Karnataka High Court
D Basavaraja vs Srinivasa M 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.1532 OF 2019 (MV)
BETWEEN:
1. D BASAVARAJA
S/O LATE DURUGAPPA,
AGED ABOUT 54 YEARS
WORKING AS TEACHER,
2. H JAYALAKSHMI
W/O D BASAVARAJA
AGED ABOUT 47 YEARS
BOTH ARE R/O KODABANAKATTE,
NOW RESIDING AT BANK COLONY,
CHITRADURGA DISTRICT-577 501
...APPELLANTS
(BY SRI.MANJUNATH N. D., ADV.)
AND
1. SRINIVASA M
S/O MARIYAPPA,
MAJOR, R/O 1ST CROSS,
VIVEKANANDA NAGARA,
BANAGARPET KOLAR DISTRICT-563101
2
2. THE DIVISIONAL MANAGER
THE DIVISIONAL OFFICE,
THE UNITED INDIA INSURANCE CO.LTD.,
34/3, MMK COMPLEX,
AKKAMAHADEVI ROAD,
P.J.EXTENSION,
DAVANAGERE-577001
...RESPONDENTS
(BY SRI. K. S. LAKSHMINARASAPPA, ADV. FOR
SRI. A. M. VENKATESHA, ADV. FOR R2;
VIDE ORDER DATED 6.12.2021 NOTICE
TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
13.11.2018 PASSED IN MVC NO.240/2018 ON THE
FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE
AND ADDITIONAL MACT-IV, CHITRADURGA, 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 13.11.2018 passed
by the I Addl. Senior Civil Judge and Addl. Motor
Accident Claims Tribunal, Chitradurga in MVC
240/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 28.11.2017 the deceased
Dharamashree was proceeding on motorcycle bearing
registration No.KA-16-U-8412 from Annehal cross
towards NH-13 road, near Galimaramma temple, at
that time, a car bearing registration No.KA-08-M-3879
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.
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 respondents
appeared through counsel and respondent No.2 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 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 another witness as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P18. On behalf of
respondents, one witness was examined as RW-1 and
got exhibited documents 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.10,29,600/- 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 29 years at the time of the accident
and she was earning Rs.30,000/- per month by
running beauty parlour. But the Tribunal is not
justified in taking the monthly income of the deceased
as merely as Rs.7,000/-.
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 has been
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'.
Fourthly, 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, 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 records.
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 claim that deceased was earning
Rs.30,000/- per month. But they have not produced
any documents to prove the income of the deceased.
In the absence of proof of income, the notional income
has to be assessed. As per the guidelines issued by
the Karnataka State Legal Services Authority, for the
accident taken place in the year 2017, the notional
income of the deceased has to be taken at
Rs.11,000/- p.m.
To the aforesaid income, 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.15,400/-. Out of which, it is
appropriate to deduct 50% of the income of the
deceased towards personal expenses since the
deceased was a spinster and remaining amount has to
be taken as her contribution to the family. The
deceased was aged about 29 years at the time of the
accident and multiplier applicable to his age group is
'17'. Thus, the claimants are entitled to compensation
of Rs.15,70,800/- (Rs.15,400*12*17*50%) 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, parents of the
deceased are entitled for compensation of Rs.40,000/-
each 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 15,70,800
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 16,80,800
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.16,80,800/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 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 copy of this judgment.
The apportionment of compensation shall be
made in terms of the award of the Tribunal.
Sd/-
JUDGE
DM
