Smt Jayamma vs Madhu G Murugan
2021 Latest Caselaw 775 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2021

                         PRESENT

          THE HON'BLE MRS. JUSTICE S. SUJATHA

                            AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

                MFA NO.4284 OF 2018 (MV)
BETWEEN:

1.     SMT JAYAMMA
       W/O LATE J G KEMPAIAH,
       AGED ABOUT 49 YEARS,
       HOUSEHOLD,
       NO.67 ITI HBCS LAYOUT,
       NAYANDAHALLY
       BENGALURU-560039.

2.     SMT ASHA J K
       W/O MURTHY D.N.
       AGED ABOUT 31 YEARS,
       NO.506, 3RD MAIN,
       BHAVANINAGAR,
       KEMPEGOWDANAGARA,
       BENGALURU-560019.

3.     SMT USHA J K
       W/O PAVAN KUMAR K N
       AGED ABOUT 29 YEARS,
       NO.89, 16TH MAIN,
       ITI HBCS LAYOUT
       NAYANDAHALLY,
       BENGALURU-560039.

4.     KUM NISHA J K
       D/O LATE J G KEMPAIAH,
       AGED ABOUT 27 YEARS,
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       NO.67, ITI HBCS LAYOUT,
       NAYANDAHALLY,
       BENGALURU-560039.                     ...APPELLANTS

(BY SRI: CHANDRASHEKARA K.A., ADVOCATE)

AND:
1.     MADHU G MURUGAN
       S/O GANESHAN,
       MAJOR IN AGE,
       NO.58/1, GULIMANGALA VILLAGE,
       HUSKUR POST,
       NEAR GLOBAL LAW COLLEGE,
       ANEKAL TALUK,
       BENGALURU-560099

2.     UNITED INDIA INSURANCE COMPANY LIMITED,
       REGIONAL OFFICE,
       T.P. HUB 5TH AND 6TH FLOOR,
       KRISHIBHAVAN, HUDSON CIRCLE,
       BENGALURU-560 001
       REPRESENTED BY ITS MANAGER        ...RESPONDENTS

(BY SRI: B.C. SEETHARAMA RAO, ADV. FOR R2;
    VIDE COURT ORDER DATED 13.1.2021
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 27/11/2017,
PASSED IN MVC NO.2513/2017, ON THE FILE OF THE XXI
A.C.M.M AND XXIII ADDITIONAL SMALL CAUSES JUDGE, MOTOR
ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES,
BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

    THIS MFA COMING ON FOR ORDERS THIS DAY, M.I.
ARUN J., DELIVERED THE FOLLOWING:-
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                              JUDGMENT

Aggrieved by the judgment and award dated

27.11.2017 passed by the Motor Accident Claims Tribunal,

Court of Small Causes, at Bengaluru, (for short 'the

Tribunal') in MVC No.2513/2017, the petitioners therein

have preferred this appeal.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Tribunal.

3. The brief facts of the case are that on 03.03.2017

at about 9.00 a.m. deceased Kempaiah was crossing the

road at opposite to Durga Parameshwari Temple,

Nagaravhavi ring road, Bengaluru in North to South

direction. At that time, a Bike bearing Reg.No.KA-51-ER-

1115 being driven in a rash and negligent manner came and

dashed against said Kempaiah, as a result of which, he

sustained injuries and subsequently, succumbed to the

same. Petitioner No.1 is the wife and petitioner Nos.2 and

3 are his married daughters and petitioner No.4 is

unmarried daughter. Respondent No.1 is the owner of the

motor bike and respondent No.2 is the insurance company

with which the motor bike is duly insured. Petitioners have

preferred MVC No.2513/2017 and sought for compensation

of Rs.30,00,000/-.

4. After service of summons, respondent No.1 has

placed exparte and respondent No.2 has appeared before

the Tribunal through its counsel and filed its written

statement denying liability and prayed for dismissal of the

claim petition.

5. Petitioners got examined petitioner No.1 as PW-1

and got marked Exs.P.1 to P.17. The respondents have not

examined any witnesses nor got marked any documents.

6. Based on the pleadings and evidence let in, the

Tribunal has awarded a compensation of Rs.9,64,312/-

along with interest at 8% p.a. from the date of petition till

realization. Not satisfied by the same, petitioners have

preferred this appeal.

7. The factum of accident, the same happening due to

rash and negligent driving of the offending bike is not in

dispute. The dispute only is in respect of the quantum of

compensation.

8. The accident happened in the year 2017. As there

was no proof of income adduced, the Tribunal has adopted

notional income of Rs.8,000/- p.m. We find the same to be

on the lower side. As per the chart prepared by the

Karnataka State Legal Services Authority in consultation

with the Insurance Company, the notional income in the

absence of proof of income to be adopted for the year 2017

is Rs.11,000/- per month should be notional income to be

adopted. The deceased at the time of the accident was

aged about 54 years. Hence, as per the law down by the

Apex Court in National Insurance Co.Ltd. v. Pranay

Sethi (2017) 16 SCC 680, 10% has to be added towards

future prospects. As per the law laid down by the Hon'ble

Supreme Court in Sarla Verma vs. D.T.C [2009(6) SCC

121], a multiplier of '11' has to be adopted. Petitioner

Nos.2 and 3 being married daughters cannot be considered

as dependants on deceased. Thus, considering petitioner

Nos.1 and 4 as dependants, 1/3rd of the income to be

deducted towards personal expenses. Thus, petitioners are

entitled for a sum of Rs.10,64,800/- under the head 'loss of

dependency'.

9. Further, as per the law laid down by the Hon'ble

Supreme Court in New India Assurance Co.Ltd. v.

Somwati [(2020)9 SCC 644], petitioner Nos.1 and 4 are

also entitled to loss of consortium at the rate of Rs.40,000/-

each and Rs.30,000/- towards loss of funeral expenses, loss

of estate. Further, the Tribunal has awarded a sum of

Rs.1,20,000/- towards medical expenses based on the

records. We deem the same to be appropriate. Thus in all

the petitioners are entitled to Rs.12,94,800/- (10,64,800 +

1,10,000 + 1,20,000) as against Rs.9,64,312/- awarded by

the Tribunal.

10. Hence, the following:

ORDER

i] Appeal is allowed in part.

ii] The total compensation awarded by

the Tribunal is modified and enhanced to

Rs.12,94,800/- (Rupees Twelve Lakhs Ninety

Four Thousand Eight Hundred only) as against

Rs.9,64,312/- which shall carry interest at the

rate of 6% per annum on the enhanced

compensation amount from the date of the claim

petition till its realization.

iii] the portion of the order of the

Tribunal inasmuch as liability, apportionment

and disbursement remains intact.

iv] The Insurance Company shall deposit

the amount determined as aforesaid before the

Tribunal within 90 days from the date of receipt

of the certified copy of the judgment and order.

v] The modified compensation amount

shall be apportioned and disbursed in terms of

the order of the Tribunal.

vi] Draw modified award accordingly.

vii] All pending I.As. stand disposed of

accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

MH/-