- 1 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE20H DAY OF JUNE, 2024 R PRESENT THE HON'BLE MR JUSTICE S G PANDIT AND THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO.102037 OF2018(MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.101233 OF2018IN MFA NO.102037 OF2018BETWEEN: THE ORIENTAL INSURANCE COMPANY LTD., MADIWALA ARCADE, 2ND FLOOR, CLUB ROAD, BELAGAVI-590001, REPRESENTED BY THE AUTHORIZED SIGNATORY, POLICY NO.161691/31/2016/2975/001 VALID FROM3005.2016 TO1003.2017. …APPELLANT (BY SRI G.N. RAICHUR, ADVOCATE) AND:
1. SHRI VIJAY S/O. SHANKAR RAJAMANE, AGED:
55. YEARS, OCC: SERVICE, R/O: MUCHANDI, TQ AND DIST: BELAGAVI-590001.
2. KUMARI KETAKI D/O. VIJAY RAJAMANE, AGED:
13. YEARS, OCC: STUDENT, R/O: MUCHANDI, TQ AND DIST: BELAGAVI-590001. (SINCE THE REPRESENT NO.2 IS MINOR REPRESENTED BY M/G RESPONDENT NO.1) 3. SHRI SANTOSH S/O. PRABHAKAR JADHAV, AGE: MAJOR, OCC: BUSINESS, A/P MALEWADI KOSUMB, TQ: SANGMESHWAR, DIST: RATNAGIRI, STATE MAHARASHTRA-400001. …RESPONDENTS (BY SRI UMESH C.AINAPUR, ADVOCATE FOR R1-R2; NOTICE TO R3 IS SERVED) - 2 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION1731) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT
AND AWARD DATED0811.2017 PASSED IN MVC NO.2477/2016 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF RS.42,76,080/- WITH INTEREST AT6 P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION AND ETC., IN MFA NO.101233 OF2018BETWEEN:
1. VIJAY S/O. SHANKAR RAJAMANE, AGE:
55. YEARS, OCC: SERVICE, R/O: MUCHANDI, TQ AND DIST: BELAGAVI, PINCODE-590001.
2. KUMARI KETAKI D/O. VIJAY RAJAMANE, AGE:
13. YEARS, OCC: STUDENT, R/O: MUCHANDI, TQ AND DIST: BELAGAVI, PINCODE-590001. (SINCE APPELLANT NO.2 IS MINOR REPRESENTED BY HIS MINOR GUARDIAN APPELLANT NO.1) …APPELLANTS (BY SRI UMESH C.AINAPUR, ADVOCATE) AND:
1. SANTOSH S/O. PRABHAKAR JADHAV, AGE: MAJOR, OCC: BUSINESS, A/P: MALEWADI KOSUMB, TQ: SANGMESHWAR, DIST: RATNAGIRI, STATE MAHARASHTRA-415612.
2. THE ORIENTAL INSURANCE COM. LTD., MADIWALA ARCHED, 2ND FLOOR, CLUB ROAD, BELAGAVI. …RESPONDENTS (BY SRI G.N. RAICHUR, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION1731) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT
AND AWARD DATED0811.2017 PASSED IN MVC NO.2477/2016 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC., - 3 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ORDER
S, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING: JUDGMENT
Both appeals arise out of judgment and award dated 08th November, 2017 passed in MVC No.2477 of 2016 by the VI Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi (for brevity, hereinafter referred to as (the Tribunal”).
2. For the sake of convenience, the parties herein are referred to as per their status and rank before the Tribunal.
3. Brief relevant facts leading to these appeals are that the claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for the death of one Sangeeta in a road traffic accident. It is stated in the claim petition that on 28th September 2016, at about 8:30 am, the deceased, along with Ms. Sangeeta D/o Maruti Devare, were proceeding on a Honda Activa two-wheeler bearing Registration No.MH-08/AC-3478, ridden by Sangeeta W/o Vijaya Rajmane on the correct side of the road. Upon reaching Chiplun-Karad Road at Pimplai village within the jurisdiction of Chiplun Police Station, the driver of the - 4 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 truck bearing Registration No.MH-11/AL-0750 drove in a rash and negligent manner without following traffic rules or observing the cautionary signs put up by the concerned Department by the side of the road. All of a sudden, he lost control of his truck and collided with the two-wheeler on which the said Sangeeta was proceeding, causing the accident. Due to impact, Sangeeta W/o Vijaya Rajmane sustained fatal injuries and died on the spot. It is contended that Petitioner No.1 incurred Rs. 50,000/- towards transportation of the dead body, funeral, and other expenses. It is further contended that as on the date of accident, the deceased was aged about 35 years, was hale and healthy and was working in the Postal Department at Alore, Chiplun Taluk, Rathnagiri District, drawing a salary of Rs. 40,000/- per month, by which she was maintaining her family and giving motherly love and guidance to her daughter. It is further contended that Petitioner No.2- daughter of the deceased, has lost the good governance of her mother at her tender age and Petitioner No.1 had to take the aid of a maid servant for carrying out household work and other daily chores which were done by the deceased prior to her death, for which Petitioner No.1 had to incur Rs.10,000/- per - 5 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 month to pay the servant. Furthermore, Petitioner No.1 has lost his companion in future life. It is further stated that the accident in question was caused due to the rash and negligent driving of the truck by its driver and hence the respondents are jointly and severally liable to pay the compensation with interest. On all these grounds, the claim petition was sought to be allowed.
4. In spite of the service of notice, Respondent No.1 remained absent and was placed ex-parte. Respondent No.2 appeared through his advocate and filed a statement of objections denying the entire contents of the claim petition. It is further contended that, as per police papers, the driver was driving the truck at a moderate speed and following traffic rules, but the deceased herself rode the two-wheeler in a rash and negligent manner and collided with the truck, thereby causing the accident. However, Chiplun Police wrongly registered the case against the driver of the truck with the help of the petitioners to secure compensation. The deceased was herself responsible for the accident in question, and consequently, the petitioners are not entitled to any compensation. It is further contended that Petitioner No.2 is - 6 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 working as a Pharmacist in the Primary Health Centre, Adhare, and was not dependent on the income of the deceased, thus he is not entitled to any compensation under the head loss of dependency. The driver did not have a valid and effective driving license to drive the truck, and the owner of the truck willfully entrusted it to a person who did not possess a valid driving license, thereby violating the conditions of the policy. Accordingly, the petition is liable to be dismissed against Respondent No.2. Furthermore, it is admitted that the offending truck was insured with Respondent No.2 as on the date of the accident. On all these grounds, dismissal of the claim petition with costs was sought. Based on the rival pleadings, the Tribunal formulated appropriate issues.
5. To prove the case of the petitioners, one witness was examined as PW1, and 21 documents were marked as Exhibits P1 to P21. Upon the closure of the petitioners’ side evidence, the respondents did not adduce any evidence on their behalf. The insurance policy was marked as Exhibit R1, with consent. Having heard the arguments on both sides, the claim petition of Petitioner No.2 was allowed in part, awarding compensation of Rs. 42,76,080/- with interest at 6% per annum, and the claim - 7 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 petition of Petitioner No.1 was dismissed against Respondents 1 and 2. Being not satisfied with the compensation awarded by the Tribunal, the petitioners filed Miscellaneous First Appeal No.102037 of 2018 seeking enhancement of compensation and modification of the judgment; and the insurer preferred Miscellaneous First Appeal No.101233 of 2018 questioning the quantum of compensation.
6. Sri G.N. Raichur, learned counsel appearing for the Insurance Company, would submit that the Tribunal has committed an error in awarding compensation by holding that the petitioners are dependents of the deceased. It is evident from the record that Petitioner No.1 is employed as a Pharmacist in the Primary Health Centre, Adhare, Maharashtra, and therefore, it cannot be said that Petitioner No.1 was dependent on the deceased. This aspect is also admitted by PW1 in his cross-examination. Even Petitioner No.2, being the daughter of Petitioner No.1, is under the care of her father, whose duty it is to maintain his children. Therefore, both petitioners cannot be said to be dependents of the deceased. Under these circumstances, there cannot be any award for loss of dependency; and awarded, if any, can only be towards loss - 8 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 of estate. The learned counsel further submits that the Division Bench of this Court has given a verdict pertaining to the calculation of loss of dependency in a case where both persons are employed in A. MANAVALAGAN v. A. KRISHNAMURTHY AND OTHERS, reported in 2005(2) ACJ992 it is categorically held that only 15% of the income is to be considered for calculating the loss of estate. Therefore, the deduction of one-third is an erroneous approach made by the Tribunal. He further submits that the Tribunal has committed an error in awarding Rs.90,000/- under conventional heads, which is improper. As per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS, reported in AIR2017SC5157 it is only Rs. 70,000/- that should be awarded under conventional heads. Further, the Tribunal has not deducted the professional tax and income tax from the salary of the deceased while awarding for loss of dependency. On all these grounds, he sought to allow the appeal.
7. Sri Umesh C. Ainapur, learned counsel appearing for the claimants, would submit that the judgment and award passed by the Tribunal is contrary to law and facts. The Tribunal has - 9 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 not properly considered the age of the deceased while calculating the loss of dependency. As per the complaint and evidence of Appellant No.1, the age of the deceased was 35 years at the time of the accident, and accordingly, the multiplier adopted is not correct. Exhibit P18, the Last Pay Certificate of the deceased, shows that the gross salary of the deceased was Rs.28,634/-, whereas the Tribunal has taken the salary of the deceased at Rs.23,496/-, which is on the lower side. He further submits that the Tribunal has not awarded the compensation in accordance with law and the guidelines issued by the Hon'ble Supreme Court. On all these grounds, he sought to allow the claimants' appeal.
8. Having heard the learned counsel for the parties and perused the appeal papers and original records, the following points would arise for our consideration:
1. Whether the Tribunal is justified in dismissing the claim petition in respect of petitioner No.1 as against respondents 1 and 2?.
2. Whether the judgment and award passed by the Tribunal requires interference as to the quantum of compensation?. - 10 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 3. What order or award?.
9. Our answer to the above points is as under: Point No.1: in the negative; Point No.2: partly in the affirmative Point No.3: as per final order Regarding Point No.1
10. We have examined the material placed before this Court. Petitioner No.1, Vijay Rajmane, is the husband of the deceased Sangeeta, and Petitioner No.2, Kum. Ketati, is the daughter of Vijay Rajmane, Petitioner No.1. They have filed a claim petition under Section.166 of the Motor Vehicles Act, 1988 for grant of compensation for the death of Sangeeta in a road traffic accident. The Tribunal has observed in the judgment that PW1, i.e., Petitioner No.1, the husband of the deceased, is in government service and drawing a salary of Rs.28,960/- per month; hence, he could not be considered dependent on his wife. Accordingly, the Tribunal dismissed the petition filed by Petitioner No.1 against Respondents 1 and 2. The judgment of the Tribunal in this regard is contrary to the provisions of Section 166 of the Motor Vehicles Act, 1988 and also the decision of the Hon'ble Supreme Court in the case of N.-. 11 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 JAYASHREE AND OTHERS v. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, reported in AIR ONLINE2021SC923 wherein their Lordships, at paragraphs 14 to 16 of the judgment, have observed as under: “14. The M.V. Act does not define the term ‘legal representative’. Generally, ‘legal representative’ means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A ‘legal representative’ may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative.
15. Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term ‘legal representative’ as under: “Legal Representative” means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased.
16. In our view, the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As - 12 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.
11. Compensation for the legal representatives of a deceased person in a motor vehicle accident is primarily based on the principles of loss of dependency and loss of consortium. Even if the husband is a salaried person, the legal framework and precedents ensure that the dependents are compensated for various non-financial contributions made by the deceased to the family, which significantly impact their lives post the demise. In the case at hand, PW1, who is Petitioner No.1 and the husband of the deceased, has clearly testified that his wife was healthy, aged 35 years as on the date of accident, and was working as a permanent employee in the Postal Department at Alore, Chiplun Taluk, earning a salary of Rs. 40,000/- per month. With this income, she was maintaining the family and - 13 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 providing guidance and good care to their daughter. Due to her death, their daughter is deprived of her mother's love, guidance, and care at a young age. Additionally, after his wife's death, he had to hire a maidservant to perform the household tasks previously managed by his wife, incurring a monthly cost of Rs.10,000/-. Moreover, he has lost his companion for the rest of his life. He testified that his future happiness, love, and loss of companionship cannot be compensated in any way. He has suffered irreparable loss and significant inconvenience. In conclusion, compensation for legal representatives, even when the husband is a salaried person, is justified due to the combined loss of financial support, emotional companionship, and the deceased's non-monetary contributions to the family. This approach ensures a holistic compensation addressing both tangible and intangible losses faced by the surviving family members. However, grant of compensation on the head of loss of dependency depends on the facts of each case.
12. Considering the evidence of PW1 and the aforementioned decision, to maintain a claim petition, it is sufficient for the claimants to establish the loss of dependency. Section 166 of the Motor Vehicles Act, 1988, makes it clear that every legal - 14 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 representative who suffers due to the death of a person in a motor vehicle accident should have a remedy for the realization of compensation. Accordingly, the Tribunal erred in holding that Petitioner No.1, being a salaried person, is not entitled to any compensation. Hence, we answer point No.1 in the negative. Regarding Point No.2:
13. With regard to the quantum of compensation is concerned, the Tribunal has awarded the compensation of Rs.41,86,080/- towards loss of dependency. Exhibit P18-Form 16, last pay certificate of the deceased shows the salary of the deceased as Rs.23,496/- per month. Exhibits P11 and P12 are Form 16 issued by the Post Master General H & G-I, Chiplun. Exhibit P19 is also Form 16 marked with the consent of both sides with respect of payment of income-tax by the deceased, which reveals that the gross income of the deceased was Rs.2,46,904/- per annum. As per Exhibit P18, if the salary of Rs.23,496/- is taken, then per annum it comes to Rs.2,81,952/- Out of this, if Rs.200/- per month i.e. Rs.2,400/- per annum, is deducted towards Profession Tax as shown in Exhibit P18, then the annual income comes to Rs.2,79,552/-. It is the submission of the learned counsel for the Insurer that the - 15 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 income tax is not deducted. The income tax slab for the Financial Year 2016-17 is Rs.2,50,000/-. Exhibit P18-Last Pay Certificate reveals that the deceased has paid an amount of Rs.2,448/- per month towards postal Insurance which comes to Rs.29,376/- which is exempted from tax under Section 80C of Income Tax Act, 1961. Hence, the gross salary of the petitioner would be less than Rs.2,50,176/- after deducting the contribution made towards postal insurance and deduction towards profession tax, etc. Hence, there is no force in the argument advanced by the learned counsel appearing for the Insurance Company. The Tribunal, relying upon the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in AIR2017SC3157has rightly added 50% of the income towards future prospects since the deceased was in permanent job. Then the income comes to Rs.4,19,328/- per annum. The age of the deceased as on the date of accident was 36 years. Relying the judgment of the Hon'ble Supreme Court in the case of SARLA VERMA v. DELHI TRANSPORT CORPORATION LTD. AND ANOTHER reported in (2009)6 SCC121 the Tribunal has rightly applied the multiplier 15 and after deducting one-third - 16 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 towards the personal expenses and living of the deceased, the annual income of the deceased would come to Rs.2,79,552/-. Hence, the loss of dependency would be Rs.41,93,280/- (Rs.2,79,552/- x 15). The Tribunal has awarded an amount of Rs.40,000/- towards loss of consortium. The same is not in consonance with the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC130 Both the petitioners are entitled for loss of consortium. Petitioner No.1 is entitled for loss of consortium of Rs.40,000/- towards spousal consortium; and Petitioner No.2 being the daughter of the deceased, is entitled for Rs.40,000/- towards parental consortium. Accordingly, as per the judgment of the Hon'ble Supreme Court in the cases of SARLA VERMA and PRANAY SETHI, and MAGMA (supra), the claimants are entitled for compensation as under: Sl.No.Head Amount (in Rs.) 1. Loss of dependency 41,93,280.00
2. Towards loss of consortium 80,000.00 (Rs.40,000/- x
2) 3. Loss of Estate 15,000.00
4. Towards transpiration of dead body 15,000.00 and funeral expenses Total 43,03,280.00 - 17 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 Accordingly, we answer point No.2, partly in the affirmative.
14. For the reasons and discussions made above, we proceed to pass the following: ORDER
1 MFA No.102037 of 2018 preferred by the Insurance Company is dismissed; 2. MFA No.101233 of 2018 preferred by the claimants is allowed in part; 3. The Judgment and Award dated 08th day of November, 2017 passed in MVC No.2477 of 2016 by the VI Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi is modified by setting aside that portion of the order by which the tribunal dismissed the claim petition of petitioner No.1 as against Respondents 1 and 2 holding that petitioner is also entitled for compensation; 4. The claimants are entitled for compensation of Rs.43,03,280/- as against Rs.42,76,080/- awarded by the Tribunal which shall interest at the rate of 6% per annum from the date of petition till is realisation; - 18 - NC:
2024. KHC-D:8254-DB MFA No.102037 of 2018 C/W MFA No.101233 of 2018 5. The respondent No.2 shall satisfy the award amount with interest within a period of three months from the date of receipt of certified copy this judgment; 6. Amount in deposit shall be transmitted to the Tribunal forthwith; 7. Apportionment and disbursement of the award amount shall be as per the award of the Tribunal; 8. Draw modified award accordingly; 9. Registry to send the copy of this judgment along with trial court records to the concerned court forthwith. Sd/- JUDGE Sd/- JUDGE LNN List No.:
1. Sl No.:
3.