Karnataka High Court

Shilpa vs Yashodamma on 6 December, 2021

Bench: H T Prasad

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

               MFA No.2794 OF 2021(MV)

BETWEEN:

1.     SHILPA
       W/O. LATE UMESH.H.R
       AGED ABOUT 32 YEARS.

2.     NAVYASHREE. H. U.
       D/O. LATE UMESH H.R.
       AGED ABOUT 13 YEARS

3.     VAIBAHAV. H.U.
       S/O. LATE UMESH H.R.,
       AGED ABOUT 10 YEARS

       APPELLANT NoS. 2 & 3 ARE MINORS
       REP. BY GUARDIAN MOTHER
       APPELLANT NO.1, SHILPPA

4.     RAJU
       S/O. LATE MUTHANNA
       AGED ABOUT 67 YEARS

5.     JAGADAMBA
       W/O. RAJU
       AGED ABOUT 62 YEARS
       ALL ARE R/AT RANGOLIHALLA
       NEAR KURUHENSHETTY KALYAN MANTAP
       HASSAN-573 201.
                                         ...APPELLANTS
                             2



(BY SRI.G.S. BYRAREDDY, ADV. FOR
SMT. KAVITHA H C., ADV.)

AND

1.    YASHODAMMA
      W/O. VIJAYAKUMAR,
      CHENENAHALLI VILLAGE
      SHANK POST, SALAGAME HOBLI
      HASSAN-573 201.

2.    MANAGER
      NATIONAL INSURANCE
      COMPANY LIMITED
      MANJUNATHA COMPLEX
      OLD BUS STAND ROAD
      HASSAN-573 201.
                                             ...RESPONDENTS

(BY SMT. GEETHA RAJ, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DTD: 06.12.2021)

       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 17.07.2019, PASSED
IN    MVC   NO.668/2018,   ON   THE   FILE    OF   THE   2ND
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT,
HASSAN, 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 17.07.2019 passed

by the Motor Accident Claims Tribunal, Hassan in MVC

No.668/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.02.2018 at about 10.00

P.M., the deceased was proceeding on his motorbike

bearing registration No.KA-18-W-9963 towards

Hemavathinagar, at that time, a rider of the

motorbike bearing registration No.KA-13-EH-3246

came from opposite direction and in a rash and

negligent manner, without giving any signal, turned it

to the right side. 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 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 the

deceased himself. 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 got exhibited documents namely Ex.P.1 to

Ex.P.19. On behalf of respondents, neither examined

any witness nor exhibited any document. 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.18,24,660/- 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 37 years at the time of the accident

and he was earning Rs.30,000/- per month by doing

agricultural work and as a carpenter. 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

40% of the established income towards 'future

prospects' should be the warrant where the deceased

was below the age of 40 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 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.30,000/- 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 the claimants have not

established the income of the deceased, they are not

entitled for compensation towards 'future prospects'.

Thirdly, 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.

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 Umesh died in the

road traffic accident occurred due to rash and

negligent riding of the offending vehicle by its rider.

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.

To the aforesaid amount, 40% 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.17,500/-. Since there are five

dependents, it is appropriate to deduct 1/4th of the

income of the deceased towards personal expenses.

Thus, the monthly income comes to Rs.13,125/-. The

deceased was aged about 37 years at the time of the

accident and multiplier applicable to his age group is

'15'. Thus, the claimants are entitled to compensation

of Rs.23,62,500/- (Rs.13,125*15*12) 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

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

'loss of filial consortium' .

The compensation of Rs.53,660/- 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              23,62,500
        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          80,000
        Medical Expenses                   53,660
                        Total          26,46,160

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.26,46,160/-.

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.

This Court while condoning the delay, has denied

the interest for a period of 142 days. Hence, the