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MFA NO.14/2018 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.14/2018 (MV-D)
BETWEEN:
THE MANAGER, UNITED INDIA INSURANCE CO., LTD., M.C.ROAD, KAMBALI BUILDING, MANDYA CITY.
THROUGH ITS REGIONAL OFFICE, KRISHI BHAVAN BUILDING, NRUPATHUNGA ROAD, BENGALURU-560009. REP. BY ITS DEPUTY MANAGER SMT. SUDHA D RAO.
… APPELLANT (BY SRI. ANUP SEETHARAM RAO, ADVOCATE FOR SRI. B.C.SEETHARAMA RAO, ADVOCATE, APPEARING THROUGH VC)
AND:
SRI. M.N.NARAYANA RAO,
AGED ABOUT 61 YEARS,
S/O LATE A.M. MUNIDEVA RAO,
SRI. A.N. RAJESH,
AGED ABOUT 40 YEARS,
S/O SRI M.N.NARAYANA RAO,
SRI. A.N.VINESH,
AGED ABOUT 38 YEARS,
S/O SRI. M.N.NARAYANA RAO,
MFA NO.14/2018 2 4. SRI. A.N.SURESH,
AGED ABOUT 36 YEARS,
S/O SRI. M.N.NARAYANA RAO,
ALL ARE RESIDING AT NO.2765,
4TH CROSS, GANDHINAGARA,
MANDYA CITY.
MRS. ROSLI C.J.,
MAJOR IN AGE,
W/O MR. JOSHEP C.,
RESIDING AT NO.297/1,
KESARE 3RD STAGE,
R.S.NAIDU NAGAR, MYSURU-570007.
(OWNER OF CAR NO.KA.55/4681)
... RESPONDENTS (BY SRI. L. RAJA, ADVOCATE FOR R1 THROUGH PH, R2 TO R5 V/O DT.5/03/2018, NOTICE DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.08.2017 PASSED IN MVC NO.57/2016 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE & MACT, MANDYA, AWARDING A COMPENSATION OF RS.14,90,008/- WITH INTEREST @ 9% FROM THE DATE OF PETITION TILL REALIZATION AND ETC.,
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant - insurance company, challenging the judgment and award dated
MFA NO.14/2018 3 11.08.2017, passed in MVC No.57/2016, on the file of Ist Additional Senior Civil Judge and MACT, at Mandya (hereinafter referred to as ‘the Tribunal’ for brevity), questioning the quantum of compensation.
Brief facts:
That on 03.04.2015 the deceased Kumari @ Kumaramma along with others namely, Chikkamarigowda, Kum.Vidhya, Banumathi were traveling in the vehicle bearing registration No.KA- 55/4681, from Mandya towards Bangaluru for purchasing the marriage articles of Kum.Vidhya’s daughter, the said vehicle was being driven by the driver in a very rash and negligent manner so as to endangering human life and reached near Mayaganahalli of Ramanagara city at about 10.00 a.m., on Mysuru-Bengaluru main road and dashed against the left side of iron rod. Due to that the vehicle toppled on the left side of the ditch (halla) and caused the accident. In this accident the driver
MFA NO.14/2018 4 Mahadevappa and one Chikkamarigowda died on the spot and Banumathi and Kum.Vdhya have sustained injuries and the deceased Kumari @ Kumaramma also sustained injuries. Immediately, after the accident the deceased was shifted to Government Hospital, Ramanagara and she died at the Hospital. Later post moterm was conducted and the body of the deceased was stored in Rajarajeshwari hospital at Kengeri Bengaluru for two days since the claimant No.1 is staying in his brother house at America and thereafter when he came to Mandya, the obsequies ceremony was performed.
Hence, a claim petition was filed by the claimants under Section-166 of the M.V. Act, claiming compensation for the death of the deceased in the road traffic accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.14,90,008/- along with interest at 6% per annum, from the date of petition
MFA NO.14/2018 5 till the date of deposit. The Tribunal held the appellant - insurance company, is liable to pay the compensation.
The learned counsel for the appellant - insurance company submitted that the Tribunal held the monthly income of the deceased at Rs.25,000/- per month, which is exorbitant in the absence of evidence in proof of his income. Therefore, the quantum is to be reduced. Further, submitted that the claimants are the husband and major sons of the deceased. Therefore, compensation cannot be awarded under the head ‘loss of dependency’ and utmost, the compensation under the head ‘loss of estate’ can be awarded, after deducting 1/2 of the income of the deceased towards ‘personal expenses’.
Further, submitted the income is to be taken as per the Income tax returns produced at Exhibits-P22 to P31 by adopting three years average
MFA NO.14/2018 6 income. Further, submitted that the rate of interest at 9% is to be reduced at 6%. Therefore, prays to allow the appeal.
The learned counsel for the claimant / respondent submitted that the compensation amount awarded is correct on all heads and there is no reason to reduce, the quantum of compensation. Therefore, prays to dismiss the appeal filed by the Insurance Company.
The Tribunal has awarded compensation under various heads as follows: 1 Loss of dependency and loss of estate : Rs. 14,00,008/- 2 Loss of love and affection : Rs. 50,000/- 3 Transportation charges : Rs. 10,000/- 4 Cold storage charges : Rs. 5,000/- 5 Funeral and obsequies : Rs. 25,000/-
TOTAL : Rs. 14,90,008/-
The Tribunal has held monthly income of the deceased at Rs.25,000/- per month and accordingly awarded compensation. This factum is
MFA NO.14/2018 7 disputed by the appellant – insurance company. The Tribunal had held that the income of the deceased at Rs.25,000/- per month is because of the reason that the deceased was a Managing Director of Kavery Finance and Investment, Gandhinagar. Therefore, upon opinion that the deceased was doing business of money lending. Therefore, the Tribunal had taken deceased income at Rs.25,000/- per month but at the same time, the Tribunal has not discussed anything as to why the sum of Rs.25,000/- per month is taken.
Under these facts and circumstances, the documentary evidence placed by the claimants at page nos.10 to 21, which are to be perused. Exhibit- P8 is the money lending license, which proves that the deceased was running finance business above stated. Exhibit-P21, which is profit and loss account shows that every year from the said partnership firm a certain amount of share in the form of profit was being given to the deceased every year and for this,
MFA NO.14/2018 8 the deceased was filing Income tax Returns to the Income tax Authorities.
Exhibit-P22 to P31 are the Income tax returns. The accident was caused on 03.04.2015. Therefore, whatever, the documentary evidence regarding income are produced by the claimant that are to be considered for the assessment of 2014-2015 (financial year 2013-14), the gross total income shows as Rs.1,61,660 /-, for the assessment year 2013-2014 (financial year 2012-2013), the gross total income shown is Rs.2,01,450/-, for the assessment year 2012-2013, the gross total income shown is Rs.1,96,200/- for the assessment year 2012-2013 (2011-2012).
The accident was caused on 03.04.2015. the learned counsel for the insurance company submitted that an average of three years of income shown in the income tax returns can be taken as
MFA NO.14/2018 9 income of the deceased for the reason that there may be variation in the quantum of business and sharing of profit over year. Therefore, prays to take average three years income. But considering the factors that the deceased had died in the accident caused in the year 2015, and the total income in the Income tax returns for the assessment year 2013-2014 is Rs.2,01,450/-. Therefore, the income of Rs.2,01,450/- pre annum is to be taken into consideration, as the fact is not lost sight of fact that quantum of business and profit is variable. As stated earlier, the deceased has also earned highest income for the year 2013- 2014. Hence, it cannot be lost sight of the income earned by the deceased. Therefore, the income as shown in the assessment year 2013-2014 as above stated is taken into consideration as income of the deceased per annum, which works to Rs.16,787/- per month. Except these documents, there are no other documents to prove the exact income of the
MFA NO.14/2018 10 deceased. Therefore, the documentary evidence placed by the claimants themselves are taken into consideration to assess the monthly income of the deceased. Accordingly, the monthly income of the deceased at Rs.16,787/- is taken and which is rounded of to Rs.17,000/- per month. Accordingly, it will be Rs.17,000/- per month is taken into consideration. Hence, in this regard, without there being any evidences, the Tribunal adopting the monthly income of the deceased at Rs.25,000/- is not correct.
The Tribunal had held that the claimant No.1 is the husband of the deceased and claimant Nos.2 to 5 are major sons. It is submitted that, there are no legal dependants of the deceased, hence, the compensation cannot be awarded under the head ‘loss of dependency’ but can be awarded under the head ‘loss of estate’ by deducting 50% of the income of the deceased.
MFA NO.14/2018 11 12. The learned counsel for the claimants places reliance on the decision of the Hon’ble Apex Court in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104. But it is the fact that the deceased was aged 65 years old and claimant No.1 is the husband and other claimants are major sons and it cannot be said that there was no contribution to the family by the deceased and the husband is not legally dependant on the deceased. As discussed above, the deceased was also earning income by doing money lending business and there are proof that every year the deceased had a share in the business which was declared in the Income tax authorities. Therefore, deceased was also contributing to the family.
Under these circumstances, even though the husband who is claimant No.1 was earning income by doing some profession, but at the same time, the deceased was also earning and was contributing to the
MFA NO.14/2018 12 family and due to the death of the deceased, the entire family lost financial income so far as death of deceased is concerned. Therefore, the compensation is required to be awarded under ‘loss of dependency’ by deducting 1/3rd of the income towards personal expenses of the deceased. Claimant No.1 alone is legally dependant and other three sons are major sons. The deceased was 65 years and the appropriate multiplier as per the judgment of the Hon’ble Apex Court in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104, the appropriate multiplier would be ‘7’. Therefore, the compensation under the head ‘Loss Of Dependency’ is recalculated and quantified as follows Rs.17,000 – 5,666(1/3) = 11,334 x 7 x 12 = 9,52,056/-
Further, submitted that under the head loss of consortium also the Tribunal has not awarded adequate compensation as per the principles of law
MFA NO.14/2018 13 laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680 and also as per the decision of this Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others reported in 2018 ACJ 2782. Since there are four dependants, a sum of Rs.40,000/- is awarded to each claimants. Hence, the claimants are entitled for a sum of Rs.1,60,000/- towards ‘Loss Of Consortium’.
Further, the compensation awarded under the other heads viz., transportation charges, cold storage charges, funeral and obsequies at Rs.40,000/- are appropriate and hence does not require any interference.
Hence, the claimants are entitled for a total compensation, under various heads as follows:
MFA NO.14/2018 14
Loss of dependency / Loss of estate Rs.17,000 – 5,666(1/3) = 11,334 x 7 x 12 : Rs. 9,52,056/- Loss of consortium (40,000 x 4) : Rs. 1,60,000/- Transportation Charges : Rs. 10,000/- Cold Storage charges : Rs. 5,000/- Funeral and obsequies expenses : Rs. 25,000/- TOTAL : Rs. 11,42,056/-
Therefore, the claimants are awarded a total compensation of Rs.11,42,056/- as against the compensation awarded by the Tribunal at Rs.14,90,008/-, along with interest at 6% per annum from the date of filing of the petition till deposit. The claimant is entitled for rate of interest at 6% per annum on the compensation amount, instead of 9% as awarded by the Tribunal.
Accordingly, I pass the following: ORDER i. The appeal is allowed in part. ii. The impugned judgment and award dated judgment and award dated 11.08.2017,
MFA NO.14/2018 15 passed in MVC No.57/2016, on the file of Ist Additional Senior Civil Judge and MACT, at Mandya is modified to an extent that the claimants are entitled for a total of Rs.11,42,056/- (Rupees Eleven Lakh Forty Two Thousand Fifty Six Only), along with interest at 6% per annum from the date of filing of the petition till deposit. iii. The amount in deposit shall be transferred to the Tribunal forthwith. 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. v. Draw award accordingly.
Sd/- JUDGE