Kum. Tanishqa Kothari and Kum. Diya Kothari V. Ashok Glass House and K. Harish Kumar and ICICI Lombard General Insurance Company Ltd

MFA/4216/2011

AI Insights

The case involves a motor vehicle accident where the deceased, a B.Com graduate and business manager, was killed. The accident occurred when the driver of the car, attempting to avoid a head-on collision, lost control and the car overturned. The Tribunal initially awarded compensation to the deceased's minor daughters, which was contested by the Insurance Company for being excessive, and by the claimants for being insufficient. The High Court found that the Tribunal did not adequately consider the deceased's actual income and remanded the case for a reassessment of the compensation based on a more accurate determination of the deceased's notional income.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 799259 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 06-11-2014
• Assessment Year: misc
• Laws Referred To: MV Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: H N PRASHANTH
• Assessee Lawyers: NAMITHA B G
• Keywords: Compensation Enhancement; Notional income; Remand to Tribunal
• Section: 173(1)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE ON THE 6TH DAY OF NOVEMBER 2014 BEFORE THE HON’BLE MR.JUSTICE K.L.MANJUNATH AND THE HON’BLE MR.JUSTICE RAVI MALIMATH M.F.A. NO.4216/2011 (MV) C/W M.F.A. NO.10356/2010 (MV) IN M.F.A. NO.4216/2011 (MV): BETWEEN: 1. KUM. TANISHQA KOTHARI, AGE 11 YEARS, 2. KUM. DIYA KOTHARI, AGED 8 YEARS, BOTH ARE MINOR DAUGHTERS OF HARISH KUMAR, REP. BY THEIR GUARDIAN-GRANDMOTHER SMT. SAYAR BAI, RESIDING AT DOOR NO.2027, SEEBAIAH ROAD, DEVARAJA MOHALLA, SRIRAMAPET, MYSORE. 2 BY HER GPA HOLDER SRI. VINOD KUMAR, S/O. KEVALCHAND KOTHARI, AGE : MAJOR, R/O. NO.2027, SEEBAIAH ROAD, DEVARAJA MOHALLA, SRIRAMPET, MYSORE-570 001. …APPELLANTS (BY SMT. NAMITHA MAHESH B.G., ADVOCATE) AND: 1. M/S. ASHOK GLASS HOUSE, NO.10, BEHIND ALAMMA CHOULTRY, VINOBA ROAD, MYSORE-570 001, BY ITS PROP. G. KEVALCHAND KOTHARI, OWNER OF CAR KA-09-N-7669. 2. K. HARISH KUMAR, AGED 33 YEARS, S/O. G. KEVALCHAND KOTHARI, R/AT NO.2027, SEEBAIAH ROAD, DEVARAJA MOHALLA, SRIRAMPET, MYSORE – 570 001. 3. ICICI LOMBARD GENERAL INSRUANCE COMPANY LTD, REPRESENTED BY ITS MANAGER, MYTHRI ARCADE, KANTHARAJA URS ROAD, SARASWATHIPURAM, MYSORE – 570 001. …RESPONDENTS (BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R-3, R-1 AND R-2 ARE SERVED) 3 THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.08.2010 PASSED IN MVC NO.30/2008 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN M.F.A. NO.10356/2010 (MV): BETWEEN: M/S. ICICI LOMBARD GENERAL INSRUANCE COMPANY LTD, MYTHRI ARCADE, KANTHARAJA URS ROAD, SARASWATHIPURAM ROAD, MYSORE – 570 001. NOW REP BY ITS MANAGER M/S. ICICI LOMBARD GENERAL INSRUANCE COMPANY LTD, SVR COMPLEX, NO.89, 2ND FLOOR HOSUR MAIN ROAD, BANGALORE – 560 068. ….. APPELLANT (BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE) AND: 1. KUM. TANISHQA KOTHARI, AGE 9 YEARS, 2. KUM. DIYA KOTHARI, AGED 5 YEARS, 4 BOTH ARE MINOR DAUGHTERS OF HARISH KUMAR, REP. BY THEIR GRANDMOTHER SMT. SAYAR BAI, RESIDING AT DOOR NO.2027, SEEBAIAH ROAD, DEVARAJA MOHALLA, SRIRAMAPET, MYSORE. 3. M/S. ASHOK GLASS HOUSE, NO.10, BEHIND ALAMMA CHOULTRY, VINOBA ROAD, MYSORE, BY ITS PROP G. KEVALACHAND KOTHARI, OWNER OF THE CAR KA-09-N-7669. 4. K. HARISH KUMAR, AGED 33 YEARS, S/O. G. KEVALACHAND KOTHARI, RESIDING AT DOOR NO.2027, SEEBAIAH ROAD, DEVARAJA MOHALLA, SRIRAMPET, MYSORE. DRIVER OF THE CAR KA-09-N-7669. ….. RESPONDENTS (BY SMT. NAMITHA MAHESH B.G., ADVOCATE FOR R-1 & R-2; R-3 & R-4 ARE SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.08.2010 PASSED IN MVC NO.30/2008 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MACT, MYSORE, AWARDING A COMPENSATION OF RS.14,83,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT. ***** 5 THESE MFA’S COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:- JUDGMENT Aggrieved by the judgment and award dated 12.08.2010 passed in MVC No. 30/2008, the claimants have filed the present appeal seeking enhancement. 2. The liability is admitted. The case of the claimants is that on 10.11.2007, the deceased was proceeding towards Chikkamagalur in a car bearing registration No.KA-09-N-7669 and when they reached near weighbridge on Hassan-Mysore Road at K.R. Nagar town, another vehicle came from opposite direction and in order to avoid head on collusion, the driver of the car took the car to the extreme left side and in the process, the said car turtled down and the deceased sustained severe injuries. She was shifted to the General Hospital at K.R. Nagar and she was 6 declared dead. She was a B.Com graduate and looking after the business and also accounts of various firms. She was an income tax assessee and her annual income was Rs.4,37,313/-. 3. The minor daughter of the deceased filed the claim petition. The tribunal has awarded a compensation of Rs.14,83,000/- along with the interest. The claimants have filed M.F.A. No.4216/2011 seeking enhancement of compensation. 4. The Insurance Company has filed M.F.A. No.10536/2011 questioning the excessive grant for compensation. 5. Heard learned counsels’ and examined the records. The Tribunal disbelieved the case of the claimant. So far as the notional income is concerned, we are of the view that the Exs.P-2 to P-4 do not 7 show that the deceased was having a monthly income of Rs.35,000/- per month. The income tax returns pertain to the firm. Under these circumstances, the tribunal has taken the notional income of the deceased at Rs.15,000/- per month and awarded a compensation of Rs.14,83,000/-. 6. Learned counsel for the claimants contends that Exs.P-2 to 4 would clearly indicate that the deceased was having additional income as mentioned in the said exhibits. These are the other further materials which also requires to be considered by the Tribunal in order to show that the deceased was having income as claimed by the claimants. Hence liberty be granted to the claimants to place relevant documents before the Tribunal. On the basis of Exs.P- 2 to 4 and in order to assess a proper notional income of the deceased, we are of the considered view that to 8 meet the ends of justice, the matter be remanded to the Tribunal for a fresh consideration. The claimants are at liberty to produce such materials as are necessary in order to justify their stand with regard to the notional income. 7. Accordingly, the Order dated 12.08.2010 passed in MVC No.30/2008 on the file of the III Additional Senior Civil Judge and MACT, Mysore is set aside. The matter is remitted to the Tribunal for a fresh consideration. The claimants are permitted to lead fresh evidence and produce materials to substantiate the case before the tribunal. The parties to appear before the Tribunal on 08.12.2014. 9 The amount in-deposit may be transmitted to the Tribunal. Sd/- JUDGE Sd/- JUDGE snc "