Karnataka High Court

Jyothi vs P Suresh on 11 January, 2021

Author: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 11TH DAY OF JANUARY 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

           MFA No.8030 OF 2013(MV)

BETWEEN:

1.   JYOTHI
     W/O MANJUNATHA NAYAKA
     @ MANJUNAYAKA @ MANJA @ MATTALLI
     AGED ABOUT 33 YEARS
     RESIDING AT UPPARA BEEDI
     HOLENARASIPUR TOWN-573211
     HASSAN DISTRICT-573 201.

2.   REKHA
     D/O MANJUNATHA NAYAKA
     @ MANJUNAYAKA @ MANJA @ MATTALLI
     AGED ABOUT 15 YEARS
     SINCE MINOR REPRESENTED BY
     HER NATURAL GUARDIAN MOTHER
     JYOTHI
     RESIDING AT UPPARA BEEDI
     HOLENARASIPUR TOWN-573211
     HASSAN DISTRICT-573 201.

3.   SHARATH
     D/O MANJUNATHA NAYAKA
     @ MANJUNAYAKA @ MANJA @ MATTALLI
     AGED ABOUT 13 YEARS
     SINCE MINOR REPRESENTED BY
                        2



     HIS NATURAL GUARDIAN MOTHER
     JYOTHI
     RESIDING AT UPPARA BEEDI
     HOLENARASIPUR TOWN-573211
     HASSAN DISTRICT-573 201.

4.   PUTTAMMA
     SINCE DEAD BY HER LR'S

4(1) SAROJAMMA
     W/O LATE SOMANAYAKA
     AGED ABOUT 58 YEARS
     PRESENTLY RESIDING AT
     MADIVALARA BEEDI
     HOLENARASIPURA, HASSAN DISTRICT.

4(2) BHAGYA
     W/O SRINIVASA NAYAKA
     AGED ABOUT 40 YEARS
     PRESENTELY RESIDING AT
     BASAVAPURA VILLAGE
     HAGARE POST
     BELUR TALUK, HASSAN DISTRICT.

4(3) ANANDA ALIAS ANANDA NAYAKA
     S/O LATE ANNAIAH NAYAKA
     AGED ABOUT 38 YEARS
     PRESENTLY RESIDING AT
     BASAVANAGUDI BEEDI
     HOLENARASIPURA,
     HASSAN DISTRICT.
                                    ... APPELLANTS

(BY SRI.SHASHIBHUSHAN B.S. ADV. )
                         3



AND

1.    P.SURESH
      S/O PUTTEGOWDA
      AGED ABOUT 42 YEARS
      RESIDINGAT C.M.ROAD
      K.R.NAGAR TOWN-571 602
      MYSORE DISTRICT.

2.    THE BRANCH MANAGER
      THE ORIENTAL INSURANCE
      COMPANY LIMITED,
      BRANCH OFFICE.2, P.B.NO.210
      NO.618, CHAMARAJA DOUBLE ROAD
      MYSORE-570001.
      REPRESENTED BY
      THE BRANCH MANAGER
      THE ORIENTAL INSURANCE
      COMPANY LIMITED
      DIVISIONAL OFFICE
      C.NANJAPPA COMPLEX
      SUBHASH CIRCLE
      HASSAN,HASSAN DISTRICT-573201.
                                  ... RESPONDENTS

(BY SRI.K.RAJASHEKARA, ADV. FOR R1:
SRI. K.N.SRINIVASA, ADV. FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 18.10.2012 PASSED IN MVC NO.68/2011 ON
THE FILE OF THE SENIOR CIVIL JUDGE, MACT, JMFC,
HOLENARASIPUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
EHANCEMENT OF COMPENSATION.
                              4



     THIS MFA COMING ON FOR ORDERS, 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 18.10.2012 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 20.04.2011 at about 8 p.m.,

deceased Manjunatha Nayaka @ Mattalli was

proceeding on his Hero Honda Splendor Plus bike

bearing Reg.No.KA-13/U-5436 along with his friend

Harish, to Badaganahalliy Jathra, K.R.Nagar taluk on

Holenarasipur - Mysore road near Bachanahally

Koppalu. When they reached near Maranti Kodu road,

at that time, driver of lorry bearing Reg.No.CAA-5283

parked the said vehicle on middle of the road without

any signal lights, deceased hit to the lorry from

backside. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries at the spot.

3. The claimants filed a petition under Section

166 of the Act on the ground that the deceased was

aged about 38 years at the time of accident and was

earning Rs.10,000/- per month by vending milk and

flower business. The claimants claimed compensation

to the tune of Rs.15,00,000/- along with interest.

4. On service of summons, respondent Nos.1

and 2 appeared through their respective counsel and

filed separate objections in which the averments made

in the petition were denied. It was pleaded by

respondent No.1 that the petition itself is false and

frivolous in the eye of law. It was further pleaded that

the income of the deceased and amount incurred

towards funeral and obsequies ceremonies of the

deceased are denied. It was further pleaded that the

offending vehicle was insured with respondent No.2

and policy was in force as on the date of accident.

Hence, he sought for dismissal of the petition.

It was pleaded by respondent No.2 that the

accident was occurred on account of rash and

negligent riding of the motorcycle by the deceased

himself. It was further pleaded that the petition is

bad for non-joinder of necessary parties as the owner

and insurer of the motorcycle are not made as parties

to the petition. It was further pleaded that owner of

the offending vehicle has violated terms and

conditions of the policy. Hence, he sought for

dismissal of the claim petition.

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 injured Harish as PW-2 and got exhibited 23

documents namely Ex.P1 to Ex.P23. On behalf of

respondents, officer of the Insurance Company was

examined as RW-1 and got exhibited 2 documents

namely Ex.R1 and Ex.R2. 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 50% of compensation of

Rs.4,80,000/- along with interest at the rate of 6%

p.a. and directed Insurance Company to deposit 50%

of 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, that the accident has occurred due to

rash and negligent driving of lorry bearing

Reg.No.CAA-5283.

Secondly, the lorry was parked in the middle of

the road without putting indicator lights, since the

rider of motorcycle was unable to see the same has

hit the lorry from backside. Therefore, there is

negligence on the part of driver of lorry. The Tribunal

is not justified in holding contributory negligence of

50% by the rider of motorcycle.

Thirdly, at the time of accident deceased was

aged about 38 years, and was earning Rs.10,000/-

per month by vending milk and flower business. The

Tribunal is not justified in taking monthly income of

the deceased as Rs.3,750/-.

Fourthly, 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], 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. But the Tribunal has failed to

consider the same.

Fifthly, as per the law laid down by the Hon'ble

Supreme Court in the case of PRANAY SETHI

(supra), claimants are entitled to Rs.15,000/- under

the head of 'loss of estate', Rs.15,000/- under the

head of 'funeral expenses'.

Sixthly, 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 of Rs.40,000/- under the head of

'loss of love and affection and consortium'.

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, the lorry was parked on the extreme left

side of the road, rider of the motorcycle has ridden

the same at a high speed and in a rash and negligent

manner and dashed against the lorry and accident has

occurred due to contributory negligence on the part of

rider of the motorcycle. The Tribunal after considering

materials available on record has rightly held

contributory negligence by the drivers of both vehicles

at 50% each.

Secondly, even though claimants have claimed

that deceased was earning Rs.10,000/- per month,

but they have not produced any documents to

establish the same. Considering the same, Tribunal

has rightly assessed monthly income of the deceased

as Rs.3,750/-.

Thirdly, compensation awarded by the Tribunal

under other heads is just and reasonable.

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. The case of the claimants is that on

20.04.2011, deceased Manjunatha Nayaka @ Mattalli

along with his friend Harish was proceeding on his

Hero Honda Splendor Plus bike bearing Reg.No.KA-

13/U-5436, to Badaganahally Jathra, K.R.Nagar, when

they reached on Holenarasipur - Mysore road near

Bachanahally Koppalu Maranti Kodu road, driver of the

lorry bearing Reg.No.CAA-5283 parked the said

vehicle on middle of the road without any signal lights,

deceased hit the lorry from backside, due to the said

impact, deceased sustained head injury and

succumbed to the injuries at the spot. Claimants in

order to prove their case, examined claimant No.1 as

PW.1 and injured Harish was examined as PW.2 and

they have exhibited 23 documents as Exs.P1 to 23.

PW.2 has specifically pleaded that the accident has

occurred due to rash and negligent driving of the lorry

by its driver. The respondents have examined officer

of the Insurance Company as RW.1.

10. Immediately after the accident, PW.2 has

filed complaint against the rider of the motorcycle

Manjunatha Nayaka as per Ex.P1, the police after

thorough investigation have filed charge sheet against

driver of the lorry and rider of the motorcycle as per

Ex.P2. The Tribunal after verifying FIR, spot mahazar,

sketch and charge sheet has rightly held that the

accident has occurred due to contributory negligence

of both rider as well as driver of the lorry. There is no

error in the finding given by the Tribunal.

11. In respect of quantum of compensation is

concerned, even though claimants have claimed that

deceased was earning Rs.10,000/- per month by

vending milk and flower business, they have produced

only Exs.P.8-13, (6) flower receipts and Exs.P20-23,

(4) milk vending cards, but they have not produced

any bank statement of account or any other

documents to prove that deceased was earning

Rs.10,000/- per month. Under these circumstances,

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2011, notional income has been fixed at

Rs.6,500/- per month. Accordingly, monthly income

of the deceased is considered as Rs.6,500/- 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.9,100/-. Out of which, it is appropriate to deduct

1/3 towards personal expenses and therefore, the

monthly income comes to Rs.6,067/-. The deceased

was aged about 38 years at the time of accident and

multiplier applicable to his age group is '15'. Thus,

the claimants are entitled to compensation of

Rs.10,92,060/- (Rs.6,067*12*15) on account of 'loss

of dependency'.

In view of the law laid down by the Supreme

Court in 'MAGMA GENERAL INSURANCE', claimants

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 3, children

are entitled for compensation of Rs.40,000/- each

under the head of 'loss of parental consortium' and

claimant No.4, mother of the deceased is entitled for

compensation of Rs.40,000/- 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                      10,92,060
        Funeral expenses                           15,000
        Loss of estate                             15,000
        Loss of spousal                            40,000
        consortium
        Loss of Parental                                   80,000
        consortium
        Loss of Filial consortium                   40,000
                        Total                   12,82,060

      The     claimants         are        entitled        to    a     total

compensation         of     Rs.12,82,060/-                  as       against

Rs.4,80,000/- awarded by the Tribunal.

Since both the rider of motorcycle and driver of

lorry have contributed 50% each negligence in

causing the accident, claimants are entitled for

Rs.6,41,030/- with 6% interest.

Accordingly, Insurance Company is directed to

deposit Rs.6,41,030/- of the compensation amount

along with interest at 6% p.a. from the date of

petition till the date of realization, within a period of

four weeks from the date of receipt of copy of this

judgment.

To the aforesaid extent, the judgment of the