Karnataka High Court
Smt. Ushalatha K vs Sri Raghavendra Kini 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.9527 OF 2013 (MV)
BETWEEN:
1. SMT. USHALATHA K,
AGED 38 YEARS
W/O LATE RATHNAKARA RAO.
2. SUPRITHA R RAO,
AGED 16 YEARS
D/O LATE RATHNAKARA RAO.
3. NISHMITHA R RAO
AGED 14 YEARS
D/O LATE RATHNAKARA RAO.
(NO.2 & 3 ARE MINORS,
REPRESNTED BY THEIR
NEXT FRIEND AND MOTHER NO.1)
ALL ARE R/AT RADHAKRISHNA NILAYA
NEAR KURUMBA TEMPLE, KALBAVI
ASHOKNAGARA POST, MANGALORE,
D.K.-575 006.
... APPELLANTS
(BY SRI. PUNDIKA ISHWARA BHAT, ADV. )
2
AND
1. SRI. RAGHAVENDRA KINI
MAJOR,
S/O SARVOTHAM KINI
R/AT YAMUNA RESIDENCY
FLAT NO.204, 1ST FLOOR,
KUNTIKANA
MANGALORE, D.K.-575 008.
2. THE UNITED INSURANCE CO. LTD.,
BRANCH OFFICE: KANCHAN TOWER
N.H.17, KUNDAPURA
UDUPI DISTRICT-576 201.
... RESPONDENTS
(BY SRI.C.SHANKARA REDDY, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:29.09.2015)
THIS MFA IS FILED UNDER SECTION 173(1) MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
23.02.2013 PASSED IN MVC NO.377/2012 ON THE
FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE,
MEMBER, MACT, MANGALORE, D.K., PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCMENT 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 23.2.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 26.12.2011, the deceased
Rathnakar Rao was proceeding on his motorcycle
bearing registration No.KL-14F-5704 from Ladyhill
side towards Urvastore side and when he reached in
front of More Marketing shop in Chilimbi, at that time,
another motorcycle bearing registration No.KA-20-V-
7112 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 sustained grievous injuries and
succumbed to injuries on 7.1.2012.
3. The claimants filed a petition under Section
166 of the Act on the ground that deceased was
working as a electrician and plumbing contractor and
was earning Rs.25,000/- 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.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 rider of the offending vehicle
did not possess valid driving licence as on the date of
the accident. 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
appeared through counsel but did not choose to file
written statement.
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 two other witnesses as PWs-2 and 3 and got
exhibited documents namely Ex.P1 to Ex.P21. On
behalf of respondents, no witness was examined but
got exhibited 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 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.11,73,134/- 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.25,000/- per month by working as an
electrician and plumbing contractor. But the Tribunal
is not justified in taking the monthly income of the
deceased as merely as Rs.9,000/-.
Secondly, 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'.
Thirdly, 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.25,000/- 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, addition of 30% towards future
prospects by the Tribunal is contrary to the law laid
down by the Apex Court in the case of PRANAY
SETHI.
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.
The claimants in order to prove the income and
avocation of the deceased have produced Exs.P-11
and 12. The Tribunal has given a categorical finding
that the deceased was an Electrical Wireman.
Considering the age and avocation of the deceased,
the income of the deceased can be taken at
Rs.12,000/- 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.13,200/-. Out of
which, it is appropriate to deduct 1/3rd towards
personal expenses and therefore, the monthly income
comes to Rs.8,800/-. 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.11,61,600/- (Rs.8,800*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' and 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'.
The compensation awarded by the Tribunal
under the head of medical expenses is just and
reasonable.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 11,61,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Medical expenses 103,534
Total 14,15,134
The claimants are entitled to a total
compensation of Rs.14,15,134/-
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
