Karnataka High Court
M.E. Susheela vs Khaleel M.M. 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.7349 OF 2013(MV)
BETWEEN:
M.E. SUSHEELA
W/O MULLEREA S ERAPPA
AGED ABOUT 48 YEARS
R/AT NO.79,NALKERI
VIRAJPET TALUK
KAKOTU PARAMBU (POST)
KODAGU -571 218
PRESENTLY R/AT
C/O PARVATHI VENUGOPAL
NO.423,4TH MAIN,17TH CROSS
VIDHYARANYAPURAM,
(NEAR STERLING THEATRE)
MYSORE-570 008
...APPELLANT
(BY SRI.ROOPESHA B., ADV.)
AND
1. KHALEEL M.M.
R/AT NO.4/18,MAHADEVAPET
MADIKERI,KODAGU-580 009.
2
2. NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE-I,
NO.371/A,1ST FLOOR,
PRESTIGE ARCADE,
RAMASWAMY CIRCLE,
MYSORE-570 024
...RESPONDENTS
(BY SRI. ASHOK N PATIL, 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: 26.04.2013 PASSED IN MVC NO.481/2012 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK
COURT-II, MYSORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, 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 26.4.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 18.2.2012 the deceased
Mullerea S Erappa was walking on the extreme left
side of BM Road near SVS weigh Bridge, in
Periyapatna Town, at that time, a motorcycle bearing
registration No.KA-12-J-9966 which was being ridden
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 55 years at the time of accident and was
working as coolie and earning Rs.300 to 400/- per
day. The claimants claimed compensation to the tune
of Rs.20,00,000/- 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 rider of the motorcycle was
not having valid licence as on the date of the accident.
The liability if any, is subject to terms and conditions
of the policy. 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.P11. 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 rider, 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.1,93,000/- 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.300 to 400 per day by working as
coolie. But the Tribunal is not justified in taking the
monthly income of the deceased as merely as
Rs.3,000/-.
Secondly, the deceased was aged about 58 years
and multiplier applicable to his age group is '9'. But
the Tribunal has wrongly applied '7' multiplier.
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
10% of the established income towards 'future
prospects' should be the warrant where the deceased
was between the age group of 50-60 years.
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.300 to 400/- per day by
working as coolie, the same is not established by the
claimants by producing documents. Therefore, the
Tribunal has rightly assessed the income of the
deceased notionally.
Secondly, PW-1 has admitted that the deceased
was aged about 65 years at the time of the accident
and therefore, the Tribunal has rightly applied
multiplier of '7'.
Thirdly, there is only one dependent and
therefore the deduction towards personal expenses
should be 50% instead of 1/3rd deducted by the
Tribunal.
Fourthly, since the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Fifthly, 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 2012, the
notional income has to be taken at Rs.7,000/- p.m.
In respect of the age of the deceased is
concerned, as per Ex.P-8 PM report, Ex.P-10 Election
ID card, the age of the deceased is shown as 58
years. Therefore, the age of the deceased is taken as
58 years and multiplier applicable is '9'.
Regarding deduction towards personal expenses
is concerned, the Apex Court in the case of SARLA
VERMA AND OTHERS -V- DELHI TRANSPORT
CORPORATION AND ANOTHER (AIR 2009 SCC
3104) has observed as follows:-
"We have already noticed that the personal
and living expenses of the deceased should
be deducted from the income, to arrive at
the contribution to the dependents. No
evidence need be led to show the actual
expenses of the deceased. In fact, any
evidence in that behalf will be wholly
unverifiable and likely to be unreliable.
Claimants will obviously tend to claim that
the deceased was very frugal and did not
have any expensive habits and was
spending virtually the entire income on the
family. In some cases, it may be so. No
claimant would admit that the deceased
was a spendthrift, even if he was one. It is
also very difficult for the respondents in a
claim petition to produce evidence to show
that the deceased was spending a
considerable part of the income on himself
or that he was contributing only a small
part of the income on his family. Therefore,
it became necessary to standardize the
deductions to be made under the head of
personal and living expenses of the
deceased. This lead to the practice of
deducting towards personal and living
expenses of the deceased, one-third of the
income if the deceased was a married, and
one-half (50%) of the income if the
deceased was a bachelor. This practice was
evolved out of experience, logic and
convenience".
Therefore, it is well settled law that if the deceased
was married and the claimant is the wife of the
deceased, one-third of the income of the deceased has
to be deducted towards personal expenses of the
deceased.
To the monthly income of the deceased i.e.,
Rs.7,000/-, 10% 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.7,700/-. Out of which, it is appropriate to deduct
1/3rd towards personal expenses and therefore, the
monthly income comes to Rs.5,133/-. Thus, the
claimants are entitled to compensation of
Rs.5,54,364/- (Rs.5,133*9*12) on account of 'loss of
dependency'.
Further, the claimant is entitled for
compensation of Rs.40,000/- under the head of 'loss
of consortium', 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 5,54,364
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Total 6,24,364
The claimants are entitled to a total
compensation of Rs.6,24,364/- as against
Rs.1,93,000/- awarded by the Tribunal.
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
