Karnataka High Court
B.V. Gopala vs Mehaboob Pasha on 23 October, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
M.F.A.No.7318/2016 (MV)
BETWEEN :
1. B.V. GOPALA
S/O VENKATAKRISHNA ACHAR,
49 YEARS, WORKING IN PHARMA
2. B.V.SRIDHAR
S/O VENKATAKRISHNA ACHAR,
45 YEARS
BOTH R/AT 1ST MAIN ROAD,
JAYANAGAR,
SHIVAMOGGA CITY-577201 ...APPELLANTS
(BY SRI SHRIPAD V. SHASTRI, ADV.)
AND :
1. MEHABOOB PASHA
S/O AMEER JAN
31 YEARS, DRIVER,
R/O SANTE MAIDAN, HIRIYUR POST,
CHITRADURGA DISTRICT-577501,
DRIVER OF THE SWIFT
CAR NO.KA.20.P.5156
D.L. NO.150W/08-09 VALID
FROM 11-08-2008 TO 10-08-2028
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2. VASANTAKUMAR SHETTY
S/O RAMANNA SHETTY,
R/O SRI RAM NILAYA,
ARAMKKI VILLAGE,
SHIRUR POST, KUNDAPURA TALUK,
UDUPI DISTRICT-576101,
OWNER OF THE MARUTHI SWIFT
CAR NO.KA.20.P.5156
3. THE MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
SRI LAXMI NARSIMHA COMPLEX,
OPP. TO KSRTC DEPOT, NH 66,
KUNDAPURA-576201,
POLICY No.240502311P100635281
VALID FROM 25.04.2014
TO 24.04.2015 ...RESPONDENTS
(BY SRI O.MAHESH, ADV. FOR R-3; R-1 & R-2 SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
19.07.2016 PASSED IN MVC No.121/2015 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-VII,
SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 18.09.2020, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, S. SUJATHA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal emanates from the judgment and award of the First Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII at Shivamogga ['Tribunal' for short] dated 19.07.2016 -3- passed in MVC No.121/2015 whereby claim petition filed under Section 166 of the Motor Vehicles Act, ['Act' for short] by the appellants/claimants seeking compensation on account of the death of Sripada.B.V in motor vehicle accident has been allowed in part.
2. The parties are referred to as per their status before the Tribunal for the sake of convenience.
3. The claim petition was filed by the claimants, who are the brothers of deceased Sripada.B.V contending that the deceased while traveling on his Bajaj Pulsar bike bearing registration No.KA-14/Y-2660 on 24.07.2014 at about 06.30 a.m., met with the road traffic accident owing to the actionable negligence of the driver of the Maruti Swift car bearing registration No.KA-20/P-5156 [offending vehicle]. Due to the said impact, the bike was dragged for more than 40 feet. Sripada.B.V sustained multiple injuries to the vital parts of the body and succumbed to -4- the said injuries on the spot. It was contended that the deceased was helping both the claimants monetarily by providing them financial help periodically and now due to the untimely death of Sripada.B.V., the claimants have suffered a lot both mentally and monetarily.
4. In response to the notice issued by the Tribunal, respondents appeared through their respective counsel and denied the petition averments. On appreciating the material evidence on record, the Tribunal allowed the petition in part awarding total compensation of Rs.75,000/- along with interest at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by the inadequacy of the quantum of compensation awarded, the claimants are in appeal.
5. The learned counsel appearing for the claimants submitted that the Tribunal erred in denying the compensation towards loss of dependency. The -5- Tribunal ought to have computed loss to the estate by considering the monthly earnings of the deceased as Rs.30,000/- and by adopting the multiplier method. Granting globally Rs.50,000/- under the head loss to the estate has resulted in lower grant of compensation. The Tribunal failed to consider the catena of judgments rendered by this Court inasmuch as considering 50% of the income of the deceased as loss to the estate and awarding the compensation by adopting the multiplier method. It was argued that the compensation granted towards conventional heads is also inadequate and the same requires substantial enhancement. Learned counsel has placed reliance on the following judgments:
1. New India Assurance Company Limited V/s.
Vinish Jain and Others [(2018) 3 SCC 619]
2. The Managing Director, NKERTC, Gulbarga V/s. Pattu @ Fattu and Others [ILR 2015 KAR 212] -6-
3. Mangalamma and Others V/s. K.S.Raghu and Another [MFA No.3142/2005, D.D. 02.03.2010]
4. The Oriental Insurance Co. Ltd., V/s. Sri Malleshappa and Others [MFA No.10504/2005, D.D. 28.11.2007]
5. Basavaraj Gowdana and Others V/s.
V.Munichandra and Others [MFA No.2669/2013, D.D. 10.06.2015]
6. Learned counsel for the insurer submitted that no evidence is available on record to establish the dependency of the claimants on the deceased. No savings of the deceased is forthcoming. Siblings who were leading an independent life with their families at different places would not be considered as dependents of the deceased. No proof of estate left by the deceased is established. Hence, the compensation awarded by the Tribunal towards love and affection at Rs.50,000/- is justifiable. The claimants are not entitled to any loss of dependency. Overall, the total compensation of -7- Rs.75,000/- is just compensation in the facts and circumstances of the case. Accordingly, he sought for dismissal of the appeal.
7. Having considered the rival submissions of the learned counsel for the parties and perusing the material on record, the point that arises for our consideration is, Whether the brothers of the deceased who are married and gainfully employed, are entitled to claim compensation under the provisions of the Act?
8. Regarding the above point, it is beneficial to refer to Section 166 of the Act which provides for filing of application for compensation by persons mentioned in Clause [a] to [d] of subsection [1] thereof. Section 166 of the Act reads thus:
166. Application for compensation.--(1) An application for -8- compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased;
or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
9. A bare reading of the said provision makes it clear that the legal representatives of the deceased are entitled to move an application for compensation by virtue of sub-clause [c] and [d] of Section 166 [1]. In this regard, it is apt to refer to the judgment of the Hon'ble -9- Apex Court in the case of Manjuri Bera [Smt] V/s. Oriental Insurance Co. Ltd. & Another [(2007) 10 SCC 643], wherein it is enunciated 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.
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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 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 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
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SRTC v. 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."
10. A reading of the said judgment makes it clear that the legal representatives of the deceased have a right to apply for compensation. It would be incumbent on the Tribunal to consider the petition notwithstanding the concerned legal representatives not fully dependent on the deceased as held by the Hon'ble Apex Court in the case of National Insurance Company and others V/S. Birendar and Others [Civil Appeal Nos.242-243/2020 (D.D. 13.01.2020)].
11. In the case of Vinish Jain and others supra, the Hon'ble Apex Court has held that 50% deduction is called for to consider the loss of dependency applying the multiplier method wherein, the 1/3rd deduction was made by the High Court, keeping in
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view the fact that the claimants were two major sons and two grand daughters.
12. In Mangalamma and Others supra, the Co- ordinate Bench of this Court while considering the claim made by the married daughters and sons of the deceased seeking compensation held that 50% has to be deducted for the personal expenses and 50% of the income has to be considered as savings of the deceased who was working as mason, assessing the monthly income at Rs.3,000/- applying the multiplier method, loss of estate has been determined.
13. Yet another Co-ordinate Bench of this Court in the case of Basavaraj Gowdana and Others supra, having regard to the claim made by the brothers and sisters of the deceased therein and his occupation as a driver in a private limited company, assessed the loss of estate considering 50% of the monthly income of the deceased by applying the multiplier method.
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14. In the light of the aforesaid judgments, we have no hesitation to reckon the loss of estate deducting 50% of the income of the deceased Sripada.B.V towards personal expenses. The material evidence on record depicts that the deceased was a caterer and was aged about 46 years at the time of the accident. It is not in dispute that the claimants were aged about 48 years and 44 years respectively at the time of filing the claim petition and had their own independent avocation, but the same would not disentitle them to claim the loss of estate applying the multiplier method.
15. In the absence of cogent positive evidence to assess the monthly income of the deceased, considering the date of the accident, age and occupation of the deceased, the monthly income can be notionally determined at Rs.8,500/-, adding 30% towards future prospects, the monthly income would be Rs.11,050/-. His savings can be considered as 50% which would be
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Rs.5,525/-. Applying the multiplier of 14, loss of estate would be Rs.9,28,200/- [5525 X 12 X 14]. In terms of the National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680), the claimants are entitled to total compensation as under: Loss of estate - 9,28,200/-, towards funeral expenses, 15,000/.
16. For the reasons aforesaid, the total compensation awarded by the Tribunal is modified as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of estate 9,28,200/-
3. Funeral expenses 15,000/-
Total 9,43,200/-
Thus in all, the claimants shall be entitled to total compensation of Rs.9,43,200/- with interest at 6% p.a., from the date of petition till the date of realization.
17. Hence, the following:
ORDER i] The appeal is allowed in part.
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ii] The total compensation awarded by the Tribunal is modified and enhanced to Rs.9,43,200/- as against Rs.75,000/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.
iii] The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
iv] The insurance company shall deposit the re-
assessed total compensation with interest determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
v] The modified compensation shall be apportioned and disbursed in terms of the order of the Tribunal.
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vi] Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE NC