Sri Albin Thomas vs Sri Shaju Thomas
2021 Latest Caselaw 2575 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF JULY 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.7368 OF 2018 (MV-D)
BETWEEN:

1.      SRI ALBIN THOMAS
        S/O SHAJU THOMAS,
        AGED ABOUT 19 YEARS,

2.      SRI NITHIN THOMAS
        S/O SHAJU THOMAS,
        AGED ABOUT 15 YEARS,

3.      ANGEL SHAJU
        D/O SHAJU THOMAS
        AGED ABOUT 9 YEARS,

        THE APPELLANT NOS.2 AND 3 ARE
        MINOR REPRESENTED ITS BROTHER
        APPELLANT NO.1, ALL ARE RESIDENT OF
        KEREHALLI HOBLI BARUVE,
        GAVATURU, RIPPONPET, HOSANAGARA TALUK
        SHIVAMOGGA DISTRICT-577 426.
                                           ...APPELLANTS

(BY SRI GANAPATHI, ADVOCATE)
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AND:

1.   SRI SHAJU THOMAS
     S/O THOMAS,
     AGED ABOUT 43 YEARS,
     WORKING AS LABOUR,
     RESIDENT OF GAVATURU,
     RIPPONPET, HOSANAGARA TALUK,
     SHIVAMOGGA DISTRICT-577 426.

2.   THE MANAGER
     NATIONAL INSURANCE COMPANY,
     1ST FLOOR, S.S. COMPLEX,
     HARSH ARCADE,
     OPPOSITE TO PETROL BUNK,
     B.H. ROAD, SHIVAMOGGA-577 201.
                                        ...RESPONDENTS

(BY SRI O. MAHESH, ADVOCATE FOR R-1)
                        ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
19.02.2018 PASSED IN MVC NO.9/2017, ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AND
ADDITIONAL MACT-10, SAGAR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ORDERS, THIS DAY,
HEMANT    CHANDANGOUDAR      J., DELIVERED   THE
FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act'

for short) is filed by the claimants seeking enhancement

of the amount of compensation, against the judgment

dated 19.02.2018 in MVC No.9/2017 passed by the

Additional Senior Civil Judge and JMFC and Addl. MACT-

10, Sagar (hereinafter referred to as 'the Tribunal' for

short).

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.08.2016, when Smt.Ancy

Thomas w/o Shaju Thomas, being the pillion rider and

respondent No.1 being rider of motorcycle were

proceeding towards their house, respondent No.1 rode

the motorcycle in a rash and negligent manner and

dashed to a cow. As a result of the same, the said

Smt.Ancy Thomas sustained grievous injuries and was

shifted to Government Hospital, Ripponpete and Maax

Hospital, Shivamogga and succumbed to the injuries

suffered by her in the accident.

3. The claimants thereupon filed a petition

under Section 166 of the Act claiming compensation on

the ground that the deceased was aged about 39 years

at the time of accident and was doing agriculture, rubber

tapping, milk vending business and preparing food to

the hotels and other functions and was earning a sum of

Rs.25,000/- per month. It was further pleaded that the

accident took place solely on account of rash and

negligent riding of the motorcycle by the 1st

respondent. The claimants claimed compensation to the

tune of Rs.40,10,000/- along with interest.

4. Though the 1st respondent was served with

notice he remained absence and was placed exparte.

The Insurance Company filed written statement, in

which inter alia it was pleaded that the 1st respondent

did not hold a valid and effective driving license at the

time of accident and that the liability of the Insurance

Company, if any, would be subject to the terms and

conditions of the insurance policy and prayed for

dismissal of the claim petition.

5. On the basis of the pleadings of the parties,

the Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined himself as

PW1 and eye witnesses to the accident were examined

as PWs.2 and 3 and got exhibited documents namely

Ex.P1 to Ex.P28. The respondents neither examined any

witness nor got exhibited any document.

6. The Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account

of rash and negligent riding the motorcycle by the 1st

respondent. It was further held that as a result of the

aforesaid accident, the deceased sustained injuries and

succumbed to the same. The Tribunal further held that

the claimants are entitled to a compensation of

Rs.10,68,000/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal is filed seeking

enhancement of the amount of compensation.

7. Learned counsel for the claimants submitted

that the Tribunal has grossly erred in assessing the

income of the deceased as Rs.8,000/- per month instead

of Rs.25,000/- per month. He further submitted that

the compensation awarded under the conventional

heads is on the lower side and the same requires to be

enhanced.

8. Learned counsel for the Insurance Company

submitted that the compensation awarded by the

Tribunal is just and proper and the claimants are not

entitled for enhancement of compensation. He further

submitted that the amount of compensation awarded by

the Tribunal is just and proper and does not call for any

interference.

9. We have considered the submissions made

by learned counsel for the parties and have perused the

record.

10. The only question which arises for our

consideration in this appeal is with regard to the

quantum of compensation.

11. As per the postmortem report marked as

Ex.P11, the deceased at the time of accident was aged

about 39 years. The claimants have not placed any

evidence to substantiate their claim that the deceased

was earning a sum of Rs.25,000/- p.m. The accident is

of the year 2016. In the absence of proof of income,

the notional income of the deceased is to be assessed as

per the guidelines issued by the Karnataka Legal

Services Authority, which comes to Rs.9,500/- per

month.

12. In view of the law laid down by the

Constitution Bench of the Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED Vs. PRANAY SETHI

AND OTHERS' AIR 2017 SC 5157, 40% of the amount

has to be added on account of future prospects. Thus,

the monthly income comes to Rs.13,300/-. Since, the

number of dependents are three, therefore, 1/3rd of the

amount has to be deducted towards personal expenses

and therefore, the monthly dependency comes to

Rs.8,867/- Taking into account the age of the deceased

who was 39 years at the time of accident, the multiplier

of '15' has to be adopted. Therefore, the claimants are

held entitled to (Rs.8,867 x 12 x15) i.e., Rs.15,96,060/-

on account of loss of dependency.

13. In view of law laid down by the Supreme

Court in 'MAGMA GENERAL INSURANCE CO. LTD.

VS. NANU RAM & ORS.' (2018) 18 SCC 130, which

has been subsequently clarified by the Supreme Court in

'UNITED INDIA INSURANCE CO. LTD. Vs.

SATINDER KAUR AND ORS.' IN CIVIL APPEAL

NO.2705/2020 DECIDED ON 30.06.2020 each of the

claimant's are entitled to a sum of Rs.40,000/- on

account of loss of consortium and loss of love and

affection. Thus, the claimants are held entitled to

Rs.1,20,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. The sum of Rs.24,000/- awarded towards

medical expenses is just and proper and the same is

maintained.

14. Thus, in all, the claimants are held entitled to

a total compensation of Rs.17,70,060/- The enhanced

compensation of Rs.7,02,060/- shall carry interest at the

rate of 6% p.a. from the date of filing of the petition till

the realization of the amount of compensation. To the

aforesaid extent, the judgment passed by the Claims

Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE BKM