Karnataka High Court
Smt. S.V. Suvarna vs Mr. A. Subbaiah on 21 January, 2021
Author: Alok Aradhe Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.8365 OF 2013 (MV-D)
BETWEEN:
SMT. S.V. SUVARNA
W/O SRINIVAS
AGED ABOUT 60 YEARS,
R/AT NO.75/B, 5TH CROSS,
B.S..K 1ST STAGE,
ASHOKNAGAR POST,
OFFICE ROAD,
BENGALURU-560050.
...APPELLANT
(BY SMT. PADMA REKHA C.S., ADVOCATE)
AND:
1. MR. A. SUBBAIAH
AGED ABOUT 38 YEARS,
S/O ARUNACHALAM,
NO.15316608 K.MT
COY MEG CENTRE.
2. UNION OF INDIA
REPRESENTED BY
COMMANDING OFFICER,
MADRAS ENGINEERING
GROUP & CENTRE,
2
NEAR ULSOOR LAKE,
BENGALURU-560008.
...RESPONDENTS
(BY SRI. TIMMANNA BHAT DEVATHE, CENTRAL GOVERNMENT
COUNSEL FOR RESPONDENT NO.2.
SERVICE OF NOTICE ON RESPONDENT NO.1 IS DISPENSED
WITH VIDE COURT ORDER DATED 31.10.2017)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 17.06.2013 PASSED IN
MVC NO.5976/2011 ON THE FILE OF THE XVIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-IV,
BANGALORE (SCCH-4) PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
vehicles Act, 1988 is filed by the claimant seeking
enhancement of compensation awarded by the XVIII
Additional Judge, Court of Small Causes, Member, Motor
Accident Claims Tribunal-IV, Bangalore (SCCH-4)
(henceforth referred to as 'Tribunal') in terms of the
Judgment and Award dated 17-06-2013 in MVC No.5976 of
2011.
2. Though this appeal is listed for admission
today, the same is taken up for the final disposal with the
consent of the learned counsel for the parties.
3. The appellant was the claimant while the
respondent No.1 is the driver and respondent No.2 is the
owner of a military Truck bearing registration number
O8D-178374-X (henceforth referred to as the "offending
vehicle").
4. The claim petition discloses that the claimant is
the dependent and the legal representative of
Mr.Chandrashekar. It is stated that on 16-07-2011, Mr.
Chandrashekar was riding a motorcycle bearing
registration number KA-05-EY-3654 on Dr.Ambedkar road.
At about 1-45 p.m., the driver of the offending vehicle
drove it in a rash and negligent manner and dashed
against the motorcycle. The said Chandrashekar fell down
and the wheels of the offending vehicle ran over his head
and he succumbed on the way to the hospital. A complaint
was lodged against the driver of the offending vehicle. It is
claimed that the deceased was employed as a Senior
Executive and was earning Rs.19,650/- per month. The
claimant claimed that due to the untimely death of her
son, she had lost his emotional and financial support. The
claimant filed a claim petition under Section 166 of the
Motor Vehicles Act, 1988 claiming compensation of a sum
of Rs.30,00,000/- from the owner of the offending vehicle.
5. The claim petition was contested by the owner
of the offending vehicle as well as its driver. They denied
that the accident occurred due to the negligence of the
driver of the offending vehicle. Contrarily, they claimed
that the deceased was negligent and urged that the driver
of the offending vehicle was held not responsible in a Court
of enquiry. Hence, they contended that they were not
liable to pay the compensation.
6. Based on these rival contentions, the claim
petition was set down for trial. The claimant was examined
as PW.1 and she examined two other witness as PW.2 and
PW.3 and they marked documents as Ex-P1 to P11. An
official of the Union of India was examined as RW.1 and
the driver of the offending vehicle was examined as RW.2
and they marked a document as Ex-R1.
7. Based on the oral and documentary evidence
on record, the Tribunal held that the accident was due to
the rash and negligent driving by the driver of the
offending vehicle. This finding of the Tribunal is not
challenged by the owner/ driver of the offending vehicle
and therefore, this finding has attained finality.
8. In so far as the claim for compensation is
concerned, the Tribunal noticed that the deceased was 28
years old at the time of the accident. It also found from
Ex-P11 that the deceased was employed as a Senior
Executive-Data Base Services at M/s.Pradeep Devaiah &
Associates Pvt. Ltd. and as per Ex-P10, he was drawing a
monthly salary of Rs.19,650/-. However, the Tribunal
refused to accept the monthly income of the deceased on
the ground that the income tax returns and the bank pass
book were not placed on record and thus assumed a
notional income of Rs.10,000/- per month. As the
deceased was a bachelor, the Tribunal deducted 50% of
his income towards his living expenses and awarded the
following compensation
Amount in
Heads of compensation
Rupees
Loss of dependency 10,20,000/-
Transportation of body and 10,000/-
funeral expenses
Loss of estate 10,000/-
Loss of love and affection 10,000/-
Total 10,50,000/-
9. In so far as the liability to pay the
compensation, it held that the owner of the offending
vehicle is liable to pay the compensation along with
interest at 6% per annum from the date of claim petition
till the date of realisation.
10. Feeling aggrieved by the quantum of
compensation awarded by the Tribunal, the claimant has
filed this appeal.
11. The learned counsel for the claimant contended
that the Tribunal committed an error in not accepting the
income of the deceased at Rs.19,650/- per month even
though PW.3 - Administration Executive at M/s.Pradeep
Devaiah Associates Pvt. Ltd. deposed before the Court
about the employment of the deceased and his salary
details. He contended that Exs.P10 and P11 were proved
beyond any doubt and the hesitance on the part of the
Tribunal in not accepting these documents on the lame
ground that the income tax returns and the bank account
statement were not produced, is untenable. He also
contended that the Tribunal failed to award loss of future
prospects at 50% as held by the Apex Court in the case of
NATIONAL INSURANCE COMPANY LIMITED VS.
PRANAY SETHI AND OTHERS (2017 (16) SCC 680), He
also urged that the Tribunal ought to have awarded
adequate compensation towards loss of amenities, loss of
love and affection and the funeral expenses.
12. contra, the learned counsel for the insurer
contended that the salary slip was not supported by any
bank statement and therefore, the Tribunal was justified in
accepting a notional income of Rs.10,000/- per month. He,
however, did not dispute the fact that the Tribunal had not
awarded compensation towards the loss of future
prospects.
13. We have considered the arguments canvassed
by the learned counsel for the parties and we have
perused the records of the Tribunal as well as its Judgment
and award.
14. There is no dispute about the accident and the
death of the son of the claimant. The evidence of PW.2
indicates that he was riding pillion on the motorcycle which
was ridden by the deceased. Even otherwise, the finding of
the Tribunal that the driver of the offending vehicle was
negligent and was responsible for the accident, has
attained finality.
15. It is seen from Ex-P11 that the deceased was
beneficially employed and was earning Rs.19,650/- per
month. The claimant examined PW.3 who deposed in
specific terms about the appointment and the salary of the
deceased. Her evidence was not discredited and therefore,
the Tribunal erred in not accepting Exs.P10 and P11 as the
proof of the income of the deceased. The reasoning
adopted by the Tribunal to reject Exs.P10 and P11 is
utterly shocking. The Tribunal ought to have deducted a
sum of Rs.200/- towards professional tax and must have
accepted the income of the deceased at a sum of
Rs.19,450/- per month. It also did not award loss of future
prospects, which in the present case must have been
50% since the claimant had placed on record his letter of
appointment and it is nobody's case that the employment
of the deceased was not permanent. Since the deceased
was a bachelor, the Tribunal was justified in deducting
50% of his income towards his living expenses. Further,
the claimant was entitled to adequate compensation
towards loss of filial consortium as held by the Apex Court
in the case of MAGMA GENERAL INSURANCE CO. LTD
VS NANU RAM ALIAS CHUHRU RAM [2018 (18) SCC
130] and in the case of UNITED INDIA INSURANCE
CO. LTD. VS SATINDER KAUR @ SATWINDER KAUR
AND OTHERS [2020 SCC OnLine SC 410]. We are
conscious of the fact that the compensation claimed by the
claimant is on a lower side and the Tribunal failed to follow
the law then declared by the Apex Court in the case of
U.P. STATE ROAD TRANSPORT CORPORATION AND
OTHERS VS. TRILOK CHANDRA [1996 ACJ 831].
However, this would not deter us from awarding just
compensation in view of the Judgment of the Apex Court in
the case of KAJAL vs. JAGDISHCHAND AND OTHERS
[2020(4) SCC 413], Hence, the compensation awarded by
the Tribunal needs to be reconsidered and redetermined as
follows:
Heads of compensation Amount in
Rupees
Loss of dependency
(Rs.19450/-+50%= 29,75,850/-
Rs.29,175/- after deducting
50% of the same, it would
be Rs.14,587.50Ps.)
(Rs.14587.50 x 12 x 17)
Funeral expenses 15,000/-
Loss of estate 15,000/-
Loss of love and affection 40,000/-
Total 30,45,850/-
16. Consequently, this appeal is allowed. The
impugned Judgment and award passed by the Tribunal is
modified and the compensation awarded by the Tribunal is
enhanced from Rs.10,50,000/- to a sum of Rs.30,45,850/-
which shall be paid by the respondents along with interest
at 6% per annum from the date of the claim petition till
the date of realisation.
17. The respondents shall deposit the
compensation amount along with interest as stated above
before the Tribunal within a period of one month from the
date of receipt of a certified copy of this Judgment.
18. Upon deposit, 50% of the amount shall be kept
in the name of the claimant an interest earning fixed
deposit in any nationalised bank for a period of three years
and the claimant shall be entitled to draw the interest.
Sd/-
JUDGE
Sd/-
JUDGE
sma
