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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No. 6009 OF 2013(MV)
BETWEEN:
1. PAVITHRA
D/O LATE NAGESH
AGED ABOUT 25 YEARS
R/O BYRAPURA VILLAGE
ALUR TQ, HASSAN DISTRICT-573201.
2. RAMACHANDRAPPA
S/O LATE NINGEGOWDA
AGED ABOUT 58 YEARS.
3. JAYAMMA,
W/O RAMACHANDRAPPA
AGED ABOUT 53 YEARS
APPELLANTS NO. 2 & 3 ARE
PRESENTELY RESIDING AT
BYRAPPA VILLAGE
ALUR TQ, HASSAN DISTRICT-573 201.
4. BHOOMIKA
D/O PAVITHRA
AGED ABOUT 1 YEARS
R/O BYRAPURA VILLAGE
ALUR TQ, HASSAN DISTRICT
SINCE 4 APPELLANT IS MINOR
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REPRESENTED BY NATURAL
GUARDIAN FIRST APPELLANT
PAVITHRA.
... APPELLANTS
(BY SRI. GIRISH B BALADARE, ADV. )
AND
1. THE MANAGER
RELIANCE GENERAL INS. CO. LTD,
HASSAN.
2. JAYAMMA,
W/O RAMAKRISHNAIAH
NO.19/5-1, 3RD MAIN ROAD
KASTHURIBA NAGARA
MYSORE ROAD
BANGALORE-560 026.
... RESPONDENTS
(BY SRI. H.N.KESHAVA PRASHANTH, ADV. R1:
SRI. M.N.MADHUSUDHAN, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 16.03.2013 PASSED IN MVC NO.43/2009 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 16.3.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 12.10.2008 the deceased Nagesha was proceeding in autorickshaw Bearing registration No.KA-13-6989 on NH48 BM Road, near Chowlagere, Alur Taluk, at that time, Tata Sumo bearing registration No.KA-41-4078 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, 4 the deceased sustained grievous injuries and succumbed to the injuries.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 29 years at the time of accident and was employed as a driver and was earning Rs.6,000/- p.m. The claimants claimed compensation to the tune of Rs.15,00,000/- along with interest.
4. On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was not due to the rash and negligent driving of the offending vehicle. The driver of the offending vehicle was not having valid driving licence. It was further pleaded that the 5 quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.1 did not appear inspite of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of respondents, one witness was examined as RW-1 got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a 6 compensation of Rs.8,35,600/- along with interest at the rate of 6% p.a. and directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has raised the following contentions:
Firstly, the Tribunal has erred in fastening the liability on the owner of the offending vehicle on the ground that the driver of the offending vehicle i.e., Tata Sumo was having LMV non-transport driving licence and he was driving the transport vehicle at the time of the accident. He contended that the Apex Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663, has held that licence to drive LMV includes licence to drive transport 7 vehicle. Therefore, the Insurance Company is liable to pay compensation.
Secondly, the claimants claim that the deceased was earning Rs.6,000/- per month by working as driver. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.4,000/-.
Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards 'future prospects' should be the warrant where the deceased was below the age of 40 years.
Fourthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 8 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'.
Fifthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.
Hence, the learned counsel appearing for the claimants prays for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter-contentions:
Firstly, the driver of the offending vehicle was not having valid driving licence as on the date of the accident. The Tribunal considering the materials available on record has rightly fastened the liability on the owner of the offending vehicle.
Secondly, even though the claimants claim that the deceased was earning Rs.6,000/- per month by 9 working as driver, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.
Thirdly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'.
Fourthly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation.
Hence, the learned counsel for the Insurance Company prays for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the records.
9. It is not in dispute that deceased died in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver. 10
As per Ex.R-3, driving licence, it is seen that the driver of the offending vehicle was having driving licence to drive LMV non-transport vehicle. However, the Apex Court in the case of MUKUND DEWANGAN (supra), has held that a person having driving licence to drive LMV (non-transport) can also drive transport vehicle. In view of the said decision, I am of the opinion that the driver of the offending vehicle was having valid driving licence as on the date of accident. Accordingly, the finding of the Tribunal in respect of liability is concerned, the same is modified and it is held that Insurance Company is directed to pay compensation to the claimants.
10. The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the 11 accident has taken place in the year 2008, the notional income has to be taken at Rs.4,500/- p.m. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.6,300/-. Out of which, it is appropriate to deduct 1/4th towards personal expenses and therefore, the monthly income comes to Rs.4,725/-. The deceased was aged about 29 years at the time of the accident and multiplier applicable to his age group is '17'. Thus, the claimants are entitled to compensation of Rs.9,63,900/- (Rs.4725*17*12) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss 12 of spousal consortium', claimant No.4 is entitled for compensation of Rs.40,000/- under the head of 'loss of parental consortium' and claimant Nos.2 and 3, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head 'loss of filial consortium' .
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
11. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 963,900
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 40,000
consortium
Loss of Filial consortium 80,000
Total 11,53,900
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The claimants are entitled to a total
compensation of Rs.11,53,900/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE DM