Karnataka High Court
Mrs Sharada Shenoy vs Mrs Kusuma 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.7184 OF 2013(MV)
BETWEEN:
1. MRS. SHARADA SHENOY
W/O LATE KHNATH SHENOY
AGED ABOUT 63 YEARS
R/O OPP:EKNATH CHASHEW FACTORY
SHAKTHINAGARA, MANGALORE TALUK
D.K.DISTRICT PIN 575008.
2. MRS. GEETHA SHENOY
W/O NARASIMHA KAMATH
AGED ABOUT 44 YEARS
R/AT OPP: EKNATH CHASHEW FACTORY
SHAKTHINAGARA, MANGALORE TALUK
D.K. DISTRICT PIN-575008.
3. MRS. GAYATHRI KAMATH
W/O GANESH KAMATH
AGED ABOUT 43 YEARS
R/O OPP: CITY HSPITAL, MALLIKATTA
MANGALORE TALUK
D.K.DISTRICT PIN 575003.
4. RAMESH SHENOY
S/O LATE EKNATH SHENOY
AGED ABOUT 40 YEARS
2
R/O OPP:EKNATH CHASHEW FACTORY
SHAKTHINAGARA, MANGALORE TALUK
D.K.DISTRICT PIN 575008.
5. MRS. USHA RAO
W/O VINOD RAO
AGED ABOUT 36 YEARS
R/O OPP:EKNATH CHASHEW FACTORY
SHAKTHINAGARA, MANGALORE TALUK
D.K.DISTRICT PIN 575008.
... APPELLANTS
(BY SRI.G.RAVISHANKAR SHASTRY, ADV. )
AND
1. MRS. KUSUMA
W/O BHASKAR AMIN
AGED ABOUT 56 YEARS
R/AT DOOR NO.1-53-282-33
SUDHIR NIVAS, ASHOK NAGARA
MANGALORE TALUK
D.K.DISTRICT PIN-575009.
2. NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, M.J.COMPLEX
BALMATTA, MANGALORE
D.K. DISTRICT
REPRESENTED BY ITS
BRANCH MANAGER PIN-575001.
... RESPONDENTS
(BY SMT. H.R.RENUKA, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:07.07.2015)
3
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.04.2013 PASSED IN MVC NO.784/2012 ON
THE FILE OF THE III ADDL. DIST. JUDGE, MEMBER
MACT-IV, D.K., MANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT 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 30.04.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 29.04.2012 at about 8.15
p.m., the deceased Nagesh Shenoy was traveling as a
passenger in the bus bearing Reg.No.KA-19/B-1877,
when the said bus reached near cashew factory,
Padavu village, Shakthinagara, Mangalore Taluk, the
said bus was stopped in order to facilitate the
passengers to get down from the bus and when the
deceased was about to get down from the bus, driver
suddenly moved the bus in a rash and negligent
manner and recklessly, due to that impact, deceased
was thrown out on the road. 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 40 years at the time of accident and was
employed as security guard/watchman at night and
was earning Rs.4,500/- per month and he was also
earning Rs.9,500/- per month by doing mason work.
The claimants claimed compensation to the tune of
Rs.10,00,000/- along with interest.
4. On service of summons, the respondent
No.2 appeared through its 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. The age
and avocation of the deceased is denied. It was
further pleaded that the accident was not due to rash
and negligent driving of the bus by its driver. it was
further pleaded that driver of the offending vehicle
was not holding valid and effective driving licence as
on the date of the accident to drive the same. It was
further pleaded that issuance of policy if any, is
subject to terms and conditions of the policy. It was
further pleaded that the quantum of compensation
claimed by the claimants is exorbitant. Hence, he
sought for dismissal of the petition.
The respondent No.1 did not appear inspite of
service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 herself as
PW-1 and got examined two witnesses as PWs-2 and
3 and got exhibited 16 documents namely Ex.P1 to
Ex.P16. On behalf of respondents, no witnesses were
examined but they have exhibited Insurance policy as
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.2,73,800/- along
with interest at the rate of 6% p.a. and directed
Insurance Company to deposit the 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, at the time of accident deceased was
aged about 40 years, and was working as security
guard and was also doing mason work and was
earning Rs.14,000/- per month. The Tribunal is not
justified in taking monthly income of the deceased as
merely as Rs.4,500/-.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of SARLA VERMA
AND OTHERS -V- DELHI TRANSPORT
CORPORATION AND ANOTHER reported in (2009)
6 SCC 121, the age of the deceased has to be
considered for assessing loss of dependency. The
Tribunal has wrongly considered the age of the
mother of the deceased for assessing multiplier.
Thirdly, in view of the law laid down by the
Hon'ble Apex 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
25% of the established income towards 'future
prospects' should be the warrant where the deceased
was aged between 40-50 years. But the Tribunal has
failed to consider the same.
Fourthly, 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'.
Fifthly, as per the law laid down by the Hon'ble
Supreme Court in the case of PRANAY SETHI
(supra), the claimants are entitled for compensation
of Rs.15,000/- each under the heads of 'loss of estate'
and 'funeral expenses'.
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, even though the claimants claim that the
deceased was earning Rs.14,000/- per month, the
same is not established by the claimants by producing
documents. Therefore, the Tribunal after considering
the materials available on record has rightly assessed
monthly income of the deceased as Rs.4,500/-.
Secondly, at the time of accident the deceased
was aged about 40 years, in view of the law laid down
by the Apex Court in the case of PRANAY SETHI
(supra), 25% of the income has to be added to his
income.
Thirdly, on appreciation of oral and documentary
evidence, the Tribunal has awarded just and
reasonable compensation on other heads.
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. It is not in dispute that deceased Nagesh
Shenoy died in the road traffic accident occurred on
29.04.2012 due to rash and negligent driving of the
offending vehicle by its driver. At the time of accident
he was aged about 40 years. Even though claimants
have claimed that deceased earning Rs.14,000/- per
month as security guard and by doing mason work,
but they have not produced any documents to
establish the same. Therefore, the 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 2012, the
notional income has to be taken at Rs.7,000/- p.m.
accordingly, monthly income of the deceased is
considered as Rs.7,000/-. To the aforesaid amount,
25% 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.8,750/-. 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.4,375/-. As per the judgment of the Hon'ble
Supreme Court in the case of SARLA VERMA (supra),
the multiplier has to be taken as per the age of the
deceased. The deceased was aged about 40 years at
the time of accident and multiplier applicable to his
age group is '15'. Thus, the claimants are entitled to
compensation of Rs.7,87,500/- (Rs.4,375*12*15) on
account of 'loss of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
No.1, mother of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of filial consortium, claimant Nos.2, 3 to 5 are entitled
for compensation of Rs.40,000/- each under the head
of '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 of Rs.8,053/- awarded by the
Tribunal under the head of 'medical expenses' is
retained as it is.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 7,87,500
Medical expenses 8,053
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 40,000
Loss of love and 1,60,000
affection
Total 10,25,553
The claimants are entitled to a total
compensation of Rs.10,25,553/- as against
Rs.2,73,800/- awarded by the Tribunal.
The Insurance Company is directed to deposit
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
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
Mkm/-
