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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7411 OF 2013(MV)
BETWEEN:
1. SMT. P. SOWMYA
W/O LATE T.K. PRABHAKAR
AGED ABOUT 23 YEARS.
2. KUM. HARIPRIYA
D/O LATE. T.K. PRABHAKAR
AGED ABOUT 2 YEARS 8 MONTHS
3. SRI. KRISHNAPPA
S/O DODDA AYYAPPA
@ AYYAPPA
AGED ABOUT 57 YEARS
4. SMT. JAYALAKSHMAMMA
@ LAKSHMAMMA
W/O KRISHNAPPA
AGED ABOUT 52 YEARS.
APPELLANT NO.2 SINCE MINOR
REPTD. BY HER MOTHER
AND NATURAL GUARDIAN
APPELLANT NO.1 SMT. P. SOWMYA.
ALL ARE R/AT THENIYUR VILLAGE
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BENDIGANAHALLI POST
SULIBELE HOBLI, HOSKOTE TALUK
BANGALORE DISTRICT.
... APPELLANTS
(BY SRI. SHRIPAD V SHASTRI., ADV.)
AND
1. SRI. K. JAGADISH
S/O W.KRISHNAIAH
J.C.W.KRISHNAIAH
J.C. EXTENSION, VIJAYAPURA POST
BANGALORE RURAL DIST.
2. THE DIVISIONAL MANAGER
M/S NEW INDIA ASSURANCE
THIRD PARTY HUB
MAHALAKSHMI COMPLEX
M.G.ROAD, BANGALORE-01.
... RESPONDENTS
(BY SRI. ANUP SEETHARAMA RAO, ADV. FOR
SRI. B.C.SEETHARAMA RAO, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:01.06.2013 PASSED IN MVC NO.7480/2011
ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT
CSC, BANGALORE, 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 1.6.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 19.11.2011 the deceased was proceeding on his motorcycle bearing registration No.KA-02-ET-6023 from Hyadala towards Vijayapura to go to Theniyur, at that time, a lorry bearing registration No.KA-04-9629 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the 4 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 27 years at the time of accident and was doing agricultural and sericulture work and was earning Rs.6,000/- p.m. The claimants claimed compensation to the tune of Rs.25,00,000/- along with interest.
4. On service of summons, the respondent No.1 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 a false case has been filed against the driver of the lorry in order to help the victim. It was pleaded that the accident was due to the rash and negligent riding of the motorcycle by the 5 deceased himself. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.
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. The issuance of the policy is admitted subject to terms and conditions of the policy. It was further pleaded that the driver of the offending vehicle was not having valid licence as on the date of the accident. The date, time and place of accident is denied. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter 6 recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P9. On behalf of respondents, neither any witness was examined nor any document was produced. 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 compensation of Rs.6,60,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company 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:
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Firstly, the claimants claim that the deceased was earning Rs.6,000/- per month by doing agriculture and sericulture work. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.3,000/-.
Secondly, 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.
Thirdly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled 8 for compensation under the head of 'loss of love and affection and consortium'.
Fourthly, 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, even though the claimants claim that the deceased was earning Rs.6,000/- per month, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.
Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'. 9
Thirdly, the father of the deceased is not a dependent. The Tribunal has erred in deducting 1/4th of the income of the deceased towards personal expenses instead of 1/3rd.
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. 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. 10 Even as per the guidelines issued by the Karnataka State Legal Services Authority, for an accident taken place in the year 2011, the notional income is assessed at Rs.6,500/- p.m. Therefore, considering the evidence of the claimants, the notional income of the deceased can be taken at Rs.6,000/- 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.8,400/-. The Tribunal considering that even father of the deceased is also dependent, has rightly deducted 1/4th towards personal expenses and therefore, the monthly income comes to Rs.6,300/-. The deceased was aged about 27 years at the time of the accident and multiplier applicable to his age group is '17'. Thus, the claimants are entitled to 11 compensation of Rs.12,85,200/- (Rs.6,300*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 of spousal consortium', claimant No.2, daughter is entitled for compensation of Rs.40,000/- under the head of 'loss of parental consortium' and claimant Nos.4 and 5, 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'.
10. Thus, the claimants are entitled to the following compensation:
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Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,85,200
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 14,75,200
The claimants are entitled to a total
compensation of Rs.14,75,200/-.
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 allowed-in-part.
Sd/-
JUDGE DM/-