Karnataka High Court
Sri Shashiraj K S vs Sri Raju @ Raju Golla on 3 December, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1017 OF 2019(MV)
BETWEEN:
1. SRI SHASHIRAJ K S
S/O SHANKAR SHEREGAR
AGED ABOUT 42 YEARS.
2. MINOR SKANDA
S/O SHASHIRAJ K S
MINOR
3. MINOR PRAJWAL
S/O SHASHIRAJ K S
MINOR
R2 & R3 REP BY GUARDIAN
CUM FATHER 1ST APPELLANT
SRI SHASHIRAJ K S
KUNDAPURA-576201.
4. SMT LAXMI
W/O LATE BALAYYA SHERIGAR
MOTHER OF LATE SHYAMALA K
RESIDING AT
KEMPAYYAMANE
NEAR MYLARESHWARA TEMPLE
CHIKKENSAL ROAD
KUNDAPURA-576201.
...APPELLANTS
2
(BY SRI.NAGARAJA HEGDE, ADV.)
AND
1. SRI RAJU @ RAJU GOLLA
S/O KOOSA GOLLA
AGED ABOUT 41 YEARS
R/O MARKODU
KOTESHWARA VILLAGE
KUNDAPURA TALUK.
2. M/S NEW INDIA ASSURANCE CO LTD.,
BRANCH OFFICE
1ST FLOOR, PUSHPA BUILDING
MAIN ROAD, KUNDAPURA-576201
REP BY ITS
BRANCH MANAGER
...RESPONDENTS
(BY SRI.A.RAVISHANKAR, ADV. FOR R2:
R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:13.06.2018 PASSED
IN MVC NO.65/2017 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI,
(SITTING AT KUNDAPURA), KUNDAPURA, 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:
3
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 13.06.2018 passed
by the Motor Accident Claims Tribunal, Kundapura in
MVC No.65/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 05.02.2014 at about 03.20
P.M. when the deceased was standing on the western
side of the road near Sri Manjunatha Hospital,
Kundapura, a Motorcycle bearing registration No.KA-
20-Y-6128 belongs and driven by 1st respondent at a
very high speed, rash and negligent manner came
from Kundapura Shastri Circle side towards
Kundapura New Bus Stand side on the main road went
to the extreme side of road and caused accident to
deceased. 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
No.2 being insurer has 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 its
rider. 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. 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.
The respondent No.1 did not appear before the
Tribunal inspite of service of notice and hence 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 other four witnesses were examined as PW-2 to
PW-5 and got exhibited documents namely Ex.P.1 to
Ex.P.15. On behalf of respondents, no witness was
examined but exhibited a document namely Ex.R.1-
Insurance Policy. 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.13,74,810/-
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 aged about 35 years at the time of the accident
and she was a LIC Agent and RD Collector and was
earning Rs.35,000/- per month. To prove the same,
the claimants have examined Chartered Accountant as
PW-3. 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], the claimants are
entitled for the compensation towards 'future
prospects'. 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 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.35,000/- per month and
they have examined Chartered Accountant as PW-3,
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 the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Lastly, 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.
9. It is not in dispute that deceased died in
the road traffic accident occurred due to rash and
negligent riding of the offending vehicle by its rider.
Even though the claimants claim that the
deceased was earning Rs.35,000/- per month as a LIC
Agent and examined Chartered Accountant as PW-3,
but they have not examined any documents to show
that the deceased was earning Rs.35,000/- per
month. Therefore, the Tribunal has rightly assessed
the monthly income of the deceased as Rs.9,000/-.
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'. As per Ex.P.10-Post
Mortem Report, the deceased was aged 43 years.
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 where the deceased was aged 40-50
years. Thus, the monthly income comes to
Rs.11,250/-. Since there are four dependents,
the Tribunal has rightly deducted 1/4th of the
income of the deceased towards personal expenses.
Thus, the monthly income comes to Rs.8,438/-.
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.14,17,584/- (Rs.8,438*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, husband 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 of the deceased are entitled for
compensation of Rs.40,000/- each under the head of
'loss of parental consortium' and claimant No.4,
mother of the deceased is entitled for compensation of
Rs.40,000/- under the head 'loss of filial consortium' .
The compensation of Rs.1,70,808/- awarded
by the Tribunal towards '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 14,17,584
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Loss of Filial consortium 40,000
Medical Expenses 1,70,808
Total 17,78,392
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.17,78,392/-.
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/-
