Smt Chandrakala vs M Manju @ Manjunatha
2021 Latest Caselaw 2116 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 04TH DAY OF JUNE, 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO. 3211 OF 2020 (MV-D)


BETWEEN:


1.     SMT. CHANDRAKALA
       W/O LATE RAMEGOWDA
       AGED ABOUT 45 YEARS

2.     KENDAGANNA R
       S/O LATE RAMEGOWDA
       AGED ABOUT 27 YEARS

3.     SHRUTHI
       D/O LATE RAMEGOWDA
       AGED ABOUT 25 YEARS

       ALL ARE R/AT 1026, BANK COLONY
       4TH MAIN, 4TH CROSS
       BODADI VILLAGE
       KASABA HOLBI
       MYSURU DISTRICT.

                                         ... APPELLANTS
(BY SRI SYED ABDUL SABOOR, ADVOCATE)

AND:

1.     M. [email protected] MANJUNATHA
       S/O MALLAIAH
                              2



     AGED ABOUT 35 YEARS
     R/AT 1066, 8TH CROSS
     ASHOKAPURAM
     MYSURU - 570 009.

2.   NAGARAJU K.
     S/O KALININGEGOWDA
     AGED ABOUT 45 YEARS
     R/AT 29/2, ASWALU VILLAGE
     BILIKERE HOBLI
     HUNSUR TALUK

3.   THE MANAGER
     ICICI LOMBARD GENERAL INSURANCE COMPANY LTD,
     414, VEER SAVARKAR MARG, NEAR
     SIDDIVINAYAKA TEMPLE
     PRABHADEVI, MUMBAI.
                                       ... RESPONDENTS

(V/O DTD:24.05.2021 NOTICE TO R1 D/W
 R-3 SERVED)
                           ---

     THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.10.2018 PASSED
IN MVC NO.897/2015 ON THE FILE OF THE JUDGE, ADDTITIONAL
COURT OF SMALL CAUSES, MYSURU, AS A PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL, MYSURU, PARLY
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 MV Act is filed

by the claimants against the judgment dated 27.10.2018 in

MVC No.897/2015 passed by the Judge, Addl. Small Causes

and Senior Civil Judge, Mysuru, seeking enhancement of the

amount of compensation.

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

stated are that the deceased Ramegowda after loading the

vegetables and fruits in TATA Ace vehicle bearing Regn

No.KA-45-7628 was proceeding from Hasavalu village to

Hunsur market to unload the vegetables and at that time the

1st respondent drove the Tata Ace vehicle in a rash and

negligent manner due to which RameGowda who was

traveling in the said vehicle sustained grievous injuries and

was admitted to BGS Apollo Hospital, Mysuru and succumbed

to accidental injuries on 5.4.2015.

3. The Claimants there upon filed a petition under

Section 166 of the Motor Vehicles Act, claiming compensation

on the ground that the deceased was aged 50 years at the

time of the accident and was engaged in business and

agricultural work and was earning a sum of Rs.20,000/- p.m.

It was further pleaded that the accident took place solely on

account of rash and negligent driving of the Tata Ace vehicle

by its driver. The claimants claimed compensation to the

tune of 41,50,000/-.

4. The insurance company filed written statement,

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

The Insurance Company denied that on 21.3.2015, the

deceased Ramegowda was traveling in the offending vehicle

after loading fruits and vegetables and due to the rash and

negligent driving of the vehicle by respondent No.1, the

vehicle overturned resulting in causing the death of

Ramegowda. It was also pleaded that the driver of the

offending vehicle 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 doctor was examined as P.W.2 and got exhibited

documents namely Ex.P1 to Ex.P.21. The respondent No.3 -

Insurance Company got examined one witness as RW1. 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 Ace vehicle 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.11,73,298/- 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.7,500/- per month instead of Rs.9,000/- per

month. It is further submitted that the sums awarded under

the head are on the lower side and deserves to be enhanced

suitably. The compensation awarded by the Tribunal is on

the lower side and the same may be enhanced.

7. The 3rd respondent - Insurance Company

though served with notice has remained unrepresented.

8. We have considered the submissions made by

learned counsel for the appellant and have perused the

record. It is not in dispute that the accident occurred due to

the rash and negligent driving by the driver of the Tata Ace

vehicle. The deceased was aged 50 years as on the date of

the accident. The only question which arises for our

consideration in this appeal is with regard to the quantum of

compensation.

9. 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

doing agricultural work and business. The accident is of the

year 2015. 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.9,000/- per

month.

10. In view of decision of the Apex Court in the case

of 'NATIONAL INSURANCE COMPANY LIMITED Vs.

PRANAY SETHI AND OTHERS' AIR 2017 SC 5157 10%

of the assessed income is to be added towards future

prospects. Hence, by assessing the monthly income of the

deceased at Rs.9,000/- applying multiplier of '13' deducting,

1/3rd towards personal expenses and adding 10% of the

income towards future prospects, the claimants are held

entitled to a sum of Rs.10,29,600/- towards loss of

dependency as against Rs. 8,58,000/- awarded by the

Tribunal.

11. 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 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 of love and affection which comes to Rs.1,20,000/-. In

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

account of loss of estate and funeral expenses. The

compensation amount of Rs.2,05,298/- awarded towards

medical expenses is maintained.

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

enhanced compensation of Rs13,84,898/- as against Rs.

11,73,298/- awarded by the Tribunal. The enhanced

compensation shall carry interest at the rate of 6% p.a. from

the date of petition till realization.

To the aforesaid extent, the judgment passed by the

Claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

HR