Karnataka High Court

Smt. Nalini. K vs Sri. Prakash. S on 5 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH 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.9727/2018 (MV)

BETWEEN :

1.     SMT.NALINI K.,
       W/O LATE YOGESH KUMAR S.R.,
       AGED ABOUT 32 YEARS

2.     KUM. MONISHA Y.,
       D/O LATE YOGESH KUMAR S.R.,
       AGED ABOUT 07 YEARS

3.     MASTER. DHARSHITH Y.,
       S/O LATE YOGESH KUMAR S.R.,
       AGED ABOUT 2½ YEARS

4.     SMT.H.K.SUBBALAKSHMAMMA
       W/O S.N.RAJU, AGED ABOUT 66 YEARS

5.     SRI S.N.RAJU
       S/O LATE S.NANJAPPA SHETTY,
       AGED ABOUT 71 YEARS

       THE APPELLANT No.2 & 3 BEING
       MINOR, REP BY HER MOTHER &
       NATURAL GUARDIAN-1ST APPELLANT.

       ALL ARE R/AT HUNSUR TOWN,
       MYSORE DISTRICT-571 105.            ...APPELLANTS

            (BY SRI T.PARAMESHWARAPPA, ADV.)
                           -2-



AND :

1.      SRI PRAKASH S.,
        S/O SIDDAIAH B.,
        AGED ABOUT 45 YEARS,
        NO.68/1, 15TH MAIN, 16TH CROSS,
        J.C.NAGARA, KURUBARAHALLI,
        MAHALAKSHMIPURAM LAYOUT,
        BANGALORE-560 086.

2.      THE MANAGER
        RELIANCE GENERAL INSURANCE CO. LTD.,
        UNNATHI ARCADE, 1ST FLOOR,
        NO.5/111 & 6/112,
        I BLOCK, Dr. RAJKUMAR ROAD,
        (I MAIN), RAJAJINAGAR,
        BANGALORE-560 010.               ...RESPONDENTS

            (BY SRI PRITHVI RAJ B.N., ADV. FOR R-1;
         SRI H.N.KESHAVA PRASHANTH, ADV. FOR R-2.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
19.07.2018 PASSED IN MVC No.5771/2017 ON THE FILE OF
THE XXII ADDITIONAL SMALL CAUSES JUDGE & XX ACMM AND
MEMBER, MACT, BENGALURU, (SCCH-24), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is directed against the judgment and

award dated 19.07.2018 passed in MVC No.5771/2017

on the file of the XXII Additional Small Causes Judge

and XX Additional Chief Metropolitan Magistrate &

M.A.C.T., Bengaluru (SCCH-24) [Tribunal for short].

2. The claimants instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 alleging

actionable negligence on the driver of the Tempo

Traveler bearing registration No.KA-03-D-0986

[offending vehicle] contending that on 25.09.2017 at

about 1.30 a.m., while the deceased was driving his

Autorickshaw bearing registration No.KA-02-AE-1348

on service road of ring road from Laggere Bridge

towards Sumanahally, met with the road traffic

accident. Due to the said impact, deceased sustained

fatal injuries and died on the spot.

3. It was contended that the deceased was aged

about 30 years at the time of the accident and he was

earning Rs.15,000/- p.m., as an auto driver and

contributing the same for maintenance of the family.

Due to the untimely death of the deceased, the

claimants have suffered mental agony, loss of

dependency etc. On these set of grounds, the claimants

sought for compensation.

4. After service of notice, respondents appeared

through their respective counsel and filed the

objections.

5. The respondent No.1 admitting the

ownership of the offending vehicle submitted that the

said vehicle was insured with the respondent No.2. The

policy was in force as on the date of the accident. The

vehicle had valid permit and FC, the driver of the

offending vehicle had valid and effective driving licence

at the time of the accident. It was contended that the

negligence of the driver of the auto has caused the

accident.

6. The insurer admitting the issuance of

insurance policy, denied the rash and negligent driving

of the Tempo Traveler. It was alleged that the driver of

the offending vehicle had no valid and effective driving

licence as on the date of the accident. For these

reasons, the insurer sought for dismissal of the claim

petition.

7. On the basis of the pleadings, the Tribunal

formulated the issues and answered as per the reasons

recorded in the impugned judgment and award,

allowing the claim petition in part awarding

compensation of Rs.16,82,800/- with interest at 8%

p.a., from the date of the petition till its realization.

8. Being dissatisfied with the quantum of

compensation awarded, the claimants have preferred

the present appeal seeking for enhancement of

compensation.

9. Learned counsel for the

appellants/claimants would contend that the Tribunal

has grossly erred in determining the monthly income of

the deceased at Rs.8,000/-. Accordingly, they sought for

re-determination of the income as well as the

enhancement of compensation under the different

heads.

10. Learned counsel for the insurer supporting

the impugned judgment and award submitted that the

Tribunal on appreciation of oral and documentary

evidence has awarded just and proper compensation

and the same does not call for any interference by this

Court.

11. Heard the learned counsel for the parties

and perused the material on record.

12. It is settled that in the absence of proof of

income, this Court is consistently referring to the chart

prepared by the Karnataka State Legal Services

Authority to determine the monthly income of the

victim. Referring to the same, the monthly income of

the deceased could be determined safely at Rs.11,000/-.

Adding 40% towards the future prospects, the total

income would be Rs.15,400/- p.m., since the deceased

was aged about 34 years, applying the multiplier of 16,

deducting 1/4th towards personal and living expenses,

the loss of dependency would workout to

Rs.22,17,600/- [15400 x 12 x 16 x ¾].

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.2,30,000/- under the

conventional heads viz., Rs.80,000/- towards filial

consortium [Rs.40,000/- each to the parent];

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

consortium of Rs.80,000/- [Rs.40,000/- to each child];

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:

Amount [in Sl.No. Particulars Rs.]

1. Loss of dependency 22,17,600/-

Loss of Filial Consortium

2. 80,000/-

[Rs.40,000/- each to the parent] Loss of Parental Consortium

3. 80,000/-

[Rs.40,000/- each to the parent]

4. Loss of Spousal Consortium 40,000/-

  5.              Loss of Estate                       15,000/-
  6.            Funeral expenses                       15,000/-
                   Total                            24,47,600/-

Thus, the claimants shall be entitled to total

compensation of Rs.24,47,600/- with interest at the

rate of 6% per annum on the enhanced compensation

from the date of the claim petition till the date of

realization.

15. Hence, the following:

ORDER

i) The appeal is allowed in part.

ii) The total compensation awarded by the

Tribunal is modified and enhanced to

Rs.24,47,600/- as against Rs.16,82,800/-

which shall carry interest at the rate of 6%