Karnataka High Court
Sri Kullappa vs Reliance Gen Ins Co Ltd on 23 March, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
MFA No.5445/2016 (MV)
Between:
1. Sri. Kullappa
S/o Late Channappa @
Channegowda,
Aged about 43 years.
2. Sri. Puttamari
S/o Late Channappa @
Channegowda,
Aged abaout 41 years.
Both are R/at:
Kurigowdanadoddi Village,
Kasaba Hobli,
Kanakapura Taluk,
Ramanagara District - 562 117.
.. Appellants
(By Sri Prakash M.H, Advocate)
And
1. Reliance General Insurance
Company Limited,
No.28, 5th Floor,
Centenary Building,
M.G. Road,
Bangalore - 560 001,
Represented by its Manager.
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2. Manju.S
S/o Srinivas,
No.37, Ayyappa Nilaya,
2nd Cross, Netravathi Tent Road,
Geetha Colony, Yelachenahalli,
Bengaluru - 560 078.
... Respondents
(By Sri H.N. Keshava Prashanth, Advocate for R1.)
This MFA is filed U/S 173(1) of MV Act against the
judgment and award dated 18.02.2016 passed in MVC
No.1720/2015 on the file of the 21st Additional Small
Cause Judge 19th ACMM, Member, MACT, Bengaluru,
Partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This appeal is coming on for admission this day, the
court delivered the following:-
JUDGMENT
The present appeal has been preferred by the appellants/claimants, being aggrieved by the judgment and award passed by the XXI Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru in MVC No.1720/2015 dated 18.02.2016.
2. Heard. Though this appeal is listed for admission, with the consent of the leaned counsel 3 appearing for both the parties, it is taken up for final disposal.
3. The brief facts of the case are that:
On 03.05.2015 at about 7.45 a.m., the deceased was walking on Kanakapura-Bengaluru road, near Shanimahatma temple, Kurigowdanadoddi village, Kanakapura, an Indica car bearing registration No.K.A.05- AE-7005 came from Kanakapura side towards Bengaluru, rashly and negligently and dashed to the deceased and as a result of the same, the deceased sustained severe head injuries and succumbed to the injuries on the spot.
4. It is the contention of the petitioners that they have incurred Rs.2,00,000/- towards obsequies and funeral ceremonies and it is their further contention that the deceased was working as a coolie and earning Rs.10,000/- per month. For having lost their mother, the petitioners have filed the claim petition claiming compensation.
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5. In pursuance to the notice, respondent No.2 has not appeared. Respondent No.1-Insurance Company appeared before the Court and has filed its written statement denying the contents of the petition. It is contended that the said car has been insured, but his liability is subject to terms and conditions of the policy. It has also further contended that the owner of the offending vehicle has not submitted the claim form and other documents like RC, permit etc for verification and the driver of the said car was not holding valid driving licence. It has also further contended that the owner of the car willfully entrusted the car, knowing fully well that the drier of the car was not having valid and effective driving licence. The said car was not having valid permit and fitness certificate to ply on the public road and the same is in violation of the terms and conditions of the policy. On these grounds, it prayed for dismissal of the petition.
6. On the basis of the above pleadings, the Tribunal has framed the following issues:
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1. Whether the petitioners prove that the deceased Smt.Kempamma died in the road traffic accident that occurred on 03.05.2015 at about 7.45 am., while she was crossing the road near Kurigowdanadoddi village, Kanakapura-
Bangalore main road, Kanakapura Taluk, Ramanagara District, due to rash and negligent of the Indica Car driver, vehicle bearing registration No.K.A.05-AE-7005 as alleged in the petition?
2. Whether the petitioners prove that they are the legal representative of deceased and they are depending on the income of the deceased?
3. Whether the petitioners are entitled for compensation from who?
4. What order?
7. In order to prove the case, the 1st petitioner got examined himself as PW-1 and also got examined one more witness as PW-2 and got marked the documents as Exs.P-1 to P-14. The respondents have not lead any oral evidence and have not produced any documents. After hearing the learned counsel for the parties, the impugned judgment and award came to be passed by the Tribunal. 6
8. Assailing the judgment and award passed by the Tribunal, the appellants/claimants are before this Court.
9. The main ground urged by the learned counsel for the appellants/claimants is that the deceased was working as coolie and earning Rs.10,000/- per month and the compensation awarded by the Tribunal is not fair. He has further contended that while obtaining the compensation payable to the dependants the service which has been rendered by the mother, wife and other persons has to be considered and it cannot be compared with the service of the employees. He has further contended that the law of equity requires the compensation awarded must be adequate and equally as that of the other claimants. He has further contended that the service rendered by the deceased has to be taken into consideration while awarding the compensation. In order to substantiate his contention he has relied upon the decision in the case of Arun Kumar Agrawal and Another vs National Insurance Company Limited and others, reported in 7 2010 AIR SCW 5335 and he has also further relied upon the decision in the case of Gujarat State Road Transport Corporation, Ahmedabad vs Ramanbhai Prabhatbhai and another, reported in AIR 1987 Supreme Court 1690. He further contended that the amendment which has been made to the motor vehicle act in so for as the compensation payable as a result of motor vehicle accident, is to be considered. On these grounds, he prayed for allowing the petition by enhancing the compensation.
10. Per contra, the learned counsel appearing on behalf of the respondent No.1/Insurance Company vehemently argued by contending that the petitioners are not the dependents and the deceased was not a earning member. If at all the petitioners are entitled to the compensation, then they are entitled to only loss of estate. On these grounds, he prayed for dismissal of the petition.
11. In order to substantiate the said contention learned counsel for the respondent has relied upon the 8 decision in the case of A. Manavalagan vs A.Krishnamurthy and Others, reported in ILR 2004 KAR 3268. He also further contended that the petitioners have not produced any documents to show that the deceased was earning Rs.10,000/- per month. Under such circumstances, the compensation which has not been awarded by the Tribunal under this head, appears to be just and proper.
12. I have gone through the contentions taken up by both the parties. The accident in question is not in dispute so also the vehicle insured with the respondent No.1/insurer. The contention of the learned counsel for the appellants that the services rendered by the mother, house wife has to be considered and it cannot be compared with the service of the employees and in that light the petitioners are entitled to the compensation. In that light he has relied upon the decision in the case of Arun Kumar Arawal and Another v. National Insurance Company Limited and Others reported in 9 2010 AIR SCW 5335. Para No.32 of the said decision reads as under:
"In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non- earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the 10 absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view of the judgments of this Court in General Manager, Keral State Road Transport Corporation v. Susamma Thomas (Mrs.) and another, (AIR 1994 SC 1631: 1994 AIR SCW 1356) (Supra), U.P.S.R.T.C. v. Trilok Chandra (Supra), Sarla Verma (Smt.) and others v.Delhi Transport Corporation and another, (AIR 2009 SC 3104 : 2009 AIR SCW 4992) (supra) and also take guidance from the judgment in Lata Wadhwa's case, (AIR 2001 SC 3218:2001 AIR SCW 3086).
The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker."
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On going through the above said decision, makes it very clear that gratuitous services rendered by the wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. Admittedly the services of the wife and mother to the husband and children are to be considered separately and not that of a house keeper and in that light, the Hon'ble Apex Court has awarded the compensation. But, the facts and circumstances of the above case are not applicable to the present case on hand. In the instant case on hand question is dependency. The said aspect has not been discussed and decided. In that light, the contentions of learned counsel for the appellant is not acceptable.
In the case of Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another, reported in AIR 1987 Supreme Court 1690. Para No.5 of the said decision reads as under:
"From the recommendation of the British Royal Commission, which is extracted 12 above, it is seen that the Royal Commission recommended that the area of entitlement to damages following death should be expanded so as to include a larger number of relatives. In our country the Fatal Accidents Act, 1855 has remained unamended, but we have still to consider the effect of the amendment of the Act, i.e., Motor Vehicles Act, 1939 on the Fatal Accidents Act, 1855. But, before examining the relevant provisions of the Act it is necessary to refer to the 85th Report of the Law Commission of India on claims for compensation under Chapter VIII of the Act which was submitted as late as May, 1980. The Law Commission of India after taking into consideration the differences of opinion prevailing in the various High Courts on the question of the persons who should be entitled to claim compensation on the death of a person, recommended that the entitlement to such compensation should be confined to the spouse, parent and children of the deceased as specified in the Fatal Accidents Act, 1855 overlooking the amendments made in England and other countries by expanding the list of relatives who are entitled to claim compensation on the death of a person. It is surprising that the Law Commission of India recommended that the provisions of the Fatal Accidents Act, 1855 should be adhered to insofar as the persons who were entitled to claim compensation were concerned. We shall now proceed to consider the effect of the amendment of the Act insofar as the question of compensation payable on the death of a person as a result of a motor vehicle accident is concerned."13
On close reading of the said paragraph it makes very clear that the dependency must be established in order to claim compensation as stated in the above case. So, in the instant case, during the course of cross-examination of PW1 it has been elicited that both the petitioners who are the present appellants before this Court are independently working and in that light, his mother staying in their house does not arises and there is no dependency of the claimants over the deceased. So, in that light the Tribunal has also rightly come to the conclusion that the petitioners are not entitled to receive any compensation under the head 'loss of dependency'.
13. When the dependency itself is not in existence, then under such circumstances, no question of granting of compensation under the head 'loss of dependency'. Keeping in view the facts and circumstances of the case, the petitioners/appellants are not entitled to any compensation under the head loss of dependency. But, they are the legal representatives of the deceased. Under 14 such circumstances, the appellants are entitled to only loss of estate. This proposition of law has been laid down by this Court in the case of M/s.Oriental Insurance Company Ltd., vs Shivamma and Others reported in ILR 2008 KAR 1561, which reads as under:
"4. In support of the said contention, learned counsel places reliance upon the decision of the Apex Court in Smt.Manjuri Bera vs Oriental Insurance Co.Ltd., and the reported decision of a Division Bench of this Court in Smt.A.Manavalagan vs A.Krishnamurthy.
5. Per contra, learned counsel for the petitioners/claimants seeks to support the impugned judgment and award as being well merited, fully justified and not calling for interference. Learned counsel hastens to add that there is no material on record to establish the amount the deceased saved every year, from out of the income.
6. Before proceeding to consider the contention advanced by the learned counsel for the appellant, it is useful to extract the relevant portions of the judgment in Manavalgan's case and Manjuri Bera (supra).15
7. In Manavalgan's case the Division Bench while summarizing the principles enunciated thus:
"(i) xxxx xxxx xxxx
(ii) xxxx xxxx xxxx
(iii) Where the claim by the legal
representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
A conventional sum for loss of
expectation of life, is added.
(iv) The procedure for determination
of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalizing it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency and in cases where the claimants who are dependants claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to 16 estate. The method of selection of multiplier is however the same in both cases.
(emphasis supplied)
8. In Manjuri Bera's case, the Apex Court held thus:
"16. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act."
9. In the light of the aforesaid decisions, it is needless to state that the MACT in the instant case proceeded on a footing as if the claimants being sister-in- law (widow of the deceased brother) and the nephew, being majors, were dependent on the income of the deceased."
14. In the above said decision this Court by relying upon the decision of the Hon'ble Apex Court in the case of 17 Smt Manjuri Bera V/s Oriental Insurance Company Limited has come to the conclusion that if there is no dependency, then under such circumstances, the claimants are entitled to only 'loss of estate'. Keeping in view of the decisions quoted supra, the claimants are entitled to only 'loss of estate'.
15. It is the contention of the petitioners that the deceased was aged about 58 years at the time of accident and she was earning Rs.10,000/- per month by doing coolie work. But, in order to prove the same, they have not produced any documents. In the absence of any documents, it is the practice of Court to take the notional income of the deceased. Admittedly, the accident is of the year 2015 and the notional income of the deceased is taken at Rs.9000/- per month. Taking into consideration the age of the deceased, the appropriate multiplier to her age group is 9. Therefore, the calculation would be = Rs.9000/-x12x9 = Rs.9,72,000/-. In the light of the decisions as stated supra, 15% of the said amount if it is 18 assessed as 'loss of estate', then under such circumstances the appellants/claimants are entitled to Rs.1,45,800/-. Therefore, the appellants are entitled for a total compensation of Rs.1,45,800/- with interest at 6% per annum as against Rs.60,000/-awarded by the Tribunal.
Accordingly, the appeal is allowed in part. The judgment and award passed in MVC No.1720/2015 is modified as indicated above.
Registry to draw the award accordingly. Respondent- insurer is directed to deposit the award amount with up to date interest within the period of six weeks from the date of receipt of the certified copy of this order.
Sd/-
JUDGE mr