Karnataka High Court

The Divisional Manager vs Smt Saroja on 8 January, 2021

Author: Alok Aradhe Rangaswamy

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 08TH DAY OF JANUARY, 2021

                       PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

           M.F.A. NO.7383 OF 2017 (MV-D)


BETWEEN:

THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
JLB ROAD, CHAMUNDIPURAM,
MYSORE.

THROUGH ITS REGIONAL OFFICE
MAHALAKSHMI CHAMBERS,
M.G. ROAD, BENGALURU-560001
REP. BY ITS MANAGER.
                           ... APPELLANT
(BY SRI. ANUP SEETHARAMA RAO, ADVOCATE FOR SRI.
SEETHARAMA RAO B.C., ADVOCATE)

AND:

1.     SMT. SAROJA
       AGED ABOUT 41 YEARS,
       W/O MARIGOWDA

2.     SRI. MARIGOWDA
       AGED ABOUT 45 YEARS,
       S/O LATE PUTTAIAH
                         2




3.   MISS. CHANDRAKALA
     AGED ABOUT 21 YEARS,
     D/O SRI. MARIGOWDA

4.   MR. PUNITHKUMAR
     AGED ABOUT 19 YEARS,
     S/O SRI MARIGOWDA,

     ALL ARE RESIDENTS OF
     2ND CROSS,
     V.V. NAGARA, KALLAHALLY,
     MANDYA.

5.   SRI. MAHESH C.K.
     MAJOR IN AGE,
     S/O SRUI KALEGOWDA,
     CHAMALAPURA VILLAGE,
     KERAGODU HOBLI
     MANDYA TALUK & DISTRICT.
     (OWNER OF MOTOR CYCLE NO.KA.09/EE-6921)

                                 ... RESPONDENTS

(BY SRI. LAKSHMIKANTH K., ADVOCATE FOR
RESPONDENT NOS.1 TO 4 (ABSENT);
NOTICE SERVED TO RESPONDENT NO.5)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
10.07.2017 PASSED IN MVC NO.479/2016 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE AND MACT., AT
MANDYA, AWARDING COMPENSATION OF Rs.26,62,000/-
WITH INTEREST AT THE RATE OF 9% P.A. ON THE
COMPENSATION FROM THE DATE OF PETITION TILL
REALIZATION.
                              3




     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though this appeal is listed for admission, as the

records from the Motor Accident Claims Tribunal are

received, it is taken up for final disposal with the consent

of learned counsel for the parties.

2. This appeal is filed by the insurer challenging

the Judgment and Award dated 10.07.2017 passed by the

I Additional Senior Civil Judge and Motor Accident Claims

Tribunal, Mandya (hereinafter referred to as 'the Tribunal')

in MVC No.479/2016.

3. The appellant herein and respondent No.5

herein will henceforth be referred to as the 'insurer' and

'owner' respectively of the offending vehicle involved in the

accident and respondent Nos.1 to 4 herein will henceforth

be referred to as 'claimants'.

4. The claim petition discloses that the claimants

are the legal representatives of a person named Mr.

Bharath Kumar. It is stated that on 22.03.2016, the said

Bharath Kumar and another person named Mr.Praveen

were traveling to Ramandur on a motorcycle bearing

registration No. KA-09-EE-6921. When they were moving

near Haniyambadi village on Kirugavalu-Mandya road, a

Swaraj Mazda bearing registration No.KA-41-A-3221

(henceforth referred to as the 'offending vehicle'), being

driven by its driver in a rash and negligent manner

approached from the opposite direction and dashed against

the motorcycle. On account of this accident, both

Mr.Bharath Kumar and Mr.Praveen fell down and sustained

injuries and Mr.Bharath Kumar was shifted to District

Hospital, Mandya, but was declared brought dead. The

claimants being the parents and siblings of the deceased

contended that the deceased was running a hotel and a

bakery and was earning Rs.20,000/- per month. They

claimed that he was also looking after the agricultural

operations in the land belonging to the joint family

measuring 29.8 guntas situated at Neralekere village and

was earning Rs.5,000/- per month which he was

contributing to the family. Therefore, they claimed that

they were deprived of the emotional and financial support

provided by the deceased. They alleged actionable

negligence on the part of the driver of the offending

vehicle and claimed compensation of Rs.37,05,000/- from

the owner and the insurer of the offending vehicle.

5. The owner of the offending vehicle claimed

that the vehicle was duly insured and therefore, he was

not liable to pay the compensation.

6. The insurer claimed that the offending vehicle

did not possess a valid permit and a fitness certificate and

that the driver of the offending vehicle did not possess a

valid licence to drive that particular category of vehicle. It

also contended that the deceased was negligent and was

responsible for the accident and therefore the owner and

insurer of the motor bike were proper and necessary

parties.

7. Based on the aforesaid rival contentions, the

claim petition was set down for trial.

8. The claimant No.1 was examined as PW.1 and

the pillion rider who was also injured in the accident was

examined as PW.2 and they marked documents Exs.P1 to

P10. The insurer examined its executive as RW.1 who

marked a document as per Ex.R1.

9. The Tribunal noticed that PW.2 was the eye

witness to the accident and that he had lodged a complaint

with the jurisdictional police against the driver of the

offending vehicle. The Tribunal also noticed Ex.P2 which

was the spot mahazar, Ex.P3 the IMV report, Ex.P6 which

was the charge sheet filed by the investigating officer in

Crime No.215/2016 and held that the accident was due to

the negligence on the part of the driver of the offending

vehicle. In so far as the quantum of compensation is

concerned, the claimants had not placed on record any

material proof to indicate the avocation or the income of

the deceased. However, the Tribunal considered the

notional income of the deceased at a sum of Rs.12,000/-

per month and granted loss of future prospects at 50%

and deducted 50% of the income of the deceased towards

his personal expenses and awarded the following

compensation:

 Sl.             Heads under which             Amount in
 No.           compensation awarded             Rupees
 1      Towards loss of dependency              25,92,000/-
 2      Towards loss of love and affection           40,000/-
 3      Towards transportation and funeral           30,000/-
        charges
                       Total                   26,62,000/-

The Tribunal awarded         interest at the rate of 9% per

annum from the date of the claim petition till the date of

realization.

10. Feeling aggrieved by the aforesaid Judgment

and Award passed by the Tribunal, the insurer has filed

this appeal contending that the deceased was negligent

and was responsible for the accident. The learned counsel

contended that in the absence of any proof of the income

of the deceased, the Tribunal could not have treated the

notional income of the deceased at Rs.12,000/- per month.

Learned counsel submitted that even as per the chart

prescribed for settlement at the Lok Adalath, a sum of

Rs.9500/- is treated as the notional income in respect of

persons who die or are injured in the road traffic accidents

in the year 2016. He, therefore, contended that the

Tribunal ought to have restricted the income to a sum of

Rs.9500/- per month. Further, he contended that the

Tribunal had awarded 50% as loss of future prospects of

the notional income of the deceased while in view of the

judgment of the Apex Court in the case of National

Insurance Company Limited vs. Pranay Sethi and

others reported in 2017 (16) SCC 680, the loss of future

prospects must have been calculated at 40%. Further he

claimed that the deceased was a bachelor and in view of

the Judgment of the Apex Court in the case of Sarla

Verma and Others vs Delhi Transport Corporation

and another reported in 2009 (6) SCC 121, 50% of his

income must have been deducted towards his living

expenses as against 1/3rd deducted by the Tribunal. He

also contended that the Tribunal ought not to have

awarded interest at the rate of 9% per annum and there

was no extraordinary circumstance that compelled the

Tribunal to award interest at the rate of 9% per annum.

11. The learned counsel for claimants however

contended that the Tribunal failed to award compensation

towards the loss of filial consortium and that the claimants

were entitled to a sum of Rs.40,000/- each. The learned

counsel, therefore, prayed that the compensation awarded

may not be disturbed.

12. We have considered the arguments advanced

by the learned counsel for the parties and we have also

perused the records of the Tribunal as well as its Judgment

and award.

13. As rightly contended by the learned counsel for

the insurer, in the absence of any proof regarding income,

it was incumbent upon the Tribunal to have considered the

income of the deceased at a sum of Rs.9,500/- per month

as per the guidelines issued by the Karnataka State Legal

Services Authority and since the deceased was not

employed in any permanent employment, the loss of

future prospects ought to have been granted at 40% as

per the judgment of the Apex Court in Pranay Sethi's

case (supra). Further, the deceased was a bachelor and

in view of the Judgment of the Apex Court in Sarla

Verma's case (supra), 50% of his income ought to have

been deducted towards his living expenses. In view of the

judgment of the Apex Court in the case of Magma

General Insurance Co. Ltd vs Nanu Ram Alias Chuhru

Ram reported in 2018 (18) SCC 130 and in the case of

United India Insurance Co. Ltd. vs Satinder Kaur @

Satwinder Kaur and others reported in 2020 SCC

OnLine SC 410, the claimants are entitled to loss of filial

consortium at the rate of Rs.40,000/- each.

14. It is now well entrenched that it is the duty of

the Court to ensure that the dependents of the deceased

are awarded just compensation which is also the mandate

of Section 166 of the Motor Vehicles Act, 1988 but such

compensation should not be fanciful and exorbitant. In the

opinion of this Court, the Tribunal over reached the

authoritative pronouncement of the Apex Court in Sarla

Verma's case and Pranay Sethi's case. Further there

were no extra ordinary circumstances that entitled the

claimants for interest at 9% per annum.

15. Hence, this Court has reconsidered the

Judgment and award of the Tribunal and redetermined the

compensation as follows:

          Heads under which                   Amount in
        compensation awarded                   Rupees
 Loss of dependency @Rs.9500/- per             14,36,400/-
 month along with 40% future prospects

(Rs.9500 + Rs.3800=Rs.13300/-) after deducting 50% towards living expenses Rs.6650/- x 12 x 18 Loss of filial consortium to the claimants 1,60,000/- @ Rs.40,000/- to each of them Towards conveyance, medical expenses, 75,000/- funeral and obsequies and loss of estate Total 16,71,400/-

16. In view of the above, the appeal filed by the

insurer of the offending vehicle is allowed in part and in

modification of the impugned Judgment and Award passed

by the Tribunal, the compensation awarded by the Tribunal

in MVC No.479/2016 is reduced from Rs.26,62,000/- to

Rs.16,71,400/-, which is payable by the insurer to the

claimants along with interest at 6% per annum from the

date of the claim petition till the date of realization.

17. The compensation determined by this Court

along with interest shall be deposited by the insurer before

the Tribunal within a period of one month from the date of

receipt of a certified copy of this Judgment.