Karnataka High Court
Smt Chandrika S T vs V P Rathna on 30 July, 2024
Author: H T Narendra Prasad
Bench: H T Narendra Prasad
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NC: 2024:KHC:29969
MFA No. 9108 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 9108 OF 2018 (MV-D)
BETWEEN:
1. SMT CHANDRIKA S T
W/O LATE S.R.DHARMAPPA,
AGED ABOUT 31 YEARS,
2. AMIT S D
S/O LATE S.R.DHARMAPPA,
AGED ABOUT 18 YEARS,
3. APPU
S/O LATE S.R.DHARMAPPA,
AGED ABOUT 16 YEARS,
MINOR,
HE IS REPRESENTED BY HIS
Digitally signed by MOTHER SMT. CHANDRIKA S T
HEMALATHA A
Location: HIGH
COURT OF 4. GANGAMMA
KARNATAKA W/O LATE S.R.DHARMAPPA,
AGED ABOUT 76 YEARS
5. S R RUDRAPPA
S/O RAMAPPA,
AGED ABOUT 78 YEARS.
R/AT KOTE SIRANGALA VILLAGE
SIRANGALA POST, KUSHALANAGAR
SOMWARPET TALUK - 571 234 ...APPELLANTS
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MFA No. 9108 of 2018
(BY SMT.SUMA KEDILAYA FOR SRI PADMANABHA KEDILAYA V.,
ADVOCATE)
AND:
1. V P RATHNA
W/O V.L.PRASAD,
AGED ABOUT 31 YEARS,
R/AT MARUTHI STORE, RATHABEEDI,
KUSHALANAGAR POST AND TOWN
SOMWARPET TALUK - 571 234.
2. THE NEW INDIA ASSURANCE CO LTD.,
1ST FLOOR, SRI LAXMI COMPLEX,
NEAR SBI MAIN BRANCH, COLLEGE ROAD,
MADIKERI TOWN - 571 201. ...RESPONDENTS
(BY SRI. C.SHANKAR REDDY, ADVOCATE FOR R2: NOTICE TO
R1 SERVED AND UNREPRESENTED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 09.02.2018 PASSED IN MVC
NO.71/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING ON IAs., THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
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MFA No. 9108 of 2018
ORAL JUDGMENT
1. 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 and award dated 09.02.2018 passed by the Senior Civil Judge and Motor Accident Claims Tribunal, Madikeri, in MVC No.71/2017.
2. Facts giving rise to the filing of the appeal briefly stated are that on 22.05.2017 at about 3.45 p.m., when the deceased Amit was proceeding on motorbike bearing registration No.KA-12/K-3589 from Kushalnagar-Konanur road near Kanive Village, at that time, a Eicher MGV vehicle bearing registration No.KA-12-8488 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.
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3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.
4. Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal 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 the case, examined claimant No.1 as PW-1, and got exhibited documents namely Ex.P1 to Ex.P19. 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 driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. -5-
NC: 2024:KHC:29969 MFA No. 9108 of 2018 The Tribunal further held that the claimants are entitled to a compensation of Rs.13,30,000/- 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 submits as follows:
a) Firstly, the claimants assert that the deceased was approximately aged about 38 years at the time of the accident and had a monthly income of Rs.750/- to Rs.1,000/- per day from milk vending business and Rs.2,00,000/- per year from agriculture work. In support of their claim they have produced Ex.P11 - Certificate issued by the Co-operative Society. However, the assessment of income of the deceased at Rs.8,000/- by the Tribunal is unjustified and erroneous.
b) Secondly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ -6- NC: 2024:KHC:29969 MFA No. 9108 of 2018 2782], each of the claimants is entitled to compensation of Rs.40,000/- under the head of 'loss of love and affection and consortium'.
c) Lastly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is inadequate and on the lower side.
With the above submissions, learned counsel for the appellant sought to allow the appeal.
7. On the other hand, the learned counsel for the Insurance Company submits as follows:
a) Firstly, although the claimants claim that the deceased was earning Rs.750/- to Rs.1,000/- per day from milk vending business and Rs.2,00,000/- per year from agriculture work, they have produced Ex.P11 Certificate issued by the Co-operative Society, but they have not examined the author of the said document. Consequently, the Tribunal has correctly assessed the income of the deceased notionally.-7-
NC: 2024:KHC:29969 MFA No. 9108 of 2018
b) Secondly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable.
With the above submissions, learned counsel for the Insurance Company sought to dismiss the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. It is not in dispute that Dharmappa died in the road traffic accident occurred on 22.05.2017 due to rash and negligent driving of the offending vehicle by its driver.
10. The claimants claim that deceased was earning Rs.750/- to Rs.1,000/- per day from milk vending business and Rs.2,00,000/- per year from agriculture work, they have also produced Ex.P11 - Certificate issued by the Co- operative Society, but they have not examined the author of the said document to substantiate their claim. In the absence of proof of income, the notional income has to be -8- NC: 2024:KHC:29969 MFA No. 9108 of 2018 assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2017, the notional income of the deceased shall be taken at Rs.11,000/- p.m. To the aforesaid income, 25% 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 NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157]. Thus, the monthly income comes to Rs.13,750/-. Since there are 5 dependents, it is appropriate to deduct 1/4th of the income of the deceased towards personal expenses and remaining amount has to be taken as his contribution to the family. The deceased was aged about 45 years at the time of the accident and multiplier applicable to his age group is '14'. Thus, the claimants are entitled to compensation of Rs.17,32,416/- (Rs.10,312*12*14*) on account of 'loss of dependency'.
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11. In addition, the claimants are entitled to compensation of Rs.15,000/- on account of 'loss of estate' and compensation of Rs.15,000/- on account of 'funeral expenses'. Claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium'.
12. In view of the law laid down by the Supreme Court in the case of 'MAGMA GENERAL INSURANCE' (supra), claimant Nos.2 and 3, children of the deceased are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium' and claimant Nos.4 and 5, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head of 'loss of filial consortium'.
13. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 17,32,416
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MFA No. 9108 of 2018
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of Parental consortium 80,000
Loss of Filial consortium 80,000
Total 19,62,416
14. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total compensation of Rs.19,62,416/- as against Rs.13,30,000/- awarded by the Tribunal.
d) The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment.
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e) The apportionment, deposit and release of amount shall be made in accordance with the terms of the award of the Tribunal.
f) In view of the order dated 30.07.2024 passed by this Court, the claimants are not entitled to interest on the enhanced compensation for the delayed period of 175 days in filing the appeal.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 64