Sri. Mallesh K S vs The New India Assurance Co Ltd
2021 Latest Caselaw 2068 Kant

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 1ST DAY OF JUNE 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                               AND

 THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO.2999 OF 2019 (MV-D)
BETWEEN:

1.     SRI. MALLESH K S
       AGED ABOUT 48 YEARS
       S/O LATE SHAMBULINGAPPA.

2.     SMT. SHOBHA K M
       AGED ABOUT 43 YEARS
       W/O MALLESH K S.

3.     KUMARI. ANUSHA K M
       AGED ABOUT 22 YEARS
       D/O MALLESH K S.
       ALL ARE R/AT DODDAKANAGAL VILLAGE
       ALUR SIDDAPURA POST
       SHANIVAR SANTE HOBLI
       SOMWARPET TALUK
       KODAGU DISTRICT - 571235.
                                           ... APPELLANTS
(BY SRI. P. NATARAJU, ADV.,)

AND:

1.     THE NEW INDIA ASSURANCE CO. LTD.,
       NO.73, 1ST FLOOR
       MADHVESH COMPLEX
       MALAI MAHADESWARA ROAD
       NAZARABAD,
       MYSURU - 570010
       REPRESENTED BY IT'S MANAGER.
                                2




2.    M/S. BARGI CHEMICALS P LTD.,
      NO.1848, VENU VIHAR
      'K' BLOCK, KUVEMPU NAGAR,
      MYSURU - 570023
      REPRESENTED BY IT'S MANAGER.
                                              ... RESPONDENTS
(BY SRI. A.R. LAKSHI NARAYANA, ADV., FOR R1
         R2 SERVED)
                            ---

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.06.2018,
PASSED IN MVC NO.531/2016, ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE & XXXIII ACMM, MEMBER,
MACT, BENGALURU (SCCH-5), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR ORDERS,             THIS   DAY,
ALOK ARADHE 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) has

been filed by the claimants against the judgment dated

22.06.2018 passed by the Motor Accident Claims Tribunal,

seeking enhancement of compensation.

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

stated are that on 25.11.2015 deceased K.M.Abhishek was

riding his motor cycle bearing registration No.KA-04 HX-1081

with one pillion rider namely Praveen from Bengaluru to his

native village. At about 10.45 p.m., when they reached

Tubinakere Industrial Area on Bengaluru-Mysore Road, at

that time, a TATA tanker goods heavy vehicle bearing

registration No.KA-09 B-7265 which was being driven by its

driver in a rash and negligent manner, took L turn without

giving any signal, as a result of which, the motor cycle hit the

tanker. The deceased sustained grievous injuries and

eventually succumbed to the same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the accident took place solely on account of rash and

negligent driving of the driver of the offending tanker goods

heavy vehicle. It was further pleaded that the deceased was

aged about 20 years at the time of accident and was

employed as a driver and was engaged in agricultural

operations as well. It was also pleaded that he used to earn

Rs.35,000/- p.m. Accordingly, compensation of

Rs.40,00,000/- along with interest was claimed.

4. Respondent No.2 did not appear before the Tribunal

and was proceeded exparte. Respondent No.1 filed written

statement in which inter alia the issuance of the policy was

admitted. It was further pleaded that the liability of

Insurance Company, if any, is subject to the terms and

conditions of the policy. It was also pleaded that the driver

of the aforesaid tanker was not holding any valid and

effective driving licence to drive the heavy vehicle. It was

also pleaded that the amount of compensation claimed by

the claimants is excessive and exorbitant.

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 himself as PW-1

and one Sudeesh H.S. as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P14. The respondents examined one

Kumar M. as RW-1 and got marked documents Ex.R1 and

Ex.R2. 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 tanker by its driver. It was

further held, that the claimants are entitled to compensation

to the tune of Rs.10,12,500/- along with interest at the rate

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

realisation. In the aforesaid factual background, this appeal

has been filed.

6. Learned counsel for the claimants submitted that the

Tribunal grossly erred in assessing the monthly income of the

deceased at Rs.6,000/- p.m. It is also urged that the

amount awarded on the other heads is on the lower side. On

the other hand, learned counsel for the Insurance Company

submitted that the amount of compensation awarded by the

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

interference in this appeal.

7. 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. The

deceased, at the time of accident, was aged about 20 years

and was a bachelor. The claimants have not adduced any

evidence with regard to his income. Therefore, his income

has to be assessed on the basis of chart prepared by the

Karnataka State Legal Services Authority on notional basis.

Taking into account the year of accident which is 2015,

monthly income of the deceased is assessed notionally at

Rs.9,000/-. To the aforesaid amount, 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 income comes to Rs.12,600/-. Out of

the aforesaid amount, 50% has to be deducted towards

personal expenses as the deceased was a bachelor and

therefore, the monthly dependency comes to Rs.6,300/-.

Taking into account the age of the deceased which was 20

years at the time of accident, the multiplier of '18' has to be

adopted. Therefore, the claimants are held entitled to

Rs.13,60,800/- (Rs.6300 x 12 x 18) on account of loss of

dependency.

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

total compensation of Rs.15,10,800/-. The enhanced

compensation shall carry interest at the rate of 6% from the

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

of compensation, excluding the period of delay caused in

filing the appeal.

To the aforesaid extent, the judgment passed by the

Claims Tribunal is modified.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE

RV