C Kempamma vs The Managing Director
2021 Latest Caselaw 158 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

               M.F.A. NO.6490 OF 2015 (MV)
BETWEEN:

1.     C. KEMPAMMA
       AGED ABOUT 43 YEARS
       W/O SHRI B. CHIKKAMADU.

2.     SHRI CHIKKAMADU
       AGED ABOUT 47 YEARS
       S/O BOLASHETTY.

       BOTH ARE R/AT. UPPARADODDI
       VILLAGE, KASABA HOBLI
       MADDUR TALUK, MANDYA DIST-571401.
                                             ... APPELLANTS
(BY MR. M. VINAY KEERTHY, ADV.,)

AND:

1.     THE MANAGING DIRECTOR
       M/S. M.K. AGRO TECH PVT. LTD
       BENGALOORU, MYSOORU ROAD
       SRIRANGAPATNA-571438, MANDY DIST.

2.     THE MANAGER UNITED INDIA
       INSURANCE CO., LTD.,
       T.B. HUB BALLAL CIRCLE
       MYSOORU-570001.                 ... RESPONDENTS

(R1 AND R2 SERVED)
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     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.10.2014 PASSED
IN MVC NO.588/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT, MADDUR, 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

23.10.2014 passed by the Motor Accident Claims Tribunal.

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

stated are that on 22.08.2012, the deceased Madhu was

driving a Goods Canter bearing Registration No.KA-53-2961.

When he reached near Green Palace, BM Road, a Goods

Vehicle bearing Registration No. KA-11-7032, which was

being driven by its driver in a rash and negligent manner,

came from the opposite direction and dashed against the

vehicle of the deceased who was turning his vehicle to the

right. 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 19 years at the time of

accident and was employed as a driver 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 goods vehicle by its driver. The

claimants claimed compensation to the tune of

Rs.27,20,000/- 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 the offending goods lorry was not insured

with the insurance company. 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.2 examined himself as PW-1

and got exhibited documents namely Ex.P1 to Ex.P11. The

respondents neither adduced any oral evidence 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 goods

vehicle by the deceased as well as the offending goods

vehicle equally to the extent of 50% each. 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.7,65,000/- 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 has grossly erred in assessing the income of the

deceased as Rs.5,000/- 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 Tribunal has erred in not making an

addition to the tune of 40% to the income of the deceased on

account of future prospects in view of the law laid down by

the Supreme Court in 'NATIONAL INSURANCE COMPANY

LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC

5157. 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 claimants 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 2012 notional income comes

to Rs.7,000/- 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 income has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.9,800/-. The Tribunal has rightly deducted 1/3rd

from the income of the deceased on account of personal and

living expenses placing reliance on SARALA VERMA AND

OTHERS. VS. DELHI TRANSPORT CORPORATION AND

ANOTHER (2009) 6 SCC 121 AND SMT.

MUNIRATHNAMMA VS. KG VENKATESHWARULU ILR

2009 KAR 151. It is also pertinent to note here that the

insurance company has not filed any appeal or cross

objection challenging the aforesaid aspect. Therefore, 1/3rd

of the income is to be deducted on account of personal and

living expenses. Thus, the monthly income of the comes to

Rs.6,534/-. Taking into account the age of the deceased

which was 19 years at the time of accident, the multiplier of

'18' has to be adopted. Therefore, the claimants are held

entitled to (Rs. 6,534x12x18) i.e., Rs.14,11,344/- 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. Thus, in all, the claimants are held entitled to a

total compensation of Rs.15,21,344/-. Since, the deceased

was negligent in causing of the accident to the extent of

50%, respondent no.2 is directed to pay 50% of the total

amount of compensation viz., Rs.7,60,672/- to the claimants.

To the aforesaid extent, the judgment passed by the Claims

Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss