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.9527 OF 2013 (MV)
BETWEEN:
1. SMT. USHALATHA K,
AGED 38 YEARS
W/O LATE RATHNAKARA RAO.
2. SUPRITHA R RAO,
AGED 16 YEARS
D/O LATE RATHNAKARA RAO.
3. NISHMITHA R RAO
AGED 14 YEARS
D/O LATE RATHNAKARA RAO.
(NO.2 & 3 ARE MINORS,
REPRESNTED BY THEIR
NEXT FRIEND AND MOTHER NO.1)
ALL ARE R/AT RADHAKRISHNA NILAYA
NEAR KURUMBA TEMPLE, KALBAVI
ASHOKNAGARA POST, MANGALORE,
D.K.-575 006.
... APPELLANTS
(BY SRI. PUNDIKA ISHWARA BHAT, ADV. )
2
AND
1. SRI. RAGHAVENDRA KINI
MAJOR,
S/O SARVOTHAM KINI
R/AT YAMUNA RESIDENCY
FLAT NO.204, 1ST FLOOR,
KUNTIKANA
MANGALORE, D.K.-575 008.
2. THE UNITED INSURANCE CO. LTD.,
BRANCH OFFICE: KANCHAN TOWER
N.H.17, KUNDAPURA
UDUPI DISTRICT-576 201.
... RESPONDENTS
(BY SRI.C.SHANKARA REDDY, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:29.09.2015)
THIS MFA IS FILED UNDER SECTION 173(1) MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
23.02.2013 PASSED IN MVC NO.377/2012 ON THE
FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE,
MEMBER, MACT, MANGALORE, D.K., PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION 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 23.2.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 26.12.2011, the deceased Rathnakar Rao was proceeding on his motorcycle bearing registration No.KL-14F-5704 from Ladyhill side towards Urvastore side and when he reached in front of More Marketing shop in Chilimbi, at that time, another motorcycle bearing registration No.KA-20-V- 7112 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 sustained grievous injuries and succumbed to injuries on 7.1.2012.
3. The claimants filed a petition under Section 166 of the Act on the ground that deceased was 4 working as a electrician and plumbing contractor and was earning Rs.25,000/- 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.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 rider of the offending vehicle did not possess valid driving licence as on the date of the accident. 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 5 appeared through counsel but did not choose to file written statement.
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 two other witnesses as PWs-2 and 3 and got exhibited documents namely Ex.P1 to Ex.P21. On behalf of respondents, no witness was examined but got exhibited document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, 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.11,73,134/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit 6 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.25,000/- per month by working as an electrician and plumbing contractor. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.9,000/-.
Secondly, 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'.
Thirdly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.
7
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.25,000/- 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, addition of 30% towards future prospects by the Tribunal is contrary to the law laid down by the Apex Court in the case of PRANAY SETHI.
Thirdly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation.
8
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 in order to prove the income and avocation of the deceased have produced Exs.P-11 and 12. The Tribunal has given a categorical finding that the deceased was an Electrical Wireman. Considering the age and avocation of the deceased, the income of the deceased can be taken at Rs.12,000/- 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, 9 the monthly income comes to Rs.13,200/-. Out of which, it is appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs.8,800/-. 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.11,61,600/- (Rs.8,800*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' and claimant Nos.2 and 3, children are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium'. 10
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'.
The compensation awarded by the Tribunal under the head of medical expenses is just and reasonable.
10. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 11,61,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Medical expenses 103,534
Total 14,15,134
The claimants are entitled to a total
compensation of Rs.14,15,134/-
The Insurance Company is directed to deposit the compensation amount along with interest at 6% 11 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