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2023. KHC:27799 MFA No.6752 of 2019 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF AUGUST, 2023 BEFORE THE HON'BLE MR JUSTICE M.I.ARUN MISCELLANEOUS FIRST APPEAL NO.6752 OF2019(MV-D) BETWEEN:
1. MAHADEVAMMA W/O. MADEGOWDA AGED ABOUT39YEARS, 2. SMT. KETHAMMA W/O. NANJEGOWDA AGED ABOUT44YEARS, 3. SMT. MADAMMA W/O. RAMEGOWDA AGED ABOUT30YEARS, ALL ARE R/AT SEEGEBETTA PODU KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT-571 440. …APPELLANTS (BY SRI SANATH KUMARA K.M., ADVOCATE) AND:
1. MAHAMED ASHIQUE T. MAJOR R/O. NO.07, RCC206261 S.G. MATTADA ROAD CHAMARAJAPETE, BANGALORE-560 018.
2. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. SRI VENKATESWARA PLAZA - 2 - NC:
2023. KHC:27799 MFA No.6752 of 2019 NO.2912, 1ST MAIN SARASWATHIPURAM MYSURU-570 009. …RESPONDENTS (BY SRI MANJULA N. TEJASWI, ADVOCATE FOR R.2; NOTICE TO R.1 IS DISPENSED WITH VIDE COURT ORDER
DATED0407.2022.) THIS MFA IS FILED UNDER SECTION1731) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED3008.2017 PASSED IN M.V.C.NO.397/2015 ON THE FILE OF COURT OF THE SENIOR CIVIL JUDGE AND MACT AT KOLLEGALA AND ENHANCE THE COMPENSATION IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR HEARING, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
1 Aggrieved by the judgment and award dated 30.08.2017 passed in MVC No.397/2015 by the Court of the Senior Civil Judge and JMFC, Kollegal (for short ‘the Tribunal’), the petitioners therein have preferred this appeal.
2. For the sake of convenience, the parties are referred to herein as per their status before the Tribunal.-. 3 - NC:
2023. KHC:27799 MFA No.6752 of 2019 3. The deceased - Rangegowda was waiting for a bus near Mahalakshmi Flower stall, Yelandur on 07.10.2015 at about 6.00 p.m. Unfortunately, at that time, a lorry bearing registration No.KA-01-D-4534 driven in a rash and negligent manner came and dashed against him, because of which, he expired. The said lorry was duly insured with respondent No.2 Insurance Company.
4. The petitioners claiming to be nieces of the deceased preferred MVC No.397/2015. The Tribunal accepted the contention that the deceased was a Bachelor and the petitioners were his only legal representatives. However, based on the evidence, it came to the conclusion that the petitioners failed to establish that they were dependants of the deceased and also failed to show that they were brought up by the deceased or residing with him. For that reason, the Tribunal has not awarded any compensation towards 'loss of dependency', but has granted a sum of Rs.15,000/- towards 'loss of love and affection' and Rs.25,000/- towards 'transportation of dead body' and - 4 - NC:
2023. KHC:27799 MFA No.6752 of 2019 'funeral expenses', which the Tribunal concluded that it was done by the petitioners. Thus, in all, the Tribunal has awarded a compensation of Rs.40,000/- along with interest at the rate of 6% p.a. from the date of filing the petition till the date of deposit. Not satisfied by the same, the present appeal has been filed.
5. In the course of the arguments, learned counsel for the petitioners fairly submitted that the petitioners are giving up the claim on the count of 'loss of dependency'. However, it is contended that the petitioners and the deceased are Hindus and the petitioners are entitled to succeed to the estate of the deceased and are entitled for higher compensation than what is awarded by the Tribunal.
6. Per contra, learned counsel for respondent No.2 submits that the petitioners are not close relatives of the deceased and are married and residing separately and thus, they are not entitled to higher compensation and prays for dismissal of the appeal.-. 5 - NC:
2023. KHC:27799 MFA No.6752 of 2019 7. The fact that the accident took place due to rash and negligent driving of the offending lorry and the deceased died because of it and the lorry at that particular point of time was duly insured with respondent No.2 - Insurance Company is not disputed.
8. The only question that arises for consideration in this appeal is under the given facts and circumstances of the case, i.e., when the petitioners are the legal heirs of the deceased, but are not his family members and not dependant on him, what is the compensation that they are entitled to.
9. Section 166(1) of the Motor Vehicles Act, 1988 reads as under:
"166. Application for compensation:—(1) An application for 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 - 6 - NC:
2023. KHC:27799 MFA No.6752 of 2019 (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. Provided further that where a person accepts compensation under section 164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse."
Thus, when death has resulted from the accident, a claim petition for compensation can be maintained by a legal representative of the deceased.
10. Section 2(11) of the Code of Civil Procedure, 1908 defines "legal representative" as follows:
"2(11) "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;
11. Thus, the petitioners as Class-IV legal heirs of the deceased have to be considered as his legal representatives and are entitled to maintain the petition.-. 7 - NC:
2023. KHC:27799 MFA No.6752 of 2019 12. Compensation is awarded to set-off the personal deprivation where a person suffers because of the accident. Though it is impossible to equate human suffering and personal deprivation with money, this is what the Motor Vehicles Act, 1988 enjoins the Court to do. The Court has to make a judicious attempt to award damages so as to compensate the claimant for the loss suffered by him.
13. In the instant case, though the petitioners contended before the Tribunal that they were depending on the deceased and that he had raised them and was living with them, they have failed to adduce any evidence to that effect before the Tribunal. On the contrary, it is established, they were married and living separately and the deceased was only their relative. However, the Tribunal has concluded that petitioners are the legal heirs of the deceased and the Insurance Company has not challenged the said finding. Under the said circumstances, it has to be concluded that the petitioners are not - 8 - NC:
2023. KHC:27799 MFA No.6752 of 2019 dependants of the deceased and it has also been fairly admitted by the counsel for the petitioners.
14. While examining similar set of circumstances, a Division Bench of this Court in the case of A.MANAVALAGAN vs. A.KRISHNAMURTHY AND OTHERS reported in ILR2004KAR3268 in paragraphs 16 and 19, has held as under: ”16. But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased?. Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss to estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.
19. We may summarise the principles enunciated, thus: (i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for - 9 - NC:
2023. KHC:27799 MFA No.6752 of 2019 the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased. (ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate. (iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added. (iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the - 10 - NC:
2023. KHC:27799 MFA No.6752 of 2019 significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
15. Further, in paragraph 20 of the said judgment, it is held as under:- "20.xxxxxxxxxxxxxxxxxxxx (i) xxx (ii)xxx (iii)xxx (iv)xxx (v) xxx Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants.
16. In the present case, there is no evidence let-in by the petitioners regarding the quantum of savings by the - 11 - NC:
2023. KHC:27799 MFA No.6752 of 2019 deceased. However, under the given peculiar facts and circumstances of the case, I am of the opinion that it would be appropriate to assess it at 15% of the income of the deceased and the petitioners would be entitled to 15% of the compensation amount, to which his dependants would have been entitled to, if they were present.
17. The accident took place in the year 2015. The petitioners have not established the income of the deceased. Under the circumstances, his income has to be fixed notionally as per the chart prepared by the Karnataka State Legal Services Authority in consultation with Insurance Companies which will be Rs.9,000/- per month. The deceased was aged 65 years at the time of accident and death. Further, as per the law laid down by the Apex Court in SARLA VERMA & ORS V. DELHI TRANSPORT CORP.& ANR reported in 2009(6) SCC121 a multiplier of '7' is applicable. Thus, the income of the deceased which has to be added to his estate, to be inherited by the petitioners is determined at - 12 - NC:
2023. KHC:27799 MFA No.6752 of 2019 Rs.1,13,400/- (9,000x12x7x15%) under the head of 'loss of estate'.
18. As per the law laid down by the Apex Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI reported in (2017) 16 SCC680 an additional sum of Rs.15,000/- is awarded towards 'transportation of dead body and funeral expenses'.
19. Given the facts and circumstances of the case, as the petitioners are not near relatives of the deceased, it is held that they are not entitled to any compensation under the head of 'loss of consortium'.
20. Thus, the petitioners are entitled to a compensation of Rs.1,28,400/- as against Rs.40,000/- awarded by the Tribunal.
21. Further, given the bank rate of interest, I deem it appropriate to award interest at the rate of 6% p.a. on the entire compensation from the date of petition till realization. However, as there is a delay of 558 days in - 13 - NC:
2023. KHC:27799 MFA No.6752 of 2019 filing the appeal, the petitioners are not entitled to interest for the said period of delay.
22. Hence, the following: ORDER
(i) The appeal is allowed in part; (ii) The petitioners together are entitled to a compensation of Rs.1,28,400/- as against Rs.40,000/- awarded by the Tribunal along with interest at the rate of 6% p.a. on the entire compensation amount from the date of petition before the Tribunal till deposit excluding the interest for the delay of 558 days in filing the appeal; (iii) Respondent No.2-Insurance Company shall pay the compensation amount with due interest thereon within a period of six weeks from the date of receipt of the certified copy of the judgment and order; - 14 - NC:
2023. KHC:27799 MFA No.6752 of 2019 (iv) Office to draw modified award accordingly; (v) Registry to return the records to the jurisdictional Tribunal forthwith. Sd/- JUDGE VMB