IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM MFA NO.134/2014(MV-D) C/w. MFA NO.1769/2014(MV-D) M.F.A.NO.134/2014 BETWEEN:
1. KUM C V KEERTHI D/O C.V.VIJAYAKUMAR, 14 YEARS, STUDENT 2. KUM.C.V.GOWRI D/O C.V. VIJAYAKUMAR, 13 YEARS, STUDENT 3. C.VEERABHADRAIAH S/O CHANNABASAVAIAH AGED ABOUT 72 YEARS 4. ANASUYAMMA W/O C.VEERABHADRAIAH, HOUSEHOLD, 64 YEARS APPELLANTS NO. 3 AND 4 ARE R/O 5TH CROSS, CORNER JOGIMATTI ROAD, CHINNAKUMAR NILAYA, CHITRADURGA – 577501 SINCE APPELLANTS 1 AND 2 ARE MINORS REPRESENTED BY THEIR GUARDIAN C.V.JOTHI W/O SHIVASHANKAR AGED ABOUT 40 YEARS R/O BYPASS ROAD, PARASHURAMAPURA, CHALLAKERE TALUK CHITRADURGA DISTRICT – 577 538 ...APPELLANTS (BY SRI SPOORTHY HEGDE, ADVOCATE) AND:
1. NATIONAL INSURANCE CO. LTD., BY ITS BRANCH MANAGER, BRANCH OFFICE, LAXMI BAZAR, CHITRADURGA - 577501 2. C.V. VIJAYAKUMAR, S/O C. VEERABHADRAIAH, 44 YEARS, COLLECTIVE EXECUTIVE IN SRI RAMA CITY UNION FINANCE, CHITRADURGA, R/O 5TH CROSS, JOGIMATTI ROAD, CHITRADURGA-577501 3. P. MANJUNATHA S/O P.M. PRABHAKAR, 44 YEARS. OWNER OF BIKE BEARING REG NO. KA-16-Q-3696, PROP:
SRI. THIPPESWAMY MEDICALS, SOMUGUDDU ROAD, CHALLAKERE-577 522. …RESPONDENTS (BY SRI A N KRISHNASWAMY, ADVOCATE FOR R1 VIDE ORDER DATED 06.11.2014, NOTICE TO R2 & R3 IS DISPENSED WITH) THIS APPEAL IS FILED UNDER SECTION 173[1] OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 12.11.2013 PASSED IN MVC NO.401/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-V, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.1769/2014 BETWEEN BRANCH MANAGER NATIONAL INSURANCE CO LTD., BRANCH OFFICE, LAXMI BAZAAR, CHITRADURGA, NOW REPRESENTED BY ITS REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M G ROAD, BANGALORE-560001 ...APPELLANT (BY SRI A N KRISHNA SWAMY, ADVOCATE) AND 1. KUM C V KEERTHI D/O C.V.VIJAYAKUMAR, NOW AGED ABOUT 15 YEARS, OCC : STUDENT 2. KUM.C.V.GOWRI D/O C.V.VIJAYAKUMAR, NOW AGED ABOUT 14 YEARS, OCC : STUDENT 3. C.VEERABHADRAIAH S/O CHANNABASAVAIAH, NOW AGED ABOUT 72 YEARS, 4. SMT. ANASUYAMMA W/O C.VEERABHADRAIAH, NOW AGED ABOUT 64 YEARS, OCC: HOUSEHOLD ALL ARE R/O 5TH CROSS CORNER, JOGIMATTI ROAD, CHINNAKUMAR NILAYA, CHITRADURGA-577501 5. C.V.VIJAYAKUMAR S/O C.VEERABHADRAIAH, NOW AGED ABOUT 46 YEARS, COLLECTIVE EXECUTIVE IN SRI.RAMA CITY UNION FINANCE, CHITRADURGA, R/O 5TH CROSS, JOGIMATTI ROAD, CHITRADURGA-577 501 6. P.MANJUNATHA S/O P.M.PRABHAKAR, NOW AGED ABOUT 46 YEARS, PROP:SRI.THIPPESWAMY MEDICALS SOMUGUDDU ROAD, CHALLAKERE-577522 …RESPONDENTS (BY SRI. SPOORTHY HEGDE, ADVOCATE FOR R1; R2 TO R6 ARE SERVED AND UNREPRESENTED) THIS APPEAL IS FILED UNDER SECTION 173[1] OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 12.11.2013 PASSED IN MVC NO.401/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & ADDL. MACT-V, CHITRADURGA, AWARDING A COMPENSATION OF RS.7,20,120/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The claimants as well as the contesting third respondent – Insurer in MVC No.401/2012 on the file of the MACT, Chitradurga [‘MACT’, for short] have come up in these two appeals.
2. The appeal in MFA No.134/2014 is by the claimants seeking enhancement of compensation, whereas the appeal in MFA.No.1769/2014 is by the third respondent – Insurer challenging the quantum of compensation awarded as well as the liability to pay compensation. These two appeals are taken up for consideration since lower court records is already received.
3. The brief facts leading to filing of these appeals are as under:
The case of the claimants before the MACT is that on 04.04.2011 at about 1.15 p.m. the victim K.T. Bharathi was traveling as a pillion rider on a Motorcycle bearing registration No.KA-16-Q-3696. The said vehicle was driven by none other than her husband who is the first respondent before the MACT. The said Bike is said to have met with an accident on SH-45 while traveling from Chitradurga to Chowlur via Challakere. In the said accident, the victim, K.T. Bharathi is said to have suffered grievous injuries for which she succumbed immediately thereafter.
4. In this background, a claim petition was filed by the children of deceased K.T. Bharathi and also her parents-in-laws seeking compensation by arraying the husband of the deceased as respondent No.1 and also the owner and insurer of the vehicle as respondents 2 and 3 respectively.
5. In the proceedings before the MACT, the claimants contended that the deceased was gainfully employed in Patanjali Hospital on monthly income of Rs.9,000/- and she was the breadwinner to the family and due to her death, not only her children, her parents-in-
laws have suffered loss of love and affection. Hence, all of them have sought for compensation.
6. In the said proceedings, the Insurer denied the manner in which the accident is said to have taken place, denied the liability to pay the compensation on the ground that the death of K.T. Bharathi has taken place while she was traveling as a pillion rider on a Bike, which was driven by her husband. Therefore, it cannot be taken as actionable claim against the Respondent No.1 who is also the husband of the deceased and father of the claimant Nos.1 and 2 and son of claimant Nos.3 and 4. Though such a statement was made, the Insurance Company was not able to substantiate the said defence either by adducing evidence or by demonstrating before the Tribunal that the said claim cannot be entertained in law. In the absence of the same, the Tribunal has proceeded to award compensation to claimant Nos. 1 to 4, in a sum of Rs.7,20,120/- which is computed taking income of the deceased notionally at Rs.5,000/-. Being aggrieved by the same, the claimants as well as Insurer have come up in these appeals as stated supra.
7. In so far as appeal which is filed by the Insurer is concerned, the same is incomplete for want of service of notice to other respondents. However, this Court felt that the result of the appeal filed by the claimants would decide the fate of the appeal filed by the Insurer and accordingly the appeal filed by the claimants is taken up at the first instance.
8. When the material available on record is seen, the accident is not in dispute, so also the death of K.T. Bharathi for the injuries suffered in the accident, involving the motorcycle bearing registration No. KA-16-Q-3696 owned by the Respondent No.2 and insured by the Respondent No.3 before the MACT. Merely because the said vehicle was driven by her husband, the right of the claimant Nos.1 and 2 who are minor children of the deceased to seek compensation cannot be taken away.
9. However, when it comes to the claim of the parents-in-laws of the deceased, this Court is of the considered opinion that there is nothing on record to show that in the death of the daughter-in-law, the claimant Nos.
3 and 4 have suffered any loss of affection or support, more particularly, when their son is alive, the possibility of that person getting married again and the parents-in-law getting another daughter-in-law being still available to them, they cannot seek compensation for the death of K.T. Bharathi. However, when it comes to claim of the children of K.T. Bharathi, the fact situation would be different and therefore this Court is of the opinion that claim petition which was filed was not rightly appreciated by the MACT and hence requires reassessment.
10. Admittedly, in the present proceedings, K.T. Bharathi is said to be gainfully employed. There is no record to show her actual employment as also her income. In the absence of such material, normal practice adopted by this Court is to rely upon the table which is prepared to show as to what should be the income required to be considered with reference to a person whose avocation and income is not established with reference to the date of the accident. Admittedly, in the present case, the date of accident is 4.4.2011. In that year, the chart would indicate the notional income that is required to be taken is Rs.6,500/-. Admittedly, the deceased was aged about forty years.
11. Accordingly, 25% is required to be considered towards future prospects. If that is taken notionally, the monthly income of the deceased Bharathi would be Rs.8,125/- which works out to Rs.97,500/- per annum. In the instant case, for the purpose of calculating compensation, this Court would take family of the deceased as herself, her two minor children and her husband. So far as parents-in-law are concerned, the same cannot be considered. If the family of the deceased is four, then one-third is required to be considered for deduction towards personal upkeep of the deceased and balance two-third is to be awarded towards loss of dependency to the claimant Nos. 1 and 2 who are minor children which would come to Rs.65,000/- per annum. Admittedly, the deceased was aged about forty years as on the date of the accident. Therefore, the multiplier which is required to be adopted is ‘15’. If that is taken into consideration, the total loss of dependency to the two minor children would be Rs.9,75,000/-, for which another sum of Rs.30,000/- is required to be added towards the compensation amount payable under conventional heads. At this juncture, this Court would clarify that under the normal circumstances, if husband were to be not involved in the accident, the compensation would have been Rs.70,000/-. In the instant case, the husband being tortfeasor in causing the accident, he is not considered for payment of the compensation either under general head or under conventional head, namely for loss of consortium. Therefore, the compensation amount which is considered under conventional heads is taken to the extent of Rs.30,000/- which would take total compensation payable to Rs.10,05,000/- as against Rs.7,20,120/- awarded by the MACT.
12. With this, the enhanced compensation the claimants would be entitled to, works out to Rs.2,84,880/- which the claimant Nos. 1 and 2 shall receive with 6% interest from the date of the petition till the date of deposit.
13. With reference to claim of other claimants are concerned, the Judgment of the Court below is modified indicating that the Claimant Nos. 3 and 4 who are said to be parents-in-law, are not entitled to any compensation amount.
14. With such observation, the appeal filed by the claimants in MFA.No.134/2014 is partly allowed. In view of the appeal filed by the claimants being allowed in part, the appeal which is filed by the Respondent No.3-Insurer in challenge to the quantum as well as liability, does not merit consideration. Accordingly, the appeal filed by the Insurer in MFA.No.1769/2014 is dismissed.
15. In view of the appeal filed by the Insurer being dismissed, the amount in deposit shall be transferred to the MACT for disbursement of the same to the claimants 1 and 2 in equal proportion. Since the claimants 1 and 2 being minors, entire amount except for Rs.40,000/- shall be deposited in the ratio of 50% in the name of each of them in any nationalized bank until they attain the age of 21 years. However, the appellants 3 and 4 who are care takers of minor appellants 1 and 2 are entitled to receive interest for maintenance of the appellants 1 and 2.
16. Since the appeals are disposed of on merits, pending IA’s does not survive for consideration, hence, dismissed.
Sd/- JUDGE Sd/- JUDGE CA, AN/-