Karnataka High Court
Veeresh S/O Late Mallappa Lakamapur vs Jagadish S/O Pralhad Jat on 22 April, 2025
Author: S G Pandit
Bench: S G Pandit
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MFA No.100877 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22nd DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100877 OF 2024
BETWEEN
1. VEERESH S/O LATE MALLAPPA LAKAMAPUR
AGE. 30 YEARS, OCC. AGRICULTURE,
2. RAMANNA S/O LATE MALLAPPA LAKAMAPUR
AGE. 29 YEARS, OCC. AGRICULTURE,
3. VEERABASAPPA S/O LATE MALLAPPA LAKAMAPUR
AGE. 25 YEARS, OCC. STUDENT,
ALL ARE R/O. RYAVANAKI, TQ. YELBURGA,
DIST. KOPPAL-583230.
4. MANJULA W/O MALLESH MALEKOPPA
AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
R/O. WARD NO.2, BALAGERA,
TQ. YELBURGA, DIST. KOPPAL-583232.
...APPELLANTS
(BY SRI. AMAREGOUDA M, ADVOCATE)
ASHPAK
AND
KASHIMSA
MALAGALADINNI
1. JAGADISH S/O PRALHAD JAT
Digitally signed by
ASHPAK KASHIMSA
MALAGALADINNI
AGE. 54 YEARS, OCC. DRIVER OF LORRY BEARING NO. RJ-14/GJ-
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
6736, R/O. KUHARA BUJARG VILLAGE,
TQ. TODARAISINGH, DIST. TONK 304502,
STATE RAJASHTAN.
2. M/S KHAITAN LOGISTICS PVT. LTD.,
616, 4TH FLOOR, ANCHOR MALL AJMER ROAD,
JAIPUR 302006.
3. THE MANAGER LEGAL,
GO DIGIT GENERAL INSURANCE CO. LTD.,
CONSULATE 1, 2ND FLOOR,
RICHMOND ROAD, SHANTHALA NAGAR,
ASHOK NAGAR, BENGALURU,
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MFA No.100877 of 2024
KARNATAKA 560025.
...RESPONDENTS
(BY SRI. SUBHASH J. BADDI, ADVOCATE FOR R3;
NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1)OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
10.03.2023 PASSED IN MVC NO.539/2020 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, KOPPAL,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION & ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07.04.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, S.G. PANDIT, J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S G PANDIT) The claimants are in appeal not being satisfied with the quantum of compensation awarded under judgment and award dated 10.03.2023 passed in MVC No.539/2020 on the file of learned Senior Civil Judge, CJM & Addl. MACT, Koppal1, praying for enhanced compensation.
2. Brief facts of the case are that, the claimants, who are the children of the deceased Mallavva, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Mallavva that took 1 'Tribunal' for short -3- MFA No.100877 of 2024 place on 5.11.2020 involving Motorcycle bearing registration No.KA-37/EB-3083 and Lorry bearing registration No.RJ-14/GJ- 6736. It is stated that the deceased was aged about 45 years as on the date of the accident, she was doing agricultural work and earning Rs.20,000/- per month. It is stated that she was contributing her entire earning to maintain her family, which consisted of the claimants.
3. On issuance of notice, respondents No.2 & 3 appeared through their learned counsels and filed their separate statement of objections denying the allegations made in the claim petition. Respondent No.2-owner of the offending Lorry contended that the driver of the offending lorry was having valid and effective driving license as on the date of the accident. It is further stated that the offending lorry was insured with respondent No.3/Insurer and the policy was in force as on the date of the accident. Respondent No.3- Insurance Company denied the claim petition averments, but admitted issuance of policy in respect of offending lorry. It was contended that the claimants No.1 to 3 are major sons of the deceased and they are not dependents of the deceased Mallavva. It was further contended that the driver of the offending vehicle was not having valid and effective driving -4- MFA No.100877 of 2024 license as on the date of the accident. It also contended that the claim petition suffers from non-joinder of necessary party. Further it contended that the accident occurred due to negligent riding of motorcycle by its rider. Thus, prayed for dismissal of the claim petition.
4. Before the Tribunal, 1st claimant-son of the deceased examined himself as PW1 and got marked the documents as Exs.P1 to P9. On behalf of the respondents, no witnesses were examined, but got marked one document as Ex.R1-Insurance Policy. The Tribunal based on the material evidence on record awarded total compensation of Rs.8,96,896/- with interest at 6% per annum on the following heads:
Loss of Estate Rs.7,21,896/-
Loss of consortium Rs.1,60,000/-
Funeral expenses Rs. 15,000/-
Total Rs.8,96,896/-
5. While awarding the above compensation, the
Tribunal assessed income of the deceased at Rs.13,750/- per month, deducted 3/4th towards personal expenses of the deceased holding that the claimants No.1 to 3 are not dependents of the deceased Mallavva, applied multiplier of 14 and added 25% of the assessed income towards future -5- MFA No.100877 of 2024 prospects of the deceased. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation.
6. Heard Sri. M. Amaregouda, learned counsel for the appellants-claimants as well as Sri. Subhash J Baddi, learned counsel for the respondent-Insurance Company and perused the appeal papers along with original records.
7. Sri. M. Amaregouda, learned counsel for the appellants-claimants would contend that the deceased Mallavva was doing agricultural work and earning a sum of Rs.20,000/- per month. Learned counsel submits that the Tribunal committed an error in assessing the income of the deceased at Rs.13,750/- per month, which is on the lower side. Further, learned counsel would submit that the claimants, who are the children of the deceased Mallavva though were major, were depending on the income of the deceased. It is submitted that claimants No.1 to 3 were also doing coolie work and their income was not sufficient for their livelihood. Thus, they submit that the Tribunal committed a grave error in deducting 3/4th of the assessed income towards personal expenses of the deceased.
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8. Learned counsel places reliance on a decision of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Birender & Others2 and submits that the Tribunal committed a grave error in coming to the conclusion that the claimants No.1 to 3 are not dependents of the deceased. Learned counsel would invite attention of this Court to the evidence of PW1 and states that PW1 has deposed that they were depending on the income of her mother; further, they also stated in the cross-examination that the deceased was doing coolie work and the claimants are also doing coolie work and they were all staying together. It is submitted that in the above circumstances, the Tribunal is not justified in deducting 3/4th of the income of the deceased towards personal expenses of the deceased. Thus, he prays for enhancement of compensation by allowing the appeal.
9. Per contra, Sri. Suresh J Badddi, learned counsel appearing for the respondent-Insurance Company would contend that the compensation awarded by the Tribunal is just compensation, which needs no interference. Learned counsel submits that the claimants are all major children of the deceased, who were earning independently. Learned counsel 2 AIR 2020 SC 434 -7- MFA No.100877 of 2024 would invite attention of this Court to the evidence of PW1 and submits that PW1 has admitted that the claimants were doing coolie work and earning a sum of Rs.20,000/- per month. Therefore, it cannot be said that the claimants No.1 to 3, who are major sons of the deceased were depending on the income of the deceased. Thus, he submits that the Tribunal is justified in deducting 3/4th of the assessed income of the deceased towards personal expenses of the deceased. Learned counsel Sri. Suresh Baddi places reliance on a decision of a co-ordinate Bench of this Court in the case of Shriram General Insurance Company Limited Vs. Smt. Meena Rajmal Kataria & Others3 to contend that the major sons would not be entitled for compensation under the head of loss of dependency. Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the only point that would fall for consideration in this appeal is, whether the claimants would be entitled for enhanced compensation in the facts and circumstances of the case? 3 MFA No.6878/2015 c/w MFA No.9282/2015, dated 25.1.2023 -8- MFA No.100877 of 2024
11. Answer to the above point would be in the "affirmative" for the following reasons:
12. The accident that occurred on 5.11.2020 involving motorcycle bearing registration No.KA-37/EB-3083 and Lorry bearing registration No.RJ-14/GJ-6736 and accidental death of deceased Mallavva is not in dispute in this appeal. The claimants are before this Court praying for enhancement of compensation.
13. The main contention of the learned counsel for the appellants is that though the claimants were major children of the deceased Mallavva, they were totally depending on the income of the deceased, whereas the contention of the learned counsel for the respondent/Insurer is that since the claimants are major children, who admitted that they were working as coolie and earning a sum of Rs.20,000/- per month, would not be entitled to compensation on the head of loss of dependency.
14. To appreciate the above contentions, it would be necessary to glance through the decision of the Hon'ble Apex Court in the case of Birender (supra), wherein the Hon'ble Apex Court was considering the question as to whether the major sons of the deceased, who are married and gainfully employed by earning, can claim compensation under the Motor -9- MFA No.100877 of 2024 Vehicles Act, 1988. The above question is answered by the Hon'ble Apex Court at paragraphs-14 and 15 as under:
14. The legal representatives of the deceased could move application for 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.
11. According to Section 2(11) CPC, "legal representative"
means a person who in law represents the estate of a de ceased 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 v. 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
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MFA No.100877 of 2024not 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 v. Ramanbhai Prabhatb hai [(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." 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.
15. 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 dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years." (Emphasis supplied)
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MFA No.100877 of 2024
15. Subsequently, the Hon'ble Apex Court in the case of Seema Rani & Others Vs. The Oriental Insurance Company Limited & others4, considering Birender's case supra, has held at paragraph-9 as under:
"9. We have heard the learned counsel for the Appellants. We are unable to agree with the view taken by the Tribunal on the dependents of the deceased. This Court in National Insurance Company Limited v. Birender & Others 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 dependent 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 largely dependent on the earnings of the deceased and were staying with her."
16. From the above decisions, what follows is that the legal representatives of the deceased, irrespective of major, married and earning sons of the deceased, have right to apply for compensation and the Tribunal must consider the application, irrespective of whether the representatives are fully dependent on the deceased or not. Further, whether the major or married children depended on the deceased would depend on the facts and evidence on record. In the instant case, it is clear case of the claimants that though they were doing coolie work and earning a sum of Rs.20,000/- per month, they were 4 Civil Appeal No.2323 of 2025, decided on 11.02.2025
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MFA No.100877 of 2024living with the mother and depending on the income of their mother. The income of the children earned by doing coolie work was not sufficient and therefore, they were depending on the income of the mother. In that circumstance, the Tribunal committed an error in deducting 3/4th towards personal expenses of the deceased. Since there are four children, who were depending on the mother, the Tribunal ought to have deducted 1/4th of the income of the deceased towards personal expenses of the deceased. In the case of Smt. Meena Rajmal Kataria (supra), the claimants No.2 and 3 were qualified major sons, hence, the co-ordinate Bench held that, to the facts of the said case, Birender's case supra would not apply.
17. In view of the above, the appellants/claimants would be entitled for compensation on the head of loss of dependency.
18. The accident is of the year 2020. The claimants stated that the deceased was earning a sum of Rs.20,000/- per month . No cogent and acceptable material is placed on record to substantiate that the deceased was earning a sum of Rs.20,000/- per month. Therefore, in such circumstances, the Tribunal is justified in assessing notional income of the deceased at Rs.13,750/- per month taking note of chart
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MFA No.100877 of 2024prepared by the KSLSA for the accident of the year 2020. The deceased was aged about 45 years and adding 25% of the assessed income towards future prospects of the deceased is just and proper.
19. There are four claimants and deduction towards personal and living expenses of the deceased would be 1/4th and appropriate multiplier applicable to the present case is 14. Thus, the claimants would be entitled for compensation on the head of loss of dependency as under:
Rs.13,750 + 25% x 12 x 14 x ¾ = Rs.21,65,625/-
20. It is well settled law that the claimants being children of the deceased would be entitled to Rs.44,000/- each towards parental consortium including 10% escalation. Further, the claimants would be entitled to Rs.16,500/- towards loss of estate, besides Rs.16,500/- towards transportation of dead body and funeral expenses. Thus, claimants would be entitled to modified compensation as under:
Sl.No. Particulars Amount
1. Loss of dependency Rs.21,65,625/-
2. Loss of estate & Funeral Rs. 33,000/-
expenses
3. Parental consortium Rs. 1,76,000/-
(Rs.44,000/- each)
Total Rs.23,74,625/-
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MFA No.100877 of 2024
21. Thus, the claimants would be entitled to total compensation of Rs.23,74,625/- as against Rs.8,96,896/- awarded by the Tribunal.
22. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants are entitled to total compensation of Rs.23,74,625/- as against Rs.8,96,896/- awarded by the Tribunal.
c) The enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till date of realization.
d) The respondent-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.
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MFA No.100877 of 2024
e) Deposit, apportionment and disbursement shall be made as per award of the Tribunal.
f) Draw modified award accordingly.
g) Registry to transmit the records to the Tribunal forthwith.
Sd/-
(S G PANDIT) JUDGE Sd/-
(C.M. POONACHA) JUDGE JTR CT:VP