Smt. Kamala Goyal vs United India Insurance Co.Ltd
2021 Latest Caselaw 363 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

              M.F.A. NO.1982 OF 2015 (MV-D)
BETWEEN:

1.     SMT. KAMALA GOYAL
       W/O LATE RADHE SHYAM GOYAL
       AGED 51 YEARS.

2.     MR. TARUN GOYAL
       S/O LATE RADHE SHYAM GOYAL
       AGED 34 YEARS.

3.     MR. RITESH GOYAL
       S/O LATE RADHE SHYAM GOYAL
       AGED 23 YEARS.

       R/AT. HOUSE NO.T85
       MURALIWALA KUAN
       SABJI MANDI, CLOCK TOWER
       DELHI-7.
                                              ... APPELLANTS
(BY MR. GURUPRASAD B.R. ADV.,)

AND:

1.     UNITED INDIA INSURANCE CO. LTD.,
       BRANCH OFFICE: BUNDER
       VARANASI TOWERS, 1ST FLOOR
       MISSION STREET, BUNDER
       MANGALORE-575001
       REP. BY ITS MANAGER.
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2.   MR. MAYANK RASTOGI
     S/O RAKESH KUMAR RASTOGI
     AGED 25 YEARS
     R/O HOUSE NO.21C, DGA
     BAHARUICH, LUCKNOW
     UTTAR PRADESH
     PRESENTLY R/AT. K.M.C.
     MENS HOSTEL, ROOM NO.216
     B BLOCK, KAPRIGUDDA
     MANGALORE-575002.
                                          ... RESPONDENTS
(BY MR. K.N. SRINIVASA, ADV., FOR R1
V/O DTD: 7-8-2015 NOTICE TO R2 IS DISPENSED WITH)

                            ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.04.2014 PASSED
IN MVC NO.1403/2011 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, MACT, MANGALORE, D.K. 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 10.04.2014 passed by the Motor

Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 13.05.2011, the deceased

Rupesh Goyal was proceeding as a pillion rider on a

motorcycle bearing registration No.KA-10EC-7738.

When he reached near Kuloor old bridge, the rider of the

motorcycle who was riding the same in a rash and

negligent manner, lost control over the vehicle and they

fell on the road. As a result of the aforesaid accident,

the deceased sustained multiple 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 20 years

at the time of accident and was studying MBBS in

Kasturba Medical College, Mangalore. It was further

pleaded that accident took place solely on account of

rash and negligent driving of the rider of the motorcycle.

The claimants claimed compensation to the tune of

Rs.1,50,00,000/- along with interest.

4. The insurance company filed written

statement, in which the mode and manner of the

accident was denied. The involvement of the offending

motorcycle in the accident was also denied. It was also

pleaded that the rider of the motorcycle 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.1 examined

herself as PW-1 and one Sudheendra Ramnath Pai was

examined as PW-2 and got exhibited documents namely

Ex.P1 to Ex.P23. The respondents did not adduce any

oral evidence but exhibited one document namely

Ex.R1. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account

of rash and negligent riding of the motorcycle by its

rider. 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.8,40,000/- 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.10,000/- per month when

it is clear that the deceased was a medical student

studying in Kasturba Medical College, Mangalore and

would have earned Rs.25,000/- per month at the least

after graduation. In support of the aforesaid submission,

reliance has been placed on a decision of the Supreme

Court in ASHVINBHAI JAYANTILAL MODI VS.

RAMKARAN RAMCHANDRA SHARMA AND ANOTHER

(2015) 2 SCC 180. 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. On the other hand, learned

counsel for the insurance company submitted that no

evidence has been adduced by the claimants to prove

the income of the deceased before the Tribunal and that

the Tribunal has rightly taken the income of the

deceased notionally at Rs.10,000/- per month. It is

further submitted that the amount of compensation

awarded by the Tribunal is just and proper and does not

call for any interference.

7. We have considered the submissions made

by learned counsel for the parties 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. It is also not in dispute that

deceased at the time of accident was aged about 20

years and was a student of second year MBBS course.

The Supreme Court in ASHVINBHAI JAYANTILAL

MODI SUPRA has assessed the income of student of

first year MBBS course at Rs.25,000/- per month and

has held that there is a tremendous increase in demand

for medical professionals and that medical practice is

one of the most rewarding profession today. Therefore,

taking into consideration the aforesaid enunciation of

law by the Supreme Court in ASHVINBHAI

JAYANTILAL MODI SUPRA, we deem it appropriate to

assess the income of the deceased at Rs.25,000/- 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 amount

has to be added on account of future prospects. Thus,

the monthly income comes to Rs.35,000/-. Since, the

deceased was a bachelor, therefore, 50% of the amount

has to be deducted towards personal expenses and

therefore, the monthly dependency comes to

Rs.17,500/-. Taking into account the age of the

deceased which was 20 years at the time of accident,

the multiplier of '18' has to be adopted. Therefore, the

claimants are held entitled to (Rs.17,500x12x18) i.e.,

Rs.37,80,000/- 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.1,20,000/-. 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.39,30,000/-. Since the accident is of the year 2011,

the prevailing rate of interest for the year 2011 in

respect of fixed deposits for one year in nationalized

banks being 8%, the aforesaid amounts of compensation

shall carry interest at the rate of 8% from the date of

filing of the petition till the realization of the amount of

compensation. To the aforesaid extent, the judgment

passed by the Claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

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