Karnataka High Court
Leela K N vs C S Sandesh on 16 March, 2021
Author: Alok Aradhe Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO. 5572 OF 2016 (MV-D)
BETWEEN:
1. Leela K N
W/o Late H S Gangadharaiah,
Aged About 39 Years
2. H G Swaroop
S/o Late H S Gangadharaiah,
Aged About 16 Years
3. H G Sinchana
D/o Late H S Gangadharaiah,
Aged About 13 Years
Appellants 2 To 3 Are Minors
Represented By Their Natural Guardian
And Mother Leela K N
All Are R/At Hosahalli Village,
(Keregodi) Kasaba Hobli,
Tiptur Taluk-572201
Now Residing At
C/o K.Narasimhaiah,
2
2nd Main Road,
Kanchaghatta,
Tiptur Town-572201
...Appellants
(By Sri.K.Shantharaj, Advocate)
AND:
1. C J Sandesh
S/o C.Ganesh,
Aged About 28 Years,
R/At Chippalakatte,
Kammaraddi Post,
Shimoga District-577201
2. The Manager
Royal Sundaram,
Alliance Insurance Company Ltd.,
No.46, White Road,
Royalpattah,
Chennai-600002
3. Thyagaraju
S/o Ramanna,
Age Major,
R/At No.110, Shanubhoga Colony,
Yamalur, Bangalore-560031
...Respondents
(By Sri.C.R.Ravishankar, Advocate for R2;
R1 served & unrepresented;
R3 is dead)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:25.06.2016 passed
in MVC No.576/14 on the file of the Senior Civil Judge &
14th Mact, Tiptur, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
3
This MFA Coming on for admission, this day, H.T.
Narendra Prasad 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 being
aggrieved by the judgment dated 25.06.2016 passed
by the Motor Accident Claims Tribunal, Tiptur in MVC
No.576/2014.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 17.09.2013 at about 9.30
p.m. the deceased Gangadharaiah was proceeding in
TVS XL Moped bearing registration No.KA-44/J-5293
from Tiptur town to Kanchaghatta. When he reached
near Kings Court Daba at Hassan Circle, Tiptur, at that
time, the driver of the car bearing registration No.KA-
03/AA-3394 drove the same at a high speed in a rash
and negligent manner came from Arasikere to Tiptur
town and dashed to the Moped in which deceased was
proceeding. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed
to the injuries at the spot.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 45 years at the time of accident and was
running a flower decoration business and also flower
vending and was earning Rs.25,000/- per month. The
claimants claimed compensation.
4. On service of notice, the respondent Nos.1 to
3 appeared through counsel and filed separate written
statements in which the averments made in the
petition were denied. The age, avocation and income
of the claimant and the medical expenses are denied.
It was pleaded by respondent Nos. 1 and 3 that the
respondent No.2 has issued policy in favour of
respondent No.3 in respect of the offending vehicle
and policy was in force at the time of the accident and
liability of respondent No.3 does not arise. It was
further pleaded that the driver of the offending vehicle
was holding a valid and effective driving licence to
drive the said vehicle at the time of the accident.
It was pleaded by respondent No.2 that even
though Insurance Company admits the issuance of
policy, but the liability is subject to the terms and
conditions of the policy. It was further pleaded that at
the time of the accident the respondent No.1 was
shown as the owner of the vehicle but the policy
stands in the name of the respondent No.3. The
respondent Nos.1 and 3 have violated the policy
conditions and they were failed to intimate the
transfer or change of ownership. It was further
pleaded that the accident occurred due to the rash
and negligent riding of the deceased himself. It was
further pleaded that the driver of the offending vehicle
was not holding a valid and effective driving licence to
drive the said vehicle as on the date of the accident.
Hence, they sought for dismissal of the petition.
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 as PW-1
and another witness as PW-2 and got exhibited 17
documents namely Ex.P1 to Ex.P17. On behalf of
respondents, neither any witness was examined nor
any document was produced. The Claims Tribunal, by
the impugned judgment, inter alia, held that the
accident occurred on account of rash and negligent
driving of the driver of the car. The Tribunal further
held that the claimants are entitled to a compensation
of Rs.9,33,600/- along with interest at the rate of 6%
p.a. and directed the Insurance Company to deposit
the compensation amount along with interest. Being
not satisfied, claimants have filed this appeal.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, the claimants claim that the deceased
was earning Rs.25,000/- per month from flower
vending and also from flower decorating business.
They have produced Exs. P9 to P11 - the photographs
to show that deceased was doing flower decorating
business. The claimants have examined PW-2 who is
the partner of the deceased, who has deposed that
they were earning Rs.50,000/- per month and they
were sharing 50% each. Even in the cross-
examination of PW-2, the respondents have not
elicited any material to draw any adverse inference.
Therefore, the Tribunal is not justified in taking the
monthly income of the deceased as Rs.6,000/-.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS reported in AIR 2017 SC 5157, the
claimants are entitled to Rs.15,000/- for 'funeral
expenses' and Rs.15,000/- for 'loss of estate'.
Thirdly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM reported in
2018 ACJ 2782, each of the claimants are entitled
for compensation of Rs.40,000/- under the head of
'loss of love and affection and consortium'. Hence, he
prays for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised the following
counter-contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.25,000/- per month by
doing flower vending and flower decoration business
they have not produced any document except
photographs at Exs. P9 to P11. They have not
produced any bank statement to show that deceased
was earning Rs.25,000/- per month. Therefore, the
Tribunal has rightly assessed the income of the
deceased.
Secondly, contrary to the law laid down by the
Hon'ble Apex Court in the case of PRANAY SETHI
(supra) the claimants are entitled for addition of
future prospects at 25% instead of 30% considered by
the Tribunal.
Thirdly, the overall compensation awarded by
the Tribunal is just and reasonable. Hence, he prays
for dismissal of the appeal.
8. We have considered the submissions made
by the learned counsel for the parties and have
perused the records.
9. It is not in dispute that deceased died in
the road traffic accident occurred due to rash and
negligent driving of the offending vehicle by its driver.
In respect of the income of the deceased is
concerned, PW-1 in her evidence has categorically
stated that deceased was doing flower vending
business and PW-2 who is stated to be a partner also
categorically deposed that they were doing flower
decorating and flower vending business and earning
Rs.25,000/- per month. Except producing photographs
as per Exs. P9 to P11, claimants have not produced
any other document. Taking into consideration the
evidence of PWs. 1 and 2 and considering the age and
avocation of the deceased, we are of the opinion that
the monthly income of the deceased can be assessed
at Rs.15,000/-. To the aforesaid amount, 25% has to
be added on account of future prospects in view of the
law laid down by the Constitution Bench of the
Supreme Court in 'PRANAY SETHI' (supra). Thus,
the monthly income comes to Rs.18,750/-, out of
which, we deem it appropriate to deduct 1/3rd towards
personal expenses and therefore, the monthly income
comes to Rs.12,500/-. The deceased was aged about
45 years at the time of the accident and multiplier
applicable to his age group is '14'. Thus, the claimants
are entitled to compensation of Rs.21,00,000/-
(Rs.12,500*12*14) on account of 'loss of
dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
No.1, wife of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of spousal consortium', claimant Nos.2 and 3, children
are entitled for compensation of Rs.40,000/- each
under the head of 'loss of parental consortium'.
In addition, the claimants are entitled to
Rs.15,000/- on account of 'loss of estate' and
Rs.15,000/- on account of 'funeral expenses'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 21,00,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Total 22,50,000
The claimants are entitled to a total
compensation of Rs.22,50,000/-. The Insurance
Company is directed to deposit the compensation
amount along with interest @ 6% from the date of
petition till the date of payment, within a period of six
weeks from the date of receipt of copy of this
judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
Sd/-
JUDGE
Cm/-
