Karnataka High Court
Smt. Jalaja Naik vs Prakash Kumar on 13 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.9627 OF 2013(MV)
BETWEEN:
1. SMT. JALAJA NAIK
71 YEARS
W/O LATE. RUKMAYA NAIK.
2. GANESH NAIK
24 YEARS
S/O LATE RUKMAYA NAIK
BOTH ARE R/AT DARKAS MANE
KONDADI, KUDI VILLAGE & 82 POST
VIA HIRIADKA
UDUPI TALUK-574104.
... APPELLANTS
(BY SRI.SANDESH KUMAR ACHARYA, ADV. )
AND
1. PRAKASH KUMAR
31 YEARS
S/O K.B.SHANKARA
UPPINAKOTE, BRAHMAVARA POST
VARAMBALLI VILLAE
UDUPI TALUK-574104.
2
2. UNITED INDIA INSURANCE CO. LTD.,
UDAYAVANI BUILDING,
TILE FACTORY ROAD
MANIPAL, UDUPI-574 101.
... RESPONDENTS
(BY SRI. RAVISH BENNI, ADV. FOR R2
R1 IS SERVED AND UNREPRESENTED.)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 29.08.2013 PASSED IN MVC NO.318/2012 ON
THE FILE OF THE PRINCIPAL, SENIOR CIVIL JUDGE &
ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHACEMENT 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 29.8.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 21.2.2012 the deceased
Sundara Naik was proceeding on motorcycle Bearing
registration No.KA-20-EA-4192 from Kotnakatte side
to Basthi side, near Basti Mooru Marga, at that time,
another motorcycle bearing registration No.KA-20-X-
8601 which was being ridden in a rash and negligent
manner, came from opposite direction and dashed
against the motorcycle of 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 33 years at the time of accident and was
employed as Over Sear in Mescom and was getting
salary of Rs.15,582/- p.m. The claimants claimed
compensation to the tune of Rs.15,00,000/- 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 the accident was due to the rash
and negligent riding of the motorcycle by the
deceased himself. The driver of the offending vehicle
did not possess valid driving licence as on the date of
the accident. Hence, he sought for dismissal of the
petition. The respondent No.1 appeared but did not
choose to file objections.
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.P10. On behalf of
respondents, no witness was examined and got
exhibited document namely Ex.R1. The Claims
Tribunal, by the impugned judgment, inter alia, held
that the accident took place on account of contributory
negligence to the extent of 20% and 80% on the part
of the deceased and rider of offending vehicle
respectively. The Tribunal further held that the
claimants are entitled to a compensation of
Rs.5,79,000/- along with interest at the rate of 6%
p.a. and directed the Insurance Company to deposit
80% of the compensation amount along with interest.
Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has
contended that the accident occurred solely due to
rash and negligent riding of the offending motorcycle
by its rider. The Tribunal is not justified in holding that
the deceased has contributed to the accident to the
extent of 20%.
In respect of quantum of compensation is
concerned, the claimants claim that at the time of the
accident the deceased was aged 33 years. He was
working in Over Sear in MESCOM and earning net
salary of Rs.17,000/- p.m. 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. But the Tribunal has
failed to consider the same.
Secondly, instead of applying multiplier based on
the age of the deceased, the Tribunal has wrongly
applied multiplier based on the age of the mother of
the deceased.
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'.
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 contended that the
accident has occurred due to the negligence of the
deceased and he has contributed to the accident. The
Tribunal considering the materials available on record
has rightly held that the deceased, rider of the
motorcycle and rider of the offending motorcycle have
contributed to the accident to the extent of 20% and
80% respectively.
In respect of quantum of compensation is
concerned, claimant No.2, brother of the deceased is
not entitled for compensation under the head of loss
of love and affection. Further, the overall
compensation awarded by the Tribunal is just and
reasonable. Hence, he sought for dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. The specific case of the claimants is that on
21.2.2012 the deceased Sundara Naik was proceeding
on motorcycle Bearing registration No.KA-20-EA-4192
from Kotnakatte side to Basthi side, near Basti Mooru
Marga, at that time, another motorcycle bearing
registration No.KA-20-X-8601 which was being ridden
in a rash and negligent manner, dashed against the
motorcycle of the deceased. As a result of the
aforesaid accident, the deceased sustained grievous
injuries and succumbed to the injuries.
To prove the case, the claimants examined
mother of the deceased as PW-1 and an eye witness
to the accident as PW-2 and produced 10 documents.
The Tribunal taking into consideration the evidence of
the parties and materials available on record, has
rightly held that the accident has occurred due to
contributory negligence. The deceased has contributed
to the accident to an extent of 20% and the rider of
the offending vehicle has contributed to the accident
to an extent of 80%. Hence, the finding of the
Tribunal with regard to negligence is confirmed.
Re: quantum of compensation:
10. The Tribunal based on the salary certificate
of the deceased produced by the claimants as per
Ex.P-10 has rightly taken the income of the deceased
at Rs.17,000/- 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.23,800/-. Out
of which, it is appropriate to deduct 50% towards
personal expenses since the deceased was a bachelor
and therefore, the monthly income comes to
Rs.11,900/-. The deceased was aged about 33 years
at the time of the accident and multiplier applicable to
his age group is '16' instead of multiplier '5' applied by
the Tribunal based on the age of the mother of the
deceased. Thus, the claimants are entitled to
compensation of Rs.22,84,800/- (Rs.11,900*16*12)
on account of 'loss of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimants
are entitled for compensation of Rs.40,000/- each
under the head 'loss of love and affection.
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 head of medical expenses is just and
reasonable.
11. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 22,84,800
Funeral expenses 15,000
Loss of estate 15,000
Loss of love and 80,000
affection
Medical expenses 18,000
Total 24,12,800
Less: 20% negligence 4,82,560
on the part of the
deceased
Balance 19,30,240
The claimants are entitled to a total
compensation of Rs.19,30,240/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
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.
Sd/-
JUDGE
DM
