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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8902 OF 2013(MV)
BETWEEN:
1. SMT. SHET LAKSHMI
W/O LATE NARAYAN
@ NARAYAN KARIAPPA SHET
AGED ABOUT 60 YEARS
R/AT NO.102, DIVARAKERI
TAREHALLY KANASUR
SIDDAPURA TALUK
UTTARA KANNADA DISTRICT
KARNATAKA.
2. SRI. DINESH
S/O LATE NARAYAN
@ NARAYAN KARIAPPA SHET
AGED ABOUT 35 YEARS
R/AT NO.298-2,
19TH MAIN ROAD, 1ST BLOCK
BANASHANKARI 1ST STAGE
BANGALORE-560 050.
3. SRI. MAHESH
S/O LATE. NARAYAN
@ NARAYAN KARIAPPA SHET
AGED ABOUT 33 YEARS
R/AT NO.298-2
2
19TH MAIN ROAD, 1ST BLOCK
SRINAGAR
BANGALORE-560 019.
... APPELLANTS
(BY SRI.M.K.KEMPEGOWDA, ADV. )
AND
1. SANJAY DADA PAWAR
S/O DODA, MAJOR
AT POST MHASOBA NAGAR
SHIRADI TOWN, RAHATA TALUK
AHMADNAGAR DISTRICT
MAHARASHTRA STATE-413709.
2. THE UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
KRISHI BHAVAN
NRUPATHUNGA ROAD
BANGALORE-560 001
REPRESENTED BY ITS
BRANCH MANAGER.
... RESPONDENTS
(BY SRI.Y.P.VENKATAPATHI, 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: 21.02.2013 PASSED IN MVC NO.4378/2011
ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT OF COMPENSATION.
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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', for short) has been filed by the claimants being aggrieved by the judgment dated 21.2.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 1.12.2010 the deceased Narayan was walking as a pedestrian along with his wife and son in front of Hotel Sai Plaza in Shirdi Town, Nagarmanmad Road, at that time, a Hero Honda Motorcycle bearing registration No.MH-17-AC-5296 which was being ridden in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained 4 grievous injuries and succumbed to the injuries in the hospital.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 65 years at the time of accident and was employed as Jewellery and arecanut business and was earning Rs.25,000/- p.m. The claimants claimed compensation to the tune of Rs.10,00,000/- 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 not due to the rash and negligent riding of the motorcycle by its rider. The liability is subject to terms and conditions of 5 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 got exhibited documents namely Ex.P1 to Ex.P7. 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 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 6 compensation of Rs.2,41,000/- 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.25,000/- per month by doing jewelery and arecanut business. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.3,300/-.
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], the claimants are entitled for compensation of Rs.15,000/- under the 7 head of 'loss of estate' and Rs.15,000/- under the head of 'transportation and funeral expenses'.
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.
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 8 same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.
Secondly, the claimant No.1 wife of the deceased in the only dependent and claimant Nos.2 and 3 are major children of the deceased and they are not dependent and therefore 50% of the income of the deceased has to be deducted towards personal expenses instead of 1/3rd deducted by the Tribunal.
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.
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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 as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2010, the notional income has to be taken at Rs.5,500/- p.m. Out of which, it is appropriate to deduct 1/3rd towards personal expenses, since the deceased was a married person and therefore, the monthly income comes to Rs.3,667/-. The deceased was aged about 65 years at the time of the accident and multiplier applicable to his age group is '7'. Thus, the claimants are entitled to compensation of Rs.3,08,028/- (Rs.3,667*7*12) on account of 'loss of dependency'.
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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 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'.
Compensation awarded by the Tribunal under 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 308,028
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
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consortium
Loss of Parental 80,000
consortium
Medical expenses 12,000
Total 470,028
The claimants are entitled to a total
compensation of Rs.470,028/-
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 excluding interest for the delayed period of 122 days in filing the appeal.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE DM