M/S Icici Lombard Company Ltd., Vs Smt Kamala Devi S C

SMT KAMALA DEVI S C W/O LATE VIRUPAKSH SWAMY AGED ABOUT 42 YEARS C/O N GIRIJAMMA R/O H N LIG-25 BEHIND GANAPATHI TEMPLE VINOBANAGARA, HUDCO COLONY SHIMOGA – 577 201

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N MEGHARAJ S/O NARAYAN AGED ABOUT 34 YEARS R/A D.NO.264, 12TH CROSS 8^TH MAIN, VIDYA GIRI LAYOUT NAGARABHAVI, BANGALORE – 560 072

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SMT SARVAMANGALAMMA W/O M V SHIVAYOGI AGED ABOUT 67 YEARS

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4. M V SHIVAYOGI

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S/O LATE VIRUPAKSHA SWAMY MAJOR RETIRED SCHOOL TEACHER

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R3 AND R4 ARE R/O HEGGERE ROAD, BHARMA SAGAR CHITRADURGA TALUK- 577 501 … RESPONDENTS

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(BY SRI.G.S.BHAT, ADVOCATE FOR R1; SRI.K.M.SOMASHEKAR, ADVOCATE FOR R2; SRI.B.M.SIDDAPPA, ADVOCATE FOR R3 & R4)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 27.08.2014 PASSED IN MVC NO.524/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE & AMACT-2, SHIMOGA, AWARDING COMPENSATION OF RS.12,50,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION.

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MFA.CROB NO.58/2018:

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BETWEEN:

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SMT KAMALA DEVI S C W/O LATE VIRUPAKSHA SWAMY V.M. AGED ABOUT 46 YEARS C/O SMT. N GIRIJAMMA R/O H NO.LIG-25 BEHIND GANAPATHI TEMPLE VINOBANAGARA HUDCO COLONY SHIMOGA – 577 202 … CROSS OBJECTOR

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(BY SRI.G S BHAT, ADVOCATE)

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AND:

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I.C.I.C.I LOMBARD GENERAL INSURANCE CO. LTD., NO.89, II FLOOR S.V.R. COMPLEX, MAIN ROAD MADIVALA, BENGALURU-560 068 REP. BY ITS REGIONAL MANAGER

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N MEGHARAJ S/O NARAYAN AGED ABOUT 38 YEARS OWNER OF THE VEHICLE NO. KA-03-MD-2106 R/O D. NO.264, 12^TH CROSS

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8^TH MAIN, VIDYA GIRI LAYOUT NAGARABHAVI, BANGALORE-560 072

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SMT SARVAMANGALAMMA W/O M V SHIVAYOGI AGED ABOUT 71 YEARS

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SRI.M V SHIVAYOGI S/O LATE SRI. VIRUPAKSHA SWAMY RETIRED SCHOOL TEACHER

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R3 AND R4 ARE R/O HEGGERE ROAD, BHARMASAGAR CHITRADURGA TALUK AND DISTRICT … RESPONDENTS

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(BY SRI.B.C.SHIVANNE GOWDA, ADVOCATE FOR R1; SRI.B.M.SIDDAPPA, ADVOCATE FOR R3 & R4; NOTICE TO R2 DISPENSED WITH V/O DTD:16.01.2025)

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THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22 OF CPC, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 27.08.2014 PASSED IN MVC NO.524/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE & AMACT-2, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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“Whether the compensation awarded to the claimants in

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MVC No.524/2012 on the file of II Additional District Judge & AMACT-2, Shimoga is the question involved in this case?”

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Appellant was respondent No.2. Respondent No.1 was claimant. Respondent No.2 was respondent No.1.

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Respondent Nos.3 and 4 were respondent Nos.3 and 4 in MVC No.524/2012 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Claimant is the wife, respondent Nos.3 and 4 are the parents of the deceased Virupaksha Swamy. On 01.12.2012 at 11:30 p.m, when Virupaksha Swamy was traveling in Car bearing registration No.KA-03-MD-2106 driven by one M.R Thimmaraju near turning No.258/8, K.M Stone, Pilergot Chandragiri Mandala, Tirupathi in Chithur District, the said Car hit the road side tree and fell into valley/ditch. Virupaksha Swamy died on the spot due to accidental injuries.

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Claimant filed MVC No.524/2012 contending that Virupaksha Swamy was holder of Diploma in Civil Engineering, he was earning Rs.25,000/- per month by his employment and claimant was solely dependent on his income. She further contended that accident occurred due to actionable negligence on the part of driver of Car bearing No.KA-03-MD-2106. Respondent Nos.1 and 2 being registered owner and insurer of the said Car are liable to compensate the damages to her to the tune of Rs.91,00,000/-. Subsequently respondent Nos.3

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and 4 got themselves impleaded in the petition contending that being the parents of the deceased, they were dependent on his income and they are also entitled to compensation.

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Respondent Nos.1 and 2 contested the petition denying occurrence of accident due to actionable negligence on the part of driver of Car. Respondent No.1 contended that Car was insured with respondent No.2 and liability, if any, is payable by respondent No.2. Respondent No.2 denied age, income, occupation of the deceased and its liability to pay the compensation.

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Before the Tribunal, claimant was examined as PW.1 and on her behalf Exs.P1 to P23 were marked. Respondent No.4 was examined as RW.1. Respondent Nos.1 and 2 did not lead any oral evidence. Only insurance policy was marked as Ex.R1.

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The Tribunal on hearing the parties by the impugned award held that accident and death of Virupaksha Swamy occurred due to actionable negligence on the part of driver of Car No.KA-03-MD-2106. The Tribunal considered the age of the deceased as 48 years, assessed his income at Rs.15,000/- per month, deducted 50% from the income of the

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deceased for his personal expenses, applied 13 multiplier and awarded compensation of Rs.11,70,000/- on the head of loss of dependency.

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The Tribunal in all awarded compensation of

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Rs.12,50,000/- on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Love and affection	20,000/-
2.	Transportation	20,000/-
3.	Consortium	10,000/-
4.	Loss of dependency	11,70,000/-
5.	Loss of estate	30,000/-
	Total	12,50,000/-

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9 Insurer has challenged the award on the ground

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that compensation awarded is exorbitant.

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Sri B.C Shivannegowda, learned Counsel for insurer submits that claimant did not examine employer of the deceased and notional income considered by the Tribunal is on the higher side. He submits that father was a pensioner and was not dependent on the deceased. Compensation awarded on all other heads is on the higher side.

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Sri G.S Bhat, learned Counsel for claimant and Sri B.M Siddappa, learned Counsel for respondent Nos.3 and 4 submit that as there was more than one dependent, the Tribunal committed error in deducting 50% for the personal expenses of the deceased and notional income considered by the Tribunal is on the lower side. They submit that compensation awarded by the Tribunal is not just and fair, the compensation needs to be enhanced.

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Analysis

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Insurer also does not dispute that when Virupaksha

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Swamy was traveling in Car No.KA-03-MD-2106 to go to Tirupathi, accident occurred due to actionable negligence on the part of driver of the said Car leading to his death. The owner of the vehicle also has not challenged the said findings. The relationship of claimant and respondent Nos.3 and 4 with the deceased is not in dispute. It is also not disputed that the deceased was holder of Diploma in Civil Engineering.

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There is no dispute that the deceased Virupaksha

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Swamy at the time of the accident was aged about 48 years. Claimant contended that Virupaksha Swamy was earning Rs.25,000/- per month by his employment with the Contractor and relied on Ex.P17 salary certificate in proof of income. The

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author of the said document or the employer were not examined. Therefore the income of the deceased has to be assessed notionally.

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Considering the qualification of the deceased, demand for Civil Engineering Diploma holders and prevalent construction activities during the relevant period, it would be just and appropriate to consider income notionally at Rs.10,000/- p.m. In the absence of any proof, the Tribunal was not justified in assessing the income at Rs.15,000/- per month. Having regard to the age, occupation of the deceased and the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi¹ 25% has to be superadded to the income of the deceased by way of future prospects. In view of the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation² , having regard to the fact that there were in all three dependants namely wife and parents, 1/3^rd has to be deducted for personal expenses of the deceased. The applicable multiplier is 13. Therefore just compensation payable on the head of loss of dependency is Rs.10,000/- + Rs.2,500/- (25% of Rs.10,000/-)= Rs.12,500 x

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1 (2017) 16 SCC 680

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2 (2009) 6 SCC 121

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2/3 = Rs.8,333.33/- rounded off to Rs.8,333 x 12 x 13 = Rs.12,99,948/-.

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As per the judgments of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General

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Insurance Company Ltd., v. Nanu Ram³ claimant and respondent Nos.3 and 4 are entitled to compensation on the head of consortium at the rate of Rs.40,000/- each with escalation at 10% which comes to Rs.44,000 x 3= Rs.1,32,000/-.

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case, the claimant and respondent Nos.3 and 4 are entitled to compensation of Rs.15,000/- on the head of

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loss of estate and Rs.15,000/- for funeral expenses and transportation with escalation at 10%. Therefore the just

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compensation payable is as follows:

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Sl.	Particulars	Compensation
No.		awarded in Rs.
1.	Loss ofdependency	12,99,948/-
2.	Loss ofconsortium	1,32,000/-
3.	Loss of estate	16,500/-
4.	Funeral expenses & transportation charges	16,500/-
	Total	14,64,948/- rounded off to 14,65,000/-
	Less: awarded by the Tribunal	12,50,000/-
	Enhanced compensation	2,15,000/-

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3 (2018) 18 SCC 130

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ICICI Lombard General Insurance Company being

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the Insurer is liable to pay the compensation. The enhanced compensation shall carry interest at 6% per annum. For the aforesaid reasons, appeal and cross objection deserve to be allowed in part. Hence, the following:

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ORDER

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Appeal and Cross objection are partly allowed. The impugned award of the Tribunal is modified as follows:

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(a) Claimant and respondent Nos.3 and 4 are entitled

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to enhanced compensation of Rs.2,15,000/- with interest thereon at 6% p.a. from the date of petition till the date of its realization.

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(b) Respondent No.2/Insurer shall deposit the enhanced compensation with accrued interest before the Tribunal, on adjusting the amount already deposited, if any, within four weeks from the date of receipt of copy of this order.

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(c) On such deposit, the Tribunal shall digitally release said amount to claimant and respondent Nos.3 and 4 according to their shares apportioned under the impugned award.

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