The Manager vs Smt S Jayalakshmi
2021 Latest Caselaw 1288 Kant

                                 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.3475 OF 2017
                                C/W
            M.F.A. CROB NO.117 OF 2017 (MV-D)


M.F.A. NO.3475 OF 2017


BETWEEN:

THE MANAGER
ORIENTAL INSURANCE CO., LTD.,
T.P. HUB NO.44/45
LEO SHOPPING COMPELX
4TH FLOOR RESIDENCY CROSS ROAD
M.G. ROAD, BANGALORE-560 001.
                                            ... APPELLANT
(BY MR. S.Y. SHIVALLI, ADV.,)

AND:

1.     SMT. S. JAYALAKSHMI
       W/O LATE NARASIMHA MURTHY
       AGED ABOUT 20 YEARS.

2.     SMT. BYALA NARASAMMA
       W/O LATE NAGAIAH
       AGED ABOUT 50 YEARS.
                              2



     BOTH THE RESPONDENT ARE
     R/O MALLASANDRA VILLAGE
     SONDEKOPPA POST, DASANPURA HOBLI
     BANGALORE NORTH TALUK.

3.   SRI. VIJAYASHANKAR P B
     R/O NO.406, BASAPPA FLOOR MILL
     BHEL LAYOUT, 2ND STAGE EXTN
     PATTANAGERE R.R. NAGAR
     BANGALORE-560 098.
                                           ... RESPONDENTS
(BY MR. K.M. MURARI MOUNI, ADV., FOR R1 & R2
        R3 SERVED)
                            ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.2.2017 PASSED IN MVC NO.4351/2015 ON THE FILE OF THE XXII ADDL. SMALL CAUSES JUDGE AND XX ADDL CHIEF METROPOLITAN MAGISTRATE AND MACT BENGALURU (SCCH-24), AWARDING COMPENSATION OF RS.16,65,165/- WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL DEPOSTI.

M.F.A. CROB NO.117 OF 2017 BETWEEN:

1. SMT. S. JAYALAKSHMI W/O LATE NARASIMHA MURTHY AGED ABOUT 22 YEARS.

2. SMT. BYLA NARASAMMA W/O LATE NAGAIAH AGED ABOUT 52 YEARS.

BOTH ARE R/O MALLASANDRA VILLAGE SONDEKOPPA POST, DASANPURA HOBLI BANGALORE NORTH TALUK-562103.

... CROSS OBJECTORS

(BY MR. MURARI MOUNI K.M. ADV.,)

AND:

1. THE MANAGER ORIENTAL INSURANCE CO. LTD., T.P. HUB NO.44/45 LEO SHOPPING COMPELX 4TH FLOOR RESIDENCY CROSS ROAD M.G. ROAD, BANGALORE-560 001.

2. SRI. VIJAYA SHANKAR P B R/O NO.406 BASAPPANA FLOOR MILL BHEL LAYOUT 2ND STAGE EXTENSION PATTANAGERE R.R. NAGAR, BANGALORE-560098.

... RESPONDENTS

---

THIS M.F.A. CROB IN M.F.A. NO.3475/2017 IS FILED UNDER ORDER 41 RULE 22 OF THE CPC, AGAINST THE JUDGMENT AND AWARD DATED 17.2.2017 PASSED IN MVC NO.4351/2017 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND XX ACMM AND MEMBER MACT BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS M.F.A. AND M.F.A. CROB COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.3475/2017 has been filed by the insurance

company, whereas, the cross objection M.F.A. Crob

No.117/2017 has been filed claimants seeking enhancement

of the amount of compensation under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'

for short) against the judgment dated 17.02.2017 passed by

the Motor Accident Claims Tribunal. Since, both the appeal as

well as cross objection arise out of the same accident and

from the same judgment, they were heard together and are

being decided by this common judgment.

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

stated are that on 27.06.2015, the deceased

Narasimhamurthy was riding a motorcycle bearing

Registration No.KA-41-X-6658. When he reached near

Syanumangala Kerekodi, an Eicher canter bearing

registration No. KA-12-9665 which was being driven by its

driver in a rash and negligent manner, came from the

opposite direction and dashed against the motorcycle which

the deceased was riding. 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 31 years at the time of

accident and was engaged as an electrician and was earning

a sum of Rs.15,000/- per month. It was further pleaded that

accident took place solely on account of rash and negligent

driving of the offending canter by its driver. The claimants

claimed compensation to the tune of Rs.40,00,000/- along

with interest.

4. The insurance company filed written statement,

in which the mode and manner of the accident was denied. It

was pleaded that he accident occurred on account of the

negligence of the deceased himself in riding the motorcycle.

It was further pleaded that the claim petition is not

maintainable on account of non joinder of necessary parties.

It was also pleaded that the driver of the offending canter 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.2 examined herself as PW-1,

Venkatachalaiah (PW2), Rajanna SK (PW3) and got exhibited

documents namely Ex.P1 to Ex.P17. The respondents neither

adduced any oral nor any documentary evidence. 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 canter 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.16,65,165/- along with interest at the rate of 8% per

annum. Being aggrieved, these appeals have been filed.

6. Learned counsel for the insurance company

submitted that the Tribunal erred in making an addition to

the extent of 50% towards future prospects to the income of

the deceased instead of 40% as the deceased was self

employed and not in permanent employment. On the other

hand, learned counsel for the claimants submitted that the

Tribunal grossly erred in assessing the income of the

deceased as Rs.8,000/- per month and in any case, the same

ought to have been taken as per the guidelines framed by

the Karnataka State Legal Services Authority. It is further

submitted that the sums awarded under the heads 'loss of

consortium' and 'funeral expenses' are on the lower side and

deserves to be enhanced suitably.

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.

Admittedly, the claimants have not produced any evidence

with regard to the income of the deceased. Therefore, the

notional income of the deceased is assessed as per the

guidelines issued by the Karnataka Legal Services Authority.

Since the accident is of the year 2015, the notional income of

the deceased is assessed at Rs.9,000/- 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, 40% of the amount has to be added on

account of future prospects as the decased was self

employed. Thus, the monthly income comes to Rs.12,600/-.

Since, the number of dependents is 2, therefore, 1/3rd of the

amount has to be deducted towards personal expenses and

therefore, the monthly dependency comes to Rs.8,400/-.

Taking into account the age of the deceased which was 31

years at the time of accident, the multiplier of '16' has to be

adopted. Therefore, the claimants are held entitled to

(Rs.8,400x12x16) i.e., Rs.16,12,800/- 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.80,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. The amount of compensation awarded under the

head 'medical expenses' is maintained. Thus, in all, the

claimants are held entitled to a total compensation of

Rs.17,56,965/-. Since the accident is of the year 2015, the

prevailing rate of interest for the year 2015 in respect of

fixed deposits for one year in nationalized banks being 7%,

the aforesaid amounts of compensation shall carry interest at

the rate of 7% from the date of filing of the petition till the

realization of the amount of compensation. To the aforesaid

extent, the judgment passed by the Claims Tribunal is

modified. The amount in deposit, if any, shall be transmitted

to the claims tribunal for disbursement.

Accordingly, the appeal as well as the cross objection

are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE