Bangalore District Court
Sunanda K.R vs T.T. Kuruvila on 28 February, 2024
KABC020007542021
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.272/2021
Dated: 28th February 2024
Petitioners 1. Smt. Sunanda K.R.,
W/o Late Prabhakara P.T.,
Aged about 43 years,
2. Sri Praveen P.,
S/o Late Prabhakara P.T.,
Aged about 24 years,
3. Sri Chethan P.,
S/o Late Prabhakara P.T.,
Aged about 22 years,
4. Smt. N. Laxmidevi,
W/o Late P. Thimmaiah,
Aged about 68 years,
R/at C/o No.135, 16th 'C' Cross,
Bagalagunte, Nagasandra Post,
Bengaluru - 560 073.
Permanently all are R/at
Golagondahnahalli,
Imangala Hobli, Hiriyur Taluk,
Chitradurga District.
(Sri T. Mallikarjuna, Advocate)
2 (SCCH-16) MVC 272/2021
Vs.
Respondents 1. Sri T.T. Kuruvila,
S/o Thomas,
Thottathil House, Vazhichery
Ward, Alappuzha - 688 001.
(Exparte)
2. The Regional Manager,
M/s United India Insurance Co.
Ltd., Regional Office (T.P. Hub),
Krishi Bhavan, Hudson Circle,
Nrupatunga Road, Bengaluru.
Policy issuing office
Sarada Shopping Complex,
Mullackal - 688 010.
(Insurer vide policy
No.1015003119P109585789
valid from 20-10-2019 to
19-10-2020
(Sri H.C. Betsur, Advocate)
3. The Regional Manager,
National Insurance Co. Ltd.,
Regional Office, T.P. Hub,
Shubharam Complex, 2nd Floor,
144, M.G. Road,
Bengaluru-560 001.
(Insurer of car bearing
No.KA-16-N-4141, vide policy
No.55270031196160016789
valid from 17-05-2019 to
16-05-2020)
(Issuing office : Minerva Complex,
Secundrabad,
Telangana - 560 003.
(Sri S.R. Murthy, Advocate)
4. Sri Ayyappa A.,
S/o Annappa,
Netaji Subhash Chandra Bose
3 (SCCH-16) MVC 272/2021
Nagara, Hiriyur Town, Hiriyur
Taluk, Chitradurga Dist-577 598.
(RC Owner of the car bearing
No.KA-16-N-4141)
(Sri N.R. Range Gowda, Advocate)
JUDGMENT
The petitioners have filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.50,00,000/- against the respondents for the accidental death of Prabhakara P.T., who died due to the accident caused by the driver of the lorry bearing No.KL- 04-AB-9388.
2. The facts in brief stated in the petition are as under;
On 14-01-2020 at about 11.00 p.m., the deceased was traveling in a car bearing No.KA-16-N-4141 to go to Guruvayoor Temple. When he reached Pandikashala on Calicut Trishur National road, the driver of the lorry bearing No.KL-04-AB-9388 came in very high speed in rash and negligent manner and came from opposite direction. He has dashed the car of the deceased. Due to the accident, the deceased sustained grievous injury and succumbed to the injuries on the way to hospital. The 4 (SCCH-16) MVC 272/2021 other persons in the car were also injured grievously. The deceased was shifted to District Hospital, Tirur. After postmortem, his body was handed over to the petitioners. The petitioners have performed the funeral function. They have spent Rs.1,50,000/- towards transportation and funeral expenses. Before the accident, the deceased was hale and healthy and he was doing agriculture. He was earning amount of Rs.1,50,000/- per annum. Due to the accidental death of the deceased, the petitioners have undergone mental shock and agony. The deceased was the only bread earning member of the family of the petitioners. The accident was due to rash and negligent driving of the driver of the lorry bearing No.KL-04-AB-9388. The Kuttipuram Police have registered the criminal case against the driver of the lorry and filed the charge sheet against him for the offences punishable under Section 279, 338 and 304(A) of IPC. The respondent No.1 is the RC owner and respondent No.2 is the insurer of the offending vehicle. Hence, they are jointly and severally liable to pay the compensation to the petitioners. The petitioners have sought for 5 (SCCH-16) MVC 272/2021 compensation of Rs.50,00,000/- with interest. They have prayed to allow the petition.
3. During the pendency of the petition, the petitioners have impleaded the respondent No.3 and 4 who are the insurer and owner of the vehicle in which the deceased was traveling at the time of accident. In response to the notice, the respondent Nos.2, 3 and 4 have appeared through their counsels. In spite of service of summons, the respondent No.1 remained absent, hence placed as ex-parte. The respondent Nos.2 and 3 have filed their separate written statements. The respondent No.4 did not choose to file the written statement.
4. The facts in brief stated in the written statement of the respondent No.2 are as follows;
The respondent No.2 has denied the allegations in the petition. It has denied the involvement of the offending lorry in the accident. It has denied that the petitioner Nos.2 to 4 were not depending on the deceased. He has stated that the accident was in the manner of head on collusion. Hence, the driver of the car 6 (SCCH-16) MVC 272/2021 bearing No.KA-16-N-4141 was more negligent than the driver of the offending vehicle. It has further stated that the police have filed the charge sheet against the drivers of both the vehicles. It has further stated that the driver of the car has no valid driving licence and insurance policy. It has further stated that the driver of the car has violated the permit and seating permit by allowing 8 persons in the vehicle. It has stated that the petition is liable to be dismissed for non-joinder of the owner and insurer of the car in which the deceased was traveling. It has stated that the police have not forwarded the documents, hence, they have not complied Section 158(6) of IMV Act. It has admitted that the insurance policy of the offending vehicle was valid as on the date of accident. It has stated that the driver of the lorry bearing No.KL-04-AB-9388 has no valid driving licence and the said vehicle has no valid fitness certificate and permit at the time of accident. Hence, the respondent No.1 has violated the terms of the policy. It has denied the age, income and avocation of the deceased. It has denied the dependency of the petitioners on the deceased. It has 7 (SCCH-16) MVC 272/2021 stated that the accident is due to contributory negligence of the driver of the car. It has stated that the compensation claimed is exorbitant. It has further stated that the rate of interest more than 6% is excessive. It has prayed to dismiss the petition.
5. The facts in brief stated in the written statement of the respondent No.3 are as follows;
The respondent No.3 has denied the allegations in the petition. It has admitted the existence of valid insurance policy to the car bearing No.KA-16-N-4141 at the time of accident. It has stated that the respondent No.4 has not furnished the information regarding the accident and documents of the vehicle, hence, he has violated Section 134(c) of IMV Act. It has stated that the police have not forwarded the documents, hence, they have not complied Section 158(6) of IMV Act. It has stated that the respondent No.4 has knowingly fully well that the driver of its insured car has no valid driving licence, he has entrusted the car to the said driver. Hence, he has violated the terms of the policy. It has denied the contributory negligence on the part of the 8 (SCCH-16) MVC 272/2021 driver of the car. It has stated that the rash and negligent driving of the driver of the lorry is the sole reason for the accident. It has further stated that in all the police papers and others documents, it is stated that the rash and negligent driving of the lorry by its driver was the sole reason for the accident. It has further stated that the petitioners cannot claim compensation against the respondent No.3 and 4. It has denied the age, income and avocation of the deceased. It has further stated that the amount claimed is exorbitant. It has further stated that awarding the interest is more than 6% is violative of the guidelines of the Hon'ble High Court of Karnataka. It has further stated that since the respondent No.4 has violated the terms of the policy. It is not liable to pay compensation to the petitioners. It has prayed to dismiss the petition.
6. Based on the pleadings the following issues came to be framed:
1. Whether the petitioners prove that deceased Prabhakara P.T., succumbed to the injuries sustained in vehicular accident alleged to have been occurred 9 (SCCH-16) MVC 272/2021 on 14-01-2020 due to the rash and negligent driving of the driver of the Lorry bearing No.KL-04-AB-9388?
2. Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
7. In order to prove their case, the petitioner No.1 got herself examined as PW1 and got marked documents as Ex.P1 to Ex.P17 and Ex.P19. The driver of the car got examined as PW2 and got marked document as Ex.P18. The respondent No.3 got examined its official as RW1 and got marked documents as Ex.R1 and Ex.R2. The Respondents No.2 and 4 have not adduced any oral evidence.
8. Heard arguments of learned advocate for petitioners and learned advocates for respondents No.1 and 2. The learned advocate for petitioners has relied upon the following judgments: (1) (2017) 16 SCC 680, in the case of National Insurance Co. Ltd., vs. Pranay Sethi and others, (2) (2009) 6 SCC 121, in the case of Sarla Verma and others vs. Delhi Transport Corporation and 10 (SCCH-16) MVC 272/2021 another, (3) 2008 (1) Kar.L.J. 233, in the case of Chamansab vs. Parappa (deceased) by his L.Rs., (4) MACA No.1768/2021, in the case of The United India Insurance Co. Ltd., vs. Shalumol and others, (5) 2018 ACJ 1020, in the case of ICICI Lombard General Insurance Co. Ltd., vs. Ajay Kumar Mohanty and another and (6) 2011 ACJ 1360, in the case of Goutham Bafna and others vs. J. Pramod Kumar Bansal and another.
9. The learned counsel for the respondent No.3 has relied upon the following judgments : (1) (2005)6 SCC 172, in the case of National Insurance Co. Ltd., vs. Prembai Patel and others, (2) 2014 AIR SCW 1081, in the case of Lachoo Ram and others vs. Himachal Road Transport Corporation, (3) 2021 ACJ 1041, in the case of United India Insurance Co. Ltd., vs. Suseela Jothi Mary and another and (4) 2021 ACJ 1935, in the case of Managing Director, Karnataka State Road Transport Corporation vs. Sowmya G.N., and others.
10. Perused the pleadings and evidences, on the basis, findings on the issues are as under:
Issue No.1 : In the Affirmative
11 (SCCH-16) MVC 272/2021 Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
11. The petitioners have stated that the accidental death of the deceased was due to rash and negligent driving of the driver of the lorry bearing No.KL-04-AB-
9388. It is the further case of the petitioners that the driver of the said vehicle has dashed the vehicle in which deceased was traveling. It is the further case of the petitioners that the lorry bearing No.KL-04-AB-9388 was driven by its driver in rash and negligent manner at the time of accident. It is the further case of the petitioners that due to the accident, the deceased sustained injuries and succumbed to the injuries. It is the further case of the petitioners that the Kuttipuram Police have filed the charge sheet against the driver of the offending vehicle for the offences punishable under Section 279, 337, 338 and 304(A) of IPC.
12. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble 12 (SCCH-16) MVC 272/2021 Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
13. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
14. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and that standard of proof on beyond reasonable doubt could not have been applied.
15. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
13 (SCCH-16) MVC 272/2021 "7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
16. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
17. In Gurdeep Singh Vs Bhim Singh ruling reported in (2013) 11 SCC 507, the Hon'ble Supreme Court has held that in the motor accident 14 (SCCH-16) MVC 272/2021 claims, it is very difficult to get eyewitness. It has further held that even if, the eyewitnesses are available, they are not ready to come and depose in court of law for many reasons and thus, courts have to go by the oath of the claimant only.
18. Therefore, from the above rulings of the Hon'ble Supreme Court, it is clear that the strict proof of the case by the petitioner is not required and in all the MVC cases, the standard of proof required from the petitioner is preponderance of probability. The concept of proof of the case beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
19. In order to prove their case, the petitioners have produced as many as 19 documents and they are marked as Ex.P1 to Ex.P19. Out of the said documents, Ex.P1 and Ex.P1(a) is the FIR with complaint and its translation, Ex.P2 and Ex.P2(a) is the charge sheet and its translation, Ex.P3 and Ex.P3(a) is the spot mahazar and its translation, Ex.P4 and Ex.P4(a) memorandum of evidence in crime No.23/2020 and its translation, Ex.P5 and Ex.P5(a) is the inquest and its translation, Ex.P6 is 15 (SCCH-16) MVC 272/2021 the IMV report, Ex.P7 is the postmortem certificate, Ex.P8 to Ex.P12 are the aadhar cards, Ex.P13 is the marks card, Ex.P14 is the PAN card, Ex.P15 is the G-tree, Ex.P16 is the mutation register, Ex.P17 is the gift deed, Ex.P18 is the aadhar card and Ex.P19 is the onion bills. In Ex.P1, it is stated that accident is due to rash and negligent driving of the driver of the offending lorry bearing No.KL-04-AB-9388. It is further stated that the driver of the offending vehicle drove the vehicle in rash and negligent manner. It is further stated that due to the accident, the deceased sustained grievous injury and succumbed to the injury in the hospital. It is further stated that along with the petitioners, the other 3 persons have also injured. In Ex.P3, the accident spot is described. According to Ex.P3, the accident spot is on the road as stated in the petition. The accident spot narrated in the petition tally with one stated in the Ex.P3. Ex.P4 would show the manner of investigation conducted by the police. In Ex.P5, injuries to the deceased was stated. In Ex.P6, the damages to the vehicles are mentioned. The damages shown in Ex.P6 16 (SCCH-16) MVC 272/2021 would tally with the manner of accident stated by the petitioners. In Ex.P7, the injuries to the deceased are shown. In Ex.P7, doctor who has conducted the postmortem has opined that death is due to head injury. As per Ex.P2, the police have filed the charge sheet against the driver of the lorry bearing No.KL-04-AB- 9388, after investigation. It is stated in the charge sheet that the driver of the lorry bearing No.KL-04-AB-9388 has caused the accident. It is stated that the rash and negligent driving of the driver of the lorry is the reason for the said accident. The police have alleged the offences punishable under Section 279, 337, 338 and 304(A) of IPC against the said driver. Therefore, in all the police and other documents, it is stated that the accident was due to the rash and negligent driving of the offending vehicle.
20. The petitioner No.1 has entered into the witness box and got examined as PW1. She has re- iterated the contents of the petition in her examination- in-chief. In the cross-examination, she has denied the suggestion that the driver of the car in which deceased 17 (SCCH-16) MVC 272/2021 was traveling was negligent at the time of accident. An eyewitness got examined as PW2. He has supported the case of the petitioners. He has stated that when he was driving the car bearing No.KA-16-N-4141, at the time of accident, the lorry bearing No.KL-04-AB-9388 dashed his vehicle. He has further stated that the accident is due to rash and negligent driving of the driver of the said lorry. He has further stated that the deceased was traveling in the said car and he has sustained injuries to the accident. He has further stated that the deceased was succumbed to the injuries. In the cross-examination, he has denied the suggestion that the accident is due to his rash and negligence. He has stated that the accident spot is at the left side of the road in which the car was proceeding. He has stated that the driver of the offending vehicle had tried to overtake the some other vehicle at the time of accident. He has stated that the accident was due to rash and negligent driving of the driver of the lorry. He has denied the suggestion that the accident took place at the middle of the road. He has 18 (SCCH-16) MVC 272/2021 stated that the right side of the car was damaged in the accident.
21. It is contended by the respondent No.2 that the accident was due to negligence of the driver of the car. It is the contention of the petitioners that the lorry driver was overtaking the another vehicle at the time of accident. Even in cases, where accident took place in the middle of the road, then it will not automatically lead to contributory negligence. The respondent No.2 has not adduced any evidence to show that the driver of the car was rash and negligent at the stage of accident. It has not adduced any oral evidence to show contrary to the evidence of petitioners and respondent No.3. The official of the respondent No.3 has entered into the witness box and got examined as RW1. He has stated that the accident was due to rash and negligence of driver of the lorry. There is no charge sheet filed against the driver of vehicle of the respondent No.4. The learned advocate for respondent No.3 has relied upon the ruling in Managing Director, KSRTC Vs. Soumya G.N. and others ruling reported in 2021 ACJ 1935. In the said 19 (SCCH-16) MVC 272/2021 judgment the Hon'ble High Court of Karnataka has held in para No.7 as follows:
"7. Insofar as the contention of the appellant Corporation with regard to contributory negligence is concerned, we have perused the evidence of RW1, the driver of the offending vehicle, namely, the bus of the Corporation. RW1 in his statement has admitted that the police has registered a criminal case against him and he has not challenged the same.
We have also seen F.I.R., Ex.P2, complaint, Ex.P1, spot panchanama, Ex.P3, inquest panchanama, Ex.P6 and charge sheet, Ex.P8. All of these clearly disclose the rash and negligent manner in which the offending KSRTC bus was being driven by RW1-driver. In his cross- examination, RW1 has clearly admitted the way in which he drove the bus and caused the accident. In our considered view, there can be no contributory negligence attributed to the driving of the deceased insofar as the accident is concerned. The accident has thus occurred due to rash and negligent driving of the driver of the offending bus- RW1".
This ruling is applicable to the case on hand.
22. The other rulings relied upon by the respondent No.3 is not relevant to the case on hand.
23. In the case on hand, the documentary evidence produced by the petitioner would show that 20 (SCCH-16) MVC 272/2021 accident was due to rash and negligent driving of the driver of the lorry. In any of the documents, it is not stated that the driver of the car bearing No.KA-16-N- 4141 was also negligent at the time of accident. Therefore, the theory of the respondent No.2 that the vehicle of the respondent No.4 has also contributed the accident cannot be accepted.
24. There is no evidence of respondents No.1 and 2 to show that the driver of the lorry was not negligent at the time of accident. All the documentary and oral evidence produced by the petitioners would show that the accident was due to rash and negligent driving of the offending vehicle by its driver. From the documentary and oral evidence, the petitioners have proved that the driver of the lorry bearing No.KL-04-AB- 9388 was driving the lorry in rash and negligent manner and dashed the vehicle in which deceased was traveling. They have further proved that due to the accident, the deceased sustained grievous injuries and succumbed to the injuries. Hence, I answer issue No.1 in the affirmative.
21 (SCCH-16) MVC 272/2021 ISSUE No.2:
25. As discussed above, the petitioners have shown that the vehicle of the respondent No.1 has caused the accident and the accident is due to rash or negligent driving of the driver of the offending vehicle.
The respondent No.2 is the insurance company of the vehicle of the respondent No.1. The petitioners have produced their Aadhar cards, engineering degree marks card and genealogical tree documents and the PAN card of the deceased to show their relationship with the deceased. From these documents, it is clear that the petitioner No.1 is the wife, the petitioners No.2 and 3 are the sons and the petitioner No.4 is the mother of the deceased. Hence, the petitioners are legal representatives of the deceased. Since the petitioners are the legal representatives of the deceased, they are entitled to the compensation.
In the case of National Insurance Co. vs. Birender ruling reported in (2020) 11 SCC 356, the Hon'ble Supreme Court has held as follows:
"12. The legal representatives of the deceased could move application for
22 (SCCH-16) MVC 272/2021 compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative.
Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents.
Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
23 (SCCH-16) MVC 272/2021
11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g)
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC vs. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
24 (SCCH-16) MVC 272/2021
13. In Manjuri Bera (supra), in paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only."
25 (SCCH-16) MVC 272/2021 In Chamansab Vs. Parappa (deceased) by his L.Rs. ruling reported in 2008(1) Kar.L.J. 233, the Hon'ble High Court of Karnataka and in United India Insurance Co. Ltd., vs. Shalumol and others, in MACA No.1768/2021, the Hon'ble High Court of Kerala have held that the legal representatives are entitled to claim compensation under all heads in MVC cases.
According to the ratio laid down in this ruling, the legal representatives though not fully dependent on the deceased are entitled to claim compensation under all the heads i.e., under both conventional and non- conventional heads. The total compensation is to be calculated in the following manner:
The compensation towards loss of dependency : The petitioner No.1 is the wife, the petitioner No.2 and 3 are the sons and the petitioner No.4 is the mother of the deceased Prabhakara P.T. The petitioners have stated that they were depending upon the deceased. They have shown that they are legal representatives of the deceased, hence, they are entitled to compensation under the head of loss of dependency. In order to calculate the loss of 26 (SCCH-16) MVC 272/2021 dependency, the first step is to determine the age and income of the deceased.
The determination of age and income of the deceased : The petitioners have stated that the age of the deceased as on the date of accident is 52 years. To substantiate this point, the petitioners have produced the copy of the PAN Card of the deceased, wherein the date of birth of the deceased is mentioned as 15-06- 1966. Admittedly, the accident took place on 14-01- 2020. Therefore, as on the date of accident the age of the deceased was about 53 years.
The petitioners have stated that the deceased was working as agriculturist and he was having yearly income of Rs.12,00,000/- to Rs.15,00,000/-. Though petitioners have produced the record of rights of agriculture land standing in the name of the deceased, that will not show the income of the deceased. The petitioners have not produced documents to show the income of the deceased. Therefore, the notional income is to be considered as income of the deceased as per 27 (SCCH-16) MVC 272/2021 the guidelines of the Karnataka State Legal Services Authority.
In G.T. Basavaraj vs. Niranjan and another in MFA No.7781/2016 judgment dated 11-08-2022, in Ramanna and another vs. Y.B. Mahesh and another in MFA No.140/2017 judgment dated 16- 01-2020, in New India Assurance Co. Ltd., vs. Anusaya and others in MFA No.101195/2014 judgment dated 05-01-2023, the Hon'ble High Court of Karnataka has held that when the income is not proved, then the notional income of the deceased as per the guidelines issued by Karnataka State Legal Services Authority is to be adopted as the income of the deceased. The accident took place in the year 2020. Therefore, the notional income is to be treated as Rs.14,500/- per month. Therefore, his annual income would be Rs.1,74,000/-.
As per the ratio laid down in the ruling of National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, the deceased is also entitled to future prospects though he is not a 28 (SCCH-16) MVC 272/2021 permanent employee. Since the deceased is aged about 53 years and not a permanent employee, the future prospects would be 10% of his income. Therefore, 10% of Rs.1,74,000/- comes to Rs.17,400/-. Therefore, the future prospects of the deceased comes about Rs.17,400/-. If this income is added to the notional income, then it comes about Rs.1,91,400/-. This income is within the limits of the exemption limit under the Income Tax Act.
The deduction of personal expenses and calculating the multiplicand : The family of the deceased consist of 4 persons i.e., petitioner No.1 to 4. Therefore, the number of the dependents is 4. Therefore, deduction towards the personal expenses comes about 1/4th of the total income i.e., Rs.47,850/-. Therefore, the multiplicand is as follows:
Rs.1,91,400/- - Rs.47,850/- = Rs.1,43,550/- is the contribution towards the family/multiplicand.
Ascertaining the multiplier : The appropriate multiplier should be applied as per the decision of the Hon'ble Supreme Court in Sarla Verma and others 29 (SCCH-16) MVC 272/2021 vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. The age of the deceased is found as 53 years. Therefore, the appropriate multiplier is 11.
Therefore, the compensation under the head of loss of dependency is calculated as follows :
The age of the deceased is 53 years, number of dependents are 4, the notional income + future prospects is Rs.1,91,400/- per annum. Multiplicand is Rs.1,43,550/-, multiplier is 11. Therefore, the compensation to the petitioners under the head of loss of dependency is Rs.15,79,050/-. Hence, an amount of Rs.15,79,050/- is awarded to the petitioners towards loss of dependency.
Compensation under conventional heads : As per the judgment of the National Insurance Co. Ltd.
vs. Pranay Sethi and others reported in (2017) 16 SCC 680, following conventional heads they are permissible.
1) Loss of estate Rs.15,000/-
2) Loss of consortium Rs.40,000/-
30 (SCCH-16) MVC 272/2021
3) Funeral expenses Rs.15,000/-
Six years have been lapsed from the date of the judgment. Therefore, 20% is to be increased on this amount. Therefore, the loss of consortium comes about Rs.48,000/-, funeral expenses comes about Rs.18,000/- and loss of estate comes about Rs.18,000/-.
In Magma General Insurance Co.
Ltd vs Nanu Ram Alias Chuhru Ram and others ruling reported in (2018) 18 SCC 130, the Hon'ble Supreme Court has held as follows:
"21. A Constitution Bench of this court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248: (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 31 (SCCH-16) MVC 272/2021 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation":
(Black's Law Dictionary (5th Edn., 1979).
21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships.
Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
As per the ratio laid down in this case, the consortium is to be given under 3 heads i.e., spousal 32 (SCCH-16) MVC 272/2021 consortium, parental consortium and filial consortium. Therefore, the petitioners No.1 to 4 are entitled to Rs.48,000/- each towards spousal, parental and filial consortium.
26. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 15,79,050-00
2. Loss of spousal, Rs. 1,92,000-00
parental and filial
consortium
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
Total Rs. 18,07,050-00
27. In all, petitioners are entitled for compensation of Rs.18,07,050/- with interest at the rate of 6% per annum from the date of petition till its realization. Liability:
28. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. The respondent No.2 has admitted the insurance policy to the offending vehicle as on the date of accident. The 33 (SCCH-16) MVC 272/2021 respondent No.3 is the insurer of the respondent No.4. The respondent No.4 is the owner of the vehicle in which deceased was traveling. As discussed above, the vehicle of the respondent No.4 has not contributed to the accident. Hence, the respondent No.3 and 4 are not liable to pay any compensation in this case. The petitioners have proved the rash and negligent driving of the driver of the offending vehicle. Therefore, the respondent No.2 being the insurer of the vehicle, it has to indemnify the respondent No.1. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay the compensation.
Apportionment :
29. The petitioners No.1 to 4 are the legal representatives and they are entitled for the compensation. The petitioner No.1 is the wife and she has incurred the major expenses like funeral and transportation expenses. Therefore, she is entitled to 40% of the total compensation. The petitioners No.2 and 3 being the sons of the deceased, they are entitled to 20% each of the total compensation. The petitioner No.4
34 (SCCH-16) MVC 272/2021 is the mother of the deceased, she is entitled to 20% of the total compensation.
30. As discussed above, the petitioners have shown that the vehicle bearing registration No.KL-04-AB- 9388 has caused the accident to the husband of the petitioner No.1 and the accident was due to rash and negligent driving of the driver of the said vehicle. They have further shown that they are entitled to total compensation of Rs.18,07,050/-. They have further shown that the insurance to the said vehicle was in force as on the date of accident. Therefore, the respondent No.1 and 2 are jointly and severally liable to pay the compensation. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
31. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioners are entitled to compensation of Rs.18,07,050/- (Rupees 35 (SCCH-16) MVC 272/2021 eighteen lakhs, seven thousand and fifty only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.1 and 2 are jointly and severally liable to pay the compensation amount. However, the primary liability to pay the compensation amount is fastened on respondent No.2 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Compensation amount is
apportioned as follows:-
Petitioner No.1 - Wife 40%
Petitioner No.2 - Son 20%
Petitioner No.3 - Son 20%
Petitioner No.4 - Mother 20%
Out of the compensation amount
awarded to petitioner Nos.1 to 4, 30% of the compensation amount with proportionate interest shall be deposited in their names as FD in any nationalized bank for the period of two years with liberty to draw the accrued interest periodically and the remaining 36 (SCCH-16) MVC 272/2021 70% amount with proportionate interest shall be released to them through E-
payment on proper identification and verification.
The petition against the
respondents No.3 and 4 is hereby
dismissed.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 28th day of February 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
ANNEXURE Witnesses examined on behalf of petitioners:
PW1 Smt. Sunanda K.R. PW2 Sri Avinash
Documents marked on behalf of petitioners:
Ex.P1 True copy of FIR with Complaint Ex.P1(a) Its translation copy Ex.P2 True copy of Charge Sheet Ex.P2(a) Its translation copy Ex.P3 True copy of Spot Mahazar Ex.P3(a) Its translation copy Ex.P4 True copy of Memorandum of Evidence in Crime No.23/2020 Ex.P4(a) Its translation copy Ex.P5 True copy of Inquest
37 (SCCH-16) MVC 272/2021 Ex.P5(a) Its translation copy Ex.P6 True copy of IMV Report Ex.P7 True copy of Postmortem Certificate Ex.P8 Notarized copy of Aadhar Card of deceased Ex.P9 Notarized copy of Aadhar Card of Petitioner No.1 Ex.P10 Notarized copy of Aadhar Card of Petitioner No.2 Ex.P11 Notarized copy of Aadhar Card of Petitioner No.3 Ex.P12 Notarized copy of Aadhar Card of Petitioner No.4 Ex.P13 Notarized copy of B.E. Civil Engineering Marks Card of Deceased Ex.P14 Notarized copy of PAN Card of deceased Ex.P15 Notarized copy of G-tree Ex.P16 Mutation Register copy Ex.P17 Notarized copy of Gift Deed Ex.P18 Notarized copy of Aadhar Card of PW2 Ex.P19 Onion Bills Witnesses examined on behalf of respondents:
RW1 Sri Himendra Kartantik Simha M.N. Documents marked on behalf of the respondents:
Ex.R1 Authorization Letter
Ex.R2 True copy of Insurance Policy
(Ganapati Bhat)
Member, MACT, Bengaluru.