National Insurance Co. Ltd., Vs Sri. Hanumappa

NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, T. P. HUB, NO.144, SUBBARAM COMPLEX, M.G. ROAD, BANGALORE-560 011, REPRESENTED BY THE REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., NO.144, SHUBHARAM COMPLEX, M.G. ROAD, BANGALORE-560 001.

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…APPELLANT (BY SRI. MANJULA N. TEJASWI, ADVOCATE)

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NC: 2025:KHC:47412-DB MFA No. 788 of 2023

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HC-KAR

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AND:

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SRI. HANUMAPPA S/O. NARAYANAPPA, AGED ABOUT 63 YEARS,

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SMT. SHARADAMMA W/O. HANUMAPPA, AGED ABOUT 57 YEARS,

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SRI. MANJUNATH S/O. HANUMAPPA, AGED ABOUT MAJOR,

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SRI. VENUGOPAL S/O. HANUMAPPA, AGED ABOUT MAJOR,

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R1 TO 4 ARE RESIDENTS OF KOMMANAHALLI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563 137.

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SRI. THANGAMUTHU. P S/O. PONNUSAMY, NO. 5/360, CHITTY STREET, KARAIKURICHIDUR POST, NAMKAL DISTRICT-637014.

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SOUTHERN REGIONAL BULK L.P.G. TRANSPORT OWNERS ASSOCIATION NO. 87, SALEM ROAD, NAMKAL-637 001, TAMILNADU.

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…RESPONDENTS

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(BY SRI. SURESHA M., ADVOCATE FOR R1 TO R4;

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HC-KAR

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R5 AND R6 ARE SERVED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.26.09.2022 PASSED IN MVC NO.3299/2020 ON THE FILE OF THE XVII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, MAYO HALL UNIT, BENGALURU, (SCCH-21), AWARDING COMPENSATION OF RS.44,14,000/WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and

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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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The appeal is as against the judgment and award dated 26.09.2022 in M.V.C. No.3299/2020 on the file of the XVII Additional Judge, Court of Small Causes and Member MACT, Mayo Hall Unit, Bengaluru [for short, ' the Tribunal ']. The Tribunal has allowed the first to fourth respondents’ claim petition

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HC-KAR

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in M.V.C. No.3299/2020 granting compensation in a

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total sum of Rs.44,14,000/- with interest at the rate of 6% per annum apportioning the compensation in the ratio of 40:40:10:10 amongst these respondents.

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The Tribunal has awarded compensation under the following heads.

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Towards love and affection	Rs.60,000.00
Towards funeral expenses	Rs.15,000.00
and transportation charge
Towards loss of dependency	Rs.42,84,000.00
Towards loss of estate	Rs.15,000.00
Towards filial Consortium	Rs.40,000.00
Total	Rs.44,14,000.00

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This Court must record that both

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Ms. Manjula N. Tejaswi, the learned counsel for the appellant [who is referred to as ‘ the Insurer ’], and Mr. Suresha M, the learned counsel for the first to fourth respondents [who are referred to as ‘ the claimants ’], are categorical that [a] the claimants are the parents and married elder brothers of the

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HC-KAR

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deceased Mr. Mohan @ Mohan Kumar, [b] the accident on 21.03.2020 is when Mr. Mohan Kumar was travelling with Mr. Byresh G @ Byresh Gowda [PW2] in a Tata Nexon car near Thippasandra Hobli, Magadi, Bangalore, and [c] the accident involved this car and a tanker insured by the Insurer.

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Ms. Manjula N. Tejaswi submits that the Insurer is aggrieved by the Tribunal's finding on the reason for the accident and the quantum of compensation. On the Tribunal's conclusion on the reason for the accident, Ms. Manjula N. Tejaswi submits that even according to the claimants the accident occurred because the insured vehicle swerved to the right with no sign, and the Tribunal should have seen that if the deceased had maintained requisite distance as required in law, the accident would not have been. In elaboration, the learned counsel submits that the accident is because the deceased was speeding.

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HC-KAR

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4. On the quantum, Ms. Manjula N. Tejaswi

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submits that the Tribunal has taken the income of the deceased, who is said to be a mechanic and owner of the garage, in a sum of Rs.20,000/- despite observing that the claimants have not proved the lease deed relied upon them to show that the deceased had taken the premises for running a garage. The learned counsel submits that even if the lease deed is accepted as proved, it would be for an open space and not for a garage.

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As against these submissions,

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Mr. Suresha M. submits that the chargesheet by the police is as against the driver of the insured vehicle and that the Insurer, who has not let in any evidence, cannot contend that the deceased was over speeding or he had failed to maintain a safe distance from the insured vehicle. On the income that was taken by the Tribunal to compute the loss of dependency, the learned counsel submits that to demonstrate that the

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HC-KAR

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deceased was the owner of a garage and working as a mechanic, the claimants have produced GST Registration [Ex. P23], the Bank Statement [Ex. P24]

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and photographs of the garage [Ex. P25].

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In rejoinder, Ms. Manjula N. Tejaswi

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submits that the Bank Statement would be of no consequence because the balance as of the date of the death was marginal, and the balance in the deceased’s account never exceeded Rs.5,000/- and that the photographs of the business cannot be accepted, as the probative value thereof is not established by producing necessary supporting documents. The learned counsel emphasizes that the Tribunal could not have deducted one fourth of the income towards personal expenses because admittedly the deceased was a bachelor and that grant of compensation towards loss of love and affection when there is grant towards loss of consortium would be a duplication.

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HC-KAR

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7. The Insurer obviously proposes to rely

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upon res ipsa loquitur, and the reliance is based on two fundamental factual assertions viz ., the deceased was over-speeding and had not maintained the requisite safe distance from the vehicle going in front. This Court must observe that neither of these two is brought out by the evidence on record. The Insurer has examined no witnesses, and the evidence on record is that the accident is at a junction on the National Highway and that the insured vehicle [the tanker] has damage on the right rear side.

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These two particular circumstances contradict the view that the deceased was responsible for the accident, and that the police have filed the charge sheet against the driver of the insured vehicle is also a condition against such inference. These circumstances overwhelm the Insurer's case that the deceased was speeding without the requisite distance from the vehicle in front. There is also the evidence of

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HC-KAR

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PW2, who was travelling with the deceased at the time of the accident. This witness is categorical that the driver of the insured vehicle was rash and he swerved to the right with no signal and that in the accident, he has suffered injuries himself. As such, the proposition of res ipsa loquitur cannot apply. Therefore, this Court finds no reason to interfere with the Tribunal's finding on the reason for the accident and to hold that the deceased had in any manner contributed to the accident justifying deduction in the compensation on that scope.

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The Insurer disputes the computation of loss of dependency taking the notional income at Rs.20,000/-, and this is on the ground that there is no evidence to demonstrate that the deceased was engaged as a mechanic-owner of the garage and that he had income. The evidence brought on record by the claimants, apart from the father's ocular evidence, is the GST Registration in favour of the

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deceased, the Bank Statement, the photographs of the deceased himself being at the premises on the cash box. The crucial evidence is the GST Registration, and the efficacy of this registration cannot be brushed aside only because the Insurer, in the cross-examination of the witness, can point out certain deficiencies in the matter in which the signatures are affixed on the lease deed.

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The photographs [of the Business] produced also have their own significance in the context. These photographs not only show that the deceased being in the premises on the cash box but also the spread of the business. Further, though PW1 is cross-examined elaborately, nothing is suggested to this witness about the genuineness of the photographs. The evidence on record, on the scale of preponderance of probability, establishes that the deceased was working as a mechanic with registration under the GST to run a garage.

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HC-KAR

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This Court must observe that in cases arising out of accidents in the year 2020 when there is no proof of actual income, as observed by the Tribunal, Rs.14,500/- is taken as the notional income according to the schedule evolved for settlement in Lok Adalat, and with the afore evidence on record in the present case, it will not be just to opine that the computation of loss of dependency taking the income at Rs.20,000/- per month has resulted in a bonanza. Therefore, this Court is not persuaded to opine that the Tribunal has fallen in error in taking the notional income at Rs.20,000/per month.

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However, Ms. Manjula N. Tejaswi is justified in contending that the Tribunal has granted a higher sum in deducting only one-fourth towards personal expenses because the deceased was a bachelor. It is trite that with the death of a bachelor, as in the present case, the deduction towards

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HC-KAR

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personal expenses must be 50% of the income. The loss of dependency must be computed subject to this change keeping the other parameters viz ., towards future prospects and multiplier as taken by the Tribunal. When computed thus, the Loss of Dependency would be in a sum of Rs. 28,56,000.

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Detailsfor Computation of L	oss of D	ependency
MonthlyIncome		20,000
Addition towards Future Prospects	40%	8,000
Monthly Income + Future Prospects		28,000
Annual Income		3,36,000
Deduction Towards personal expenses	1/2	1,68,000
Multiplicand [After Deduction towards personal Expenses]
Multiplier	17
Loss of Dependency		*28,56,000*

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The next aspect is towards the loss of consortium . It cannot be disputed that each of the claimants, whether as parents or brothers of the deceased, would be entitled for loss of consortium on their own account and that would be in a sum of

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Rs.1,60,000/with an addition of 10%. The

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claimants therefore would be entitled to loss of consortium in a sum of Rs.1,76,000/- apart from compensation towards conventional heads, funeral expenses and transportation charges in a sum of Rs.30,000/- with 10% escalation, that is in a sum of Rs.33,000/-. Therefore, the claimants would be entitled to a total compensation of Rs.30,65,000/ with the reduction of Rs.13,49,000/-. This is brought out by this comparative table.

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*Sl.* *No.*	*Heads*	*Amount* *By Tribunal*	*Amount* By *this Court*
1	Towards love and _affection _	Rs.60,000
2	Towards funeral expenses & transportation charge	Rs.15,000	*Rs.33,000*
3	Towards loss of estate	Rs.15,000	[30,000x10%]
4	Towards loss of dependency	Rs.42,84,000	*Rs.28,56,000*
5	Towards filial Consortium	Rs.40,000	*Rs.1,76,000* [40,000x4+10%]
	*Total*	*Rs.44,14,000*	*30,65,000*
	*Reduced*		*13,49,000*

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HC-KAR

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The Insurer has deposited 50% of the

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award with the Tribunal and this is besides the statutory deposit in the present appeal. In the light of this Court's reasoning as aforesaid, the appellant - Insurer shall deposit the further amount with interest and such amount should be disbursed to the claimants subject to the Tribunal's award on apportionment and deposit. As such, the following:

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ORDER

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a. The appeal is allowed-in-part modifying the Tribunal's judgment and award dated 26.09.2022 in M.V.C.No.3299/2020 granting to the claimants a sum of Rs.30,65,000/- .

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b. The appellant - Insurer shall deposit

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the difference amount with the

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Tribunal within eight [8] weeks from the date of receipt of a certified copy.

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