Karnataka High Court
Gangamma vs Hdfc Ergo Gen Ins Co Ltd on 7 December, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.2761 OF 2018(MV)
BETWEEN:
1. Gangamma,
W/o Late. Sharanappa,
Now Aged about 57 years.
2. Shivakumar,
S/o Late. Sharanappa,
Now aged about 3 years.
Both are residing at
No.3703/2,
Laxmi Nivas,
17th Cross,2nd Main,
Vinbha Nagar,
Behind Ganapathi Temple,
Davanagere. ... Appellants
(By Sri. Range Gowda N.R., Advocate)
AND:
1. HDFC ERGO Gen. Ins. Co. Ltd.,
No.25/1, Building No.2, 2nd Floor,
Shankaranarayana Building,
M.G.Road, Bangaore-560 001.
2. Mr. Venkatesh K.,
Aged Major,
2
No.20, Hayees Hall,
Hayees Road,
Bengaluru-560 025. ... Respondents
(By Sri. B.Pradeep, Advocate for R1:
Notice to R2 is D/w v/o dated: 07.12.2021)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:02.06.2017 passed
in MVC No.1701/2016 on the file of the XIII additional
Judge, Court of Small Causes & Member MACT, Bengaluru,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This MFA, coming on for orders, this day, this 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 02.06.2017 passed
by the Motor Accident Claims Tribunal, Bengaluru
(SCCH-15) in MVC No.1701/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 18.08.2015 at about 4.15
p.m. the deceased [email protected] Sanjana was proceeding
on her Scooty bearing registration No.KA-52/J-5141
on Tumakuru-Bengaluru road. When she reached
near MEI, RMC Yard, Bengaluru, at that time, a Mini
Goods Tempo bearing registration No.KA-01/7445
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 respondent
No.1 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. The age, occupation and income
of the deceased are 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 Scooty by the
deceased herself. 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. 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.2 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.P1 to Ex.P10.
On behalf of respondents, neither any witness was
examined nor got exhibited documents. 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.8,16,000/- 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 23 years at the time of the accident
and she was earning Rs.25,000/- per month by doing
Finance business. But the Tribunal is not justified in
taking the monthly income of the deceased as only
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 reported in AIR 2017 SC 5157, the
claimants are entitled for addition of 40% towards
'future prospects' where the deceased was below 40
years of age.
Thirdly, as per the law laid down by the Hon'ble
Supreme Court in the case of PRANAY SETHI
(supra), the claimants are entitled for Rs.15,000/-
towards 'loss of estate' and Rs.15,000/- towards
'funeral expenses'.
Fourthly, 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'. Hence, he prays for
allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised the following
contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.25,000/- 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, second claimant is the brother of the
deceased who is a major and he is not depending
upon the income of the deceased, hence he is not
entitled to any compensation for 'loss of love and
affection'.
Fourthly, considering the age and avocation of
the deceased, the overall compensation awarded by
the Tribunal is just and reasonable.
Fifthly, in view of the Division Bench decision 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 interest granted by the Tribunal
at the rate of 8% p.a. 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 and original
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 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 2015, the
notional income has to be taken at Rs.9,000/- 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.12,600/-, out of which, it is
appropriate to deduct 50% towards personal expenses
and therefore, the monthly income comes to
Rs.6,300/-. The deceased was aged about 24 years at
the time of the accident and multiplier applicable to
her age group is '18'. Thus, the claimants are entitled
to compensation of Rs.13,60,800/- (Rs.6,300*12*18)
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 MAGMA GENERAL INSURANCE (supra),
the first claimant is entitled for compensation of
Rs.40,000/- under the head of 'loss of filial
consortium'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 13,60,800
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 40,000
Total 14,30,800
The claimants are entitled to a total
compensation of Rs.14,30,800/-.
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 excluding interest
for the delayed period of 195 days in filing the appeal.
The enhanced compensation carries interest @ 6%
p.a.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
Cm/-
