Karnataka High Court
Mr Naveen Kumar K vs Reliance General Insurance ... on 8 December, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8313 OF 2019(MV)
BETWEEN:
1. MR NAVEEN KUMAR K
S/O LATE KANTHARAJ
AGEDA BOUT 34 YEARS
RESIDING AT NO.60/A
3RD MAIN ROAD
DATTATREYANAGAR
HOSAKEREHALLI
BSK 2ND STAGE
BENGALURU-560 085.
2. SMT K SHILPA
D/O LATE KANTHARAJ
AGED ABOUT 32 YEARS
NO.196, 4TH MAIN
VEERABHADRANAGARA
BENGALURU-560 085.
...APPELLANTS
(BY SRI. GIRIMALLAIAH, ADV.)
AND
1. RELIANCE GENERAL INSURANCE
2
COMPANY LTD
RGIC 28, EAST WING
5TH FLOOR,CENTENERY BULDING
M G ROAD,BANGALORE-560 001
BY ITS MANAGER.
2. MR KRISHNA MURTHY V
S/O LATE VENKATASWAMY
MAJOR
NO.279, 4TH MAIN ROAD
NEAR MUNESWARA TEMPLE
BSK 1ST STAGE
2ND BLOCK, SRINIVASANAGAR
BENGLAURU-560 050.
...RESPONDENTS
(BY SRI.ASHOK N PATIL, ADV. FOR R1:
NOTICE TO R2 IS D/W V/O DATED: 05.03.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
26.07.2019 PASSED IN MVC NO. 7034/2018 ON THE
FILE OF THE XXI ADDITIONAL SCJ AND XIX ACMM,
MEMBER, MACT, BENGALURU (SCCH-23) 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 26.7.2019 passed
by the Motor Accident Claims Tribunal, Bengaluru in
MVC 7034/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 3.10.2018 the deceased
Smt.Kamala was proceeding on two wheeler as a
pillion rider bearing registration No.KA-05-KF-4868
near NICE Road, junction, Nayandahalli Ring Road, at
that time, a tipper lorry bearing registration No.KA-
01-AE-5763 which was being driven in a rash and
negligent manner, dashed against the vehicle of 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 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 another witness as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P11. On behalf of
respondents, neither any witness was examined nor
any document was produced. 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.234,000/- 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 49 years at the time of the accident
and she was earning Rs.20,000/- per month by doing
tailoring work. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.9,000/-.
Secondly, the claimants are son and daughter of
the deceased and they were depending on the income
of the deceased and they are entitled for 'loss of
dependency'. But the Tribunal is not justified in
granting compensation under the head of 'loss of
estate' instead of 'loss of dependency'. Even
otherwise, as per the Division Bench of this court in
MFA 7318/2016 disposed of on 23.10.2020 wherein
following the judgment of the Apex Court in the case
of National Insurance Company -V- Vinish Jain And
Others (2018) 3 SCC 619, the claimants were granted
'loss of estate' by taking 50% of the income of the
deceased. But the Tribunal has wrongly considered
1/4th of the income of the deceased while granting
compensation under the head of 'loss of estate', which
is on the lower side. Further, in support of his
contention he has relied upon decision of the Apex
court in the case of National insurance Company
Limited -v- Birender and Ors. (AIR 2020 SC 434).
Thirdly, 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 between the age group of 40-50 years. The same
may be considered.
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 of Rs.40,000/- under the head of
'loss of love and affection and consortium'. But the
Tribunal has failed to grant the same.
Fifthly, the Tribunal has failed to grant any
compensation under the head of funeral expenses.
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.20,000/- 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, the claimants are major son and
daughter of the deceased. They are not depending
upon the income of the deceased and they are entitled
for compensation only under the head of 'loss of
estate', which has to be considered by taking 1/4th of
the income of the deceased. In support of his
contention, he has relied upon the decision of the
Apex Court in the case of A.MANAVALAGAN vs.
A.KRISHNAMURTHY AND OTHERS reported in ILR
2004 Kar.3268. The Tribunal considering the same
has rightly awarded compensation under the head of
'loss of estate'.
Thirdly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
Fourthly, 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 of the Tribunal.
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.20,000/- 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 2018, the notional
income of the deceased has to be taken at
Rs.12,500/- p.m.
To the aforesaid income of Rs.12,500/-, 25%
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.15,625/-.
The claimants are major son and major
daughter of the deceased and they are not depending
on the income of the deceased. Hence, they are not
entitled for compensation under the head of 'loss of
dependency'. But, however, they are entitled for
compensation under the head of 'loss of estate'. The
Division Bench of this Court in MFA 7318/2016
disposed of on 23.10.2020 by following the judgment
of the Apex Court in the case of National Insurance
Company -v- Vinish Jain and others (2018) 3 SCC 619
has considered the 'loss of estate' by taking 50% of
the income of the deceased and deducting 50%
towards personal expenses of the deceased.
Therefore, out of monthly income of
Rs.15,625/-, it is appropriate to deduct 50% of the
income of the deceased towards personal expenses
and remaining amount has to be taken as her
contribution to the family. The deceased was aged
about 49 years at the time of the accident and
multiplier applicable to her age group is '13'. Thus,
the claimants are entitled to compensation of
Rs.12,18,750/- (Rs.15,625*12*13*50%) on account
of 'loss of estate'.
In addition, the claimants are entitled to
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), claimants, children of the
deceased are entitled for compensation of Rs.40,000/-
each under the head of 'loss of parental consortium'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of estate 12,18,750
Funeral expenses 15,000
Loss of Parental 80,000
consortium
Total 13,13,750
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.13,13,750/- as against
Rs.2,34,000/- awarded by the Tribunal.
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.
In view of disposal of appeal, I.A.1/2021 filed for
posting does not survive for consideration and
accordingly, it is dismissed.
Sd/-
JUDGE
DM
