Karnataka High Court
Mrs Shanthalaxmi vs The Managing Director on 14 December, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.4082 OF 2017(MV)
BETWEEN:
1 . MRS SHANTHALAXMI
W/O LATE JAYAPRAKASH
AGED ABOUT 62 YEARS.
2 . MISS SAHANA
D/O LATE JAYAPRAKASH
AGED ABOUT 24 YEARS.
BOTH ARE R/A PRASHANTHAM NILAYA
NEAR AYYAPPA TEMPLE
MADOOR, KOTEKAR
MANGALORE TALUK
DK DISTRICT PIN-575008.
...APPELLANTS
(BY SRI.RAVISHANKAR SHASTRY G., ADV.)
AND
1. THE MANAGING DIRECTOR
M/S ARVIND ROAD CARRIERS PVT TLD
KHANSA ROAD, GURGAON
HARYANA PIN-122001.
2. THE ORIENTAL INSURANCE CO LTD
K-37, CANNAUGHT CIRCLE
2
NEW DELHI
REPRESENTED BY ITS
DIVISIONAL OFFICER
THE ORIENTAL INSURANCE CO LTD
NEAR ROOPA HOTEL
MILAGREES, MANGALURU TLAUK
DK DISTRICT PIN-575005.
...RESPONDENTS
(BY SRI.R.GUNASHEKAR, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DTD: 14.12.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:16.03.2017 PASSED
IN MVC NO.83/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MEMBER MACT, MANGALURU,
D.K., 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 16.03.2017 passed
by the Motor Accident Claims Tribunal, Mangaluru,
D.K. in MVC No.83/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 06.09.2014 at about 10.10
A.M., the deceased was proceeding in his Motorcycle
bearing registration No.KA-19/U-4244 from Mangaluru
towards Kotekar Beeri and when he reached NH-66,
2nd Kolya, Someshwara Village, Mangaluru Taluk, at
that time, the driver of the lorry bearing registration
No.HR-55/M-9449 came from hind side and drove the
same in a rash and negligent manner and dashed
against the deceased's motorcycle. 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 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.
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.13. On behalf of respondents, no witness was
examined but exhibited a document namely Ex.R.1-
Copy of the Insurance Policy. 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.6,29,000/- 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 62 years at the time of the accident
and he was earning Rs.50,000/- per month by doing
real estate business. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.9,000/-. The claimants are the wife and
daughter of the deceased and they are entirely
depending upon the income of the deceased.
Secondly, 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 enhancement of
compensation.
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.50,000/- 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, in view of 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 compensation
awarded by the Tribunal under the conventional head
is no higher side.
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 judgment and award.
9. It is not in dispute that Jayaprakash died in
the road traffic accident occurred due to rash and
negligent driving of the offending vehicle by its driver.
At the time of the accident, the deceased was
aged 62 years. Even though the claimants claim that
the deceased was doing Real Estate Business and was
earning Rs.50,000/- per month, the claimants except
producing the PAN Card of the deceased to prove that
the deceased was a Income Tax Assessee, no
documents have been produced with regard to his
income. Considering the evidence of the claimants, I
am of the opinion that the monthly income of the
deceased can be assessed Rs.10,000/-. Since there
are two dependents, it is appropriate to deduct 1/3rd
of the income of the deceased towards personal
expenses. Thus, the monthly income of the deceased
comes to Rs.6,667/-. The deceased was aged about
62 years at the time of the accident and multiplier
applicable to his age group is '7'. Thus, the claimants
are entitled to compensation of Rs.5,60,028/-
(Rs.6,667*7%*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 No.2,
daughter of the deceased is 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 dependency 5,60,028
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 40,000
consortium
Total 6,70,028
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.6,70,028/-.
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.
Sd/-
JUDGE
HA/-
