1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7713 OF 2013(MV)
BETWEEN:
1. SMT. GEETHA
W/O LATE. SHANMUGAM @ SATHISH
AGED ABOUT 38 YEARS.
2. MASTER SHARATHCHANDRA S
S/O LATE SHANMUGA, @ SATHISH
AGED ABOUT 11 YEARS.
3. KUM. SHANKITHA
D/O LATE. SHANMUGAM @ SATISH
AGED ABOUT 10 YEARS.
APPELLANT NO.2 & 3 ARE MINORS
AND HENCE THEY ARE REPRESENTED BY
THEIR NATURAL GUARDIAN
MOTHER SMT. GEETHA.
ALL ARE RESIDING AT DURGA NIVAS
HOSABETTU VILLAE AND POST
MUDABIDRI, MANGALORE
D.K. DISTRICT PIN-574227.
... APPELLANTS
(BY SRI.G.RAVISHANKAR SHASTRY, ADV. )
2
AND
1. SANTHOSH SHETTY
S/O VITTALA SHETTY
AGED ABOUT 42 YEARS
H NO 5-56, PUTHIGE POST & VILLAGE
MUDABIDRI, MANGALORE
D.K. DISTRICT PIN-574227.
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, NITHYANANDA COMPLEX
NEAR BUS STAND
MOODABIDRI PIN-574 227.
... RESPONDENTS
(BY SRI. L.SREEKANTA RAO, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:02.09.2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:09.01.2013 PASSED IN MVC NO.474/2011 ON
THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER, MACT, MANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSTION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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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 claimant being aggrieved by the judgment dated 9.1.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 23.2.2011, the deceased Shanmugam was proceeding on his motorcycle along with his son from Moodabidri towards Iruvail, near Mastikatte, Hosabettu Village, at that time, Tata Goods vehicle bearing registration No.KA-20-3113 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the deceased. As a result of the aforesaid accident, the deceased fell down and wheel of the offending 4 vehicle ran over his head and he was shifted to hospital, where he was declared as dead.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 51 years at the time of accident and was employed as Cook at Kuwait and was earning Rs.30,000/- p.m. The claimants claimed compensation to the tune of Rs.20,00,000/- 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 due to the rash and negligent riding of the motorcycle by the deceased himself. The petition is bad for non-joinder 5 of necessary parties. The liability is subject to terms and conditions of the policy. 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.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.P17. On behalf of respondents, one witness was examined as RW-1 got exhibited documents namely Ex.R1. 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, 6 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.6,12,000/- 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:
Firstly, the claimants claim that the deceased was earning Rs.30,000/- per month by working as cook at Kuwait. They have produced bank pass book Exs.P-9 and 10. Even though the Tribunal has given a finding that the deceased was a skilled labour, but it is not justified in taking the monthly income of the deceased as merely as Rs.6,500/-.
Secondly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL 7 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 10% of the established income towards 'future prospects' should be the warrant where the deceased was between the age group of 50 to 60 years. But the Tribunal has failed to consider the same.
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'.
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. 8
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.30,000/- per month by working as cook at Kuwait, but Ex.P-17-ID card of the deceased issued by the employer shows that it has expired on 22.6.2010. Therefore, it is clear that as on the date of the accident he was not working as cook at Kuwait. Further, as per the bank statements produced by the claimants, the deceased was sending money to his family members till 2010 and thereafter there is no entry in the bank statement. Therefore, it is clear that he was not working at Kuwait as on the date of the accident. Therefore, the Tribunal has rightly assessed the income of the deceased notionally. 9
Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'.
Thirdly, 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.
With regard to income of the deceased, considering that the deceased was a skilled labour, working as cook at Kuwait and considering his age, the income of the deceased can be taken at 10 Rs.10,000/- p.m. To the aforesaid amount, 10% 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.11,000/-. Out of which, it is appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs.7,333.33/-. The deceased was aged about 51 years at the time of the accident and multiplier applicable to his age group is '11'. Thus, the claimants are entitled to compensation of Rs.9,68,000/- (Rs.7333.33*11*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 Nos.2 and 3, children 11 are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental 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:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 9,68,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Total 11,18,000
The claimants are entitled to a total
compensation of Rs.11,18,000/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% 12 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