	Rs. 16,500/-
5.	Transportation of dead body	Rs.10,000/-
6.	Loss of Dependency	Rs.27,60,800/-
	TOTAL	Rs.29,41,800/-

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HC-KAR

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The Tribunal has allowed the claim petition in MVC.No.1704/2020 granting global compensation in a sum of Rs.1,50,000/- with interest at 6% per annum and again from the date of petition till the date of petition.

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Sri. Tejas. N, the learned counsel for the claimants, and Sri. D. Vijaya Kumar, the learned counsel for the Insurer, are heard for the final disposal of the appeals with the assistance of certified copies of the exhibits and depositions that are made available to this Court during the hearing. The questions for consideration are essentially about the quantum of compensation and in MFA.No.3298/2024 and MFA.No.4499/2024, and those questions are these:

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IN MFA.No.3298/2024 and MFA.No.4499/2024

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[a] Whether the Tribunal is justified in granting compensation to the

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HC-KAR

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grandparents of Ms. Prema towards loss of dependency.

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[b] If the Tribunal has erred, the compensation that must be granted to these grandparents.

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In MFA No. 3536/2024

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[c] Whether the claimant is entitled for a sum of compensation higher than Rs.1,50,000/-.

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Reg Questions [a] and [b].

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It is undisputed that Ms. Prema was aged 26 years as on the date of the accident and that she had lost both her legs. Her maternal grandparents have provided for her well-being. Ms. Prema was working in a Company. The Tribunal, because the grandparents have not proved the actual income, has taken the notional income in a sum of Rs.14,500/per month to compute loss of dependency. Sri. D. Vijaya Kumar submits that the grandparents have failed to establish the dependency on the

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HC-KAR

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granddaughter, and if dependency is not established, they will only be entitled for the loss of estate . The learned counsel proposes to contend that because

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Ms.Prema was a granddaughter and the grandparents were aged above 60 years, the multiplier must be based on the age of the grandparents. The learned counsel also contests the addition towards future prospects.

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Sri. Tejas. N submits that the Tribunal under the circumstances has rightly granted compensation towards loss of dependency, but the Tribunal should have taken the income at Rs.20,000/- per month. The learned counsel argues against the proposition that the grandparents would not be entitled for addition towards future prospects asserting that the evidence on record demonstrates that Ms. Prema was living with the grandparents. The learned counsel submits that the grandfather ( PW-1 ) is categorical in his evidence that Ms. Prema was

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making over the entire income for the maintenance of the family.

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The question, whether the Tribunal has

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erred in granting compensation towards loss of dependency, must be tested in the light of these circumstances and whether this Court can opine that, because it is brought on record that the deceased was living with the grandparents, that in itself would be proof of dependency. The grandfather's evidence is that Ms. Prema was living with them and his two sons are living separately. When asked in the cross-examination about the sons' avocation, he says he does not know.

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This Court finds considerable force in the submission that merely because Ms. Prema was living with the grandparents there cannot be an inference of dependency. This Court must observe that the common residence will be one circumstance

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that could lean towards dependency, but that would not by itself suffice. The grandparents of Ms. Prema when confronted with the burden of establishing dependency should have brought on record other circumstances from which a reasonable inference could have been drawn rather than merely rely upon common residence to establish dependency. Further, the grandfather asserts his sons are living separately, and he is reluctant to give the details of the of sons’ vocation or earnings.

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As such, this Court opines that the

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Tribunal has overlooked material facts in concluding that dependency is established because it is established that the deceased was living with grandparents. There must be a revision of the compensation. When dependency is not established the claimants would be entitled to loss of estate, which is computed taking 25% of the income shown with additions and the multiplier. Mr. D Vijay Kumar

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argues that the multiplier, in the circumstances of the case, must be based on age of the grandfather and not on the age the of Ms. Prema, but this argument cannot be accepted. It is now settled that the age of the victim ( deceased ) must be considered as that will subserve the mandate to grant just and reasonable compensation.

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Though it is argued that there should not be any addition towards future prospects because the grandparents are aged above 60 years, this Court is not persuaded as the purpose of adding future prospects is well established and the percentage is to cover the vagaries of life that could be. Therefore, this Court is of the view that loss of estate must be computed with addition towards future prospects at 40% and capitalizing the same for determination of annual income for computation of loss of estate applying the right multiplier as Ms. Prema was aged

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26 years. The multiplier will be '17’ '. The computation

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of loss of estate will be:

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MonthlyIncome		14,500
Addition towards Future Prospects	40%	5,800
Monthly Income + Future Prospects		20,300
Annual Income		2,43,600
Deduction Towards personal expenses	1/2	1,21,800
Multiplier and [After Deduction towards personal Expenses]		1,21,800
Multiplier	17
Loss of Dependency		20,70,600
Loss of Estate will be 25% of the Loss of Dependency		5,17,650/-

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In addition, the claimants must be

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granted compensation towards loss of consortium and conventional heads (Loss of transportation and funeral expenses). The Tribunal has rightly computed the compensation under these heads in a sum of Rs.88,000/and Rs.33,000/-. The total compensation would be in a sum of Rs.6,38,650/- as against Rs.29,41,800/- awarded by the Tribunal. The comparative table is as under:

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	By the Tribunal	By this Court
Loss of dependency	Rs.27,60,800/-	NIL
Loss of consortium	Rs. 88,000/-	R88000
Loss of love and affection	Rs. 50,000/-	s.,/-
Loss of estate	Rs. 16,500/-	Rs.5,17,650/-
Funeral expenses	Rs. 16,500/-
Transportation of dead body	Rs. 10,000/-	Rs.33,000/-
*Total*	*Rs.29,41,800/-*	*Rs.6,38,650/-*

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Reg Question [c]:

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The Claimant is in-service with the State Government as ‘ a Nurse' , and she has marked documents to establish the nature of the injury. These documents include the discharge summary and the medical bills. The Tribunal has not considered the discharge summary, which elaborates the claimant’s condition and the treatment that she has taken. The claimant has suffered injury to the head and a fracture of the right femur. She was hospitalized with M/s Sparsh for the period between 13.02.2020 and 21.03.2020. She was an in-patient for 38 days. She is initially admitted to the

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Neurosurgical ICU, and she has undergone a tracheostomy. She had certain conditions that required the Doctors to put her on mechanical ventilation for a long when she was on bronchial toileting. The Claimant has approached the authorities for a Disability Certificate, and the authorities have also issued her disability certificate stating that she has a disability of 60%, which is permitted in nature.

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The Tribunal's finding to award the global compensation without an award towards pain and suffering, towards loss of amenities, attendant charges, food and nourishment is examined in the light of the circumstances. The Claimant is entitled to compensation under each of these heads. The Claimant is awarded a sum of Rs.1,50,000/- towards pain and sufferings and another sum of Rs.1,50,000/- towards loss of amenities. There cannot be a greater amount than this under these

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heads because the claimant, for reasons best known

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to her, has led no evidence to elaborate on her condition.

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Both Sri. Tejas. N, and Sri. D. Vijaya

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Kumar have taken this Court through the Claimant’s evidence with the Tribunal refusing to grant compensation towards medical expenses to the claimant. The evidence of the Claimant, who is examined as PW-2, is reconsidered, recording that the Tribunal has rightly opined that the Claimant has admitted that she has received reimbursement of the medical bills. Though Sri. Tejas N proposes to rely upon a certain part of the cross-examination to contend that the claimant has only admitted the reimbursement of the expenses incurred as an inpatient and not as an outpatient, the claimant is silent in her chief-examination about all these explaining of expenses and the reimbursement. If the Claimant is to be granted any compensation, she

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should have been categorical in her evidence about the details of the bills submitted and the reimbursement as also the reasons [if any] for not providing entire reimbursement.

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Sri. Tejas. N, next submits that this Court must grant compensation towards loss of salary, towards attendant charges and food and nourishment. On the first ground, the learned counsel proposes to rely upon Exhibit P24 and Exhibit P32. The Exhibit P24 gives the details of the amount to be paid to the claimant, and the reliance upon Exhibit P32 is to contend that this Bank Statement discloses that the claimant has not received payments into her salary account. The claimant has summoned PW-3 only for production of documents, and this witness is not examined on the contents.

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If the Claimant proposes to demonstrate that she is not paid salary for a particular period, she

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should have first set forth the details in her chief evidence and then summoned that officer who could have spoken about the documents. In the absence of these materials, this Court must opine that the claim towards the loss of pay is not established.

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The claimant was hospitalized for of 38 days and spent further time in convalescence, and she would be entitled not only for attendant charges but also towards food and nourishment. The claimant undergone a tracheostomy and she also had to be weaned from ventilation after some time. The claimant has undergone surgery in her right hip and for fracture of the right femur fracture apart from undergoing certain procedures for facial injuries. This would only mean that she would have availed the assistance of an attendant for over 60 days and she would have also incurred expenditure in ensuring that she has received proper nourishment. This Court

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is of the view that claimant must be entitled for a

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sum of Rs.1,00,000/- under both these heads.

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In the light the afore, it is held that the claimant is entitled for compensation in a total sum of Rs.2,75,000/- as against a sum of Rs.1,50,000/-

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awarded by the Tribunal. The comparative table is as

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hereunder:

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	By this Court	By the Tribunal
Pain and Sufferings	Rs.1,50,000/-
Loss of Amenities	Rs.1,50,000/-
Attendant charges	Rs.1,00,000/-	Rs.1,50,000/-
Food and Nourishment	Rs.1,00,000/-
*Total*	*Rs.5,00,000/-*	*Rs.1,50,000/-*

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In the light therefore, the following:

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ORDER

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i) The appeal in MFA.No.4499/2024 is

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allowed in-part and the appeal in MFA.No.3298/2024 is rejected

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modifying the judgment and award dated 04.04.2024 in MVC.No.1703/2020 passed by the XVI Additional Judge, Court of Small Causes, Member, M.A.C.T, Bengaluru (SSCH-14) granting to the Claimants [the grandparents of Ms. Prema] Rs.6,38,650/- as against Rs.29,41,800/- awarded by the Tribunal. The Claimants are awarded interest on this amount at 6% per annum from the date of the claim petition to the date of actual deposit.

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ii) Tribunal shall disburse the entire amount deposited to the claimants equally.

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iii) The appeal in MFA.No.3536/2024 is allowed in-part modifying t he judgment

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and award dated 04.04.2024 in MVC.No.1704/2020 passed by the XVI Additional Judge, Court of Small Causes, Member, M.A.C.T, Bengaluru (SSCH-14) granting to the Claimant Rs.5,00,000/- as against Rs.1,50,000/- awarded by the Tribunal. The Claimant is awarded interest on this amount at 6% per annum from the date of the claim petition to the date of deposit.

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iv) It is seen that Insurer has deposited a sum of Rs.25,000/- statutory deposit in MFA No. 4499/2024 apart from Rs.17,35,006/- and Rs.72,140/- with Registry.

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v) The Registry is directed to compute the compensation and interest as aforesaid and transfer the amount to the Tribunal

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