Karnataka High Court
Sumathi vs Smt Veena on 15 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6492/2013 (MV)
BETWEEN:
1. SUMATHI
AGED ABOUT 50 YEARS
W/O LATE SRINIVAS GANIGA
2. PRASANTH
AGED ABOUT 29 YEARS
3. PRAFULLA
AGED ABOUT 27 YEARS
4. PRATHAP
AGED ABOUT 25 YEARS
NO.2 TO 4 ARE CHILDREN OF
LATE SRINIVAS GANIGA
ALL ARE RESIDENT OF KANNUKERE
THEKKATE VILLAGE AND POST
KUNDAPURA TALUKA
UDUPI DISTRICT - 576201
... APPELLANTS
(BY SRI.MAHESH KIRAN SHETTY, ADV.)
AND
1. SMT. VEENA
2
AGED ABOUT 46 YEARS
W/O KOTA LAXMI NARAYAN KARANTH
R/O LAXMISH NIVAS, BHM ROAD
KUNDAPURA, KUNDAPURA TALUK
UDUPI - 576201
2. THE UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE
2ND FLOOR, KRISHNA COMPLEX
G. B. PANTH MARG
UDUPI - 576201
REP. BY ITS DIVISIONAL MANAGER
... RESPONDENTS
(BY SRI. Y. P. VENKATAPATHI, ADV. FOR R2
APPEAL AGAINST R1 DISMISSED V/O DT.18.08.2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
21.01.2013 PASSED IN MVC NO.479/2011 ON THE FILE OF
THE SENIOR CIVIL JUDGE & MEMBER, ADDL. MACT,
KUNDAPURA PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT 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 21.1.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 7.1.2011 the deceased
Srinivas Ganiga was walking on the extreme eastern
side mud portion of NH17 from Kumbashi towards
Thekkatte side, at that time, a car bearing registration
No.KA-20-P-1436 which was being driven in a rash
and negligent manner, dashed against 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 52 years at the time of accident and was
working as coolie and was earning Rs.8,000/- p.m.
The claimants claimed compensation to the tune of
Rs.5,24,000/- 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 of the deceased himself. The liability is
subject to terms and conditions of the policy. 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 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.P11. On behalf of
respondents, neither any witness was examined nor
any document was produced. 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.3,49,000/- along with interest at the rate of 6%
p.a. and directed the 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, the claimants claim that the deceased
was aged about 52 years at the time of the accident
and he was earning Rs.8,000/- per month by working
as coolie and they have produced RTC extracts as
Ex.P-11 and licence issued by Panchayathi at Exs.P-8
and 9 and bank statement as Ex.P-10. But the
Tribunal is not justified in taking the monthly income
of the deceased as merely as Rs.5,000/-.
Secondly, 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
10% of the established income towards 'future
prospects' should be the warrant where the deceased
was between the age group of 50 to 60 years. But the
Tribunal has failed to consider the same.
Thirdly, the deceased was a married person and
therefore one-third of the income of the deceased has
to be deducted towards personal expenses. But the
Tribunal has wrongly deducted 50%.
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, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side.
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 claimants have claimed that the
deceased was aged about 52 years at the time of the
accident. But they have not produced any document
regarding the proof of age of the deceased.
Considering Ex.P-6, Post Mortem report, the Tribunal
has rightly taken the age of the deceased as 56 years.
Secondly, the claimants claim that the deceased
was earning Rs.8,000/- per month and produced Ex.P-
8 and 9 licence issued by the Panchayati. It is seen
that they have tampered the date in the said
documents and they have not examined the author of
the said document. Therefore, the Tribunal has rightly
assessed the income of the deceased notionally.
Thirdly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
Fourthly, claimant Nos.2 to 4 are major children.
therefore, the Tribunal considering claimant No.1 as
the only dependent has rightly deducted 50% of the
income of the deceased towards personal expenses.
Fifthly, on appreciation of oral and documentary
evidence, the Tribunal has awarded just and
reasonable compensation.
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 died in
the road traffic accident occurred due to rash and
negligent driving of the offending vehicle by its driver.
The claimants have not produced any evidence or
documents with regard to the income of the deceased.
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 2011, the notional income has to be taken
at Rs.6,500/- p.m. To the aforesaid amount, 10% 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.7,150/-. Out of
which, it is appropriate to deduct 1/3rd towards
personal expenses and therefore, the monthly income
comes to Rs.4,767/-. In the absence of proof of age of
the deceased, the Tribunal based on Ex.P-6 post
mortem report has rightly taken the age of the
deceased as 56 years and multiplier applicable to his
age group is '9'. Thus, the claimants are entitled to
compensation of Rs.5,14,836/- (Rs.4,767*9*12) on
account of 'loss of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
No.1, wife of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of spousal consortium' and claimant Nos.2 to 4,
children are entitled for compensation of Rs.40,000/-
each under the head of 'loss of parental 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 514,836
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of love and 120,000
affection
Total 704,836
The claimants are entitled to a total
compensation of Rs.704,836/-
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
