Karnataka High Court
Smt. Padma vs Chandra on 18 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7943 OF 2016(MV)
BETWEEN:
1. SMT. PADMA
W/O LATE. SANNAIAH @ SRINIVAS
AGED ABOUT 39 YEARS.
2. KEERTHIRAJ
S/O LATE SANNAIAH @ SRINIVAS
AGED ABOUT 19 YEARS.
3. NANDINI
D/O LATE SANNAIAH @ SRINIVAS
AGED ABOUT 18 YEARS.
4. SMT. KALAMMA
W/O LATE. CHANNAIAH
AGED ABOUT 62 YEARS.
ALL ARE R/O KENDINNE KAVAL VILLAGE
MALLIPATNA HOBLI
ARKALAGUD TALUK
HASSAN DISTRICT-573102.
... APPELLANTS
(BY SRI.D.MURTHY, ADV. )
2
AND
1. CHANDRA
S/O NIRVANAIAH
MAJOR
R/O MANDIKERI VILLAGE
KASABA HOBLI
ARKALGUD TALUK
HASSAN DISTRICT-573102.
2. THE REGIONAL MANAGER
THE TATA AIG INSURANCE COM. LTD.,
JAMBHUKESHWARA ARCADE
MILLRACE ROAD
BANGALORE-560 052.
... RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
07.05.2016 PASSED IN MVC NO.141/2014 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND MEMBER
MACT, ARKALGUD PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSTION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, 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 7.5.2016 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 30.9.2013 the deceased
Sannaiah @ Srinivas was waiting for bus near
Ankanayakanahalli opposite to Milk Diary Arakalgud
road, at that time, a motorbike bearing registration
No.KA-13-EA-1942 which was being ridden in a rash
and negligent manner, 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 on the ground that the deceased was
aged about 38 years at the time of accident and was
employed as cleaner and was earning Rs.10,000/-
p.m. The claimants claimed compensation to the tune
of Rs.10,00,000/- 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. Respondent No.1 has admitted the accident
but denied the negligence on the part of the rider. The
vehicle is insured and hence, the Insurance Company
is liable to pay compensation.
Respondent No.2 has pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the deceased might have fallen
somewhere and fixed up the case for claiming the
compensation. It was further pleaded that the
quantum of compensation claimed by the claimants is
exorbitant. Hence, he 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.1 as PW-1
and another witness as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P11. On behalf of
respondents, two witnesses were examined as RWs-1
and 2 got exhibited documents namely Ex.R1 to
Ex.R5. 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 rider, 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.8,75,422/- along
with interest at the rate of 8% 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 earning Rs.10,000/- per month by working as
cleaner. But the Tribunal is not justified in taking the
monthly income of the deceased as merely as
Rs.5,500/-.
Secondly, the claimants claim that the age of the
deceased was 40 years at the time of his death. But
the Tribunal is not justified in taking the age of the
deceased as 45 years.
Thirdly, as on the date of the 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], the
claimants are entitled for future prospects. But the
Tribunal has failed to consider the same.
Thirdly, 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'.
Fourthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side.
Hence, the learned counsel appearing for the
claimants 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.10,000/- 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, even though the claimants claim that
the deceased was aged about 40 years, as per
medical records, the age of the deceased is shown as
46 years. Even in the cross examination, PW-1 had
deposed that she would produce the election ID card
of the deceased to prove the age, but she has not
produced the same. Therefore, the Tribunal has rightly
held that the deceased was aged between 41 to 45
years at the time of his death.
Thirdly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
Fourthly, on appreciation of oral and
documentary evidence, the Tribunal has awarded just
and reasonable compensation.
Hence, the learned counsel for the Insurance
Company 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 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 2013, the notional income has to be taken
at Rs.8,000/- p.m. Regarding age of the deceased,
even though the claimants claim that the deceased
was aged 40 years at the time of his death, as per
medical bills produced, he was aged 46 years and in
Post Mortem report it is shown as 40 years. Even in
the cross examination, PW-1 had deposed that she
would produce the election ID card of the deceased,
but she has not produced the same. Even if the age of
deceased is taken as 41 years, the multiplier
applicable is '14'. Hence, considering the materials
available on record, it can be held that the deceased
was aged between 41 to 45 years and multiplier
applicable to his age group is 14. As per the law laid
down by the Hon'ble Supreme Court in the case of
PRANAY SETHI (supra) in case the deceased was
self-employed or on a fixed salary, an addition of 25%
of the established income towards 'future prospects'
should be the warrant where the deceased was
between the age group of 40 to 50. Thus, the
monthly income comes to Rs.10,000/-. Out of which,
it is appropriate to deduct 1/4th towards personal
expenses and therefore, the monthly income comes to
Rs.7,500/-. Thus, the claimants are entitled to
compensation of Rs.12,60,000/- (Rs.7500*12*14) on
account of 'loss of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', 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 and 3, children
are entitled for compensation of Rs.40,000/- each
under the head of 'loss of parental consortium' and
claimant No.4, mother of the deceased are entitled for
compensation of Rs.40,000/- under the head 'loss of
filial consortium' .
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'.
The compensation awarded under the head of
medical expenses is just and reasonable.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,60,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Loss of Filial consortium 40,000
Medical expenses 2,422
Total 14,52,422
The claimants are entitled to a total
compensation of Rs.14,52,422/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 8%
p.a. within a period of four weeks from the date of
receipt of copy of this judgment excluding interest for
the delayed period of 109 days in filing the appeal.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
DM
