Karnataka High Court
Smt Dayavathi V Salian vs Roopesh Kumarshetty on 8 January, 2021
Author: H T Byhtnpj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.834 OF 2014(MV)
BETWEEN:
1. Smt. Dayavathi V Salian,
Aged about 48 years,
W/o Late. Vijay Salian.
2. Prajosh,
Aged about 24 years,
S/o Late. Vijay Salian.
3. Pravidh,
Aged about 20 years,
S/o Late. Vijaya Salian,
All re R/o at Punache House,
Sabthosh Nagar, Karamballi,
Udupi Taluk & District Pin- 5761102.
... Appellants
(By Sri.Thejas Rai, Advocate)
AND:
1. Roopesh Kumarshetty,
Aged 30 years,
S/o Lingappa Shetty,
R/o Sai Nilaya, Udhana,
Adyapady, Bajpe,
Mangalore.
2
2. The Sri Ram General Insurance Co. Ltd.,
Mangalore rep. by its nearest
The Divisional manager
Divisional Office,
Priyadarshani Building,
2nd Floor, near city bus stand
Udupi taluk & District pin-576102.
... Respondents
(By Sri.B.C.Shivanne Gowda, Advocate for R2:
Notice to R1 is dispensed with)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:19.10.2013
passed in MVC No.1066/2013 on the file of the
Principal Senior Civil Judge, Additional MACT, Udupi,
partly allowing the claim petition for compensation
and seeking enhancement of compensation.
This MFA, coming on for orders, this day, this
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 19.10.2013 passed
by the Motor Accident Claims Tribunal, Udupi in MVC
No.1066/2010.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 10.05.2010 at about 4.15
p.m. the deceased Vijaya Salian was proceeding
towards Mangalore from Udupi in a Maruthi car
bearing registration No.KA-19/B-9643. When he
reached near Petrol bunk, one goods vehicle bearing
registration No. KA-19/B-9147 came from Udupi to
Mangalore at a high speed and in a rash and negligent
manner, dashed against the hind portion of the car.
As a result of the aforesaid accident, the deceased
sustained grievous injuries and was hospitalized and
he succumbed to the injuries on 14.05.2010.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 52 years at the time of accident, was an
astrologist and was earning Rs.20,000/- to
Rs.25,000/- per month. The claimants claimed
compensation to the tune of Rs.21,22,500/- 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 driver of
the maruthi car was not holding a valid and effective
driving licence as on the date of the accident. It was
further pleaded that the claimants are not dependents
on the income of the deceased and they are having
their own source of income. Hence, he sought for
dismissal of the petition. On the basis of the
pleadings of the parties, the Claims Tribunal framed
the issues and thereafter recorded the evidence.
5. The claimants, in order to prove their case,
examined claimant No.1 as PW-1 and other two
witnesses as PW-2 and PW-3 and got exhibited 10
documents namely Ex.P1 to Ex.P10. On behalf of
respondents, no witness was examined but got
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 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.11,03,000/- along with interest at the rate of
6% p.a. and directed the insurance company to
deposit the compensation amount along with interest.
Being not satisfied with the quantum of compensation,
claimant has filed this appeal.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, the claimants claim that the deceased
was earning Rs.20,000/- to Rs.25,000/- per month.
But the Tribunal is not justified in taking the monthly
income of the deceased as only Rs.11,000/-.
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], the claimants are
entitled for addition of 10% towards future prospects.
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, he 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.20,000/- to Rs.25,000/- per
month, the same is not established by the claimants
by producing documents. Therefore, the Tribunal has
considered the monthly income of the deceased as
Rs.11,000/- which includes future prospects. Hence,
the claimants are not entitled for addition of future
prospects.
Secondly, on appreciation of oral and
documentary evidence, the Tribunal has awarded just
and reasonable compensation. Hence, he prays for
dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award.
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 have not produced any evidence or
documents with regard to the income of the deceased.
The Tribunal after considering the oral and
documentary evidence has rightly assessed the
monthly income of the deceased as Rs.11,000/-. 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.12,100/-, out of which, it is
appropriate to deduct 1/3rd towards personal expenses
and therefore, the monthly income comes to
Rs.8,067/-. The deceased was aged about 52 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.10,64,844/- (Rs.8,067*12*11)
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 heads 'conveyance' and 'medical expenses'
are retained.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 10,64,844
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Conveyance 2,000
Medical expenses 58,000
Total 12,74,844
The claimants are entitled to a total compensation
of Rs.12,74,844/-. The Insurance Company is directed
to deposit the compensation amount along with interest
at the rate of 6% p.a. from the date of petition till the
date of payment, 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
Cm/-
