The Manager vs Smt Kavitha Y S
2021 Latest Caselaw 3058 Kant

                                 1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 30TH DAY OF JULY 2021

                           PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

               M.F.A. NO.4492 OF 2017 (MV-D)
                              C/W
               M.F.A. NO.4360 OF 2017 (MV-D)


M.F.A. NO.4492 OF 2017
BETWEEN:

THE MANAGER
ORIENTAL INSURANCE CO., LTD.,
T P HUB, NO.44/45
LEO SHOPPING COMPLEX
4TH FLOOR, RESIDENCY CROSS ROAD
M G ROAD, BANGALORE-560001.
                                               ... APPELLANT
(BY SRI. A.Y. SHIVALLI, ADV.,)

AND:

1.    SMT. KAVITHA Y S
      W/O LATE SHIVANNA G R
      AGED ABOUT 26 YEARS.

2.    KUM. RANGANATHA G S
      S/O LATE SHIVANNA
      AGED ABOUT 8 YEARS.

3.    KUM. GAGAN G S
      S/O LATE SHIVANNA
                                2



     AGED ABOUT 5 YEARS.

4.   SMT. LAKSHMAMMA
     W/O LATE RANGA SHAMAIAH
     AGED ABOUT 62 YEARS.

     ALL ARE R/AT GUDEMARANAHALLI
     SOLUR HOBLI, MAGADI TALUK
     RAMADURGA DISTRICT-582117.

5.   SRI. A C GANGA GUDDAIAH
     S/O CHIKKANNA
     R/AT. NO.169
     5TH MAIN, SAJJEPALYA
     BANGALORE-560091.

                                        ... RESPONDENTS
(BY SRI. SRIDHAR D.S., ADV., FOR C/R1
R2, R3 & R4 SERVED)
                             ---

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.02.2017 PASSED IN MVC NO.661/2016 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE AND MACT, BANGALORE (SCCH-17), AWARDING COMPENSATION OF RS.17,37,000/- WITH INTEREST AT 9% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.

M.F.A. NO.4360 OF 2017 BETWEEN:

1. SMT. KAVITHA Y S W/O LATE SHIVANNA G R AGED 26 YEARS.

2. RANGANATHA G S S/O LATE SHIVANNA AGED 8 YEARS.

3. GAGAN G S S/O LATE SHIVANNA AGED 5 YEARS.

4. SMT. LAKSHMAMMA W/O LATE RANGA SHAMAIAH AGED 62 YEARS

2ND AND 3RD APPELLANTS ARE MINORS AND HENCE THEY ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN THE FIRST APPELLANT VIZ., SMT. KAVITHA Y.S.

ALL ARE R/AT GUDEMARANAHALLI SOLUR HOBLI, MAGADI TALUK RAMANAGARAM DISTRICT - 572 120.

... APPELLANTS (BY SRI. SRIDHAR D.S. ADV.,)

AND:

1. A.C. GANGA GUDDAIAH S/O CHIKKANNA, MAJOR NO.169, 5TH MAIN, SAJJEEPALYA BENGALURU - 560 091.

2. M/S. THE ORIENTAL INSURANCE CO., LTD., REPRESENTED BY ITS MANAGER REGIONAL OFFICE NO. 44/45 LEO SHOPPING COMPLEX RESIDENCY ROAD, BENGALURU - 560 025.

.. RESPONDENTS

---

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.02.2017 PASSED IN MVC NO.661/2016 ON THE FILE OF THE XIX ADDL. SCJ AND MACT BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE M.F.As. COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

MFA No.4360/2017 has been flied by the claimants

seeking enhancement of compensation, whereas, MFA

No.4492/2017 has been filed by the Insurance Company

under Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act' for short), being

aggrieved, by the judgment dated 22.02.2017 passed by the

Motor Accident Claims Tribunal (hereinafter referred to as

'the Tribunal' for short) in M.V.C.No.661/2016. Since, both

these appeals are directed against the same judgment and

arise from the same accident, they were heard analogously

and are being decided by this common judgment.

2. Facts leading to filing of these appeals briefly stated

are that on 20.12.2015, the deceased Shivanna was riding a

motor cycle bearing Registration No.KA-05-JP-6020 near

Kalya Sripathi Halli, Magadi. At that time, a lorry bearing

Registration No.KA-40-4050, which was being driven by its

driver in a rash and negligent manner, came from the

opposite direction and dashed against the motor cycle which

the deceased was riding. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 34 years at the time of

accident and was engaged as a driver and was earning a sum

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

accident took place solely on account of rash and negligent

driving of the lorry by its driver. The claimants claimed

compensation to the tune of Rs.25,00,000/- along with

interest.

4. The insurance company filed written statement, in

which the mode and manner of the accident was denied. It

was pleaded that the accident occurred on account of the

negligence of the deceased himself in riding his motor cycle.

It was also pleaded that the driver of the lorry 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.

The age, avocation and income of the deceased was also

denied and it was pleaded that the claim of the claimants is

exorbitant and excessive.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined herself as PW-1

and got exhibited documents namely Ex.P1 to Ex.P10. The

respondents neither adduced any oral evidence nor any

documentary evidence. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent driving of the lorry by

its driver. It was further held, that as a result of 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.17,37,000/- along with

interest at the rate of 9% per annum. Being aggrieved, these

appeals have been filed.

6. Learned counsel for the Insurance Company

submitted that the Tribunal erred in making an addition to

the income of the deceased at the rate of 50% instead of

40% towards the future prospects as the deceased was self

employed. It is further submitted that the claimants have not

adduced any proof with regard to the income of the deceased

and the Tribunal, in the absence of any proof, has rightly

assessed the notional income of the deceased at Rs.7,000/-

per month. It is urged that the interest awarded by the

Tribunal is on the higher side and the same deserves to be

reduced suitably. On the other hand, learned counsel for the

claimant submitted that the Tribunal has grossly erred in

assessing the income of the deceased as Rs.7,000/- per

month and in any case, the same ought to have been taken

as per the guidelines framed by the Karnataka State Legal

Services Authority. It is further submitted that the sums

awarded under the heads 'loss of consortium' and 'funeral

expenses' are on the lower side and deserves to be enhanced

suitably.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is not in dispute that the deceased succumbed to the

injuries sustained by him in the accident which occurred due

to the negligent driving of the offending lorry by its driver.

The only question which arises for our consideration in this

appeal is with regard to the quantum of compensation.

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

34 years and was engaged as a driver. Therefore, the

notional income of the deceased is to be assessed as per the

guidelines issued by the Karnataka Legal Services Authority.

Since the accident is of the year 2015, the notional income of

the deceased is assessed at Rs.9,000/- per month.

8. 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 as the deceased was self

employed. Thus, the monthly income comes to Rs.12,600/-.

Since, the number of dependents is 4, therefore, 1/4th of the

amount has to be deducted towards personal expenses and

therefore, the monthly dependency comes to Rs.9,450/-.

Taking into account the age of the deceased which was 34

years at the time of accident, the multiplier of '16' has to be

adopted. Therefore, the claimants are held entitled to

(Rs.9,450x12x16) i.e., Rs.18,14,400/- on account of loss of

dependency.

9. In view of 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.'

AIR 2020 SC 3076 each of the claimant's are entitled to a

sum of Rs.40,000/- on account of loss of consortium and loss

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

total compensation of Rs.20,04,400/-. Since the accident is

of the year 2015, the prevailing rate of interest for the year

2015 in respect of fixed deposits for one year in nationalized

banks being 8.5%, the aforesaid total amount of

compensation shall carry interest at the rate of 8.5% from

the date of filing of the petition till the realization of the

amount of compensation. The Respondent No.2 in

M.V.C.No.661/2016 viz., the Insurance Company is directed

to deposit the aforesaid total amount of compensation within

4 weeks from today. To the aforesaid extent, the judgment

passed by the Tribunal in M.V.C.No.661/2016 is modified.

The amount of deposit, if any, shall be transmitted to the

Tribunal.

Accordingly, the appeals are partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE ss