Karnataka High Court
Smt. Geetha vs Santhosh Shetty on 7 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7713 OF 2013(MV)
BETWEEN:
1. SMT. GEETHA
W/O LATE. SHANMUGAM @ SATHISH
AGED ABOUT 38 YEARS.
2. MASTER SHARATHCHANDRA S
S/O LATE SHANMUGA, @ SATHISH
AGED ABOUT 11 YEARS.
3. KUM. SHANKITHA
D/O LATE. SHANMUGAM @ SATISH
AGED ABOUT 10 YEARS.
APPELLANT NO.2 & 3 ARE MINORS
AND HENCE THEY ARE REPRESENTED BY
THEIR NATURAL GUARDIAN
MOTHER SMT. GEETHA.
ALL ARE RESIDING AT DURGA NIVAS
HOSABETTU VILLAE AND POST
MUDABIDRI, MANGALORE
D.K. DISTRICT PIN-574227.
... APPELLANTS
(BY SRI.G.RAVISHANKAR SHASTRY, ADV. )
2
AND
1. SANTHOSH SHETTY
S/O VITTALA SHETTY
AGED ABOUT 42 YEARS
H NO 5-56, PUTHIGE POST & VILLAGE
MUDABIDRI, MANGALORE
D.K. DISTRICT PIN-574227.
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, NITHYANANDA COMPLEX
NEAR BUS STAND
MOODABIDRI PIN-574 227.
... RESPONDENTS
(BY SRI. L.SREEKANTA RAO, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:02.09.2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:09.01.2013 PASSED IN MVC NO.474/2011 ON
THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER, MACT, MANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSTION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
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 claimant being
aggrieved by the judgment dated 9.1.2013 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 23.2.2011, the deceased
Shanmugam was proceeding on his motorcycle along
with his son from Moodabidri towards Iruvail, near
Mastikatte, Hosabettu Village, at that time, Tata
Goods vehicle bearing registration No.KA-20-3113
being driven by its driver at a high speed and in a
rash and negligent manner, dashed to the vehicle of
the deceased. As a result of the aforesaid accident,
the deceased fell down and wheel of the offending
vehicle ran over his head and he was shifted to
hospital, where he was declared as dead.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 51 years at the time of accident and was
employed as Cook at Kuwait and was earning
Rs.30,000/- p.m. 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 accident was due to the rash
and negligent riding of the motorcycle by the
deceased himself. The petition is bad for non-joinder
of necessary parties. The liability 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.P17. On behalf of
respondents, one witness was examined as RW-1 got
exhibited documents namely Ex.R1. 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.6,12,000/- 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.30,000/- per month by working as
cook at Kuwait. They have produced bank pass book
Exs.P-9 and 10. Even though the Tribunal has given a
finding that the deceased was a skilled labour, but it is
not justified in taking the monthly income of the
deceased as merely as Rs.6,500/-.
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
10% of the established income towards 'future
prospects' should be the warrant where the deceased
was between the age group of 50 to 60 years. But
the Tribunal has failed to consider the same.
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.30,000/- per month by
working as cook at Kuwait, but Ex.P-17-ID card of the
deceased issued by the employer shows that it has
expired on 22.6.2010. Therefore, it is clear that as on
the date of the accident he was not working as cook at
Kuwait. Further, as per the bank statements produced
by the claimants, the deceased was sending money to
his family members till 2010 and thereafter there is no
entry in the bank statement. Therefore, it is clear that
he was not working at Kuwait as on the date of the
accident. 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, 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.
With regard to income of the deceased,
considering that the deceased was a skilled labour,
working as cook at Kuwait and considering his age,
the income of the deceased can be taken at
Rs.10,000/- p.m. To the aforesaid amount, 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.11,000/-. Out of
which, it is appropriate to deduct 1/3rd towards
personal expenses and therefore, the monthly income
comes to Rs.7,333.33/-. The deceased was aged
about 51 years at the time of the accident and
multiplier applicable to his age group is '11'. Thus,
the claimants are entitled to compensation of
Rs.9,68,000/- (Rs.7333.33*11*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 Nos.2 and 3, children
are entitled for compensation of Rs.40,000/- each
under the head of 'loss of parental 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 9,68,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Total 11,18,000
The claimants are entitled to a total
compensation of Rs.11,18,000/-.
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
