Deepa Nayak vs Sri Praveen Anchan
2021 Latest Caselaw 2016 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MAY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.1053 OF 2020 (MV-D)
BETWEEN:

1.     DEEPA NAYAK
       W/O LATE SANTHOSH NAYAK
       AGED 29 YEARS.

2.     SIDDARTH NAAYK
       S/O LATE SANTHOSH NAYAK
       AGED 9 YEARS.

3.     SAMARTH NAYAK
       S/O LATE SANTHOSH NAYAK
       AGED ABOUT 3 YEARS.

APPELLANTS NO.2 AND 3 ARE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN
AND MOTHER APPELLANT NO.1.

4.     GURUDATH NAYAK
       S/O LATE GANAPATHY
       AGED ABOUT 69 YEARS.

5.     JANHAVI NAYAK
       W/O GURUDATH NAYAK
       AGED 65 YEARS.

       ALL ARE RESIDING AT DOOR NO.7-3-198/27
       LAKSHMI NIVAS, TILAK NAGAR
       BOLOOR, MANGALORE
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       DAKSHINA KANNADA DISTRICT
       PIN-575003.
                                            ... APPELLANTS
(BY SRI. RAVISHANKAR SHASTRY G, ADV.,)

AND:

1.     SRI. PRAVEEN ANCHAN
       S/O RUDRA POOJARY, ADULT
       R/AT 3-126, SANTHOTA HOUSE
       KIDIYOOR, UDUPI-576101.

2.     THE ORIENTAL INSURANCE CO. LTD.
       BRANCH OFFICE
       KRISHNA PRASAD BUILDING
       MAIN ROAD, PUTTUR
       D K DISTRICT
       REPRESENTED BY ITS BRANCH MANAGER
       PIN-574201.

3.    SRI SHIVANANDA KAMATH @ ARCHITH KAMATH
      S/O M SRINIVAS KAMATH
      AGED ABOUT 32 YEARS
      R/AT HOUSE NO.05
      BEHIND C V NAYAK HALL
      KADRI ROAD, MANGALURU
      D K DISTRICT-575003.
                                           ... RESPONDENTS
(BY SRI. S.V. HEGDE MALKHAND, ADV., FOR R2
R1 & R3 SERVED)
                            ---
      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST, THE JUDGMENT AND AWARD DATED 9.10.2019,
PASSED IN MVC NO.922/2017, ON THE FILE OF THE VI-
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT, D.K.
MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING     ENHANCEMENT      OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR HEARING,        THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
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                      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 09.10.2019 passed by the Motor

Accident Claims Tribunal (hereinafter referred to as 'the

claims tribunal' for short) in MVC No.922/2017 seeking

enhancement of the amount of compensation.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.03.2017 at about 12.00

a.m., when the deceased Santhosh and one Charan

were proceeding in a car from Goa towards Mangaluru

vide Margoa and Karwar in Skoda Fabia Car bearing

registration No.KA-19-MC-1238, the driver of the car

drove the same in a rash and negligent manner and

dashed the vehicle against the road side tree. As an

impact of the aforesaid accident, the inmates of the car

sustained grievous injuries and succumbed to the same.

3. The claimants thereupon filed a petition

under Section 166(1) of the Act inter alia on the ground

that the deceased at the time of accident was aged

about 34 years and that the accident took place on

account of rash and negligent driving of the driver of the

Skoda Fabia Car. It was further pleaded that the

deceased was working as a Videographer and was a

owner of the Studio viz., Siddharta Digitals and was

earning a sum of Rs.35,000/- per month. Accordingly,

compensation along with interest was claimed.

4. The respondent No.1 did not appear.

Respondent No.2 viz., the Insurance Company inter alia

filed statement of objections, in which the age,

avocation and income of the deceased as well as the

factum of dependency of the claimants on the deceased

was also denied. It was also pleaded that the driver of

the car was driving the same under the influence of

alcohol. Therefore, he caused the accident. However,

the issuance of the policy and the fact that the vehicle at

the time of accident was insured was admitted.

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 N.Kasturi Pat and Prasad Kum B.R.

as PW1 and PW2 and exhibited 16 documents viz.,

Ex.P1 to Ex.P16. The respondent neither adduced any

oral nor any documentary evidence. The Claims

Tribunal, by the impugned judgment dated 09.10.2019,

inter alia, held that the accident took place on account

of rash and negligent driving of the driver of the Skoda

Fabia Car. It was further held that the claimants are

held entitled to compensation of Rs.20,41,200/- along

with interest at the rate of 6% per annum. In the

aforesaid factual background, this appeal has been filed

seeking enhancement of the amount of compensation.

6. Learned counsel for the claimants submitted

that the deceased was a Videographer and was owner of

the studio and in support of the income of the deceased,

claimant had filed the income tax returns viz., Ex.P9 to

Ex.P11 for the Assessment Years 2014-15, 2015-16 and

2016-17 from which it can safely be inferred that the

average income of the deceased was Rs.26,103/- per

month and the tribunal grossly erred in treating the

income of the deceased at Rs.11,000/- only. It is also

submitted that the amount awarded under the other

heads is on the lower side. On the other hand, learned

counsel for the Insurance Company submitted that the

claimant has failed to adduce any evidence to show that

the deceased was either a Videographer or was the

owner of a Studio. Therefore, the Tribunal has rightly

assessed the income of the deceased as Rs.11,000/-

per month. It is further submitted that the amount of

compensation, which has been awarded 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. Admittedly, the deceased at

the time of accident was aged about 34 years. It is also

not in dispute that the claimants have filed the income

tax returns viz., Ex.P9 to Ex.P11 for the Assessment

Years 2014-15, 2015-16 and 2016-17. If the average of

the income shown in aforesaid Income Tax Returns for

the past three years is taken, the same comes to

Rs.26,103 per month. Out of the aforesaid amount, if

the amount of tax i.e., Rs.527/- on account of income

tax (Income tax rate being 10% of the amount

exceeding Rs.2,50,000/- for the income tax slab

between Rs.5,00,000/- and Rs.2,50,000/- for the

Assessment Year 2016-2017) is deducted, the same

comes to Rs.25,576/- per month. Out of the said

amount, a sum of Rs.200/- has to be deducted towards

professional tax. Therefore, the monthly income of the

deceased comes to Rs.25,376/-.

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, 40% of the amount

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

the monthly income comes to Rs.35,527/-. Since, the

number of dependents is 5, therefore, 1/4th of the

amount has to be deducted towards personal expenses

and therefore, the monthly dependency comes to

Rs.26,645/-. Taking into account the age of the

deceased which was 34 years at the time of accident,

the multiplier of '16' has to be adopted. Therefore, the

claimants are held entitled to (Rs.26,645x12x16) i.e.,

Rs.51,15,840/- on account of loss of dependency.

9. 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.' 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.2,00,000/-. 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.53,45,840/-. Needless to

state that the enhanced amount of compensation shall

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

date of filing of the petition till the payment is made. To

the aforesaid extent, the judgment passed by the Claims

Tribunal in MVC No.922/2017 is modified.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE ss