Karnataka High Court
Smt. Renukamma vs The Oriental Insurance Company ... on 2 December, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.5120 OF 2020(MV)
BETWEEN:
1. SMT. RENUKAMMA
W/O LATE CHANDRAPPA
AGED ABOUT 40 YEARS
2. MIS. SUMA
D/O LATE CHANDRAPPA
AGED ABOUT 20 YEARS
3. MASTER SUNIL
S/O LATE CHANDRAPPA
AGED ABOUT 19 YEARS
4. MIS. PREETI
D/O LATE CHANDRAPPA
AGED ABOUT 17 YEARS
MINOR REP. BY MOTHER
APPELLANT NO.1.
5. SMT. SHIVANAGAMMA
W/O LATE NINGAPPA
AGED ABOUT 57 YEARS
ALL ARE R/O CHIKKAREKERE VILLAGE BILICHODU
HOBLI
JAGALUR TALUK-577528
DAVANAGERE DISTRICT.
...APPELLANTS
2
(BY SRI. V B SIDDARAMAIAH, ADV.)
AND
1 . THE ORIENTAL INSURANCE
COMPANY LTD.,
BRANCH OFFICE
VIDYARTHI BHAVAN
NEAR C J HOSPITAL ROAD
P.J.EXTENSION
DAVANAGERE-577002
REPRESENTED BY ITS
BRANCH MANAGER.
2 . SRI. RAMESH H R
S/O RAMACHNADRAIAH
AGED ABOUT 37 YEARS
R/O NAYAKANA PALYA VILLAGE
KORA HOBLI-572128
TUMAKURU TALUK
AND DISTRICT-572128.
3 . SRI ABHISHEK ARUNKUMAR
S/O G.T. ARUNA KUMAR
AGED ABOUT 37 YEARS
R/O DOOR NO 15
PARD ROAD, S.S.PURAM-572102
TUMAKURU TOWN TUMAKURU.
...RESPONDENTS
(BY SRI. S.SHRISHAILA, ADV. FOR R1:
NOTICE TO R2 & R3 ARE D/W
V/O DATED: 05.08.2021)
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DT.16.08.2019 PASSED IN
3
MVC NO.469/2018 ON THE FILE OF THE ITINERARY
SENIOR CIVIL JUDGE, JAGALUR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, 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 16.08.2019 passed
by the Motor Accident Claims Tribunal, Jagalur in MVC
No.469/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 08.03.2018 at about 07.00
P.M., the deceased was proceeding towards Mangaluru
by taking tunder coconut in a vehicle bearing
registration No.KA-07/A-1581 which belongs to one
Parusharam by sitting the cabin by the side of the
driver, the driver of the said vehicle has drove the
same in a moderate speed by observing all traffic
rules and regulations on Badravathi-tarikere road,
when the said vehicle was reached near K. Chatnahalli
Village, the driver of the Tipper Lorry bearing
registration No.KA-50/9039 was came from Birur side
drove the same in a rash and negligent manner
without observing the traffic rules and regulations and
dashed against vehicle bearing registration No.KA-
07/A-1581 and then both vehicles again dashed
against one house situated by the side of the road at
K. Bevinahalli Village. As a result of the aforesaid
accident, the deceased sustained grievous injuries and
succumbed to the injuries.
3. The claimants filed a petition under Section
166 of the Act seeking compensation for the death of
the deceased along with interest.
4. On service of summons, the respondent
Nos.2 and 3 have appeared through counsel and only
respondent No.3 has filed written statement in which
the averments made in the petition were denied. The
claim petition was dismissed as not pressed against
respondent No.1. It was pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the accident due to contributory
negligence on the part of both the vehicles. The driver
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. The age,
occupation and income of the deceased are denied. It
was further pleaded that the quantum of
compensation claimed by the claimants is exorbitant.
Hence, he sought for dismissal of the petition.
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.P.1 to
Ex.P.18. On behalf of respondents, no witness was
examined but exhibited a document namely Ex.R.1-
Policy copy. 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.12,04,000/-
along with interest at the rate of 8% 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 aged about 40 years at the time of the accident
and he was earning Rs.50,000/- per month by doing
coconut business. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.9,000/-.
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], in case the deceased
was self-employed or on a fixed salary, an addition of
25% of the established income towards 'future
prospects' should be the warrant where the deceased
was aged between 40 to 50 years. The same may be
considered.
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'.
Lastly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. Hence, he prays for enhancement of
compensation.
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.50,000/- 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, since there is no loss of income, only
there is a loss of supervision and the agricultural land
is available for the family, the claimants are not
entitled for compensation towards 'future prospects'.
Thirdly, considering the evidence of the
claimants, age and avocation of the deceased, the
Tribunal has awarded just and reasonable
compensation.
Lastly, in view of judgment of the Division Bench
of this Court in the case of MS.JOYEETA BOSE AND
OTHERS vs. VENKATESHAN.V AND OTHERS (MFA
5896/2018 and connected matters disposed of on
24.8.2020), the claimants are entitled for 6% interest
but the Tribunal has granted 8% interest which is on
the higher side. Hence, he prays for dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award.
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 2018, the
notional income has to be taken at Rs.12,500/- p.m.
The judgment of the Hon'ble Apex Court in the case of
HEM RAJ VS. ORIENTAL INSURANCE COPANY
reported in 2018 15 SCC 654 has held in para-7 as
follows;
"7. We are of the view that there cannot be
distinction where there is positive evidence
of income and where minimum income is
determined on guess work in the facts and
circumstances of a case. Both the
situations stand at the same footing.
Accordingly, in the present case, addition
of 40% to the income assessed by the
Tribunal is required to be made. The
Tribunal made addition of 50% while the
High Court has deleted the same."
It is very clear from the above judgment that
even for assessing the notional income by guess work,
the claimants are entitled for the compensation
towards 'future prospects'. Therefore, in view of the
law laid down by the Constitution Bench of the
Supreme Court in 'PRANAY SETHI' (supra), 25% has
to be added on account of future prospects. Thus, the
monthly income comes to Rs.15,625/-. Since there
are five dependents, the Tribunal has rightly deducted
1/4th of the income of the deceased towards personal
expenses. Thus, the monthly income comes to
Rs.11,719/-. The deceased was aged about
43 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.19,68,792/- (Rs.11,719*12*14) on account of 'loss
of dependency'.
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'.
In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL INSURANCE'
(supra), 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, 3
and 4, children of the deceased are entitled for
compensation of Rs.40,000/- each under the head of
'loss of parental consortium' and claimant No.5,
mother of the deceased is entitled for compensation of
Rs.40,000/- under the head 'loss of filial consortium' .
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,68,792
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 1,20,000
consortium
Loss of Filial consortium 40,000
Total 21,98,792
11. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimants are entitled to a total
compensation of Rs.21,98,792/-.
The Insurance Company is directed to deposit
the compensation amount along with interest 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 copy of this judgment. The enhanced
compensation shall carry interest at 6% per annum.
In view of the disposal of the appeal,
I.A.No.1/2021 does not survive for consideration. The
same is disposed of.
Sd/-
JUDGE
HA/-
