Smt B K Aruna vs Sri Papireddy N
2021 Latest Caselaw 1837 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 26TH DAY OF MARCH 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

             M.F.A. NO.5438 OF 2019 (MV-D)
BETWEEN:

1.     SMT. B.K. ARUNA
       W/O LATE KRISHNA MURTHY C R
       AGED ABOUT 42 YEARS.

2.     C.K. SRINIKETHAN
       S/O LATE KRISHNA MURTHY C R
       AGED ABOUT 22 YEARS.

3.     C.K. SRIHARI
       W/O LATE KRISHNAMURTHY C R
       AGED ABOUT 19 YEARS.

4.     SMT. SUMITHRAMMA K V
       W/O LATE C V RAJAPPA
       AGED ABOUT 86 YEARS.

       ALL ARE RESIDING AT NO.3
       NEAR GANDHI CIRCLE, R F ROAD
       MALUR, KOLAR DISTRICT - 563101.
                                            .... APPELLANTS
(BY MR. GURUDEV PRASAD K.T. ADV.,)

AND:

1.     SRI. PAPIREDDY N
       S/O NAGARAJAPPA, MAJOR
       T G EXTN, HOSKOTE TOWN
       BENGALURU RURAL DISTRICT - 560114.
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     ALSO RESIDING AT SONNENAHALLI VILLAGE
     CHAKASANAHALLI POST
     KOLAR TALUK AND DISTRICT.

2.   THE MANAGER
     CHOLAMANDALAM MS GEN INSURANCE CO. LTD.,
     GOLDEN HEIGHTS , 9TH FLOOR
     UNIT NO.4, LEVEL 6
     59TH 'C' CROSS, INDUSTRIAL SUB URB
     RAJAJINAGAR, BENGALURU - 560079.

3.   SRI. K C BYREGOWDA
     S/O CHOWDAPPA, MAJOR
     NO 89A, KALLURU VILLAGE
     KOLAR TALUK & DISTRICT - 563101.

4.   THE MANAGER
     BAJAJ ALLIANZ GEN INSURANCE CO. LTD.,
     GOLDEN HEIGHTS, 4TH FLOOR
     NO.1/2, 59 TH CROSS, 4TH MAIN
     M BLOCK, RAJAJINAGAR
     BENGALURU - 560010.
                                          ... RESPONDENTS
(BY MR. MURALIDHAR NEGAVAR, ADV., FOR R2
    MR. P.B. RAJU, ADV., FOR R4
R1 NOTICE D/W V/O DTD:13.1.2021
R3 SERVED UNREPRESENTED)
                              ---

     THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.4.2018 PASSED
IN MVC NO.2086/2017 ON THE FILE OF THE VII ADDITIONAL SCJ
& XXXII ACMM, MEMBER, MACCT-3, BENGALURU, 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 seeking

enhancement of the amount of compensation against

the judgment dated 25.04.2018 passed by the Motor

Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.02.2017, the deceased CR

Krishnamurthy was proceeding on motor cycle bearing

registration No.KA-08-L-1961 near Ganesh Darshan

Hotel, Malur Town. At that time, a tipper lorry bearing

Registration No. KA-53-C-8829 (hereinafter referred to

as 'the offending lorry' for short), which was being

driven by its driver in a rash and negligent manner,

which was being driven in front of the motorcycle which

the deceased was riding, without giving any indication

suddenly applied the brakes and stopped the offending

lorry and at the same time, a Tata ace vehicle bearing

registration No.KA-41-A-2925 (hereinafter referred to as

'the offending auto' for short), which was being driven

by its driver in a rash and negligent manner, dashed

against the rear of the motorcycle which the deceased

was riding. As a result of the aforesaid accident, the

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

the ground that the deceased was aged about 59 years

at the time of accident and was engaged as an LIC

Agent, Agriculturist and an oil businessman and was

earning a sum of Rs.30,000/- per month. It was further

pleaded that accident took place solely on account of

rash and negligent driving of the offending lorry as well

as the offending auto by its respective drivers. The

claimants claimed compensation to the tune of

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

4. The Respondent No.2 viz., insurer of the

offending lorry written statement, in which the mode

and manner of the accident was denied. It was pleaded

that the accident occurred on account of the negligence

of the deceased himself in riding the motorcycle. It was

also pleaded that the driver of the offending lorry 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.

The Respondent no.4 viz., insurer of the offending auto

also filed the written statement in which similar

contentions were raised.

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, Satyanarayana (PW2) and got

exhibited documents namely Ex.P1 to Ex.P20. The

respondents examined Ananda M (RW1), Bhaskar

(RW2), Shekhar (RW3) and got exhibited documents

namely Ex.R1 to Ex.R4(b). 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 lorry as well as the offending auto by its

respective drivers who were liable to the causing of the

accident to the extent of 50% each. 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.11,39,200/- along with interest at

the rate of 8% per annum. Being aggrieved, this appeal

has been filed seeking enhancement of the amount of

compensation.

6. Learned counsel for the claimant submitted

that the Tribunal has grossly erred in assessing the

income of the deceased as Rs.12,000/- per month and

in not appreciating Ex.P8 to Ex.P10 as well as Ex.P18 to

Ex.P20 which clearly indicate that the income of the

deceased was Rs.30,000/- per month. It is further

submitted that the sums awarded under the heads 'loss

of consortium' and 'funeral expenses' are on the lower

side and deserves to be enhanced suitably. On the other

hand, learned counsels for the insurer of the offending

lorry as well as the offending auto have invited our

attention to Paragraph 26 of the impugned judgment

and submitted that the Tribunal has rightly assessed the

income of the deceased notionally at Rs.12,000/- per

month as Ex.P8 to Ex.P10 as well as Ex.P18 to Ex.P20

do not disclose the actual income of the deceased as on

the date of accident. It is further submitted that the

amount of compensation awarded by the Tribunal is just

and proper and does not call for any interference.

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. Ex.P8 Post Office Savings

Account Pass Book discloses that the deceased had

made deposits regularly on 26.11.2016,

22.12.2016,19.01.2017 and 22.02.2017 to the extent of

Rs.3,000/-. Ex.P9 is an identity card issued by Life

Insurance Corporation which is valid upto 20.08.1996.

Ex.P10 are documents dated from 12.01.1999 to

27.03.2010 disclosing that the deceased was engaged in

the oil trading business. Ex.P18 is the statement of

account from 01.04.2016 to 31.12.2016 which discloses

that the deceased was having a credits to the extent of

Rs.2,000/- per month regularly. Ex.P19 is the LIC

Account statement for the financial year 2015-16 which

discloses that the deceased had earned a total

commission to the extent of Rs.29,555. However, the

aforesaid document has not been proved by examining

its author. Ex.P3- discloses that the deceased was a

dealer under Section 22 of the Karnataka Value Added

Tax Act,2003 and was assessed tot tax accordingly. The

aforesaid documents do not disclose the accurate and

actual income of deceased. Therefore, the Tribunal has

rightly assessed the income of the deceased at

Rs.12,000/- per month and we affirm the same, as the

same is just and reasonable.

8. 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, 10% of the amount

has to be added on account of future prospects. Thus,

the monthly income comes to Rs.13,200/-. Since, the

number of dependents is 4, therefore, 1/4th of the

amount has to be deducted towards personal expenses

and therefore, the monthly dependency comes to

Rs.9,900/-. Taking into account the age of the deceased

which was 60 years at the time of accident, the

multiplier of '9' has to be adopted. Therefore, the

claimants are held entitled to (Rs.9,900x12x9) i.e.,

Rs.10,69,200/- on account of loss of dependency.

9. 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 claimant's

are entitled to a sum of Rs.40,000/- on account of loss

of consortium and loss love and affection. Thus, the

claimants are held entitled to Rs.1,60,000/-. 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.12,59,200/-. Needless to state that the enhanced

amount of compensation viz., Rs.1,20,000/- shall carry

interest at the rate of 6% per annum from the date of

filing of the petition till the payment is made. The

Respondent No.2 viz., the insurer of the offending lorry

and the Respondent No.4 viz., the insurer of the

offending auto are held liable to deposit the aforesaid

amount of total compensation to the extent of 50%

each. To the aforesaid extent, the judgment passed by

the Claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

RV