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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.834 OF 2014(MV)
BETWEEN:
1. Smt. Dayavathi V Salian,
Aged about 48 years,
W/o Late. Vijay Salian.
2. Prajosh,
Aged about 24 years,
S/o Late. Vijay Salian.
3. Pravidh,
Aged about 20 years,
S/o Late. Vijaya Salian,
All re R/o at Punache House,
Sabthosh Nagar, Karamballi,
Udupi Taluk & District Pin- 5761102.
... Appellants
(By Sri.Thejas Rai, Advocate)
AND:
1. Roopesh Kumarshetty,
Aged 30 years,
S/o Lingappa Shetty,
R/o Sai Nilaya, Udhana,
Adyapady, Bajpe,
Mangalore.
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2. The Sri Ram General Insurance Co. Ltd.,
Mangalore rep. by its nearest
The Divisional manager
Divisional Office,
Priyadarshani Building,
2nd Floor, near city bus stand
Udupi taluk & District pin-576102.
... Respondents
(By Sri.B.C.Shivanne Gowda, Advocate 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:19.10.2013
passed in MVC No.1066/2013 on the file of the
Principal Senior Civil Judge, Additional MACT, Udupi,
partly allowing the claim petition for compensation
and seeking enhancement of compensation.
This MFA, coming on for orders, this day, this
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 19.10.2013 passed 3 by the Motor Accident Claims Tribunal, Udupi in MVC No.1066/2010.
2. Facts giving rise to the filing of the appeal briefly stated are that on 10.05.2010 at about 4.15 p.m. the deceased Vijaya Salian was proceeding towards Mangalore from Udupi in a Maruthi car bearing registration No.KA-19/B-9643. When he reached near Petrol bunk, one goods vehicle bearing registration No. KA-19/B-9147 came from Udupi to Mangalore at a high speed and in a rash and negligent manner, dashed against the hind portion of the car. As a result of the aforesaid accident, the deceased sustained grievous injuries and was hospitalized and he succumbed to the injuries on 14.05.2010.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 52 years at the time of accident, was an 4 astrologist and was earning Rs.20,000/- to Rs.25,000/- per month. The claimants claimed compensation to the tune of Rs.21,22,500/- 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 driver of the maruthi car was not holding a valid and effective driving licence as on the date of the accident. It was further pleaded that the claimants are not dependents on the income of the deceased and they are having their own source of income. Hence, he sought for dismissal of the petition. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.
5. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and other two 5 witnesses as PW-2 and PW-3 and got exhibited 10 documents namely Ex.P1 to Ex.P10. On behalf of respondents, no witness was examined but got exhibited one 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 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.11,03,000/- along with interest at the rate of 6% p.a. and directed the insurance company to deposit the compensation amount along with interest. Being not satisfied with the quantum of compensation, claimant has filed this appeal.
6. The learned counsel for the claimants has raised the following contentions:
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Firstly, the claimants claim that the deceased was earning Rs.20,000/- to Rs.25,000/- per month. But the Tribunal is not justified in taking the monthly income of the deceased as only Rs.11,000/-.
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 addition of 10% towards future prospects.
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, he prays for allowing the appeal. 7
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.20,000/- to Rs.25,000/- per month, the same is not established by the claimants by producing documents. Therefore, the Tribunal has considered the monthly income of the deceased as Rs.11,000/- which includes future prospects. Hence, the claimants are not entitled for addition of future prospects.
Secondly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award.
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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. The Tribunal after considering the oral and documentary evidence has rightly assessed the monthly income of the deceased as Rs.11,000/-. 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.12,100/-, out of which, it is appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to Rs.8,067/-. The deceased was aged about 52 years at the time of the accident and multiplier applicable to his age group is '11'. Thus, the claimants are entitled 9 to compensation of Rs.10,64,844/- (Rs.8,067*12*11) 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'.
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 heads 'conveyance' and 'medical expenses' are retained.
10. Thus, the claimants are entitled to the following compensation:
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Compensation under Amount in
different Heads (Rs.)
Loss of dependency 10,64,844
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Conveyance 2,000
Medical expenses 58,000
Total 12,74,844
The claimants are entitled to a total compensation of Rs.12,74,844/-. The Insurance Company is directed to deposit the compensation amount along with interest at the rate of 6% p.a. from the date of petition till the date of payment, 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 Cm/-