Karnataka High Court

Paniraj. B. K vs V. Narendra on 21 December, 2021

Bench: H T Prasad

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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

                M.F.A. No.8019/2018
                        C/W
               M.F.A. CROB. No.6/2019

IN M.F.A. No.8019/2018

BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
M H BORAIAH BUILDING
V V ROAD, MANDYA
THROUGH ITS
BENGALURU
REGIONAL OFFICE
NO.44/45, LEO SHOPPING COMPLEX
RESIDENCY ROAD
BANGALORE - 560 025
REPRESENTED BY ITS
DEPUTY MANAGER.                          ... APPELLANT


(BY SRI S.V. HEGDE MULKHAND, ADVOCATE)

AND:

1.     PANIRAJ B.K.,
       S/O LATE KESHAVAMURTHY B.
       AGED ABOUT 53 YEARS

2.     NAGALAKSHMI P.,
       W/O PANIRAJ B.K.
       AGED ABOUT 47 YEARS
                               2



     BOTH ARE R/O NO.1773,
     FIRST CROSS SUBHASH NAGAR
     MANDYA

3.   V. NARENDRA
     MAJOR IN AGE
     PROPRIETOR BALAJI SERVICE STATION
     NO.183, SITE NO.147/C,
     T N PURA ROAD,
     ALANAHALLI
     MYSORE - 570 011.               ... RESPONDENTS


(BY SRI RAGHU R., ADVOCATE FOR
SRI PRAMOD R., ADVOCATE FOR R1 & R2;
R3 - SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 20.06.2018, PASSED IN MVC NO.1559/2016, ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL   MAGISTRATE   AND       MACT,   MANDYA,   AWARDING
COMPENSATION OF RS.14,50,800/- ALONG WITH INTEREST @
6% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE
OF DEPOSIT.


IN M.F.A. CROB NO.6/2019

BETWEEN:

1.   PANIRAJ B.K.,
     S/O LATE KESHAVAMURTHY B.
     AGED 53 YEARS

2.   NAGALAKSHMI P.,
     W/O PANIRAJ B.K.
     AGED 47 YEARS
                                3



       BOTH ARE R/O NO.1733, 1ST CROSS
       SUBHASHNAGARA
       MANDYA CITY - 571 436.        ... CROSS OBJECTORS

(BY SRIYUTHS RAGHU R. AND PRAMOD R., ADVOCATES)

AND:

1.     V. NARENDRA
       S/O NOT KNOWN
       AGED 52 YEARS
       PROP: BALAJI SERVICE STATION
       NO.183, SITE NO.147/C,
       T N PURA ROAD,
       ALANAHALLI
       MYSO RE - 571 408

2.     THE BRANCH MANAGER
       ORIENTAL INSURANCE CO. LIMITED
       M H BORAIAH BUILDING
       V V ROAD,
       MANDYA - 571 436.              ... RESPONDENTS

(BY SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH
V/O DATED 21.12.2021)

       THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CODE OF CIVIL PROCEDURE, 1908, R/W SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 20.06.2018
PASSED IN MVC NO.1559/2016 ON THE FILE OF THE PRL.
SENIOR    CIVIL   JUDGE   &   CJM,   MACT,   MANDYA,   PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


       THIS MFA AND MFA CROB COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

MFA 8019/2018 is filed by the Insurance Company

under Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short) and MFA

Crob. 6/2019 is filed by the claimants under Order 41 Rule

22 of CPC, being aggrieved by the judgment dated

20.06.2018 passed by the Principal Senior Civil Judge and

Motor Accident Claims Tribunal, Mandya in MVC No.

1559/2016.

2. Facts giving rise to filing of the appeal and the

cross objection briefly stated are that on 10.10.2016, Kum.

Sindhu, the deceased was travelling in KSRTC Bus bearing

registration No.KA-17F-1522 from Channarayapattana to

Srirangapattana and when the said bus reached near

K.R.Pet, Mysore road, a tanker lorry bearing registration No.

KA-55-3752 driven by its driver in a rash and negligent

manner dashed against the KSRTC bus. Due to that impact,

Kum. Sindhu suffered grievous injuries and succumbed to

injuries.

3. The claimants who are the parents of the

deceased filed a petition under Section 166 of the Act

seeking compensation of Rs.24,00,000/- 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. 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

Tribunal has framed the following issues:

(a) Whether the petitioners prove that on 10.10.2016 when their deceased daughter Kumari Sindhu P travelling in a KSRTC bus bearing No.KA 17/F-1522 to Srirangapatna from Channarayapatna, a Tanker lorry bearing Reg. No.KA 55/3752 came in a rash and negligent manner from the opposite direction near Yelekere hand post at K.R.Pete-Mysore Road and dashed against the said KSRTC bus, as such, the

daughter of them sustained injuries and succumbed to the same at the spot as alleged?

(b) Whether the petitioners are entitled for the relief of compensation, if so to what extent and who is liable to pay the same?

(c) What order or award?

6. The claimants, in order to prove their case,

examined claimant No.1 as PW-1 and a witness as PW-2.

The claimants got exhibited documents, namely Ex.P1 to

Ex.P.22. The respondents neither examined any witness nor

marked any document.

7. On appreciation of oral and documentary

evidence, the Tribunal has granted compensation of

Rs.14,50,800/- with 6% interest per annum from the date

of petition till the date of deposit.

8. Being aggrieved by the same, the Insurance

Company has filed the present appeal seeking setting aside

of the judgment. The claimants have filed cross-objection

seeking enhancement of the compensation.

9. Sri. Raghu R, learned counsel for the claimants

has raised the following contentions:

Firstly, the claimants claim that the deceased was

aged about 19 years at the time of the accident; that she

was studying in I year B.Com; that she has a very good

academic records; that she was giving tuition and was also

assisting her father in his business and she was earning

Rs.10,000/- per month, but the Tribunal was not justified in

taking the monthly income of the deceased at Rs.9,000/-.

Secondly, as per the law laid down by the Apex Court

in the case of MAGMA GENERAL INSURANCE CO. LTD. -

V- NANU RAM [2018 ACJ 2782], the claimants who are

parents of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of filial

consortium'.

Hence, he prays for enhancement of compensation.

10. On the other hand, Sri. S.V.Hegde Mulkhand,

learned counsel for the Insurance Company has raised the

following counter-contentions:

Firstly, at the time of accident, the deceased was aged

about 19 years; that she was a student; that she was not

doing any work and was not earning any income and

therefore, the monthly income assessed by the Tribunal at

Rs.9,000/- is on the higher side.

Secondly, since the claimants have not established the

income of the deceased, they are not entitled for

compensation towards 'future prospects'.

Thirdly, in view of the judgment of the Apex Court in

the case of NATIONAL INSURANCE CO. LTD. -v-

PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], the

claimants are entitled only for Rs.15,000/- on account of

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

of 'funeral expenses', but the Tribunal has awarded

Rs.40,000/- which is contrary to the judgment of the Apex

Court and he lastly, contended that considering the age and

avocation of the deceased, the overall compensation

awarded by the Tribunal is on the higher side and hence, he

sought for allowing the appeal filed by the Insurance

company.

11. Heard the learned counsel for the parties and

perused the records.

12. It is not in dispute that the deceased - Kum

Sindhu died in the road traffic accident occurred on

10.10.2016 due to rash and negligent driving of the

offending vehicle by its driver. The Apex Court in the case

of KAJAL -V- JAGDISH CHAND AND ORS. (CIVIL

APPEAL NO.735/2020 DISPOSED 5.2.2020) has held

that even for a non earning member, the income has to be

assessed as per the Minimum Wages Act and the Tribunal

has to consider the minimum wages payable to the skilled

workman and also held that the claimants are entitled for

future prospects.

13. In view of the above, even though the claimants

have claimed that the deceased was earning Rs.10,000/-

per month by giving tuition, considering the evidence of

P.W.1 and considering the age of the deceased and also her

academic qualification, 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 2016, the notional income of the deceased has

to be taken at Rs.9,500/- p.m.

14. 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). Since the deceased was a

spinster, 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 19 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.14,36,400/- on account of 'loss of dependency' as per

the following:

Monthly income                            -              9,500/-
Add: 40% towards future                   -              3,800/-
prospects
Total                                     -             13,300/-
Less: 50% towards personal                -              6,650/-
expenses
Actual monthly income                     -              6,650/-

Loss of dependency
Rs.6,650/- x 12 x 18                      -   Rs.14,36,400/-



        15.   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'. In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimants - parents of the deceased are entitled for

compensation of Rs.40,000/- each under the head of 'loss

of filial consortium'.

16. Thus, the claimants are entitled to the following

compensation:

             Compensation under         Amount in
                different Heads           (Rs.)
            Loss of dependency           14,36,400
            Funeral expenses                15,000
            Loss of estate                  15,000
            Loss of Filial consortium       80,000
            (Rs.40,000/- to each of
            the claimants)
                      Total             15,46,400

17. In the result, MFA 8019/2018 is dismissed. MFA

Crob. 6/2019 is allowed in part. The judgment of the

Claims Tribunal is modified.

The claimants are entitled to a total compensation of

Rs.15,46,400/-.

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 amount in deposit is to be transferred to the

Tribunal.