Karnataka High Court
Pavithra vs The Manager on 5 January, 2021
Author: H T Byhtnpj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No. 6009 OF 2013(MV)
BETWEEN:
1. PAVITHRA
D/O LATE NAGESH
AGED ABOUT 25 YEARS
R/O BYRAPURA VILLAGE
ALUR TQ, HASSAN DISTRICT-573201.
2. RAMACHANDRAPPA
S/O LATE NINGEGOWDA
AGED ABOUT 58 YEARS.
3. JAYAMMA,
W/O RAMACHANDRAPPA
AGED ABOUT 53 YEARS
APPELLANTS NO. 2 & 3 ARE
PRESENTELY RESIDING AT
BYRAPPA VILLAGE
ALUR TQ, HASSAN DISTRICT-573 201.
4. BHOOMIKA
D/O PAVITHRA
AGED ABOUT 1 YEARS
R/O BYRAPURA VILLAGE
ALUR TQ, HASSAN DISTRICT
SINCE 4 APPELLANT IS MINOR
2
REPRESENTED BY NATURAL
GUARDIAN FIRST APPELLANT
PAVITHRA.
... APPELLANTS
(BY SRI. GIRISH B BALADARE, ADV. )
AND
1. THE MANAGER
RELIANCE GENERAL INS. CO. LTD,
HASSAN.
2. JAYAMMA,
W/O RAMAKRISHNAIAH
NO.19/5-1, 3RD MAIN ROAD
KASTHURIBA NAGARA
MYSORE ROAD
BANGALORE-560 026.
... RESPONDENTS
(BY SRI. H.N.KESHAVA PRASHANTH, ADV. R1:
SRI. M.N.MADHUSUDHAN, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 16.03.2013 PASSED IN MVC NO.43/2009 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
3
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT 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 being
aggrieved by the judgment dated 16.3.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 12.10.2008 the deceased
Nagesha was proceeding in autorickshaw Bearing
registration No.KA-13-6989 on NH48 BM Road, near
Chowlagere, Alur Taluk, at that time, Tata Sumo
bearing registration No.KA-41-4078 which was being
driven 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 injuries.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 29 years at the time of accident and was
employed as a driver and was earning Rs.6,000/- p.m.
The claimants claimed compensation to the tune of
Rs.15,00,000/- along with interest.
4. On service of summons, the respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the accident was not due to the
rash and negligent driving of the offending vehicle.
The driver of the offending vehicle was not having
valid driving licence. It was further pleaded that the
quantum of compensation claimed by the claimants is
exorbitant. Hence, he sought for dismissal of the
petition. The respondent No.1 did not appear inspite
of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 as PW-1
and another witness as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P10. On behalf of
respondents, one witness was examined as RW-1 got
exhibited documents namely Ex.R1 to Ex.R3. 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 vehicle by its
driver, as a result of which, the deceased sustained
injuries and succumbed to the injuries. The Tribunal
further held that the claimants are entitled to a
compensation of Rs.8,35,600/- along with interest at
the rate of 6% p.a. and directed the owner of the
offending vehicle to deposit the compensation amount
along with interest. Being aggrieved, this appeal has
been filed.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, the Tribunal has erred in fastening the
liability on the owner of the offending vehicle on the
ground that the driver of the offending vehicle i.e.,
Tata Sumo was having LMV non-transport driving
licence and he was driving the transport vehicle at the
time of the accident. He contended that the Apex
Court in the case of MUKUND DEWANGAN vs.
ORIENTAL INSURANCE COMPANY LIMITED
reported in (2017) 14 SCC 663, has held that licence
to drive LMV includes licence to drive transport
vehicle. Therefore, the Insurance Company is liable to
pay compensation.
Secondly, the claimants claim that the deceased
was earning Rs.6,000/- per month by working as
driver. But the Tribunal is not justified in taking the
monthly income of the deceased as merely as
Rs.4,000/-.
Thirdly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS [AIR 2017 SC 5157], in case the deceased
was self-employed or on a fixed salary, an addition of
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 years.
Fourthly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM reported in
2018 ACJ 2782, each of the claimants are entitled
for compensation under the head of 'loss of love and
affection and consortium'.
Fifthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side.
Hence, the learned counsel appearing for the
claimants prays for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised the following
counter-contentions:
Firstly, the driver of the offending vehicle was
not having valid driving licence as on the date of the
accident. The Tribunal considering the materials
available on record has rightly fastened the liability on
the owner of the offending vehicle.
Secondly, even though the claimants claim that
the deceased was earning Rs.6,000/- per month by
working as driver, the same is not established by the
claimants by producing documents. Therefore, the
Tribunal has rightly assessed the income of the
deceased notionally.
Thirdly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
Fourthly, on appreciation of oral and
documentary evidence, the Tribunal has awarded just
and reasonable compensation.
Hence, the learned counsel for the Insurance
Company prays for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that deceased died in
the road traffic accident occurred due to rash and
negligent driving of the offending vehicle by its driver.
As per Ex.R-3, driving licence, it is seen that the
driver of the offending vehicle was having driving
licence to drive LMV non-transport vehicle. However,
the Apex Court in the case of MUKUND DEWANGAN
(supra), has held that a person having driving licence
to drive LMV (non-transport) can also drive transport
vehicle. In view of the said decision, I am of the
opinion that the driver of the offending vehicle was
having valid driving licence as on the date of accident.
Accordingly, the finding of the Tribunal in respect of
liability is concerned, the same is modified and it is
held that Insurance Company is directed to pay
compensation to the claimants.
10. The claimants have not produced any
evidence or documents with regard to the income of
the deceased. Therefore, the notional income has to
be assessed as per the guidelines issued by the
Karnataka State Legal Services Authority. Since the
accident has taken place in the year 2008, the
notional income has to be taken at Rs.4,500/- p.m.
To the aforesaid amount, 40% has to be added on
account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in 'PRANAY SETHI' (supra). Thus, the monthly
income comes to Rs.6,300/-. Out of which, it is
appropriate to deduct 1/4th towards personal expenses
and therefore, the monthly income comes to
Rs.4,725/-. The deceased was aged about 29 years at
the time of the accident and multiplier applicable to
his age group is '17'. Thus, the claimants are entitled
to compensation of Rs.9,63,900/- (Rs.4725*17*12)
on account of 'loss of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
No.1, wife of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of spousal consortium', claimant No.4 is entitled for
compensation of Rs.40,000/- under the head of 'loss
of parental consortium' and claimant Nos.2 and 3,
parents of the deceased are entitled for compensation
of Rs.40,000/- each under the head 'loss of filial
consortium' .
In addition, the claimants are entitled to
Rs.15,000/- on account of 'loss of estate' and
Rs.15,000/- on account of 'funeral expenses'.
11. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 963,900
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 40,000
consortium
Loss of Filial consortium 80,000
Total 11,53,900
The claimants are entitled to a total
compensation of Rs.11,53,900/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. within a period of four weeks from the date of
receipt of copy of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
DM
