Karnataka High Court
Smt Santhosh vs Sri Byregowda 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.7281 of 2013(MV)
BETWEEN:
1. SMT.SANTHOSH
W/O LATE DURGARAM @ DURGARAM DEWASI
AGED ABOUT 32 YEARS.
2. MASTER ANIL
S/O LATE DURGARAM @ DURGARAM DEWASI
AGED ABOUT 4 YEARS.
3. MASTER SUNDAR
S/O LATE DURGARAM @ DURGARAM DEWASI
AGED ABOUT6 YEARS.
4. KUMARI ANITHA
D/O LATE DURGARAM @ DURGARAM DEWASI
AGED ABOUT 8 YEARS.
5. KUMARI KAVITHA
D/O LATE DURGARAM @ DURGARAM DEWASI
AGED ABOUT 10 YEARS
6. SRI. SHESHARAM
S/O LATE JAGGI
AGED ABOUT 70 YEARS.
2
7. SMT. BHUNDIDEVI
W/O SRI. SHESHARAM
AGED ABOUT 65 YEARS
BANGALORE-560 025.
APPELLANTS NOS. 2 TO 5 BEING MINORS
ARE REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN
SMT. SANTHOSH APPELLANT NO.1
ALL ARE R/AT DOMMARAHALLY
LAXMIPURA ROAD,
MADANAYAKANHALLI
MADVARA POST,
BANGALORE DISTRICT.
PERMANENT RESIDENTS OF
NO,174, PHULMAL,
JAITARAN TALUK
PALI DISTRICT,
STATE OF RAJASTHAN.
... APPELLANTS
(BY SRI. T.PARAMESHWARAPPA, ADV. )
AND
1. SRI. BYREGOWDA
S/O MARISANNAPPA
AGED MAJOR
NO.19, II CROSS
SAPTHAGIRI LAYOUT
VIDYARANYAPURA
BANGALORE-560 097.
2. DIVISIONAL MANAGER
3
NEW INDIA ASSURANCE CO. LTD.,
CDU VIII, NO.42,
GOPAL COMPLEX, II FLOOR
BAZAR STREET, YESHWANTHPUR
BANGALORE-560 022.
... RESPONDENTS
(BY SRI. P.B.RAJU, ADV. FOR R2:
NOTICE TO R1 IS DEISPENSED WITH
V/O DATED:26.08.2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:20.02.2013 PASSED IN MVC NO.6264/2011
ON THE OF THE 7TH ADDITIONAL SMALL CAUSES
JUGE, COURT OF SMALL CAUSES, MEMBER, MACT-3
BANGALORE 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 2.2.2013 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 31.8.2011 the deceased
Durgaram was proceeding on his TVS moped bearing
No.KA-52-H-2574 in NH4 and when he reached near
Goraguntepalya junction, at that time, a lorry bearing
registration No.KA-02-D-3369 which was being driven
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 37 years at the time of accident and was
employed as salesman and was earning Rs.8,000./-
p.m. The claimants claimed compensation 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 driver of the lorry was not having
valid licence as on the date of the accident. 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.P19. 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 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.10,84,600/- 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 earning Rs.8,000/- per month by working as
salesman. But the Tribunal is not justified in taking
the monthly income of the deceased as merely as
Rs.5,500/-.
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.
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 by
working as salesman, 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, 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.
As per Ex.P-11, salary certificate produced by the
claimant, the income of the deceased is shown as
Rs.6,000/-. Therefore, considering the same, the
income has to be taken at Rs.6,000/- 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.8,400/-. Out of which, it is appropriate to deduct
1/5th towards personal expenses since there are seven
dependents and therefore, the monthly income comes
to Rs.6,720/-. The deceased was aged about 37 years
at the time of the accident and multiplier applicable to
his age group is '15'. Thus, the claimants are entitled
to compensation of Rs.12,09,600/- (Rs.6720*15*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 5, children
are entitled for compensation of Rs.40,000/- each
under the head of 'loss of parental consortium' and
claimant Nos.6 and 7, 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'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,09,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 160,000
consortium
Loss of Filial consortium 80,000
Total 15,19,600
The claimants are entitled to a total
compensation of Rs.15,19,600/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 8%
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.
In view of disposal of the appeal, I.A.2/2013
does not survive for consideration and accordingly the
same is dismissed.
Sd/-
JUDGE
DM
