The Branch Manager Vs Smt. H.S. Anitha

RESPONDENT NO. 2 AND 3 ARE MINOR REPRESENTED BY M/G ALL ARE PERMANENT RESIDENT OF OLD GORAVANAHALLI ROAD, LEELAVATHI EXTENSION, MADDUR, MADDUR TALUK, MANDYA DISTRICT-571 401.

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ARUNACHALA LOGISTICS PVT LTD., BY S. SUBBAREDDY, RAMAPURAM, X ROADS, NALLABONADAGUDEM, DODAD, NALGONDA, ANDRAPRADESH.

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…RESPONDENTS

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(BY SRI. MARI GOWDA, ADVOCATE FOR R1, R4 & R5; R2 & R3 ARE MINORS R6 SERVED & UNREPRESENTED)

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NC: 2025:KHC:23425-DB MFA No. 8919 of 2015 C/W MFA No. 9439 of 2015

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.10.2015 PASSED IN MVC NO.192/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MADDUR, AWARDING THE COMPENSATION OF RS.12,89,000/WITH INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO. 9439/2015

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BETWEEN:

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SMT. H.S. ANITHA W/O LATE CHANDRASHEKAR , AGED ABOUT 29 YEARS,

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SHARATH M C S/O LATE CHANDRASHEKAR , AGED ABOUT 4 YEARS, MINOR

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NEETHIN M C S/O LATE CHANDRASHEKAR , AGED ABOUT 1 YEARS,

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SMT BHAGYAMMA W/O D.K RAJANNA AGED ABOUT 51 YEARS,

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D K RAJANNA S/O LATE KALAIAH AGED ABOUT 59 YEARS,

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NC: 2025:KHC:23425-DB MFA No. 8919 of 2015 C/W MFA No. 9439 of 2015

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HC-KAR

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APPELLANT NO. 2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDINA AND MOTHER THE APPELLANT NO.1 SMT. ANITHA

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ALL ARE RESIDING AT OLD GORAVANAHALLI ROAD, LELAVATHI EXTENSION, MADDUR, MADDUR TALUK, MANDYA DISTRICT-571401.

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...APPELLANTS

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(BY SRI. MARI GOWDA.,ADVOCATE)

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AND:

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ARUNACHALA LOGISTICS PVT. LTD., S SUBBAREDDY ,RAMAPURAM, X ROADS, NALLANONADAGUDEM, KODAD, NALGONDA, ANDRAPRADESH.

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THE BRANCH MANAGER NATIONAL INSURANCE CO LTD V V ROAD, MANDYA-571401.

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...RESPONDENTS

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(BY SRI.O. MAHESH., ADVOCATE FOR R2;

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R1 SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.10.2015 PASSED IN MVC NO.192/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MADDUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2025:KHC:23425-DB MFA No. 8919 of 2015 C/W MFA No. 9439 of 2015

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HC-KAR

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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 G BASAVARAJA

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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 by the Insurer and the claimants, and they have called in question the impugned Order and Award dated 09.10.2015 in MVC No.192/2015 on the file of the Senior Civil Judge and MACT, Maddur [for short, the 'Tribunal' ]. The Insurer’s appeal is in MFA No. 8919/2015, and the Claimants’ appeal is in MFA No. 9439/2015. The Claimants and the Insurer are referred to accordingly for the reasons of convenience.

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The Tribunal has awarded a total

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sum of Rs.12,89,000/- as compensation along with interest at 7% per annum, but the Tribunal, because of its finding on contributory negligence, has limited

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HC-KAR

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the compensation payable by the Insurer to the claimants to a sum of Rs.10,31,200/-. The Tribunal

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has computed the compensation in a sum of Rs.12,89,000/- under the following heads:

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SL. No.	Particulars	Amount
1.	Loss ofdependency Rs.	12,24,000-00
2.	Loss of love and affection Rs.	20,000-00
3	Loss of Estate Rs.	20,000-00
3.	Loss ofConsortium Rs.	10,000-00
4.	Funeral, obsequies and transportation Rs.	15,000-00
	Total Rs.	12,89,000-00

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The brief statement of the undisputed facts is thus. The deceased, Mr.

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Chandrashekar, was riding his motorcycle from Maddur to Channapatna on Mysore-Bengaluru Road with his friend on the pillion, and when they reached

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near Kestur cross, they met with an accident involving a lorry bearing No.AP-24-Y-4542 [ the offending vehicle ] insured with the Insurer. The

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HC-KAR

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accident is at 1.15am. The claimants are Sri

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Chandrashekar’s wife, two minor children and parents. The children were aged 3 years and 6 months as of the date of the accident.

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The claimants allege that the driver of the offending vehicle was rash and negligent in taking a 'U-turn' on Mysore -Bengaluru road at Kestur Circle. The Insurer, relying upon the fact that the jurisdictional Police have filed a charge sheet against both the driver of the offending vehicle and Sri Chandrashekar and the different investigation documents, has disputed its liability denying the Claimants’ assertion that Sri Chandrashekar was working as a driver with Dr. Lokesh [ who had a Clinic at Shivapura ] and he was earning a sum of Rs.12,000/- per month.

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The Tribunal, on the reason for the

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accident, has found that the driver of the offending vehicle has contributed more to the accident than Sri

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HC-KAR

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Chandrashekhar and apportioned the negligence in the ratio of 80:20. However, the Tribunal, noting the fact that Dr. Lokesh has produced no document, to show that he was running a clinic and that the deceased was employed with him, has taken the notional income of the deceased at Rs.8,000/- and computed the loss of dependency applying the multiplier '17', deducting one-fourth of such income towards personal expenses.

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Sri O. Mahesh, the learned counsel

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for the Insurer, submits that this Court must not interfere with the finding on contributory negligence because the claimants have admitted that the accident was when the driver of the offending vehicle was taking a 'U-turn' at Kestur cross and Sri Chandrashekar has hit the tank of the offending vehicle at its center. The learned counsel submits that this Court may not pay heed to this spot sketch in the present case because of the afore two

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HC-KAR

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circumstances and the fact that it is drawn after the accident.

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Sri Marigowda, the learned counsel

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for the claimants, submits that the driver of the offending vehicle must be held entirely responsible for the accident because he was taking a 'U-turn' at the interjection of the District Road and a State Highway and that this driver, unless he ensured that there was no oncoming vehicle, could not have attempted a ' U-turn' . On the quantum of compensation, Sri Marigowda submits that the Insurer does not dispute that the deceased held a valid driving licence, which is also marked, and that he was authorized to drive transport vehicles, LMV Cab, and PSB bus and to drive vehicles throughout India. The learned counsel emphasizes that, given these circumstances and the fact that PW.2 is admittedly a doctor, there is no exaggeration in asserting that the deceased was in

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HC-KAR

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employment with PW.2 and that he was earning Rs.12,000/- per month.

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The question for consideration is:

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whether this Court must interfere with the Tribunal’s finding on contributory negligence and the loss of dependency .

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The Police records indicate that the first information was filed only against the owner of the offending vehicle, and the Police after investigation have filed charge sheet against both the driver of the offending vehicle and Sri Chandrashekar. The accident is at a junction where a District Road meets a State Highway. The accident is at 1.15am and the point of impact is at the centre of the lorry which was admittedly attempting a 'U-Turn'. Both the driver of the offending vehicle and Sri Chandrashekar had to be cautious, and the responsibility of being more cautious should be on the driver of the offending vehicle. On a holistic

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HC-KAR

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reading of the circumstances, this Court does not find that the Tribunal's finding on contributory negligence [80:20] is perverse or suffers from any irregularity. The first part of the question for consideration is answered accordingly.

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As canvassed by Sri Marigwoda, the crucial evidence of the income of Sri Chandrashekar would be the valid driving licence he held. He had a driving licence valid throughout India and for driving multiple vehicles such as transport vehicles, LMV Cab, PSV Buses. Sri Chandrashekar's employer, who is examined as PW.2, has deposed that he has hired the services of the deceased and was paying him monthly salary of Rs.12,000/-. The Tribunal has discredited the evidence of this witness only because he had not produced the document to show that he was running a clinic. This Court finds that discrediting the doctor's evidence on that score, because the Insurer has not even suggested that this

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NC: 2025:KHC:23425-DB MFA No. 8919 of 2015 C/W MFA No. 9439 of 2015

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HC-KAR

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witness was misrepresenting to be a doctor cannot be. Consequentially this Court must accept that the deceased was earning Rs.12,000/- per month and this will not result in any exaggerated award of compensation because in the cases arising out of accidents in the year 2015, the notional income of unskilled labour is taken at Rs.9,000/-.

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The deceased was aged 30 years as

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of the date of the accident, and he is survived, apart from his wife and parents, by two young children who were aged 3 years and 6 months as of the date of the accident. Sri O. Mahesh canvasses that the accident is prior to the decision of the apex Court in National

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Insurance Company Limited vs. Pranay Sethi¹ and therefore the addition towards future prospects would be inappropriate, but this Court must observe that this argument cannot prevail. There is no precedent to buttress this argument. Even otherwise,

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1 AIR 2017 SC 5157

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HC-KAR

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the compensation is awarded to ensure that it is just

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and reasonable with an element of estimation, and that the law on addition towards future prospects had not crystallized is no reason to refuse the same. The addition towards loss of future prospects at 40% would be just and reasonable. The loss of dependency must be computed with these changes but retaining the multiplier at '17' and the deduction towards personal expenses at one-fourth of the income. When the loss of dependency is thus computed, the claimants will be entitled for a sum of Rs.25,70,400/as against Rs.10,31,200/-. awarded by the Tribunal.

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Details for Computation of Los	s of Dependency In Rs.
MonthlyIncome	Rs.12,000/-
Addition towards Future
Prospects at40%	Rs.4,800/-
Monthly Income + Future
Prospects	Rs.16,800/-
Annual Income	Rs.2,01,600/-
Deduction Towards personal expenses at 1/4^th	Rs.50,400/-
Multiplicand [After Deduction
towards personal Expenses]	Rs.1,51,200/-

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HC-KAR

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Multiplier 17 Loss of Dependency Rs.25,70,400/-

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Further it is settled that though conventionally, consortium is awarded at

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Rs.40,000/- per dependent, and in appropriate cases, it would be just and reasonable to grant higher sum towards consortium. The toddlers have lost the protection, love, affection and guidance of their father and a meaningful award under the head loss of consortium cannot be on a conservative side. Therefore, there must be a higher award, and this Court finds it would be just and proper if a sum of Rs.1,00,000/- is awarded to each of these minors as against the sum of Rs.40,000/-.

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The other dependents viz ., the

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claimants - wife and parents would be entitled to Rs.40,000/- each under this head. In addition, the claimants will be entitled for compensation under conventional head in a sum of Rs.30,000/-.

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HC-KAR

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Consequentially there will be enhancement in the compensation as brought out by the comparative table of the amount awarded by the Tribunal and by

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this Court.

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	By the Tribunal	By this Court
Loss of
Dependency	Rs.12,24,000	Rs.25,70,400/-
Loss of
Consortium	Rs.10,000/-	Rs.3,20,000/-
Loss of Love and affection	Rs.20,000/-
Transport,
Burial and		Rs.30,000/-
obsequies	Rs.15,000/-
Loss of Estate	Rs.20,000/-
TOTAL	Rs.12,89,000/-	Rs.29,20,400/-

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However, because of the finding on the first question,

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the compensation is confined to 80% i.e., in a sum of

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Rs. 23,36,300/- [as rounded of]. In the light of the afore, the following:

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ORDER

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[A] The appeals are disposed of.

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NC: 2025:KHC:23425-DB MFA No. 8919 of 2015 C/W MFA No. 9439 of 2015

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HC-KAR

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[B] The claimants' appeal in MFA No.9439/2015 is partly allowed modifying the Judgment and Award dated 09.10.2015 in MVC No.192/2015 granting a total compensation of Rs. 23,36,300/- as against a sum of Rs.10,31,200/-.

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[C] The Insurer’s Appeal in MFA No. 8919/2015 is disposed of accordingly.

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[D] The Insurer is directed to deposit the compensation amount of Rs. 23,36,300/- along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within [6] six weeks from the date of receipt of copy of this judgment.

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(G BASAVARAJA) JUDGE

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NV

The Branch Manager v. Smt. H.S. Anitha

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The Branch Manager v. Smt. H.S. Anitha

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