Sri Thakur Prasad vs Suresh D S
2021 Latest Caselaw 2624 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JULY 2021

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO.1718 OF 2020 (MV-D)
BETWEEN:

1.     SRI THAKUR PRASAD
       S/O MUNNILAL PRASAD
       AGED ABOUT 60 YEARS

2.     AMITH KUMAR
       S/O THAKUR PRASAD
       AGED ABOUT 37 YEARS

3.     ABHAY KUMAR
       S/O THAKUR PRASAD
       AGED ABOUT 35 YEARS

4.     NEHA KUMARI
       D/O THAKUR PRASAD
       AGED ABOUT 31 YEARS

       ALL ARE R/AT FATEHPUR SIWAN
       BYPASS ROAD, SIWAN
       BIHAR-841 226.

                                         ...APPELLANTS

(BY SRI GURUDEV PRASAD K.T., ADVOCATE)
                            2




AND:

1.     SURESH D S
       S/O SIDDEGOWDA
       R/AT NO.84, AMARANARAYANA BUILDING
       VITTASANDRA, BEGUR HOBLI
       NEAR KAVERAMMA TEMPLE
       BENGALURU DISTRICT.

2.     MR. THIMMAREDDY
       NO.1, B.T.R. GARDEN
       KUDLU VILLAGE, MADIWALA POST
       BENGALURU-560 068.

3.     TATA AIG GIC LTD
       BY ITS MANAGER
       NO.69, J.P. AND DEVI
       JAMBUKESHWARA ARCADE
       III FLOOR, MILLERS ROAD
       BANGALORE-560 052.

                                      ...RESPONDENTS

(BY SRI B. PRADEEP, ADVOCATE FOR R-3;
    NOTICE TO R-1 AND R-2 ARE DISPENSED WITH
    VIDE ORDER DATED 01.04.2021)
                         ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
03.10.2019 PASSED IN MVC NO.5136/2018, ON THE FILE OF
THE XVII ADDITIONAL JUDGE, COURT OF SMALL CAUSES
AND MEMBER, M.A.C.T., MAYO HALL UNIT, BENGALURU
(SCCH-21), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING  ENHANCEMENT      OF
COMPENSATION.
                                 3



     THIS M.F.A. COMING ON FOR ADMISSION, 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 03.10.2019 in

MVC.5136/2018 passed by the XVII Additional Judge, Court

of Small Causes & Member Motor Accident Claims Tribunal,

Mayo Hall Unit, Bengaluru (SCCH-21) (hereinafter referred to

as 'the Tribunal' for short).

2. Facts giving rise to the filing of the appeal briefly

stated are that on 16.08.2017, when Indu Devi was walking

on the Mayura E-city Apartment passage, Doddathoguru,

Bengaluru, at that time, a Tata 709 vehicle driven by its

driver in a rash and negligent manner and dashed against

Indu Devi. As a result of the same, she sustained grievous

injuries and was taken to Sparsh hospital, in spite of the

treatment, she succumbed to the injuries in the hospital.

3. The claimants thereupon filed a claim petition

under Section 166 of the Act, claiming compensation on the

ground that the deceased was aged about 56 years at the

time of accident and was doing knitting, sewing, embroidery,

and tailoring work and was earning a sum of Rs.10,00,000/-

per annum. It was further pleaded that the accident took

place solely on account of rash and negligent driving of the

Tata vehicle by its driver. The claimants claimed

compensation to the tune of Rs.1,50,00,000/- along with

interest.

4. The respondent No.3-Insurance Company filed

written statement, in which the mode and manner of the

accident was denied. It is denied the age, income and

occupation of the deceased. The averments made in the

petition were denied. The respondent No.3-Insurance

company contended that the petition is not maintainable as

there is no charge under section 279 of IPC against the driver

of the Tata vehicle. It was further denied the alleged

negligence of the driver of the Tata vehicle. It was further

pleaded that driver of the offending vehicle was not holding

valid driving license to drive the said vehicle as on the date

of the accident. It was further pleaded that the claim of the

claimants is exorbitant and excessive.

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

got exhibited documents namely Ex.P1 to Ex.P22. The

respondents neither adduced any oral evidence nor produced

any documentary evidence.

6. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account of

rash and negligent driving of the Tata vehicle by its driver. 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.6,33,192/- along with interest at the rate

of 9% per annum. Being aggrieved, this appeal has been

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.9,000/- per month instead of Rs.11,000/- 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.

The only question which arises for our consideration in this

appeal is with regard to the quantum of compensation.

10. Admittedly, the claimants have not produced any

evidence with regard to the income of the deceased. It is

also not in dispute that deceased at the time of accident was

aged about 56 years and was doing tailoring work etc. The

accident is of the year 2017. Therefore, if notional income of

the deceased is assessed as per the guidelines issued by the

Karnataka Legal Services Authority, notional income comes

to Rs.11,000/- per month.

11. 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, 10% of the amount has to be added on

account of future prospects. Therefore the income of the

deceased comes to RS.12,100/- per month. The Apex Court

in the case of NATIONAL INSURANCE CO. LTD., -VS-

BIRENDER AND OTHERS reported in ACJ 2020 759 has

held that legal representatives have right to apply for

compensation and it would be bounden duty of the Tribunal

to consider the application irrespective of the fact whether

the concerned legal representative was fully dependent on

the deceased and not to limit the claim towards conventional

heads only. In view of the decision of the Apex Court, 1/3rd

of the income of the deceased should be deducted towards

personal expenses since there are four dependants who are

the husband, sons and daughters of the deceased and was

also dependant on the income of the deceased. By assessing

the income of the deceased at Rs.11,000/- p.m, applying

multiplier of 9, deducting 1/3rd of the assessed income

towards personal expenses and adding 10% of the assessed

income of the deceased towards future prospects the

claimants are entitled for compensation of Rs.8,71,236/-/-

(11,000 + 10% = 1,100 = 12,100 x 1/3 = 8,067 x 12 x 9 )

under the head loss of dependency.

12. 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.1,60,000/-. In addition, claimants are held entitled to

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

expenses.

13. The compensation amount of Rs.8,192/- awarded

by the Tribunal towards medical expenses is maintained.

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

total compensation of Rs.10,69,428/-. The enhanced

compensation of Rs.4,36,236/- shall carry interest at the rate

of 6% 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

HR