The National Insurance vs Smt. Sumana K
2021 Latest Caselaw 1179 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 19TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

              M.F.A. NO.5518 OF 2015 (MV-D)
BETWEEN:

THE NATIONAL INSURANCE
COMPANY LTD, BHARATH BLDG
P M RAO ROAD, MANGALORRE D.K.
REPRESENTED BY AUTHORISED SIGNATORY
AT REGIONAL OFFICE NO.144
SHUBHARAM COMPLEX, M G ROAD
BANGALORE-560 001.
                                              ... APPELLANT
(BY MR. SRISHAILA S, ADV.,)

AND:

1.     SMT. SUMANA K W/O LATE HUKRAPPA B
       AGED ABOUT 37 YEARS
       R/O. KOLPE HOUSE, KONNALU VILLAGE
       PUTTUR TALUK, D.K. DISTRICT.

2.     KUM. SHREYA, 16 YRS.

3.     KUM. SHRAVYA, 14 YRS.

4.     MASTER SHREYAS, 11 YRS

       2, 3 AND 4 BEING MINORS
       REP BY MOTHEER SMT. SUMANA
       RESPONDENT NO.1.
       R/O KOLPE HOUSE, KONNALU VILLAGE
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     PUTTUR TALUK
     D.K. DISTRICT-574201.

5.   SMT. CHENNAMMA
     W/O LATE BATYA
     AGED ABOUT 62 YRS
     R/OF BELIPPA GUDDA HOUSE
     KOKKADA VILLAGE AND POST
     BELTHANGADY TALUK
     D.K. DISTRICT-574214.

6.   S. JANAKI RAMAN
     AGED ABOUT 55 YEARS
     S/O SEETHA RAMAN
     R/O NO.24/3, KARPAGAM AVENUE
     JANAKHI NAGARA ANEX
     VALSARANAKKAM, CHENNAI.
                                          ... RESPONDENTS
(BY MR. HAREESH BHANDARY, ADV., FOR R1
R5 & R6 ARE SERVED
R2 - R4 ARE MINORS)
                          ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT

AGAINST THE JUDGMENT AND AWARD DATED 24.02.2015 PASSED

IN MVC NO.399/2013 ON THE FILE OF THE V ADDITIONAL

DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL

MACT, D.K. MANGALORE, SITTING AT PUTTUR, D.K. AWARDING

COMPENSATION OF RS.15,49,000/- WITH INTEREST @ 6% P.A.

FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.



     THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,

ALOK ARADHE J., DELIVERED THE FOLLOWING:
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                        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 claimant seeking

enhancement of the amount of compensation, against

the judgment dated 24.02.2015 passed by the Motor

Accident Claims Tribunal (hereinafter referred to as 'the

Tribunal' for short).

2. Facts leading to filing of this appeal briefly

stated are that on 04.08.2012 at about 6.00 p.m., the

deceased - Hukrappa B was walking alongside the mud

road at Kolpe, Konnalu Village, Puttur Taluk. At that

time, a car bearing registration No.TN-10-Z-8604, which

was being driven by its driver 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 same.

3. The claimants thereupon filed a petition

under Section 166 of the Act claiming compensation on

the ground that the deceased was aged about 39 years

at the time of accident and was employed as a security

guard as well as rubber tapper and was earning a sum

of Rs.25,000/- per month. It was further pleaded that

accident took place solely on account of rash and

negligent driving of the car by its driver. The claimants

claimed compensation to the tune of Rs.15,00,000/-

along with interest.

4. The insurance company filed written

statement, in which the mode and manner of the

accident was denied. It was further pleaded that the

accident occurred on account of negligence of the

deceased himself in crossing the road. It was also

pleaded that the driver of the lorry did not hold a valid

and effective driving license at the time of accident and

that the liability of the insurance company, if any, would

be subject to the terms and conditions of the insurance

policy. The age, avocation and income of the deceased

was also denied and it was pleaded that the claim of the

claimants is exorbitant and excessive.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant No.1 examined

herself as PW1, Azeez N.K. (PW2), Girish Rao (PW3),

Bouthis D'souza (PW4) and got exhibited documents

namely Ex.P1 to Ex.P19. The respondents examined

Subramanian as RW1 and got exhibited documents viz.,

Ex.R1 and Ex.R2. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place on

account of rash and negligent driving of the car by its

driver. It was further held, that as a result of aforesaid

accident, the deceased sustained injuries and

succumbed to the same. The Tribunal further held that

the claimants are entitled to a compensation of

Rs.15,49,000/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal has been filed by

the insurance company.

6. Learned counsel for the insurance company

submitted that the tribunal grossly erred in assessing

the income of the deceased notionally at Rs.7,500/- per

month when Mr.Girish Rao, PW3 who is the employer of

the deceased has stated in his evidence that the

deceased was earning Rs.6,500/- per month. It is

further submitted that the Tribunal erred in deducting

1/5th from the income of the deceased towards personal

and living expenses instead of 1/4th of the income as

the number of dependants are 5. It is also submitted

that the tribunal erred in making an addition to the

extent of 30% to the income of the deceased on account

of future prospects instead of 25% as the deceased was

in private employment where tenure of job is not

assured. On the other hand, learned counsel for the

claimants while inviting the attention of this court to

paragraph 17 of the judgment of the tribunal has

submitted that the tribunal has rightly assessed the

income of the deceased notionally at Rs.7,500/- per

month on the basis of evidence of PW3 viz., Girish Rao

as well as PW4-Bauthis D'souza. It is also submitted that

the tribunal has rightly deducted 1/5th from the income

of the deceased towards living and personal expenses on

the basis of Ex.P12, medical certificate and Ex.P13

handicap certificate which disclose that claimant No.3

who is the daughter of the deceased was physically

challenged and therefore, the deceased could not have

spent more towards living expenses. It is further

submitted that the amount of compensation awarded by

the Tribunal is just and proper and does not call for any

interference.

7. We have considered the submissions made

by learned counsel for the parties and have perused the

record. The only question which arises for our

consideration in this appeal is with regard to the

quantum of compensation. PW3-Girish Rao in his

evidence has stated that the deceased was employed as

security guard and was earning Rs.6,500/- per month.

PW4-Bauthis D'souza in his evidence has stated that the

deceased was engaged in rubber tapping at his rubber

plantation for a daily wage of Rs.500/- during the leisure

time of the deceased. However, the aforesaid witness

was not able to support his evidence with documentary

proof. From perusal of evidence of PW3-Girish Rao, as

well as PW4-Bauthis D'souza, it is clear that the

deceased was engaged in rubber tapping work at his

leisure as well as security guard. Therefore, the Tribunal

has rightly assessed the income of the deceased

notionally at Rs.7,500/- per month, which would

properly reflect the monthly income of the deceased.

8. In view of the law laid down by the

Constitution Bench of the Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED Vs. PRANAY SETHI

AND OTHERS' AIR 2017 SC 5157, 25% of the amount

has to be added on account of future prospects as the

deceased was in private employment where tenure of

the job is not assured as well as being self employed as

a rubber tapper. Thus, the monthly income comes to

Rs.9,375/-. The Supreme Court in SARALA VERMA VS

DELHI TRANSPORT CORPATION 2009 (6) SCC 121

has held that the percentage of deduction towards

personal expenses is not an inflexible rule and offers

merely a guideline and in cases where specific evidence

for personal expenses is adduced, the court may restrict

the percentage of deduction towards personal expenses.

Therefore, the Tribunal has rightly deducted 1/5th from

the income of the deceased on the basis of Ex.P12

Medical certificate and Ex.P13 Handicap certificate which

disclose that the deceased would be required to spend

less towards personal expenses and therefore, the

monthly dependency comes to Rs.7,500/-. Taking into

account the age of the deceased which was 40 years at

the time of accident, the multiplier of '15' has to be

adopted. Therefore, the claimants are held entitled to

(Rs.7,500x12x13) i.e., Rs.13,50,000/- on account of

loss of dependency.

9. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU

RAM & ORS.' (2018) 18 SCC 130, which has been

subsequently clarified by the Supreme Court in 'UNITED

INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR

AND ORS.' IN CIVIL APPEAL NO.2705/2020

DECIDED ON 30.06.2020 each of the claimant's are

entitled to a sum of Rs.40,000/- on account of loss of

consortium and loss love and affection. Thus, the

claimants are held entitled to Rs.1,60,000/-. In addition,

claimants are held entitled to Rs.30,000/- on account of

loss of estate and funeral expenses. Thus, in all, the

claimants are held entitled to a total compensation of

Rs.15,40,000/-. Needless to state that the aforesaid

compensation shall carry interest at the rate of 6% per

annum from the date of filing of the petition till the

payment is made. To the aforesaid extent, the judgment

passed by the Claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss