Karnataka High Court
Nishan Kumari @ Nisha vs The Manager on 23 December, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8882 OF 2018(MV)
BETWEEN:
1. NISHAN KUMARI @ NISHA
W/O LATE VINOD KUMAR @ VINOD
AGED ABOUT 39 YEARS.
2. SHIWANI MAURYA @ SWATHI
D/O LATE VINOD KUMAR @ VINOD
AGED ABOUT 20 YEARS
3. ABHISHEK MAURYA @ SONU
S/O LATE VINOD KUMAR @ VINOD
@ VINOD MAURYA
AGED ABOUT 18 YEARS
4. KHUSHBU MAURYA
D/O LATE VINOD KUMAR MAURYA @ VINOD
AGED ABOUT 10 YEARS
MINOR HENCE REPTD.
BY THEIR NATURAL GUARDIAN
MOTHER APPELLANT No.1.
5. SOORAJDHEEN
S/O RAMDHAN
AGED ABOUT 70 YEARS.
6. RAMAVATI
W/O SOORAJDHIN,
AGEDABOUT 68 YEARS
2
ALL ARE RESIDING AT:
C/O KRISHNA MURTHY BUILDING
BHARATIPURA VILLAGE, SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE.
...APPELLANTS
(BY SRI.SHRIPAD V SHASTRI, ADV. )
AND
1. THE MANAGER
TATA AIG GENERAL
INSURANCE CO.LTD.,
NO.69, 2ND FLOOR, J P AND DEVI
JAMBUKESHWAR ARCADE, MISSION ROAD
BANGALORE-52.
2. MR SURESH B K
S/O KRISHNAPPA
NO.393/A, 8TH CROSS
1ST A MAIN, DUBASIPALYA
RV COLLEGE POST
BANGALORE-59.
...RESPONDENTS
(BY SRI.RAVI S. SAMPRATHI, ADV. FOR R1:
NOTICER TO R2 IS D/W V/O DTD: 23.12.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 14/08/2018,
PASSED IN MVC NO.5671/2017, ON THE FILE OF THE I
ADDITIONAL SMALL CAUSES JUDGE AND MACT,
BENGALURU (SCCH-11), 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 14.08.2018 passed
by the Motor Accident Claims Tribunal, Bengaluru in
MVC No.5671/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 28.08.2017 at about 10.30
A.M., the deceased was crossing the road, on
Bengaluru - Tumkur NH-04 road, Near Yedehalli Sky
Walk, very carefully, cautiously and observing all the
traffic rules. At that time, the driver of the Bolero
Jeep bearing registration No.KA-41-P-1757, driven the
same at a very high speed in a rash and negligent
manner so as to endangering to human life came from
Bengaluru side and 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 respondents
have 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
negligence on the part of the deceased himself. 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, they sought for dismissal of the
petition.
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.2 as PW-1
and got exhibited documents namely Ex.P.1 to
Ex.P.20. On behalf of respondents, neither examined
any witness nor exhibited any document. 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.14,08,792/- 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 44 years at the time of the accident
and he was earning Rs.800/- per day by doing
Samosa Vending Business. But the Tribunal is not
justified in taking the monthly income of the deceased
as merely as Rs.8,500/-.
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 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.800/- per day, 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, 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 Vinod Kumar 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 2017, the
notional income has to be taken at Rs.11,000/- p.m.
To the aforesaid amount, 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 NATIONAL INSURANCE CO. LTD. -v- PRANAY
SETHI AND OTHERS [AIR 2017 SC 5157],. Thus, the
monthly income comes to Rs.13,750/-. Since there
are six dependents, it is appropriate to deduct 1/4th of
the income of the deceased towards personal
expenses. Thus, the monthly income comes to
Rs.10,313/-. The deceased was aged about 44 years
at the time of the accident and multiplier applicable to
his age group is '14'. Thus, the claimants are
entitled to compensation of Rs.17,32,584/-
(Rs.10,313*14*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 Nos.2, 3
and 4, children of the deceased are entitled for
compensation of Rs.40,000/- each under the head of
'loss of parental consortium' and claimant Nos.5 and
6, parents of the deceased are entitled for
compensation of Rs.40,000/- each under the head
'loss of filial consortium' .
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 17,32,584
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 1,20,000
consortium
Loss of Filial consortium 80,000
Total 20,02,584
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.20,02,584/-.
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 disposal of the appeal,
I.A.No.1/2021 does not survive for consideration.
Hence, the same is also disposed of.
Sd/-
JUDGE
HA/-
