Karnataka High Court
Smt Savitha @ Savitha Badager vs M/S Icici Lombard General Insurance Co ... on 6 August, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
M.F.A.Nos.11345/2011 c/w 11346/2011 (MV)
IN M.F.A.No.11345/2011
BETWEEN:
1.SMT SAVITHA @ SAVITHA BADAGER,
AGED ABOUT 23 YEARS,
W/O SHANMUKA,
S/O LATE SATISH,
2.VIJAYA,
AGED ABOUT 18 YEARS,
S/O LATE MOUNESH,
BOTH ARE RESIDING AT NO.186,
NO 7-311, MEDLERI VILLAGE AND POST,
RANIBENNUR TALUK,
HAVERI DIST. ... APPELLANTS
(BY SRI: H.B.SOMAPUR, ADV.)
AND:
1.M/S ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
BY ITS MANAGER,
CORNICHE, NO.62/1, 2ND FLOOR,
RICHMOND ROAD, BANGALORE-25.
2.SRI C.DHARMALINGAM,
MAJOR, S/O K.CHINNASWAMY,
M/S MCR FREIGHT SYSTEMS,
NO.36, CHELLAGHUTTA, BEHIND
AIR PORT RON RAY, KUNDALAHALLI,
BANGALORE-37. ... RESPONDENTS
(BY SRI: B.C.SHIVANNEGOWDA, ADV. FOR R1, R2 D/W)
*****
-: 2 :-
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:08.09.2011 PASSED IN MVC
NO.3780/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.11346/2011
BETWEEN:
1.SRI ANANDACHARI,
AGED ABOUT 28 YEARS,
S/O K.ESHWARACHARI,
RESIDING AT MUKTHANAHALLI VILLAGE,
HONNALI TALUK, DAVANAGERE DIST.
2.SRI. PRABHUCHARI,
AGED ABOUT 49 YEARS,
S/O MURURJAVACHARI,
3.SMT. SANNARATHNAMMA,
AGED ABOUT 43 YEARS,
W/O PRABHUCHARI,
APPELLANTS No.2 AND 3 ARE
RESIDING AT NO.396,
KUNIBELAKERE VILLAGE,
HARIHARA TALUK,
DAVANAGERE DISTRICT. ... APPELLANTS
(BY SRI: H.B.SOMAPUR, ADV.)
AND:
1.M/S ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
BY ITS MANAGER,
CORNICHE, NO.62/1, 2ND FLOOR,
RICHMOND ROAD, BANGALORE-25.
2.SRI C.DHARMALINGAM,
MAJOR, S/O K.CHINNASWAMY,
M/S MCR FREIGHT SYSTEMS NO.36,
CHELLAGHUTTA BEHIND
AIR PORT RON RAY, KUNDALAHALLI,
BANGALORE-37. ... RESPONDENTS
-: 3 :-
(BY SRI: B.C.SHIVANNEGOWDA, ADV. FOR R1, R2 D/W)
*****
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:08.09.2011 PASSED IN MVC
NO.4043/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Though these appeals are listed for admission, with the consent of the learned counsel on both sides, they are heard finally and are disposed of by this common judgment.
2. MFA.No.11346/2011 is filed by the husband and parents of deceased Malathi, assailing the judgment and award passed in MVC.No.4043/2010, while MFA.No.11345/2011 is filed by the married sister and brother of deceased Sathish, assailing the judgment and award passed in MVC.No.3780/2010. These claim petitions were disposed of by a common judgment and awards -: 4 :- dated 08/11/2011 by the MACT at Bangalore, as the said claim petitions arose out of the same accident.
3. It is the case of the claimants that on 05/05/2010 at about 10.40 p.m. deceased Satish and Malathi and others were standing on the left side of Hosur Main Road, Garvebavipalya Bus Stop, near Garvebavipalya junction, when at that time, a lorry bearing Regn.No.KA-03-AB- 3789, came from Hosur towards Bangalore on the wrong side of the road and dashed against Satish and Malathi. As a result, they fell down and sustained grievous injuries and died on the spot. Contending that they had lost the bread earner of the family, brother and sister of deceased Satish filed MVC.No.3780/2010 while the husband and parents of the deceased Malathi filed MVC.No.4043/2010. Both the claim petitions were clubbed together.
4. The claim petitions were contested by the respondent - Insurance Company. In support of their case, the claimants let in the evidence of five witnesses and produced 18 documents, which were marked as Exs.P.1 to P.18 while respondents did not let in any evidence. On the basis of the evidence on record, the Tribunal awarded -: 5 :- compensation of Rs.2,30,000/- in MVC.No.3780/2010 and Rs.2,10,000/- in MVC.No.4043/2010 with interest at 6% p.a. from the date of claim petition till the date of realisation. Not being satisfied with the said awards, the claimants have preferred these appeals.
5. It is contended on behalf of the claimants in MVC.No.3780/2010 that the deceased Satish was working as a Carpenter. He was managing the family as the claimants as well as the deceased had lost their parents. Though the first claimant - sister of the deceased was married, she was nevertheless depending on her brother, the deceased. The second claimant was aged 17 years, he was also depending on his deceased brother. But the Tribunal has not awarded any compensation on the head of 'loss of dependency'. The Tribunal has taken into consideration the fact that at the time of disposal of the case, the brother of the deceased would have attained majority and that the sister of the deceased was married and therefore, compensation is awarded on the head of 'loss of expectancy of life', 'loss of estate', 'loss of affection' and 'transportation, funeral and obsequies expenses', which is not in accordance with law. He -: 6 :- therefore submitted that compensation has to be assessed on the basis of 'loss of dependency' and also on the other relevant heads.
6. As far as MVC.No.4043 is concerned, it is stated that the deceased was the wife of the first appellant and the daughter of appellants 2 and 3. That she was earning her livelihood as a coolie. It is contended that merely because the first appellant was also earning, it would not mean that there would be no dependency on the income of the deceased. The Tribunal was therefore, not right in not assessing the compensation on the head of 'loss of dependency' and not awarding compensation only on the head of 'loss of expectancy of life', 'loss of consortium' and 'loss of love and affection' and 'transportation, funeral and obsequies expenses'. It is stated that all the claimants i.e., husband of the deceased as well as her parents were depending on her income and therefore, 'loss of dependency' along with other heads of compensation ought to have been awarded.
7. Per contra, learned counsel appearing for the respondent - Insurance Company, has vehemently argued -: 7 :- that the Tribunal was right in not awarding any compensation on the head of 'loss of dependency' in both the cases and that the award of compensation on the other heads are just and proper and that there is no merit in these appeals.
8. He contended that as far as the claimants in MVC.No.3780/2010 are concerned, the first claimant is the married sister of the deceased and the second claimant was 17 years old at the time of the death of his brother and that within a year's time, he would have attained majority and he was expected to earn his livelihood and therefore, he may not be considered to be depending on the deceased.
9. As far as MVC.No.4043/2010 is concerned, argument of the learned counsel for the respondent is that the husband of the deceased was earning his livelihood as a Carpenter and claimants 2 and 3 were parents of the deceased and they could not have been depending on their married daughter. Therefore, the Tribunal rightly did not award any compensation on the head of 'loss of dependency'. In support of his submissions, he has placed -: 8 :- reliance on the decision of a Division Bench decision of this Court in the case of A.Manavalagan v. A.Krishnamurthy and Others [2005 ACJ 992].
10. In reply, learned counsel for the appellant has placed reliance on Arun Kumar Agrawal and another v. National Insurance Company [2010 ACJ 2161], to contend that even if there is no evidence of the income of the deceased, the Tribunal has assessed notional income of Rs.5,000/- in the case of a house wife. He therefore, submitted that just compensation may be awarded in both the cases.
11. Having regard to these contentions, the only point that arises for my consideration is as to whether the award of the compensation in both the appeals require enhancement.
12. MFA.No.11345/2011 - MVC.No.3780/2010 It is not in dispute that in this case, married sister and the minor brother of deceased Satish have filed the claim petition. They had contended that they were depending on the income of the deceased who was earning a monthly income of Rs.9,000/- as a Carpenter. In -: 9 :- support of this, they had relied upon Ex.P.10 - Salary Certificate, which had been issued by P.W.3, who was the employer. The Tribunal however has not believed the said evidence and has assessed the notional income at Rs.6,000/-. However, at Para.35 of the judgment, the Tribunal has stated that it is undisputed that the first claimant is the married sister and residing on her marital house and the second claimant was the minor brother of the deceased. It is undisputed that the second claimant has attained the age of majority. Under the circumstances, the question of consideration of 'loss of dependency' would not arise. It is under these circumstances, compensation has been awarded to an extent of Rs.2,30,000/- on the following heads:-
01 Loss of expectancy of life, Loss Rs.1,50,000/-
of Estate 02 Loss of love and affection Rs. 50,000/-
03 Transportation, Funeral, Rs. 30,000/-
Obsequies expenses TOTAL Rs.2,30,000/-
MFA No.11346/2011 - MVC.No.4043/2010 It is not in dispute that the claimants are the husband and the parents of the deceased. It has also -: 10 :- been established through the evidence of P.W.2 that the deceased was earning a sum of Rs.4,500/- p.m. as a Coolie. However, the Tribunal has stated that claimant No.1 is the husband of the deceased and claimants No.2 and 3 are the parents who were dependent on the earnings of their own son, who is also a Carpenter. Under the circumstances, the question of consideration of 'loss of dependency' would not arise. Therefore, compensation to an extent of Rs.2,10,000/- has been awarded on the following heads:-
01 Loss of expectancy of life, Loss Rs.1,00,000/-
of Estate 02 Loss of Consortium Rs. 30,000/-
03 Loss of love & affection Rs. 50,000/-
04 Transportation, Funeral, Rs. 30,000/-
Obsequies expenses TOTAL Rs.2,10,000/-
13. In my view, the approach of the Tribunal in both the cases in not awarding any compensation on the head of 'loss of dependency is wholly incorrect. It has been established in both the cases that the claimants were depended on the income of the deceased. Merely because in the first case, the claimants are the married sister and -: 11 :- minor brother of the deceased and in the second case, the claimants are the husband and parents of the deceased, it cannot be presumed that there would not be any dependency on the income of the deceased. In this context, it would be useful to rely upon the decision of the Hon'ble Supreme Court in the case of Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another [AIR 1987 SC 1690], wherein the Hon'ble Supreme Court while comparing the persons who are entitled to claim compensation under the provisions of the Motor Vehicles Act 1988 with that of the Fatal Accidents Act, 1855, has stated that the reality of the Indian conditions have to be kept in mind in order to consider as to who could be the claimants or the L.Rs of the deceased. The following passage in this context is extracted as follows:-
"It is to be remembered that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal -: 12 :- Accidents Act, 1855 which has been substantially modified by the provisions contained in the Motor Vehicles Act in relation to cases arising out of motor vehicles accidents."
x x x "We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai (AIR 1977 Guj 195) (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S.110-A of the Act if he is a legal representative of the deceased."
The said dictum would clearly clinch the issue in the instant case inasmuch as it has to be held that in MVC.No.3780/2010 the minor brother of the deceased was entitled to maintain the claim petition along with his married sister and that the husband of the deceased along with parents of the deceased were entitled to maintain the claim petition in MVC.No.4043/2010 and seek compensation on all heads, including 'loss of dependency'. Therefore, the Tribunal was not right in not assessing compensation on the head of 'loss of dependency'. -: 13 :-
14. As far as reliance placed on Manavalagan's case by the learned counsel for the Insurance Company is concerned in the said case, the facts were that husband and wife were earning their respective livelihood and they had established separate houses and were living in different places on account of their jobs. They had no children and the deceased husband was not even managing the household. Under such circumstances, the Division Bench of this court held that there was no loss of dependency and that compensation on the head of loss of estate was only granted. It is in that context the Division Bench of this Court held that compensation on the head of 'loss of dependency' could not be awarded. But the factual position in these two appeals are quite distinct. One has to consider the other decision of the Apex Court in the case of Latha Wadhwa v. State of Bihar [AIR 2001 SC 3218], wherein compensation has been awarded to the husband and other members of the family when there is a death of a housewife despite the husband being an earning member of the family, then having regard to this dictum, the Tribunal ought to have awarded compensation on the head of 'loss of dependency' in MVC.No.4043/2010 also. -: 14 :- Therefore, the award of compensation on the head of 'loss of dependency' as well as on the other heads would have to be made in both these appeals.
15. In MFA.11345/2011 it has come in evidence that the deceased Satish was earning his livelihood as Carpenter. It has also been established that he was a bachelor. The Tribunal has rightly not believed Ex.P.10 - Salary Certificate to the effect that he was earning Rs.9,000/- p.m. Having regard to the fact that the accident had occurred in the year 2010 and the fact that the deceased was a skilled employee, notional compensation would have to be assessed in the absence of there being any corroborative evidence. Keeping in mind the nature of work of the deceased, the income of the deceased could be assessed at Rs.7,500/- per month and half the said amount would have to be deducted towards the personal expenses of the deceased. Then in that case, the total compensation on the head of 'loss of dependency' would be Rs.7,65,000/- (Rs.7,500/2 = 3,750 x 12 x '17'). In addition, a sum of Rs.30,000/- is awarded towards 'loss of estate', 'loss of love and affection' , 'transportation, funeral and other such expenses', taking the total -: 15 :- compensation to Rs.7,95,000/-. Since the claimants in this case are not the widow and children of the deceased but they are the married sister and minor brother of the deceased, the increase in the salary on account of future prospects of the deceased has not been taken into consideration as the deceased, but for the accidental death would have lived to have a family of his own in which event the extent of support to his siblings would have gradually reduced. The said compensation shall carry interest at 6% p.a. from the date of claim petition till the date of realisation.
16. Having regard to the relationship between the parties and the fact that the sister of the deceased is married, 2/3rds of the said compensation shall be apportioned to appellant No.2 - the brother of the deceased and 1/3rd of the compensation is apportioned to the married sister of the deceased i.e., Rs.5,30,000/- to the brother and Rs.2,65,000/- to the sister. 75% of the compensation amount granted to the claimants shall be deposited in any Nationalised Bank, for an initial period of five years and they shall be entitled to draw periodical -: 16 :- interest on the said deposit. The balance compensation shall be released to the appellants.
17. MFA No.11346/2011:- It is established that the deceased in the instant case was working as a Coolie. The Tribunal has also stated that she was earning Rs.4,500/- p.m. 1/3rd of the said compensation has to be deducted towards her personal expenses. The compensation on the head of loss of dependency would then be Rs.6,12,000/- (i.e., Rs.4,500 - 1/3 = 3,000 x 12 x '17'). In this case also, having regard to the relationship between the parties and the deceased, no enhancement on future prospects is being made on the salary of the deceased having regard to the fact that the deceased husband was also earning as a carpenter and would not have been wholly dependent on his deceased wife. In addition, a sum of Rs.40,000/- is awarded towards 'loss of consortium', 'loss of love and affection', 'loss of estate', 'transportation, funeral and other expenses'. The total compensation of Rs.6,52,000/- also shall carry interest at 6% p.a. from the date of claim petition till the date of realisation.
-: 17 :-
18. 60% of the aforesaid compensation is apportioned to the husband of the deceased, while the parents of the deceased each are apportioned 20% of the compensation. 75% of the aforesaid compensation along with interest shall be deposited by the claimants in any Nationalised Bank for an initial period of five years. The appellants are entitled to draw periodical interest from the said deposits.
19. The appeals are allowed in part on the aforesaid terms, without any order as to costs.
Sd/-
JUDGE.
*mvs