IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4607 OF 2013 (MV) BETWEEN:
SMT. SAVITHRI W/O. ESHWARAPPA AGE 33 YEARS OCC: COOLIE R/O AVALAGONDU VILLAGE ULAVI HOBLI, SORABA TALUK – 577 429 SHIMOGA DISTRICT …APPELLANT (BY SRI. S.V. PRAKASH, ADVOCATE) AND:
1. MANJUNATHA G S/O. GANAGESHA AGE 37 YEARS R/O AVALAGONDU VILLAGE ULAVI HOBLI, SORABA TALUK – 577 429 SHIMOGA DISTRICT 2. M/S. ORIENTAL INSURANCE COMPANY LIMITED SAGAR CITY – 577 401 SHIMOGA DISTRICT REPRESENTED BY ITS DIVISIONAL MANAGER ... RESPONDENTS (BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2 R1 - SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.11.2012 PASSED IN MVC NO.10/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDITIONAL MACT, SORABA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Claimant is before this Court in this appeal not being satisfied with the quantum of compensation awarded under Judgment and Award dated 05.11.2012 in M.V.C.No.10/2012 on the file of Senior Civil Judge and Addl. M.A.C.T, Soraba.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) claiming compensation for the death of her mother in a road traffic accident. It is stated that on 18.03.2011, the deceased Padmavathamma mother of the claimant was proceeding as pillion rider in motor-bike bearing No.KA-15/L-8184. As the rider of the motor-bike rode the vehicle in a rash and negligent manner, the deceased fell down and suffered serious injuries and subsequently, succumbed to the injuries. The claimant being married daughter, filed claim petition stating that she was depending on the income of the mother. On issuance of notice, Respondents 1 and 2 appeared before the Tribunal. Respondent No.1 filed the statement and denied rash and negligent driving. Respondent No.2 filed objection denying the claim averment and further denied the rash and negligent driving of the rider of the motor-bike. The claimant examined herself as P.W.1 and examined other two witnesses P.Ws.2 and 3 in support of her case apart from marking Exs.P.1 to P.15. Respondent examined R.W.1 and marked Ex.R.1. The Tribunal, on examination of the material on record, held that the claimant was not dependent on the income of the deceased as she is married and awarded compensation of Rs.50,000/- towards loss of love and affection under Section 140 of the Act. Aggrieved by the same, the claimant is before this Court in this appeal.
3. Heard the learned counsel for the appellant and learned counsel for respondent-Insurance Company. Perused the lower court records.
4. Learned counsel for the claimant submits that the Tribunal committed an error in awarding compensation of Rs.50,000/- towards loss of love and affection treating the claim petition as claim under Section 140 of the Act when the claim petition is filed under Section 166 of the Act. It is his submission that the claimant was wholly depending on the income of her mother. It is submitted that the claimant was the only daughter of the deceased and claimant’s father had died three years prior to the death of the claimant’s mother. It is the case of the claimant that no other person was there to look after her mother.
Even though she was married, she was living with her mother along with her husband at the place where the claimant’s mother was residing. It is also contended that the mother of the claimant had landed property at Avalagodu village, which the claimant was cultivating along with her mother.
5. Learned counsel for the appellant relies upon the decision of the Supreme Court reported in LAWS (SC) 2009-2 131 (NATIONAL INSURANCE COMPANY LTD.,) v/s. MECHJI NARAN SORATIYA) to contend that the Tribunal ought to have granted compensation on the head of loss of dependency taking deduction at 50%.
6. Per contra, learned counsel for respondent- Insurance Company would submit that the Tribunal has rightly awarded compensation of Rs.1,25,000/- which needs no interference. He submits that the claimant is a married daughter and she would be entitled to compensation of Rs.50,000/- under Section 140 of the Act on the principle of ‘no fault liability’. It is his further submission that the claimant has not produced any material document to indicate that she was residing with her mother and she was depending on the income of her mother. Respondent-Insurance Company has examined R.W.1-officer of the Insurance Company who has stated that the claimant is a married daughter and she was not depending on the income of the deceased, without any proof.
7. Learned counsel for respondent relies upon the decision on the Hon’ble Supreme Court reported in 2007(10)SCC 643 (MANJURI BERA (SMT.) v/s. ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER) and to contend that when the claimants failed to prove the dependency, they would be entitled for compensation under Section 140 of the Act. He also relies upon the decision reported in 2009 ACJ 2563 (BANGALORE METROPOLITAN TRANS. CORPN.
v/s. P.S.PADMAVATHI) to the said effect.
8. Having heard the learned counsel for the appellant and learned counsel for the Insurance Company and on perusal of the lower court records, the only question which arises for consideration is:
“Whether the claimant/appellant would be entitled for enhanced compensation?”
9. The answer to the said question is in the negative for the following reasons:
The accident which occurred on 18.03.2011 involving motor-bike bearing No.KA-15-L-8184 and accidental death of mother of the claimant are not in dispute in this appeal. The claimant is before this Court seeking enhancement of compensation. Admittedly, the claimant is the married daughter of the deceased Padmavathamma. Claimant examined herself as P.W.1. In her evidence, she states that due to the death of her mother, there is no earning member in their family. In the cross-examination, P.W.1-claimant has stated that she was married in the year 1994 and she is the only daughter and there are no other children. She also states that there is ration card and also states that she has documents to show that her husband also resides with her along with mother at Avalagodu village. She also states that her father was possessing 1 to 2 acres of land in which she is cultivating. The claimant has not produced any document to show that she is residing at Avalagodu village. Even though she has stated that she possesses ration card, the same is not produced before the Tribunal to substantiate her contention that she is living with her mother along with her husband at Avalagodu village. Further, the claimant has also not produced any document to show that they possess landed property at Avalagodu village and she is cultivating the land. The Insurance Company has examined R.W.1-officer of the Company. In his evidence, he has stated that the claimant is a married daughter and she was not depending on the income of her deceased mother. The contention of the claimant has remained as contention without any proof and oath against oath.
10. Learned counsel, as stated above, relied upon the decision of LAWS (SC) 2009-2 131, supra to contend that the claimant would be entitled for compensation on the head of loss of dependency. The said decision would not assist the case of the claimant in any manner. In the decision cited, the claimants were married son and daughter-in-law who claim that they were depending on the deceased. But in the present case, claimant is married daughter who has failed to prove that she was depending on the income of the deceased mother. The claimant failed to place on record any iota of evidence to substantiate her contention that she was wholly depending upon the income of her mother. In the decision cited by the learned counsel for the respondent-Insurance Company reported in 2007(10)SCC 643 (MANJURI BERA (SMT.) v/s. ORIENTAL INSURANCE COMPANY LIMITED AND ANOTHER), the Hon’ble Supreme Court at Para Nos.13, 14 and 15 has held as follows:
“13. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.
14. Section 165 of the Act also throws some light on the controversy. The Explanation includes the liability under Sections 140 and 163-A.
15. 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. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned amicus curiae.”
11. This Court in the decision reported in 2009 ACJ 2563 (BANGALORE METROPOLITAN TRANS.
CORPN. v/s. P.S.PADMAVATHI) at Para Nos.4 and 5 has held as follows:
“4. The learned counsel for the appellant has relied upon several decisions of this court and also the Apex Court to contend that in case of a married daughter she is not dependent on her mother and as per section 140 of the Motor Vehicles Act at the most she would be entitled for Rs.50,000 and not more than that.
5. The claimant would have incurred some expenses as her moral obligation when she is the only legal heir to look after the welfare of her mother. As such, the claimant would be entitled to some amount on the head of funeral expenses, loss of love and affection, transportation of the dead body, etc.
According to the claimant, her mother was doing a petty business and earning more than Rs.5,000 per month. The Claims Tribunal has awarded a sum of Rs.1,86,000 towards loss of dependency by taking the multiplier of 7. However, the aspect of dependency has to be examined as to whether the mother was contributing towards the livelihood of her daughter. Although, the Tribunal has noted that the claimant was married and there is no question of loss of dependency, but deducting 50 per cent towards the personal expenses of the deceased has awarded the above said amount. The said finding of the Tribunal cannot be found fault with. Each case has to be decided on its merits. Necessarily, if the mother had some income, although the daughter is married, she would have definitely contributed her earnings to her daughter out of love and affection that is loss to estate to the claimant’s daughter. In the circumstances, however, while modifying the judgment and award passed by the Tribunal, the amount of compensation awarded is reduced from Rs.1,86,000 to Rs.1,25,000.”
12. The above decisions cited by the learned counsel for respondent-Insurance Company would aptly apply to the facts of the present case. The Tribunal, in the facts and circumstances of the case, has rightly awarded compensation of Rs.50,000/- under Section 140 of the Act as the claimant had failed to prove that she was depending wholly on deceased mother. The Judgment and Award of the Tribunal is neither perverse nor erroneous so as to warrant interference.
Accordingly, the Appeal is dismissed.
Sd/- JUDGE bnv*