Shantha vs The Managing Director
2021 Latest Caselaw 2101 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF JUNE 2021

                         PRESENT

           THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.9523 OF 2018 (MV-D)
BETWEEN:

1.     SHANTHA
       AGED ABOUT 46 YEARS
       W/O RAMESH

2.     RAMESH
       AGED ABOUT 48 YEARS
       S/O CHALLA

3.     SANGEETHA
       AGED ABOUT 23 YEARS
       D/O RAMESHA
       APPELLANT NO.3 IS UNSOUND MIND
       REP: BY NATURAL FRIEND
       GUARDIAN MOTHER SHANTHA

4.     KAVITHA
       AGED ABOUT 20 YEARS
       D/O RAMESHA

       ALL ARE R/O H.NO.2-94 A
       NEAR VISHNUMOORTHI TEMPLE
       KELARKALABETTU POST
       SANTHEKATTE
       UDUPI TALUK AND DISTRICT-576 105.
                                              ... APPELLANTS

(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
                              2




AND:

1.     THE MANAGING DIRECTOR
       M/S. DURGAMBA MOTORS
       N.H.17, HANGALOOR
       KUNDAPURA TALUK
       UDUPI DISTRICT.

2.     THE NEW INDIA ASSURANCE CO. LTD.,
       DIVISIONAL MANAGER
       DIVISIONAL OFFICE
       SRI RAM ARCADE, 2ND FLOOR
       OPP: HEAD POST OFFICE
       UDUPI-576 101.
                                           ... RESPONDENTS

(BY SRI C. SHANKAR REDDY, ADVOCATE FOR R-2)
                           ---

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.07.2018 PASSED
IN MVC NO.580/2017, ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, 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 20.07.2017 in MVC No.580/2017 passed by the

Additional Motor Accidents Claims Tribunal and Prl.

Senior Civil Judge, Udupi.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 07.03.2017, the deceased

Krishna along with one Vishwanath were traveling from

Santhekatte towards Manipal via Ambagilu Perampalli as

passengers in a Stage Carriage bearing Regn. No.KA-

20B-3039. When they reached near Perampalli bus stop,

the driver of the Stage Carrier on noticing the vehicle

coming from the opposite direction without reducing the

speed, suddenly applied brake on curved road, as a

result, the passengers including the deceased who were

standing in the stage carriage vehicle were thrown out

and fell on the road due to which, the Krishna 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 24 years

at the time of accident and was a painter by profession

and earning a Rs.15,000/- to Rs.20,000/- per month. It

was further pleaded that accident took place solely on

account of rash and negligent driving of the offending

vehicle by its driver. The claimants claimed

compensation to the tune of Rs.34,84,000/- along with

interest.

4. The respondents filed written statement, in

which the mode and manner of the accident was denied.

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 examined one eye witness as PW2

and got exhibited documents namely Ex.P1 to Ex.P8.

The respondents neither examined any witnesses but

got exhibited the Insurance Policy at Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the Stage Carriage 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.15,42,000/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal has been filed

seeking enhancement of the amount of compensation.

6. Learned counsel for the claimants submitted

that the Tribunal has grossly erred in assessing the

income of the deceased as Rs.10,000/- per month

instead of Rs.15,000/- per month having regard to the

fact that the deceased was working as Painter. He

further submitted that the Tribunal has deducted 50% of

the income towards personal expenses instead of 1/3rd

since there were four dependents, though the deceased

was a bachelor. In support of his submission, he has

placed a reliance on the decision of the SARALA

VERMA & ORS -VS- DELHI TRANSPOORT

CORPORATION & ANR. (Civil Appeal

No.3483/2008).

7. On the other hand, learned counsel for the

Insurance Company submitted that no evidence has

been adduced by the claimants to prove the income of

the deceased before the Tribunal and that the Tribunal

has rightly taken the income of the deceased notionally

at Rs.10,000/- per month. It is further submitted that

the amount of compensation awarded by the Tribunal is

just and proper and does not call for any interference.

8. We have considered the submissions made

by learned counsel for the parties and have perused the

record.

9. 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 24 years and was painter by

profession. 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. The Tribunal has deducted 50% of the

income of the deceased who was a bachelor on the

ground that the 2nd claimant who was the father of the

deceased cannot be dependent. Claimant No.1 is the

mother, claimant No.2 is the father and claimants No.3

and 4 are the unmarried sisters of the deceased. The

claimant No.1 - PW1 has stated on oath that all the

claimants were depending on the income of the

deceased for meeting their day to day requirements.

Nothing is elicited in the cross-examination so as to

disbelieve the said claim. The Apex Court in the case of

ORIENTAL INSURANCE CO. LTD., -VS-

VISHWANATH (SINCE DEAD, BY Lrs.) AND OTHERS

reported in 2014 ACJ 2316 has held that even though

the deceased was a bachelor, but having regard to the

dependency, 1/3rd deducted towards personal expenses

is valid. In view of the decision of the Apex Court in

ORIENTAL INSURANCE CO. (supra), 1/3rd of the

income of the deceased is to be deducted towards

personal expenses for the purpose of awarding

compensation towards loss of dependency since the

number of dependents is four.

12. Taking into account the age of the deceased

which was 24 years at the time of accident, the

multiplier of '18' has to be adopted and 40% of the

assessed income is to be added to the income of the

deceased towards 'future prospectus'. Hence, the

claimants are held entitled to (Rs.11,000/- x 1/3rd +

40% x 12 x 18) i.e., Rs.22,17,600/- 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, which comes to Rs.1,60,000/-. The

compensation amount of Rs.30,000/- towards loss of

estate and funeral expenses is maintained. Thus, in all,

the claimants are held entitled to a total compensation

of Rs.24,07,600/- which carries the interest at the rate

of 6 p.a. from the date of petition till the realisation. To

the aforesaid extent, the judgment passed by the Claims

Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

bkm