Karnataka High Court

Smt Nagarathna vs Shri Thimmaraju on 18 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF JANUARY, 2021

                        PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

     M.F.A.No.3799/2018 C/w. M.F.A.No.5814/2018 (MV)

IN MFA No.3799/2018:

BETWEEN :
1.      SMT.NAGARATHNA
        W/O LATE VIJAY KUMAR
        AGED ABOUT 32 YEARS

2.      SMT.ALAMELAMMA
        W/O LATE NAGARAJU
        AGED ABOUT 52 YEARS

3.      ASHA.A.N.,
        D/O LATE NAGARAJU
        MAJOR.

ALL ARE R/AT No.315/B, 4TH CROSS
SIDDARTHANAGARA, 13TH WARD
MADDUR TOWN
MADYA DISTRICT.                            ...APPELLANTS

                   (BY SRI S.RAJU, ADV.)

AND :
1.      SHRI. THIMMARAJU
        S/O SANNAPPA
        R/AT HOUSE No.18/54
        MANGALAVARAPETE
        13TH CROSS, CHANNAPATNA TOWN
        RAMANAGARA DISTRICT-572139.
                          -2-



2.      THE NEW INDIA ASSURANCE
        COMPANY LTD., No.224/14
        GIRIYAMMA SHAMBHUGOWDA COMPLEX
        CHURCH ROAD
        CHANNAPATNA TOWN-572159.     ...RESPONDENTS

           (BY SRI C.R.RAVISHANKAR, ADV. FOR R-2)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
07.03.2018 PASSED IN MVC No.383/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT,
CHANNAPATTANA, RAMANAGAR DISTRICT, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

IN MFA No.5814/2018:

BETWEEN :
THE NEW INDIA ASSURANCE CO LTD.,
No.224/14, GIRIYAMMA SHAMBHUGOWDA
COMPLEX, CHURCH ROAD
CHANNAPATNA TOWN
REP. BY T.P.HUB, No.9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M.G. ROAD, BANGALORE-560001
REP. BY ITS MANAGER.                            ...APPELLANT

               (BY SRI C.R.RAVISHANKAR, ADV.)

AND :
1.      SMT.NAGARATHNA
        W/O LATE VIJAY KUMAR
        AGED ABOUT 32 YEARS

2.      SMT.ALAMELAMMA
        W/O LATE NAGARAJU
        AGED ABOUT 52 YEARS

3.      ASHA.A.N.,
        D/O LATE NAGARAJU, MAJOR.
                         -3-

THE RESPONDENT Nos.1 TO 3 ARE
R/AT No.315/B, 4TH CROSS
SIDDARTH NAGARA, 13TH WARD
MADDUR TOWN
MADYA DISTRICT - 571410.

4.   SHRI. THIMMARAJU
     S/O SANNAPPA, MAJOR
     R/AT HOUSE No.18/54
     MANGALAVARAPET
     13TH CROSS, CHANNAPATNA TOWN
     RAMANAGARA DISTRICT-571501.           ...RESPONDENTS

                  (R-1 TO R-4 - SERVED.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
07.03.2018 PASSED IN MVC No.383/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC AND ADDITIONAL MACT,
CHANNAPATTANA,      RAMANAGAR     DISTRICT,   AWARDING
COMPENSATION OF Rs.25,18,000/- WITH COSTS AND FUTURE
INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.

      THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:

                   JUDGMENT

The insurer as well as the claimants are before

this Court challenging the judgment and award dated

07.03.2018 passed in MVC No.383/2016 on the file of

the Senior Civil Judge and JMFC and Additional MACT,

Channapattana ['Tribunal' for short].

2. The claimants being the widow, mother and

sister of the deceased Vijay Kumar.N instituted the

petition under Section 166 of the Motor Vehicles Act,

1988 claiming compensation for the death of Sri.Vijay

Kumar.N in the road traffic accident as his legal

representatives and dependants.

3. It was averred that on 10.07.2016 at about

06.30 p.m., when the deceased Vijay Kumar.N and his

friend one Kumar were proceeding in the Activa

motorcycle bearing registration No.KA-41-EF-5351, near

Neelakantanahalli village, Channapatna-

Hodikehosahalli road, the rider of the motorcycle

bearing registration No.KA-05-ET-6809 [offending

vehicle] came in a rash and negligent manner and

dashed against the deceased Vijay Kumar's vehicle

which caused the accident in question. As a result, the

deceased fell down and sustained severe injuries.

Immediately, he was shifted to General hospital,

Channapatna and thereafter to Mandya District

Hospital, Mandya. However, he succumbed to the

injuries in the said hospital.

4. It was contended that the deceased was aged

about 29 years, working as an Assistant in Motherson

Automotive Techonologies and Engineering and was

earning Rs.22,290/- p.m. Due to the untimely death of

the deceased, the claimants have lost the earning

member of the family and are suffering from loss of

dependency, loss of love and affection etc. On these set

of facts and grounds, the claimants had sought for

compensation.

5. In pursuant to the service of notice, the

respondents appeared through their respective counsel.

Respondent No.2 filed written statement denying the

petition averments. The defence set up was that the

accident was not occurred due to the negligence of the

driver of the offending vehicle; the driver of the offending

vehicle had no valid driving licence on the date of the

accident. Admitting the coverage of the insurance policy

in respect of the offending vehicle on the date of the

accident, it was contended that the liability is subject to

terms and conditions of the policy. Accordingly, sought

for dismissal of the petition.

6. On the basis of the pleadings, the Tribunal

framed the issues and allowed the petition in part

awarding total compensation of Rs.25,18,000/- with

interest at the rate of 6% p.a., from the date of the

petition till its realization, fastening the liability on the

insurer to satisfy the award.

7. Being aggrieved by the quantum of

compensation, the claimants have preferred MFA

No.3799/2018 contending that the quantum of

compensation awarded is inadequate whereas the

insurer has preferred MFA No.5814/2018 contending

that the quantum of compensation awarded by the

Tribunal is excessive.

8. Learned counsel for the insurer would

submit that the Tribunal grossly erred in determining

the monthly income of the deceased at Rs.12,000/- and

adding 50% of the same towards future prospects in the

absence of any material evidence to prove the

established regular income of the deceased with a stable

job. It was further argued that the compensation

awarded under the different heads is exorbitant.

9. Learned counsel for the claimants would

argue that the deceased was working as an Assistant in

Motherson Automotive Technologies and Engineering

and was earning Rs.22,290/- p.m. The appointment

letter at Ex.P11, Identity card at Ex.P12, Salary Slip

extracts at Ex.P13 to P16, ITI marks card at Ex.P18,

Bank statement extract Ex.P23 and salary slip extract

at Ex.P24 are the documents produced by the claimants

to establish the income of the deceased. The Tribunal

though noticed the same, determined the monthly

income of the deceased notionally at Rs.12,000/- p.m.,

which is palpably erroneous. It was argued that the

compensation awarded by the Tribunal under the

different heads is meager. Accordingly, sought for

enhancement of the compensation.

10. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

11. The crux of the controversy lies in a narrow

compass inasmuch as the income of the deceased

determined by the Tribunal. We have perused the

original documents. Exhibits referred to by the learned

counsel for the claimants though indicates the gross

total income of the deceased as Rs.18,302/- p.m., for

the month of April to July, 2016 [Ex.P13 to Ex.P16]. But

to substantiate the same, no satisfactory evidence has

been produced. The bank statements produced by the

claimants would not disclose the said sum of

Rs.18,302/- drawn towards salary regularly by the

deceased. On the other hand, it varies from month to

month. Ex.P9, copy of the SSLC marks card, Ex.P18,

copy of the ITI course marks card would indicate that

the deceased was qualified to work as a skilled

employee.

12. Having regard to the educational

qualification of the deceased and his employment

with Motherson Automotive Technologies and

Engineering as an Assistant, we deem it

appropriate to re-determine the monthly income of

the deceased at Rs.14,000/-. In the absence of

concrete evidence to establish the stable and regular

job, 40% of the same is added towards future prospects

which amounts to Rs.19,600/-. Considering the same,

applying the multiplier of 17 as the deceased was aged

- 10 -

about 29 years, deducting 1/3rd of the income towards

the personal and living expenses, the loss of

dependency would be Rs.26,65,600/- [19,600 x 12 x

2/3 x 17].

13. In terms of the ruling of the Hon'ble Apex

Court in National Insurance Company Limited Vs.

Pranay Sethi and others ((2017)16 SCC 680) and New

India Assurance Company Limited V/s. Somwati

and Others 2020 [SCC ONLINE SC 720], the claimants

are entitled to compensation of Rs.1,10,000/- under the

conventional heads viz., Rs.40,000/- towards filial

consortium; Rs.40,000/- towards the spousal

consortium; Rs.15,000/- towards funeral expenses and

Rs.15,000/- towards loss of estate.

14. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

- 11 -


Sl.No.              Particulars                 Amount [in Rs.]
  1.          Loss of dependency                     26,65,600/-
  2.       Loss of Filial Consortium                    40,000/-
  3.      Loss of Spousal Consortium                    40,000/-
  4.             Loss of Estate                         15,000/-
  5.           Funeral expenses                         15,000/-
                  Total                              27,75,600/-

Thus, the claimants shall be entitled to total

compensation of Rs.27,75,600/- as against

Rs.25,18,000/- with interest at the rate of 6% per

annum from the date of the claim petition till the date of

realization.

15. Hence, the following:

ORDER

i) Appeal filed by the claimants in MFA

No.3799/2018 stands allowed in part. Appeal

filed by the insurer in MFA No.5814/2018

stands dismissed.

ii) The total compensation awarded by the