Nagaraju Vs Ashwatha

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.08.2019 PASSED IN MVC NO.1108/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT-17, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the award passed in M.V.C. No.1108/2018 dated 22.08.2019 by the Court of Senior Civil Judge and Addl. MACT-17 at Gubbi, the claimants are before this Court seeking compensation. The claimants are two major sons and daughter.

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It is the case of the claimants that the deceased was doing tailoring work and earning an amount of Rs.8,000/per month and also receiving pension an amount of Rs.6,972/-. The Tribunal, on the issue of liability and on the rash and negligent aspect has held that the accident has happened because of the rash and negligent driving of the driver of

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offending vehicle and as the same is insured with the Insurance Company, the Insurance Company is liable to pay the compensation. When it comes to the compensation, the Tribunal had observed that the claimants are married sons and daughter of the deceased and they are independently living with their lives and they are not dependents on the deceased and therefore, they are not entitled for compensation under the head 'loss of dependency' and accordingly, granted an amount of Rs.15,000/- towards 'loss of estate' and Rs.15,000/- towards 'loss of funeral expenses', altogether, the compensation of an amount of Rs.30,000/- was granted by the Tribunal.

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Leaned counsel appearing the claimants submits that even the major married sons and daughter are entitled for compensation. In this regard, he had relied on the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Birender and Ors.¹ and also the latest judgment in the case of Seema Rani & Ors. vs. The Oriental

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1 (2020) 11 SCC 356

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Insurance Co. Ltd. & Ors.² He had relied on paragraph Nos. 9

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& 10, which reads as under:

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"9. We have heard the learned counsel for the Appellant. We are unable to agree with the view taken by the Tribunal on the dependants of the deceased. This Court in National Insurance Company Limited v. Birender & Ors., had expounded that major married and earning sons of the deceased, being legal representatives, have a right to apply for compensation, and the Tribunal must consider the application, irrespective of whether the representatives are fully dependant on the deceased or not. The Court went on to conclude that since the sons, in that case, were earning merely Rs.1,50,000/per annum, they were legally dependent on the earnings of the deceased and were staying with her.

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10. Adverting to the facts at hand, on a perusal of the statement of Shashi Kumar, the son of the deceased (Appellant No.2 herein), annexed as Annexure P6, was working at a petrol pump, while the other son was involved in temporary employment opportunities only. Both of them were residing with the deceased. In such circumstances, it cannot be said that they were self-sufficient or independent of the deceased. Similarly, applying the exposition in Birender (Supra), there is no

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2 2025 INSC 192

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reason to exclude a married daughter from compensation. Therefore, in view of this, the High Court erred in excluding these dependents."

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Relying on this judgment, he submits that it is a case that they are dependents upon the deceased and the Insurance Company could not elicit anything in the cross-examination that they are not dependents upon the deceased. In view of the same, they are entitled for the compensation under the head 'loss of estate'.

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Learned counsel appearing for the respondentInsurance Company submits that the major married daughter and sons who are living independently are not entitled for the compensation under the head of 'loss of estate'. He had relied on the judgment of the of the Hon'ble Apex Court in the case of

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New India Assurance Co. Ltd., vs. Vinish Jain and Ors.³ . He had relied on paragraph No.7 which reads as under:

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(7.) This case relates to death of one A.P.Jain. He was 78 years of age. At the time of death, his annual income was assessed at Rs.3,64,500/-. The deduction made for personal expenses at 1/3 is very low keeping in view the fact

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3 LAWS(SC)-2018-2-64

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that the claimants are his two major sons and two granddaughters. The major sons have their own source of income and were not dependent on the deceased and the two granddaughters are primarily dependent on their father and not on their grandfather. We are also of the view that the High Court had erred in granting Rs.50,000/- as loss of love and affection to each of the claimants. The total compensation granted is Rs.14,39,980/- along with interest at the rate of 5% per annum.

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And he had also relied on the judgement of the Division Bench of this Court in the case of Baby and others vs. Nagendra Kumar and another⁴ . He relied on paragraph No.14, which reads as under:

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14. In the case on hand, at the time of death of Lingamma, the fact of claimants living with her was not in dispute. Therefore the Tribunal is right in considering 25% of her income towards loss of estate. The applicable multiplied is 9. Therefore compensation payable on the heard of loss of estate comes to Rs.3,52,188/- (Rs.3,261 x 9 x 12).

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Relying on these judgments, learned counsel submits that the major married daughter and sons who are living separately are not entitled for any compensation. It is submitted that the

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4 M.F.A.No.7070/2014 dated 13.06.2023

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Tribunal had rightly granted the compensation under the heads 'loss of estate' and 'funeral expenses'.

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Having heard the learned counsels on either side,

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perused the material on record. The present appeal is filed only seeking enhancement. The issue that is involved in this case is whether the major married daughter and sons who are not living with the deceased-mother are entitled for compensation. Learned counsel appearing for the Insurance Company had relied on the judgments and submits that they are not entitled for the compensation. According to them, in Seema Rani's case referred supra, they are living with the deceased, whereas, in this case, the appellants are not residing with the deceased and they are not dependents on them. This Court has perused the judgements that are relied on by both the parties. The latest judgment of the Hon'ble Apex Court in Seema Rani's case referred supra, the Hon'ble Apex Court had considered the earlier judgment of the Hon'ble Apex Court in the case of National Insurance Company limited v. Birender and Ors. and coming to the facts of the said case, the Hon'ble Apex Court had observed that in Birender's case referred supra, they were earning an amount of Rs.1,50,000/-

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per annum and as they were dependent on the earnings of the deceased and were staying with her, the Apex Court had passed the order in Seema Rani's case, observing that the claimant was working at a petrol pump, while the other son was involved in temporary employment opportunity. Both of them were residing with the deceased. In such circumstances, it cannot be said that they were self-sufficient or not dependents of the deceased. Hon'ble Apex Court granted the 'loss of dependency' applying the ratio laid down in the said case. In the facts and circumstances of this case, there is a clear pleading with regard to the dependency and nothing could be elicited by the Insurance Company to show that they are not dependents. When it comes to the age, though it is stated in the evidence that the age of the deceased is 49 years old, learned counsel appearing for the Insurance Company submits that in the evidence it is forthcoming that the son is 47 years old and the mother is 20 years elder to him. In that case, her age has to be considered as 67 but not 49 as stated by them. The accident had taken place in the year 2018. According to the claimants, the deceased was earning an amount of Rs.8,000/p.m. by doing tailoring work and getting pension of an amount of Rs.6,972/-. Considering the accident is of the year 2018 and

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as per the pleadings, if the same are taken, it comes to Rs.14,972/-. There are 3 dependents, 1/3^rd has to be deducted towards her 'personal expenses' and the same is deducted, it comes to Rs.4,990/- (Rs.14,972 x 1/3). The contribution of the deceased to the family would be Rs.9,981/- (Rs.14,972 x 2/3). Considering the age of the deceased 67 years, the multiplier applicable is '5'. Therefore, the 'loss of dependency' would come to Rs.9,981 x 12 x 5 = Rs.5,98,860/- . Towards 'loss of Consortium' , for the three dependents, it would be Rs.44,000 x 3 = Rs.1,32,000/-. Accordingly, an amount of Rs.1,32,000/- is granted under the said head. Towards 'funeral expenses' , this Court is granting an amount of Rs.36,000/-.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.Mekala vs. M. Malathi and another⁵ , the claimants are entitled for an amount of Rs.10,000/- towards Legal Expenses .

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The claimants are therefore, entitled to the compensation under the following heads:

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5 (2014) 11 SCC 178

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	Heads		Com Aw T	pensation arded by ribunal	Compensation Awarded by this Court
1.	Loss of dependency	:	Rs.	--	5,98,860/-
2.	Loss of consortium	:	Rs.	--	1,32,000/-
3.	Loss of estate	:	Rs.	15,000/-	--
4.	Funeral Expenses	:	Rs.	15,000/-	36,000/-
5.	Legal expenses	:	Rs.	--	10,000/-
	TOTAL	:	Rs.	30,000/-	7,76,860/-
	Enhancement	:	Rs.	7,46	,860/-

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Accordingly, the appeal filed by the claimants is partly allowed , enhancing the compensation amount from Rs.30,000/- to Rs.7,76,860/- and the Insurance company is liable to pay the compensation.

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ORDER

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i) The Appeal is partly allowed enhancing the compensation amount from Rs.30,000/to Rs.7,76,860/- and the Insurance Company is liable to pay the compensation.

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ii) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.

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iii) The respondent - insurance company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimants are entitled to withdraw the entire amount without furnishing any security.

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iv) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v) On 05.04.2024, the delay of 391 days was condoned by this Court, on the condition that the claimants will not be entitled for the interest, in case they are successful in the appeal. Hence, Insurance company is not liable to pay the interest for the delayed period of 391 days in filing the appeal.

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vi) No costs.

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vii) Pending miscellaneous petitions, if any, shall stand closed.

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Sd/(LALITHA KANNEGANTI) JUDGE

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KA

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List No.: 1 Sl No.: 17 CT: BHK

Nagaraju v. Ashwatha

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Nagaraju v. Ashwatha

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