Karnataka High Court

Sri. Shridhara Acharya vs Mr Dinesh R K on 4 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2021

                        PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

                M.F.A.No.1064/2018 (MV)

BETWEEN :

1.     SRI SHRIDHARA ACHARYA
       S/O LATE BABU ACHARYA,
       AGED ABOUT 68 YEARS,
       R/AT 4-42, GANESH PRASAD NIVAS,
       NEAR MAHALINGESHWARA TEMPLE,
       SHIRTHADY VILLAGE & POST,
       MANGALURU TALUK-575004.

2.     SMT.KAMALAKSHI
       W/O SRI SHRIDHARA ACHARYA,
       AGED ABOUT 56 YEARS,
       R/AT 4-42, GANESH PRASAD NIVAS,
       NEAR MAHALINGESHWARA TEMPLE,
       SHIRTHADY VILLAGE & POST,
       MANGALURU TALUK-575004.

3.     SRI SANTHOSH
       S/O SRI SHRIDHARA ACHARYA,
       AGED ABOUT 35 YEARS,
       R/AT 4-42, GANESH PRASAD NIVAS,
       NEAR MAHALINGESHWARA TEMPLE,
       SHIRTHADY VILLAGE & POST,
       MANGALURU TALUK-575004

4.     SRI SATHISHA
       S/O SHRIDHARA ACHARYA,
                           -2-

        AGED ABOUT 33 YEARS,
        R/AT 4-42, GANESH PRASAD NIVAS,
        NEAR MAHALINGESHWARA TEMPLE,
        SHIRTHADY VILLAGE & POST,
        MANGALURU TALUK-575004                 ...APPELLANTS

             (BY SMT.HALEEMA AMEEN, ADV. FOR
              SRI ASHOK KUMAR SHETTY K., ADV.)

AND :

1.      Mr. DINESH R.K.,
        S/O RAMAPPA,
        AGED ABOUT 47 YEARS,
        R/AT SWASTHIK NILAYA,
        SUVARNA COMPOUND,
        JYOTHINAGARA, KUDUPU POST,
        MANGALORE TALUK-575004

2.      THE BRANCH MANAGER
        THE ORIENTAL INS. CO. LTD.,
        SATHISH COMPLEX, GROUND FLOOR,
        BEHIND SB OPP: GOVINDA DAS COLLEGE,
        SURATHKAL, MANGALURU-575004

3.      Mrs. R.VEERAMANI
        W/O RAJENDRA,
        AGED ABOUT 46 YEARS, R/AT NO.10,
        ABRAHAM PANDITHAR NAGARA,
        4TH STREET, MELAVELI,
        SHIVAJI NAGARA,
        TANJAVOORU DISTRICT,
        TAMILNADU-613009

4.      BRANCH MANAGER
        ROYAL SUNDARAM ALLIANCE
        INSURANCE COMPANY LTD.,
        NO.113/114, SRI THEYAGARAYA ROAD,
        4TH FLOOR, MEENA KAMPALA ARCAS,
        T.NAGAR, CHENNAI-600017           ...RESPONDENTS

              (BY SRI S.Y.SHIVALLI, ADV. FOR R-2;
                SRI H.S.LINGARAJ, ADV. FOR R-4;
                       R-1 & R-3 SERVED.)
                             -3-



      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
01.08.2017 PASSED IN MVC No.482/2016 ON THE FILE OF THE
MEMBER, MACT, 1ST ADDITIONAL SENIOR CIVIL JUDGE,
MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is directed against the judgment and

award dated 01.08.2017 passed in MVC No.482/2016

on the file of the Motor Accidents Claims Tribunal and I

Additional Senior Civil Judge, Mangaluru, D.K.

[Tribunal for short].

2. The claimants averred in the claim petition

that on 14.10.2015, Harish Acharya met with the road

traffic accident while driving his Maruti 800 car bearing

registration No.KA-05-MF-4135 from Mangalore to

Mudabidri owing to the actionable negligence of the bus

bearing registration No.KA-19-AA-6559 which was

coming from the opposite direction. It was alleged that

at the same time, a Tipper bearing registration No.TN-

49-AR-8146 which was coming from behind the car also

dashed against the car from its behind, due to the

negligent driving of the driver of the said vehicle. As a

result, the victim sustained grievous head injuries.

Immediately he was shifted to Alvas Hospital,

Mudabidre and thereafter to AJ hospital, Mangalore.

However, the doctors at AJ hospital declared him as

dead.

3. It was contended that the deceased was aged

about 29 years at the time of the accident and was a

professional videographer cum photographer. He was

earning an income of Rs.30,000/- p.m. The untimely

death of the deceased has caused great hardship to the

claimants who have lost financial assistance and future

dependency etc. On these grounds, claimants sought for

the compensation.

4. On issuance of summons, the respondent

Nos.1 and 3 have not appeared and hence, they were

placed exparte. The respondent Nos.2 and 4 have

appeared through their respective counsel and filed

their written statements.

5. The respondent No.2 - insurer of the bus

has contended that the accident occurred due to the

negligence of the deceased. The driver of the bus was

not holding valid and effective driving licence on the

date of the alleged accident. Hence, the said insurer is

not liable to pay the compensation to the claimants

besides taking a defence that the compensation claimed

by the claimants is highly exorbitant and baseless.

6. The respondent No.4 - insurer of the lorry

denying the allegations made in the claim petition,

contended that the negligence of the driver of the bus

was the cause for the accident and not that of the driver

of the lorry. Admitting the issuance of policy, it was

stated that the liability if any, is subject to terms and

conditions stipulated in the policy. The specific defence

taken was that the driver of the lorry was not having

driving licence to drive the same. Hence, the insurer is

not liable to pay the compensation to the claimants. It

was contended that the compensation claimed is

exorbitant, arbitrary and baseless.

sought for dismissal of the petition.

7. On the basis of the pleadings, issues were

framed by the Tribunal and answered in terms of the

reasons recorded in the impugned judgment, awarding

total compensation of Rs.8,93,000/- with interest at 9%

p.a., from the date of petition till realization directing

the respondent No.2, the insurer of the bus and the

respondent No.4, the insurer of the Tipper Lorry to

deposit the compensation amount in the ratio of 50:50.

8. Being dissatisfied with the quantum of

compensation awarded by the Tribunal, the claimants

have preferred the present appeal.

9. Learned counsel for the appellants argued

that the Tribunal has determined the monthly income of

the deceased at Rs.8,000/- p.m., which is unreasonable

having regard to the nature of the occupation of the

deceased i.e., videography and photography. It was

submitted that the compensation awarded under the

different heads is abysmally low and accordingly,

sought for enhancement of the compensation.

10. Learned counsel for the insurer justifying

the impugned judgment and award, argued that the

Tribunal has awarded just and reasonable

compensation. There is no scope for further

enhancement.

11. Having heard the learned counsel for the

parties and perusing the material on record, the point

that arises for our consideration is:

Whether the compensation awarded by the Tribunal at Rs.8,93,000/- with interest at the rate of 9% p.a., from the date of petition till realization is justifiable in the facts and circumstances of the case?

12. The main controversy relates to the

determination of income by the Tribunal. Having regard

to the date of the accident and in the absence of proof of

income of the deceased, we deem it appropriate to

assess the monthly income of the deceased notionally at

Rs.9,000/- referring to the chart prepared by the

Karnataka State Legal Services Authority. Adding 40%

towards the future prospects, the total income would be

Rs.12,600/-. Applying the multiplier of 16 considering

the age of the deceased as 31 years and deducting 50%

towards the personal and living expenses of the

deceased, as he was a bachelor, the loss of dependency

would work out to Rs.12,09,600/- [12,600 x 12 x 16 x

1/2].

13. In terms of the ruling of the Hon'ble Apex

Court in National Insurance Company Limited Vs.

Pranay Sethi and others ((2017)16 SCC 680) and New

India Assurance Company Limited V/s. Somwati

and Others 2020 [SCC ONLINE SC 720], the claimants

are entitled to compensation of Rs.1,10,000/- under the

conventional heads viz., Rs.80,000/- towards filial

consortium [Rs.40,000/- each to the parent];

Rs.15,000/- towards funeral expenses and Rs.15,000/-

towards loss of estate.

14. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

- 10 -

Amount [in Sl.No. Particulars Rs.]

1. Loss of dependency 12,09,600/-

Loss of Filial Consortium

2. 80,000/-

[Rs.40,000/- each to the parent]

3. Loss of Estate 15,000/-

      4.            Funeral expenses               15,000/-
                       Total                    13,19,600/-

Thus, the claimants shall be entitled to total

compensation of Rs.13,19,600/- with interest at the

rate of 6% per annum on the enhanced compensation

from the date of the claim petition till the date of

realization.