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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.1746 OF 2013(MV)
C/W
MFA CROB No.58 OF 2013(MV)
IN MFA 1746/2013
BETWEEN:
M/S.UNITED INDIA INSURANCE
COMPANY LIMITED
HUNASUR CLUB COMPLEX
POST OFFICE ROAD, HUNASUR-571165
NOW REP.BY ITS REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NARUPATHUNGA ROAD,
BANGALORE-560 001.
REP. BY ITS MANAGER.
...APPELLANT
(BY SRI. LAKSHMI NARASAPPA, ADV. FOR
SRI.A M VENKATESH, ADV.)
AND
1. H.LOKESH @ LOKESH
S/O HUCHEGOWDA @ T.HUCHEGOWDA
AGED ABOUT 42 YEARS
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2. THARAKESHWARI @ TARA
W/O H LOKESH @ LOKESH
AGED ABOUT 40 YEARS.
3. DAKSHAYINI G L
D/O H LOKESH @ LOKESH
AGED ABOUT 20 YEARS.
ALL ARE R/AT GANDHIGARAMA
KASABA HOBLI
NANJANGUD TALUK.
4. SURESH C
S/O CHENNANAYAK
AGED ABOUT 30 YEARS
R/AT NO.137, DEBUR VILLAGE
KASABA HOBLI NANJANGUD TALUK.
5. ABIBULLA
S/O SABEER AHMED
AGED ABOUT 47 YEARS
R/AT NO.1/161, DIVISION 1
MUSLIM BLOCK, H D KOTE 571114
MYSORE DISTRICT.
...RESPONDENTS
(BY SRI. R.C.NAGARAJ, ADV. FOR R1 TO R3:
R4 & R5 ARE SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.08.2012 PASSED IN MVC NO.65/2011 ON
THE FILE OF THE MACT AND SENIOR CIVIL JUDGE,
NANJANGUD, AWARDING A COMPENSATION OF
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RS.6.80,000/- WITH INTEREST @ P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
IN MFA CROB.58/2013
BETWEEN
1. H.LOKESH @ LOKESH
S/O HUCHEGOWDA @ T.HUCHEGOWDA
AGED ABOUT 42 YEARS
2. SMT.THARAKESHWARI @ TARA
W/O H LOKESH
AGE 40 YEARS.
3. DAKSHAYINI G L
D/O H LOKESH
AGE 20 YEARS.
ALL ARE RESIDENTS OF GANDHIGARAMA
KASABA HOBLI
NANJANGUD TALUK.
MYSORE DIST-571301.
...CROSS OBJECTORS
(BY SRI. R.C.NAGARAJ, ADV.)
AND
1. SURESH C
S/O CHENNA NAIKA
28 YEARS
NO.137, DEBUR VILLAGE
KASABA HOBLI
NANJANGUD TALUK-571301.
2. ABIBULLA
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S/O SABEER AHMED
47 YEARS
NO.1/161, DIVISION 1
MUSLIM BLOCK, H D KOTE-571114
MYSORE DISTRICT.
3. M/S.UNITED INDIA INSURANCE
COMPANY LTD.,
HUNASUR CLUB COMPLEX
POST OFFICE ROAD, HUNASUR-571165
REP.BY ITS REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NARUPATHUNGA ROAD,
REP. BY ITS MANAGER.
...RESPONDENTS
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A.M.VENKATESH, ADV. FOR R3:
NOTICE TO R1 & R2 IS DISPENSED WITH
V/O DATED:09.09.2019)
THIS MFA CROB. FILED UNDER ORDER 41 RULE
22 OF CPC, R/W SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED:02.08.2012 PASSED IN MVC NO.65/2011 ON
THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
NANJANGUDU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THIS MFA & MFA CROB. COMING ON FOR
ADMISSION, THROUGH VIDEO CONFERENCE THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.1746/2013 is filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) whereas MFA Crob.No.58/2013 is filed by the claimants under Order 41 Rule 22 of CPC being aggrieved by the judgment dated 02.06.2012 passed by the Motor Accident Claims Tribunal. Since, both the appeal and the cross-objection arise out of the same accident as well as a common judgment, they were heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeal and cross objection briefly stated are that on 23.06.2011 at about 4.00 p.m., the deceased Madhu 6 G.L. @ Madhusudan G.L. was proceeding on tempo bearing registration No.KA-09-2431, driven by its driver, on Nanjangud - Hullahalli road, near Shiramalli Gate. When the said tempo reached near the land of Dwarakanath, the driver of the said vehicle drove the same at a high speed and in a rash and negligent manner, due to the said impact, the tempo got turtled. As a result of the aforesaid accident, the deceased succumbed to the injury at the spot.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 16 years at the time of accident and was studying in I year PUC. He was a bright student and had a great future. The claimants claimed compensation to the tune of Rs.51,00,000/- along with interest.
4. On service of summons, the respondent No.3 appeared through the counsel and filed written 7 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 and it is liable to be dismissed. It was further pleaded that the accident was not due to rash and negligent driving of the tempo by its driver. Hence, he sought for dismissal of the petition. The respondent Nos.1 and 2 did not appear inspite of service of notice and were 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 9 documents namely Ex.P1 to Ex.P9. On behalf of respondents, they have not examined any witness, but got marked insurance policy as Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held 8 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.6,80,000/- 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 and cross objection have been filed.
6. The learned counsel for the Insurance Company has raised the following:
Firstly, the claimants have not produced any documents to show that the deceased was aged about 16 years at the time of accident. The Tribunal is not justified in taking multiplier as '18' instead of 15. The Tribunal has assessed monthly income of the deceased as Rs.4,500/-, which is on the higher side 9 since the deceased was a student and he was not an earning member of the family. In support of his contention he relied upon the judgment of the Hon'ble Apex Court in the case of Kishan Gopal and Another -v- Lala and others, reported in ACJ 2594.
Secondly, since the deceased was a minor, the claimants have not produced any documents in respect of his age proof. Therefore, they are not entitled any compensation under the head of 'loss of future prospects'. In support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Rajendra Singh and Others -v- National Insurance Company Limited and Others in Civil Appeal No.2534/2020, arising out of SLP (Civil) 13964/2018.
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Thirdly, the deceased was a bachelor, the Tribunal instead of deducting 50%, has deducted 1/3 towards personal expenses of the deceased.
Fourthly, the compensation of Rs.6,48,000/- awarded by the Tribunal under the head of 'loss of dependency' is on the higher side. Hence, the learned counsel for the Insurance Company prays for allowing of the appeal filed by the Insurance Company in MFA.No.1746/2013 and dismissing the Cross objection filed by the claimants in MFA.Crob.58/2013.
6. On the other hand, the learned counsel for the claimants has raised the following counter contentions:
Firstly, the deceased was aged about 16 years and was studying in I year PUC in Government College, Nanjangud. He was a bright student and was participated in number of competitions, and he was the only son and he had very good academic records. 11
Secondly, it is very clear from Ex.P3, post mortem report that, the age of the deceased is mentioned as 16 and multiplier applicable to the said age group is '18'. In support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Sarla Verma and Others -v- Delhi Transport Corporation and others reported in AIR 2009 SCC 3104.
Thirdly, the deceased was a bright student, and had a great future and he was assisting his father in the agricultural work. The monthly income assessed by the Tribunal as Rs.4,500/- is on the lower side.
Fourthly, it is very clear from the evidence of the parties that the deceased had a very good future and academic records. As per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND 12 OTHERS [AIR 2017 SC 5157], the Tribunal has not assessed any future prospects.
Fifthly, in view of the law laid down by the Hon'ble Apex Court in the case of Kishan Gopal and others (supra), the deceased was only aged about 10 years. In the case on hand, the deceased was 16 years old boy and he had very good academic records. Hence, the learned counsel for the claimants prays for allowing of the Cross objection filed by the claimants in MFA.Crob.58/2013 and dismissing the appeal filed by the Insurance Company in MFA.No.1746/2013.
8. Heard the learned counsel for the parties and perused the records.
9. It is not in dispute that deceased Madhu G.L. @ Madhusudan G.L., died in a road traffic accident occurred due to rash and negligent driving of the tempo bearing Reg.No.KA-09-2431 offending 13 vehicle by its driver. At the time of accident, the deceased was studying in I year PUC in Government College, Nanjangud. It is very clear from the post mortem report, Ex.P3, he was aged about 16 years. As per the evidence of PW.1, it is specifically stated that the deceased was only a son of the claimants. The deceased was a bright student and had a very good academic records. In the cross-examination nothing worthwhile has been elicited. Taking into consideration the evidence of the parties and materials available on record, monthly income of the deceased assessed by the Tribunal of Rs.4,500/- is just and reasonable.
10. It is very clear from the school records as well as Ex.P.3, the deceased was aged about 16 years. Hence, as per the law laid down by the Hon'ble Apex Court in the case of Sarla Verma (Supra), the multiplier applicable to the said age group is 18. 14
11. In respect of future prospects is concerned, it is not in dispute that the deceased was aged about 16 years and was studying in I year PUC in Government College, Nanjangud. As per the evidence of PW.1, the deceased was a bright student and had a very good academic records. PW.1 has specifically deposed that he has given education to his son to get good job in the future. Taking into consideration the age of the deceased and deposition of PW.1 and also in view of the law laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra) 40% of the income of the deceased has to be added for future prospects. Thus, the monthly income comes to Rs.6,300/-, out of which, it is appropriate to deduct 50% towards personal expenses as the deceased was a bachelor and therefore, the monthly income comes to Rs.3,150/-. The deceased was aged about 16 years at the time of the accident and 15 multiplier applicable to his age group is '18'. Thus, the claimants are entitled to compensation of Rs.6,80,400/- (Rs.3150*12*18) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimant Nos.1 and 2, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head of 'loss of filial consortium', claimant No.3, sister is entitled for compensation of Rs.40,000/- under the head of 'loss of love and affection'.
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'.
12. Thus, the claimants are entitled to the following compensation:
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Compensation under Amount in
different Heads (Rs.)
Loss of dependency 6,80,400
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 80,000
Loss of love and 40,000
affection
Total 8,30,400
The claimants are entitled to a total
compensation of Rs.8,30,400/-.
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.
The amount in deposit before this Court shall be transferred to the claims Tribunal. 17
Accordingly, the appeal and Cross objection are disposed of.
Sd/-
JUDGE Mkm/-