Karnataka High Court
Smt P Sowmya vs Sri K Jagadish on 6 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7411 OF 2013(MV)
BETWEEN:
1. SMT. P. SOWMYA
W/O LATE T.K. PRABHAKAR
AGED ABOUT 23 YEARS.
2. KUM. HARIPRIYA
D/O LATE. T.K. PRABHAKAR
AGED ABOUT 2 YEARS 8 MONTHS
3. SRI. KRISHNAPPA
S/O DODDA AYYAPPA
@ AYYAPPA
AGED ABOUT 57 YEARS
4. SMT. JAYALAKSHMAMMA
@ LAKSHMAMMA
W/O KRISHNAPPA
AGED ABOUT 52 YEARS.
APPELLANT NO.2 SINCE MINOR
REPTD. BY HER MOTHER
AND NATURAL GUARDIAN
APPELLANT NO.1 SMT. P. SOWMYA.
ALL ARE R/AT THENIYUR VILLAGE
2
BENDIGANAHALLI POST
SULIBELE HOBLI, HOSKOTE TALUK
BANGALORE DISTRICT.
... APPELLANTS
(BY SRI. SHRIPAD V SHASTRI., ADV.)
AND
1. SRI. K. JAGADISH
S/O W.KRISHNAIAH
J.C.W.KRISHNAIAH
J.C. EXTENSION, VIJAYAPURA POST
BANGALORE RURAL DIST.
2. THE DIVISIONAL MANAGER
M/S NEW INDIA ASSURANCE
THIRD PARTY HUB
MAHALAKSHMI COMPLEX
M.G.ROAD, BANGALORE-01.
... RESPONDENTS
(BY SRI. ANUP SEETHARAMA RAO, ADV. FOR
SRI. B.C.SEETHARAMA RAO, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:01.06.2013 PASSED IN MVC NO.7480/2011
ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT
CSC, BANGALORE, 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 1.6.2013 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 19.11.2011 the deceased
was proceeding on his motorcycle bearing registration
No.KA-02-ET-6023 from Hyadala towards Vijayapura
to go to Theniyur, at that time, a lorry bearing
registration No.KA-04-9629 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 27 years at the time of accident and was
doing agricultural and sericulture work and was
earning Rs.6,000/- p.m. The claimants claimed
compensation to the tune of Rs.25,00,000/- along
with interest.
4. On service of summons, the respondent
No.1 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 a false case has been filed
against the driver of the lorry in order to help the
victim. It was pleaded that the accident was due to
the rash and negligent riding of the motorcycle by the
deceased himself. 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.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. The issuance of the policy is admitted subject to
terms and conditions of the policy. It was further
pleaded that the driver of the offending vehicle was
not having valid licence as on the date of the accident.
The date, time and place of accident is denied. It was
further pleaded that the quantum of compensation
claimed by the claimants is exorbitant. Hence, he
sought for dismissal of the petition.
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 got exhibited documents namely Ex.P1 to Ex.P9.
On behalf of respondents, neither any witness was
examined nor any document was produced. 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.6,60,000/- along with interest at
the rate of 6% p.a. and directed the Insurance
Company 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 claimants claim that the deceased
was earning Rs.6,000/- per month by doing
agriculture and sericulture work. But the Tribunal is
not justified in taking the monthly income of the
deceased as merely as Rs.3,000/-.
Secondly, 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.
Thirdly, 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'.
Fourthly, 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, even though the claimants claim that the
deceased was earning Rs.6,000/- per month, the
same is not established by the claimants by producing
documents. Therefore, the Tribunal has rightly
assessed the income of the deceased notionally.
Secondly, since the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Thirdly, the father of the deceased is not a
dependent. The Tribunal has erred in deducting 1/4th
of the income of the deceased towards personal
expenses instead of 1/3rd.
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.
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.
Even as per the guidelines issued by the Karnataka
State Legal Services Authority, for an accident taken
place in the year 2011, the notional income is
assessed at Rs.6,500/- p.m. Therefore, considering
the evidence of the claimants, the notional income of
the deceased can be taken at Rs.6,000/- 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.8,400/-. The Tribunal considering that even father
of the deceased is also dependent, has rightly
deducted 1/4th towards personal expenses and
therefore, the monthly income comes to Rs.6,300/-.
The deceased was aged about 27 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.12,85,200/- (Rs.6,300*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.2, daughter is
entitled for compensation of Rs.40,000/- under the
head of 'loss of parental consortium' and claimant
Nos.4 and 5, 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'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,85,200
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 14,75,200
The claimants are entitled to a total
compensation of Rs.14,75,200/-.
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 allowed-in-part.
Sd/-
JUDGE
DM/-
