Karnataka High Court
Sri. Kumar @ Venkatesh vs M/S Iffco Tokkio on 6 January, 2022
Bench: P S Dinesh Kumar, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MISCL. FIRST APPEAL NO. 8329 OF 2015(MV)
C/W
MISCL. FIRST APPEAL NO. 8330 OF 2015(MV)
IN MFA NO.8329/2015:
BETWEEN:
1. SRI KUMAR @ VENKATESH
S/O LATE MUNIYAPPA
AGED ABOUT 41 YEARS
2. KUM. MARY
D/O M KUMAR @ VENKATESH
AGED ABOUT 7 YEARS
3. KUM. THRISHA
D/O M KUMAR @ VENKATESH
AGED ABOUT 6 YEARS
4. MASTER SANTHOSH KUMAR
S/O M KUMAR @ VENKATESH
AGED ABOUT 3 YEARS
ALL ARE R/AT NO.467, 2ND MAIN
A CROSS, AMBEDKAR NAGAR
OLD BYIPANAHALLI
BANGALORE-560 033
APPELLANTS NO.2 TO 4 ARE
MINORS REPRESENTED BY
2
NATURAL GUARDIAN THE
1ST APPELLANTS
...APPELLANTS
(BY SHRI. VASANTHAPPA.,ADVOCATE)
AND:
1. M/S IFFCO TOKKIO GENERAL INSURANCE CO.LTD
MOTOR CLAIMS HUB,
NO.141, 4TH FLOOR,
SRI SHANTHI TOWERS,
OPP. CUPA, 3RD MIAN,
EAST OF NGEF LAYOUT,
KASTURINGAR,
BENGALURU-560 043
2. SRI VENKATESH BABU
S/O SRI VENKATA SHETTY,
NO.134, CBI ROAD
KOTE KUNIGAL TOWN,
TUMKUR DISTRICT-572 101
...RESPONDENTS
(BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R1,
VIDE ORDER DATED 02.09.2021, NOTICE TO R2 IS HELD
SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.04.2015 PASSED
IN MVC NO.1123/2014 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.8330/2015:
BETWEEN:
SRI. KUMAR @ VENKATESH
S/O LATE MUNIYAPPA,
AGED ABOUT 41 YEARS,
R/AT NO.467, 2ND MAIN,
A CROSS, AMBEDKAR NAGAR,
OLD BYIPANAHALLI,
BANGALORE-560 033 ...APPELLANT
(BY SHRI. VASANTHAPPA, ADVOCATE)
3
AND:
1 . M/S IFFCO TOKKIO
GENERAL INSURANCE CO. LTD.
MOTOR CLAIMS HUB,
NO.141, 4TH FLOOR,
SRI SHANTHI TOWERS,
OPP CUPA, 3RD MAIN,
EAST OF NGEF LAYOUT
KASTURINAGAR,
BENGALURU-560 043
2 . SRI VENKATESH BABU
S/O SRI VENKATA SHETTY,
NO.134, CBI ROAD,
KOTE KUNIGAL TOWN,
TUMKUR DISTRICT-572 102
...RESPONDENTS
(BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R1,
VIDE ORDER DATED 02.09.2021 NOTICE TO R2 IS
HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.04.2015 PASSED IN MVC
NO.1124/2014 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY,
P.S.DINESH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are presented by the claimants challenging the judgment and award dated April 18, 2015, in MVCs.No.1123 & 1124 of 2014 passed by the Motor Vehicles Accident Claims Tribunal & II 4 Additional Small Causes Judge & XXVIII ACMM, Bengaluru.
2. MFA No.8329/2015 is filed by the legal heirs of deceased Smt.Sangeetha. MFA No.8330/2015 is filed by Sangeetha's husband claiming enhancement of compensation for the loss of foetus.
3. For the sake of convenience, parties shall be referred as per their status before the Tribunal.
4. Heard Shri Vasanthappa, learned advocate for claimants-appellants and Shri H.N.Keshava Prashanth, learned advocate for first respondent-Insurer.
5. In MFA No.8329/2015, pregnant wife of first claimant's Smt.Sangeetha sustained grievous injuries in a road traffic accident on 19.02.2014, when a bus bearing Registration No.KA-01-D-4396 coming from opposite side dashed against her. Smt.Sangeetha succumbed to the injuries in the hospital. On adjudication of the claim petition, Tribunal has awarded Rs.14,59,900/- in MVC.No.1123/2014 and 5 Rs.2,50,000/- in MVC.No.1124/2014 with interest at 6% from the date of petition till the date of deposit.
6. Shri Vasanthappa for the claimants submitted that deceased was working as housemaid and earning Rs.10,000/- per month. Learned Tribunal has erred in considering the income of the deceased as Rs.7,000/- per month, and accordingly sought for enhancement.
7. He further submitted that the Tribunal has erroneously absolved the insurer from indemnifying the owner of the vehicle on the ground that the offending vehicle, the bus had no permit to ply on the route, where accident has occurred. He submitted that in view of law laid down in Amrit Paul Singh & Another Vs. Tata AIG General Insurance Company Limited1, insurer is liable to satisfy the award with liberty to recover from the owner of the bus.
8. Shri.H.N.Keshava Prashanth, learned advocate for the insurer, in his usual fairness, does not dispute this position of law.
1 2018 (7) SCC 558 Para No.23 and 24 6
9. We have carefully considered the submissions of learned advocates on both sides and perused the records.
10. Claimants have not produced any document before the Tribunal to substantiate their claim that Smt.Sangeetha was earning Rs.10,000/- per month. In the absence of any proof of income, this Court has consistently considered the notional income of an able bodied person in the year 2014 as Rs.8,500/- p.m.
11. Deceased was aged 34 years, hence the applicable multiplier is 16 and future prospects is to be added at 40%.
12. First claimant is the husband, claimants No.2 to 4 are minor children of the deceased. Hence, 1/4th is deductible from the earnings of the deceased while calculating loss of dependency.
13. Thus, compensation towards loss of dependency is worked out as follows;
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The monthly notional income works out to Rs.11,900/- (Rs.8,500+3,400) [by adding 40% towards future prospects (Rs.8,500*40%=Rs.3,400)]. After deducting 1/4th, it works out to Rs.8,925/- per month (Rs.11,900*3/4). The Annual notional income works out to Rs.1,07,100/- (Rs.8,925*12). By applying 16 as multiplier, the loss of dependency works out to Rs.17,13,600/- (Rs.1,07,100*16).
14. Total compensation is re-computed as follows;
Sl. Description Amount
No.
a. Loss of dependency
Rs.17,13,600
b. ADD:Consortium
(Rs.40,000*4) Rs.1,60,000
c. ADD:Conventional
heads;funeral Rs.30,000
expenses, etc.,
d. Total (a+b+c) Rs.19,03,600
e. LESS: Compensation Rs.14,59,900
awarded by the
Tribunal
Enhanced Compensation (d-e) Rs.4,43,700
15. Following the law laid down in Amrit Paul Singh (supra), we hold that the insurer is liable to 8 indemnify the owner of the vehicle with liberty to pay and recover by executing the decree in these proceedings.
16. In MFA No.8330/2015, the claimant is Sangeetha's husband. He has sought enhancement of compensation for loss of foetus. The Tribunal has awarded Rs.2,50,000/-. In New India Assurance Co.Ltd. Vs. Satender and Others2, the Apex Court has held that a sum of Rs.1,80,000/- is payable as compensation for loss of foetus. Since Tribunal has already awarded more than the said sum, no interference is required in this appeal.
17. Hence, the following;
ORDER
(i) MFA No.8329/2015 is allowed in part by holding that claimants are entitled for a total compensation of Rs.19,03,600/-, as against Rs.14,59,900/- awarded by the Tribunal, payable with interest at 6% p.a., 2 (2006) 13 SCC 60 PARA 13 9 from the date of filing claim petition till the date of deposit. The enhanced compensation is Rs.4,43,700/-;
(ii) Insurer shall pay the entire compensation amount of Rs.19,03,600/- with interest at 6% p.a., excluding the amount paid, if any, within eight weeks from the date of receipt of a copy of this order and recover the same from the owner of the vehicle. Disbursement shall be made as directed by the Tribunal; and
(iii) MFA No.8330/2015 is dismissed. No costs.
Sd/-
JUDGE Sd/-
JUDGE NS/AV