Karnataka High Court

Nanjundaiah vs Srinivasa on 21 December, 2021

Bench: H T Prasad

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 21ST DAY OF DECEMBER 2021

                    BEFORE

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

           MFA No.815 OF 2021(MV)


BETWEEN:

1 . NANJUNDAIAH
    S/O LATE HONNIAH
    NOW AGED ABOUT 64 YEARS.

2 . RAMACHANDRAIAH
    S/O NANJUNDAIAH
    NOW AGED ABOUT 29 YEARS.

3 . SHIVALINGAIAH
    S/O NANJUNDAIAH
    AGED ABOUT 27 YEARS.

4 . GANGADHARA
    S/O NANJUNDAIAH
    AGED ABOUT 25 YEARS
    R/AT SHANTHAPURA VILLAGE
    HEBBUR HOBLI
    TUMKUR TLAUK
    TUMKUR DISTRICT.
                                 ...APPELLANTS

(BY SRI.RAGHU R., ADV.)
                        2




AND


1 . SRINIVASA
    S/O YALAKKAIAH
    R/A URKEHALLI VILALGE
    HERUU POST
    KASBA HOBLI
    KUNIGAL TALUK 572130
    TUMKUR DISTRICT.

2 . THE MANAGER
    SHRI RAM GEN INSURANCE CO LTD
    NO. 10003,E-8
    RIICO INDUSTRIAL AREA
    SITHAPURA JAIPUR
    RAJASTHAN -302022.

                                 ...RESPONDENTS


(BY SRI.B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 21.12.2021)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
22.09.2018 PASSED IN MVC NO. 2784/2017 ON THE
FILE OF THE CHIEF JUDGE, COURT OF SMALL
CAUSES, MEMBER PRINCIPAL M.A.C.T, BENGALURU
(S.C.C.H-1), 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 22.9.2018 passed

by the Motor Accident Claims Tribunal, Bangalore in

MVC 2784/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 23.3.2017 the deceased

Senamma along with others were traveling in Tempo

Traveller No.KA-06-B-5490 from Kunigal towards

Dharmastala near Kempuhole, Shiradi Ghat, on

B.M.Road, at that time, the driver of the said vehicle

drove the same in a rash and negligent manner and

vehicle capsized. 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 filed written statement

in which the averments made in the petition were

denied.

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-2

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P19. 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.363,000/- 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 55 years at the time of the accident

and she was earning Rs.18,000/- per month by doing

tailoring work. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.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 10% of

the established income towards 'future prospects'

should be the warrant where the deceased was

between the age group of 50-60 years. The same may

be considered.

Thirdly, claimants are husband and children of

the deceased and they were depending on the income

of the deceased and they are entitled for

compensation under the head of 'loss of dependency'.

Since there are 4 dependents, the Tribunal instead of

deducting 1/4th of the income towards personal

expenses has wrongly deducted 1/3rd of the income

and awarded compensation under the head of 'loss of

estate' instead of 'loss of dependency'.

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'.

Fifthly, 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.18,000/- 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, claimant Nos.2 to 4 are major sons of

the deceased and they are having their own income

and they are not depending on the income of the

deceased. Since claimant No.1 is the only dependent,

the Tribunal has rightly granted compensation under

the head of 'loss of estate'.

Fourthly, on appreciation of oral and

documentary evidence and considering the age and

avocation of the deceased, the overall compensation

awarded by the Tribunal is just and reasonable.

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 Senamma

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.18,000/- 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, 10% 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.12,100/-. The claimant Nos.2 to 4 are

major sons of the deceased and they are having their

own income and they are not depending on the

income of the deceased and claimant No.1 is the only

dependent and he is entitled for 'loss of dependency'.

Hence, 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 55 years

at the time of the accident and multiplier applicable to

her age group is '11'. Thus, the claimants are

entitled to compensation of Rs.7,98,600/-

(Rs.12,100*12*11*50%) on account of 'loss of

dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'. Claimant No.1, husband of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimant Nos.2 to 4, sons 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 dependency               798,600
       Funeral expenses                  15,000
       Loss of estate                    15,000
       Loss of spousal                   40,000
       consortium
       Loss of Parental                     120,000
       consortium
                      Total                 988,600

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.988,600/- as against

Rs.363,000/- 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 the order passed by this Court, the

claimants are not entitled for interest for the delayed