Karnataka High Court
Nilambar Mishra vs Purushotama Naidu D 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. 10161 OF 2013(MV)
BETWEEN:
1. NILAMBAR MISHRA
S/O LATE MAHESH MISHRA
AGED ABOUT 59 YEARS.
2. NILAM MISHRA
W/O NILAMBAR MISHRA
AGED ABOUT 49 YEARS.
BOTH ARE RESIDING AT
UPHRAIL CHOWK, NS-31
POLYTECHNIC POST
MARANGA P.S.PURNEA DISTRICT
BIHAR-854 303.
... APPELLANTS
(BY SRI.CHANDRASHEKAR, ADV. )
AND
1. PURUSHOTAMA NAIDU D
S/O VENUGOPALA NAIDU D
AGE MAJOR
R/AT NO.37/2, GIRIJAMMA BUILDING
2
BASAVANAPURA ROAD
NANJAMMA LAYOUT
K R PURAM, BANGALORE-560 036.
2. THE ORIENTAL INSURANCE CO. LTD.,
NO.20, II FLOOR, OPP:PAI VICEROY HOTEL
9TH MAIN, III BLOCK, JAYANAGAR
BANGALORE-11(REP BY ITS MANAGER).
... RESPONDENTS
(BY SRI.K.K.VASANTH, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.01.2013 PASSED IN MVC NO.7223/2011
ON THE FILE OF THE 19TH ADDITIONAL CIVIL JUDGE,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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 2.1.2013 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 12.3.2011 the deceased was
proceeding on motorcycle Bearing registration No.KA-
01-ES-2275 as a pillion rider, at that time, the rider
of the said motorcycle rode the same in a rash and
negligent manner, lost control, hit the footpath and
caused accident. 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 28 years at the time of accident and was
employed as Branch Supervisor at South Eastern
Roadways, Hosur, Tamil Nadu, and was earning
Rs.8,000/- p.m. The claimants claimed compensation
to the tune of Rs.20,00,000/- along with interest.
4. On service of summons, the respondents
appeared through counsel and filed separate written
statements 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 riding of the motorcycle by the
rider. It was further pleaded that the quantum of
compensation claimed by the claimants is exorbitant.
Hence, they 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.P20.
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.5,09,000/- along with interest at
the rate of 8% 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 working as Branch Supervisor at South Eastern
Roadways, Hosur, Tamil Nadu, and was earning
Rs.8,000/- p.m. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.4,500/-.
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.
Fifthly, immediately after the accident, the
deceased was shifted to Mallya Hospital and he was
treated for 6 days in the hospital and later he died on
18.3.2011. The claimants have produced medical bills
for Rs.80,000/- as per Ex.P-20 series. But the Tribunal
has failed the consider the same.
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.8,000/- 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 interest awarded by the Tribunal at
8% p.a. on the compensation amount is on the
higher side.
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 as
per the guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken place
in the year 2011, the notional income has to be taken
at Rs.6,500/- 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.9,100/-. Out of
which, it is appropriate to deduct 50% towards
personal expenses since the deceased was a bachelor
and therefore, the monthly income comes to
Rs.4,550/-. The deceased was aged about 28 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.9,28,200/- (Rs.4550*17*12)
on account of 'loss of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimants
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'.
Regarding medical expenses is concerned, the
accident occurred on 12.3.2011. Immediately after
the accident, the deceased was shifted to Mallya
Hospital and he was treated for 6 days and later he
succumbed to the injuries on 18.3.2011. The
claimants have produced original medical bills
amounting to Rs.80,000/- as per Ex.P-20 series.
Considering the evidence of the claimants and Ex.P-
20, the claimants are entitled for compensation of
Rs.80,000/- under the head of 'medical expenses'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 928,200
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 80,000
Medical expenses 80,000
Total 11,18,200
The claimants are entitled to a total
compensation of Rs.11,18,200/- as against
Rs.5,09,000/- awarded by the Tribunal.
In respect of rate of interest is concerned, since
the accident is of the year 2011, as per the RBI
guidelines, the rate of interest was 6.75%. Therefore,
the enhanced compensation amount shall carry
interest at the rate of 6.75% p.a. instead of 8% p.a.
granted by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest 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
