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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. 10161 OF 2013(MV)
BETWEEN:
1. NILAMBAR MISHRA
S/O LATE MAHESH MISHRA
AGED ABOUT 59 YEARS.
2. NILAM MISHRA
W/O NILAMBAR MISHRA
AGED ABOUT 49 YEARS.
BOTH ARE RESIDING AT
UPHRAIL CHOWK, NS-31
POLYTECHNIC POST
MARANGA P.S.PURNEA DISTRICT
BIHAR-854 303.
... APPELLANTS
(BY SRI.CHANDRASHEKAR, ADV. )
AND
1. PURUSHOTAMA NAIDU D
S/O VENUGOPALA NAIDU D
AGE MAJOR
R/AT NO.37/2, GIRIJAMMA BUILDING
2
BASAVANAPURA ROAD
NANJAMMA LAYOUT
K R PURAM, BANGALORE-560 036.
2. THE ORIENTAL INSURANCE CO. LTD.,
NO.20, II FLOOR, OPP:PAI VICEROY HOTEL
9TH MAIN, III BLOCK, JAYANAGAR
BANGALORE-11(REP BY ITS MANAGER).
... RESPONDENTS
(BY SRI.K.K.VASANTH, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.01.2013 PASSED IN MVC NO.7223/2011
ON THE FILE OF THE 19TH ADDITIONAL CIVIL JUDGE,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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', 3 for short) has been filed by the claimants being aggrieved by the judgment dated 2.1.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 12.3.2011 the deceased was proceeding on motorcycle Bearing registration No.KA- 01-ES-2275 as a pillion rider, at that time, the rider of the said motorcycle rode the same in a rash and negligent manner, lost control, hit the footpath and caused accident. As a result of the aforesaid accident, 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 28 years at the time of accident and was employed as Branch Supervisor at South Eastern Roadways, Hosur, Tamil Nadu, and was earning 4 Rs.8,000/- p.m. The claimants claimed compensation to the tune of Rs.20,00,000/- along with interest.
4. On service of summons, the respondents appeared through counsel and filed separate written statements 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 riding of the motorcycle by the rider. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.
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 got exhibited documents namely Ex.P1 to Ex.P20. 5 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.5,09,000/- along with interest at the rate of 8% 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:
Firstly, the claimants claim that the deceased was working as Branch Supervisor at South Eastern Roadways, Hosur, Tamil Nadu, and was earning 6 Rs.8,000/- p.m. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.4,500/-.
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 for compensation under the head of 'loss of love and affection and consortium'.
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Fourthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.
Fifthly, immediately after the accident, the deceased was shifted to Mallya Hospital and he was treated for 6 days in the hospital and later he died on 18.3.2011. The claimants have produced medical bills for Rs.80,000/- as per Ex.P-20 series. But the Tribunal has failed the consider the same.
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.8,000/- per month, the same is not established by the claimants by producing 8 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'.
Thirdly, the interest awarded by the Tribunal at 8% p.a. on the compensation amount is on the higher side.
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 9 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 as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2011, the notional income has to be taken at Rs.6,500/- 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.9,100/-. Out of which, it is appropriate to deduct 50% towards personal expenses since the deceased was a bachelor and therefore, the monthly income comes to Rs.4,550/-. The deceased was aged about 28 years at the time of the accident and multiplier applicable to his age group is '17'. Thus, the claimants are entitled 10 to compensation of Rs.9,28,200/- (Rs.4550*17*12) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimants 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'.
Regarding medical expenses is concerned, the accident occurred on 12.3.2011. Immediately after the accident, the deceased was shifted to Mallya Hospital and he was treated for 6 days and later he succumbed to the injuries on 18.3.2011. The claimants have produced original medical bills amounting to Rs.80,000/- as per Ex.P-20 series. Considering the evidence of the claimants and Ex.P- 11 20, the claimants are entitled for compensation of Rs.80,000/- under the head of 'medical expenses'.
10. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 928,200
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 80,000
Medical expenses 80,000
Total 11,18,200
The claimants are entitled to a total
compensation of Rs.11,18,200/- as against
Rs.5,09,000/- awarded by the Tribunal.
In respect of rate of interest is concerned, since the accident is of the year 2011, as per the RBI guidelines, the rate of interest was 6.75%. Therefore, the enhanced compensation amount shall carry interest at the rate of 6.75% p.a. instead of 8% p.a. granted by the Tribunal.
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The Insurance Company is directed to deposit the compensation amount along with interest 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