Smt Kalavathi vs Sri Rakesh P
2021 Latest Caselaw 2086 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF JUNE 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

 THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO.4361 OF 2018 (MV-D)

BETWEEN:

1.     SMT. KALAVATHI
       W/O LATE MANJUNATHA N B
       AGED ABOUT 28 YEARS.

2.     MASTER N M NANDISH
       S/O LATE MANJUNATHA N B
       AGED ABOUT 10 YEARS.

3.     MASTER MAUNIK
       S/O LATE MANJUNATHA N B
       AGED ABOUT 8 YEARS.

4.     SRI. BALAKRISHNA REDDY
       S/O CHANGAPPA
       AGED ABOUT 62 YEARS.

5.     SMT. PARVATHAMMA
       W/O BALAKRISHNA REDDY
       AGED ABOUT 60 YEARS.

       ALL ARE R/AT NO.10, NAGAVARA
       MULBAGAL TQ, KOLAR DISTRICT-563131.

       SINCE THE APPELLANTS 2 & 3
       ARE MINORS HENCE, REP. BY THEIR
       MOTHER AND NATURAL GUARDIAN
                                2



       1ST APPELLANT I.E.
       SMT. KALAVATHI.
                                          ... APPELLANTS
(BY SRI. R.V. SHIVANANDA REDDY, ADV.)

AND:

SRI. RAKESH P
S/O K. PADMANABHAIAH
NO.329, ARABIC COLLEGE
THANNISANDRA POST
BANGALORE-45.
                                             ... RESPONDENT
(RESPONDENT SERVED)
                              ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 16.10.2017 PASSED
IN MVC NO.3743/2016 ON THE FILE OF THE 19TH ADDITIONAL
SMALL CAUSE JUDGE, MACT, BENGALURU (SCCH-17), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

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

16.10.2017 passed by the Motor Accident Claims Tribunal in

MVC No.3743/2016 seeking enhancement of compensation.

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

stated are that on 07.07.2016 at about 7.30 p.m. deceased

Manjunath N.B. and one Manjunath A were riding on a motor

cycle bearing registration No.AP-04 R-6094. When they

reached near J.S.R.Toll, Nangli border, Kolar District, at that

time, an Innova car bearing registration No.KA-04 MD-1166

which was being driven by its driver in a rash and negligent

manner, came from opposite direction and dashed against

the vehicle of the deceased. As a result of the aforesaid

accident, 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 account of

death of deceased Manjunath N.B., inter alia on the ground

that the accident took place solely on account of rash and

negligent driving of the driver of the offending Innova car. It

was further pleaded that the deceased was aged about 29

years and was working as a lorry driver and used to earn

Rs.20,000/- p.m. Accordingly, compensation to the extent of

Rs.25,00,000/- along with interest was claimed.

4. The Respondent filed written statement in which the

averments made in the claim petition were denied. It was

further pleaded that the accident took place on account of

rash and negligent driving of the motor cycle. It was also

pleaded that there was no negligence on the part of the car

and the owner and insurer of the motor cycle have not been

impleaded and therefore, the petition suffers from non-

joinder of necessary parties. It was also pleaded that the

rider of the motor cycle was not having a valid and effective

driving licence and was under the influence of alcohol.

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 Kalavathi as PW-1, one A.Srinivas as

PW-2 and Muniraju as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P21. The respondents examined one

V.Rajeshwar Rao as RW-1 but did not produce any

documents. 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 Innova car by its

driver. It was further held that the claimants are entitled to

compensation to the tune of Rs.16,73,000/- along with

interest at the rate of 7.5% 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 income of the

deceased at Rs.9,000/- p.m. and ought to have added future

prospects at the rate of 40% to the income of the deceased.

It is further submitted that the compensation awarded under

other heads is on the lower side and needs to be enhanced

suitably.

7. We have considered the submissions made by

learned counsel for the appellant and have perused the

record. The only question which arises for our consideration

in this appeal is with regard to the quantum of compensation.

Admittedly, the deceased was aged about 29 years at the

time of accident. It has been stated that the deceased was

working as a lorry driver and was earning Rs.20,000/- p.m.

but no evidence has been adduced on behalf of the claimants

in support of the income of the deceased. Therefore, the

notional income of the deceased has to be assessed as per

the chart prepared by the Karnataka State Legal Services

Authority. Taking into account the year of accident, the

monthly income of the deceased would be Rs.9,500/-. The

number of dependants of the deceased are 5 and therefore,

1/4th of the income has to be deducted towards personal

expenses of the deceased which would come to Rs.7,125/-.

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

monthly dependency comes to Rs.9,975/-. Taking into

account the age of the deceased which was 29 years at the

time of accident, the multiplier of '17' has to be adopted.

Therefore, the claimants are held entitled to Rs.20,34,900/-

(Rs.9975 x 12 x 17) on account of loss of dependency. 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.2,00,000/-. In

addition, claimants are held entitled to Rs.30,000/- on

account of loss of estate and funeral expenses. The claim on

account of medical expenses awarded by the Tribunal to the

extent of Rs.71,000/- is maintained. Thus, in all, the

claimants are held entitled to a total compensation of

Rs.23,35,900/-. 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.

To the aforesaid extent, the judgment passed by the

Claims Tribunal is modified.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE RV