MUTTAPPA BASAVANTHAPPA MUDENUR v. SHANTHA MUDENUR

NOW REPRESENTED BY ITS M/S. SHRIRAM GENERAL INSURANCE COMPANY LIMITED., NO.3/5, 3RD FLOOR, S.V.ARCADE, BIKELAHALI MAIN ROAD, OFF BANNERGHATTA ROAD, BANGALORE-76302. ...APPELLANT (BY SRI. B.C.SHIVANNE GOWDA., ADVOCATE) AND:

1. MUTTAPPA BASVANTHAPPA MUDENUR, S/O BASAVANTHAPPA, NOW AGED ABOUT 47 YEARS,

2. SMT. SHANTHA MUDENUR W/O MUTTAPPA BASAVANTHAPPA MUDENNUR, AGED ABOUT 33 YEARS, BOTH ARE RESIDENT AT NO.1-115A, DURGA NIVASA, RONA, BADAGUHITHLU, BAPPANADU VILLAGE, MULKI POST, MANGALORE TALUK-574154.

3. NAVEEN KUMAR.R AGED ABOUT 37 YEARS, S/O K.GANGADHAR, R/O DURGA NIVASA, ULLAL BAIL POST, ULLAL, MANGALORE TALUK.

4. THE BRANCH MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., KARKALA BRANCH, 3 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR SAMVRADDHI COMPLEX, KARKALA.

5. SRI. SATHYAPRAKASH.L.D. S/O SRI.DEVEGOWDA, AGED ABOUT 49 YEARS, R/AT LALANAKERE, B.NAVALE HOBLI, NAGAMANGALA TALUK, MANDYA DISTRICT. ...RESPONDENTS (BY SRI. H.PAVANACHANDRA SHETTY., ADVOCATE FOR R1 & R2; SRI. LAKSHMINARAYANA., ADVOCATE FOR R4; R3-SERVED; R5-NOTICE DISPENSED WITH V/O/D:01.08.2023) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.08.2019 PASSED IN MVC NO.1057/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KARKALA, AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS ARE COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI & HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL JUDGMENT (PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

1. The present appeals seek to challenge the Judgment and Award dated 27.08.2019, in MVC No.1057/2018, 4 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR passed by the Senior Civil Judge and Additional MACT, Karkala (hereinafter referred to as the ‘Impugned Award’). By the Impugned Award, the learned Tribunal has awarded compensation to the appellants/claimants in a sum of Rs.7,87,000/-, along with interest at 8% per annum from the date of petition till its realisation.

2. The challenge in the present appeals has been raised both by the appellant/insurance company, as well as by the appellants/claimants. While MFA No.1911/2020 has been filed by the Insurance company seeking to reduce the compensation awarded by the learned Tribunal, MFA No.1342/2022 has been filed by the claimants seeking for enhancement of the compensation awarded by the learned Tribunal.

3. The brief facts of the case are that on 20.05.2018 at about 07.45 p.m., the 12 year old son of the claimants was waiting at a Bus Stop, outside his School with his family members. At that time, one Tourist Minibus bearing No.KA- 19-C-6991 was travelling from Mulky Vijaya College Road 5 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR towards National Highway and entered NH 66 towards Udupi. At the same time, a lorry bearing registration No.KA- 54-5314 came from Mangalore towards the Udupi side in a rash and negligent manner and collided with the Minibus. As a result of the collision, the Minibus turned turtle and fell on top of the minor. This resulted in the minor sustaining grievous injuries and succumbing to his injuries on the way to the Hospital.

3.1 A claim petition seeking compensation was filed by the parents of the deceased under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’). It was stated there that the deceased was aged about 12 years, studying sixth standard and had a good future. It was further stated that large amounts were spent on the Hospital charges, ambulance charges and other charges.

3.2 The claim petition was contested by the Insurance Companies of both the vehicles involved in the accident i.e., the Lorry as well as the Minibus before the learned Tribunal. 6 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR

4. Based on the pleadings of the parties, the following issues were framed by the learned Tribunal: “1) Whether the petitioners prove that their son Rakshith Kumar died in a Motor Vehicle Accident on

20.05.2018 at 7.45 p.m. at Sri.Durgaparameshwari Temple Junction, Bappanadu Village, due to rash and negligent driving of Mini bus bearing Reg.No.KA-19-C- 6991 and lorry bearing Reg.No.KA-54-5314by their respective drivers as contended? 2) Whether the respondent No.2 proves that driver of bus bearing Reg.No.KA-19-C-6991 had no valid and effective driving licence at the time of alleged accident? 3) Whether the petitioners are entitled for the compensation amount, if so what is the amount and from whom it is recoverable? 4) What Order or Award?”

5. The appellant No.2 examined herself as PW-1 and their Doctor as PW-2. A total of 46 documents were marked as Exhibit-P1 to P46 by the appellant No.2, which included Complaint (Exhibit-P2), accident information report (Exhibit-P6), charge-sheet (Exhibit-P9), Copy of driving license of the driver of the bus (Exhibit-P15), copy of the insurance policy of the bus (Exhibit-P16), Copy of driving 7 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR license of the driver of the lorry (Exhibit-P20), copy of the insurance policy of the bus (Exhibit-P21), wound certificate (Exhibit-25), disability certificate (Exhibit-26), Medical bills (Exhibit-P31) and Medical prescriptions (Exhibit-P32).

6. The learned Tribunal found that valid Insurance Policies existed for both the Lorry, as well as the Minibus. In addition, it found that the rash and negligent driving was proved. Based on the evidence before the learned Tribunal, notional income of Rs.6,000/- per month was taken for calculation of ‘loss of dependency’ and adding 30% towards ‘future prospects’ and deducting ½ towards personal expenses, calculated notional income at the rate of Rs.3,900/- per month, applying a multiplier of ‘15’, a sum of Rs.7,02,000/- was awarded towards ‘loss of dependency’. In addition, the learned Tribunal awarded compensation towards ‘loss of love and affection’ and other non-pecuniary heads in the following manner: Sl.No. Particulars 1 2 Loss of Dependency Loss of Love and Affection Amount (Rs.) 7,02,000/- 50,000/- 8 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR 3 4 Obsequies Ceremony Conveyance TOTAL 25,000/- 10,000/- 7,87,000/-

6.1. Thus, an amount of Rs.7,87,000/-, along with interest at 8% per annum was awarded.

7. As stated above, the challenge in the present appeal i.e., MFA No.1911/2020 is by the insurer of the offending Lorry.

8. Sri.Lakshminarayana, learned counsel appearing for the appellant/Insurance Company submits that firstly, the Impugned Award does not suffer from any infirmity since it is based on the law, as it was available as on the date of the accident. Secondly, he submits that 8% interest awarded on the compensation is not in accordance with the settled law. However, he fairly concedes that the notional income for the year 2018 was Rs.12,500/- per month.

9. The learned counsel for the respondents/claimants (appellants in MFA No.1342/2022) on the other hand submits that the notional income for the year 2018 was 9 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR Rs.12,500/- p.m., and thus the learned Tribunal has wrongly adopted the notional income. Secondly, he submits that the ‘loss of future prospects’ should have been taken at 40% in terms of the judgment in the National Insurance Co. Ltd. Vs. Pranay Sethi1 case. Further, on the aspect of interest, the learned counsel submits that the interest cannot be reduced, since this is a case of the death of a minor child. The parents have lost their only son and have suffered immensely. Reliance is placed on the recent judgment passed by the Supreme Court in Malarvizhi vs. United India Insurance2 case where interest at the rate of 9% per annum has been upheld.

10. Based on the contentions of the parties the following questions arise for determination before this Court: 1) Whether the appellants/claimants are entitled for enhancement of the compensation amount awarded by the learned Tribunal, if so, what is the amount? ORDER (i) The appeal in MFA No.1342/2022 is allowed in part; 25 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR (ii) The appeal in MFA No.1911/2020 is dismissed; (ii) The Judgment and Award dated 27.08.2019, in MVC No.1057/2018, passed by the Senior Civil Judge and Additional MACT, Karkala is modified, enhancing the compensation by Rs.12,24,000/- along with interest at the rate of 6% per annum as awarded by the learned Tribunal from the date of petition till realization; (iii)The remaining portion of the Impugned Award of the Tribunal remains undisturbed; (iv) The appellant/Insurance company is directed to pay the enhanced compensation with interest as awarded by the Tribunal within eight weeks from today; (v) On such deposit of compensation, the same shall be released in favour of the appellants/claimants, on 26 NC: 2026: KHC:25966-DB MFA No. 1342 of 2022 C/W MFA No. 1911 of 2020 HC-KAR filing of an appropriate application for withdrawal of the enhanced amount; (vi) The amounts deposited by the Insurance company, if any, shall be transferred to the concerned Tribunal for disbursement. (vii) The Registry is directed to draw the modified Award accordingly; (viii) The Registry is directed transmit a copy of this judgment along with its records and the amounts deposited by the Insurance Company to the concerned Tribunal forthwith; (ix) No order as to costs. Sd/- (JAYANT BANERJI) JUDGE Sd/- (TARA VITASTA GANJU) JUDGE JJ/YN List No.1, Sl. No.: 17 27