Sri. Shrinivasa K. A. vs Mr. Abubakkar
2021 Latest Caselaw 1233 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 20TH DAY OF JANUARY 2021

                            PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

              M.F.A. NO.2976 OF 2017 (MV-D)
BETWEEN:

1.     SRI. SHRINIVASA K. A.
       S/O ANANTHARAMA BHAT
       AGED ABOUT 41 YEARS
       R/AT ANANTHASHREE BOLLAJE
       KRISHNAPURA 7TH BLOCK
       KATIPALLA VILLAGE
       MANGALORE-575001.

2.     SRI. SRINATH K A
       S/O ANANTHARAMA BHAT
       AGED ABOUT 36 YEARS
       R/AT ANANTHASHREE BOLLAJE
       KRISHNAPURA 7TH BLOCK
       KATTIPALLA VILLAGE
       MANGALORE-575001.

3.     SMT. SRIDEVI UPADHYAYA
       W/O SRI MADHUSUDAN UPADHYAYA
       AGED ABOUT 39 YEARS
       R/AT. NO.261, 18TH MAIN ROAD
       4TH BLOCK, NANDINI LAYOUT
       BANGALORE NORTH
       BANGALORE-96.
                                              ... APPELLANTS

(BY MR. THEJESH P, ADV.,)
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AND:

1.     MR. ABUBAKKAR
       S/O AHMED BYARI
       AGED ABOUT 51 YEARS
       R/AT NO.4/7A
       ARABIGUDDE HOUSE
       S V S COLLEGE ROAD
       BANTWAL-574153.

2.     MR. ABDUL KARIM
       S/O ABDUL KHADER
       MAJOR IN AGE
       R/AT 4TH BLOCK
       KATIPALLA
       MANGALORE-575001.
                                           ... RESPONDENTS
(BY MR. PRASANNA V.R. ADV., FOR R1 & R2)
                            ---
     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.08.2016 PASSED
IN MVC NO.1843/2014 ON THE FILE OF THE IV ADDITIONAL
DISTRICT JUDGE AND MEMBER, MACT, DAKSHINA KANNADA,
MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING     ENHANCEMENT      OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., 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 seeking enhancement of the

amount of compensation against the judgment dated

01.08.2016 passed by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 09.06.2014, the deceased Leelavathi was

walking alongside the road near MRPL School Gate,

Surathkal. At that time, a tempo bearing registration No.KA-

19-AA-2974, 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 59 years at the time of

accident and was employed as a bank clerk and was earning

a sum of Rs.45,065/- per month. It was further pleaded that

accident took place solely on account of rash and negligent

driving of the offending tempo by its driver. The claimants

claimed compensation to the tune of Rs.30,00,000/- along

with interest.

4. The respondents 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 herself in walking a steep path

and that the injuries sustained by the deceased were due to

the skid and fall of the accused from the steep path. The age,

avocation and income of the deceased was also denied and it

was pleaded that the claim of the claimants is false,

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 himself as PW-1,

George Fernandes (PW2), Ravi (PW3) and got exhibited

documents namely Ex.P1 to Ex.P12. The respondents

examined Aboobakker (RW1) and adduced document namely

Ex.R1. The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of rash and

negligent driving of the tempo 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.2,16,200/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal has been filed seeking

enhancement of the amount of compensation.

6. Learned counsel for the claimant submitted that

the Tribunal grossly erred in not awarding compensation

under the head 'loss of dependency' on the ground that the

claimants were majors and were employed with independent

source of income. On the other hand, learned counsel for the

respondents submitted that Tribunal has rightly not awarded

compensation under the head 'loss of dependency' as the

claimants are married and are having independent source of

income while claimant no.1 is working as Superintendent at

Denralakatte Medical College. 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. The

Supreme Court in NATIONAL INSURANCE COMPANY

LIMITED VS BIRENDER AND CO. AIR 2020 SC 434 has

held that the 'legal representatives' of the deceased could

move an application under Section 166(1)(c) of the Act. It

has also been held that the major married son who is also

earning and not fully dependant on the deceased would still

be covered by the expression' legal representatives' of the

deceased. In view of the aforesaid enunciation of law by the

Supreme Court, the claimants are entitled to compensation

under the head 'loss of dependency.' The claimants have

examined Ex. P12 Pay Slip to prove the income of the

deceased. However, it is pertinent to note that the aforesaid

document has not been proved by examining its author

namely, the employer of the deceased. Therefore, the

income of the deceased is to be assessed notionally on the

basis of the guidelines issued by the Karnataka Legal

Services Authority. Since the accident is of the year 2014,

notional income comes to Rs.8,500/- per month.

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, 10% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.9,350/-. Since, the number of dependents is 3,

therefore, 1/3rd of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.6,234/-. Taking into account the age of the

deceased which was 59 years at the time of accident, the

multiplier of '9' has to be adopted. Therefore, the claimants

are held entitled to (Rs.6,234x12x9) i.e., Rs.6,73,272/- 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.1,20,000/-. 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.8,23,272/-. 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