Karnataka High Court
Sri Chandrappa vs C Nagaraju on 9 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
M.F.A No.5729 OF 2019 (MV)
C/W
M.F.A. No. 5727 OF 2019 (MV)
AND
M.F.A. No. 5738 OF 2019(MV)
IN M.F.A. No.5729 OF 2019
BETWEEN:
1. SRI. CHANDRAPPA
S/O BASAPPA
AGED ABOUT 46 YEARS
2. SMT. DAKSHAYANAMMA
W/O CHANDRAPPA
AGED ABOUT 38 YEARS
HOUSE HOLD WORK
BOTH ARE R/O NEERAGUNDA VILLAGE
HOSADURGA TALUK
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI. MANJUNATH N.D., ADVOCATE)
AND:
1. C. NAGARAJU
S/O HANUMANTHAPPA
MAJOR, UPPAR COLONY
SAI NAGAR
2
GOWRIBIDANUR TOWN
CHIKKABALLAPUR DIST
OWNER OF LORRY BEARING
REG NO.AP-04/V-1347
2. TANWEEN SULTHANA
S/O SHUAUDDIN MAJOR
R/O OPP. TVS SHOW ROOM
MALLANDUR ROAD
CHIKKAMAGALURU DISTRICT
OWNER OF LORRY BEARING
NO.KA-40-911.
3. THE REGIONAL MANAGER
SRIRAM GENERAL INSURANCE CO LTD.,
MONARCHAPHK CHAMBER
2ND INFANTRY ROAD
OPP. INPENTER WEDDING HALL
BANGALORE - 01.
... RESPONDENTS
(BY SRI. CHETAN A.C., ADVOCATE FOR R1, R2 -SERVED
SRI. B.C. SHIVANNE GOWDA ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED
16.11.2018 PASSED IN MVC NO.332/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC MACT, HOSADURGA,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A. No.5727 OF 2019
BETWEEN:
SRI. HANUMANTHARAYA
S/O. GANGANNA
AGED ABOUT 36 YEARS
3
R/O CHABENAHALLI VILLAGE
SUJJAHOSAHALLY POST
DODDERI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT
NOW R/O VINAYAKA ESTENSION
HOSADURGA TOWN
HOSADURGA TALUK
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. MANJUNATH N.D., ADVOCATE)
AND:
1. C. NAGARAJU
S/O HANUMANTHAPPA
MAJOR, UPPAR COLONY
SAI NAGAR
GOWRIBIDANUR TOWN
CHIKKABALLAPUR DIST
OWNER OF LORRY BEARING
REG NO.AP-04/V-1347
2. TANWEEN SULTHANA
S/O SHUAUDDIN MAJOR
R/O OPP. TVS SHOW ROOM
MALLANDUR ROAD
CHIKKAMAGALURU DISTRICT
OWNER OF LORRY BEARING
NO.KA-40-911.
3. THE REGIONAL MANAGER
SRIRAM GENERAL INSURANCE CO LTD.,
MONARCHAPHK CHAMBER
2ND INFANTRY ROAD
OPP. INPENTER WEDDING HALL
BANGALORE - 01.
... RESPONDENTS
(BY SRI. CHETAN A.C., ADVOCATE FOR R1, R2 -SERVED
SRI. B.C. SHIVANNE GOWDA ADVOCATE FOR R3)
4
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED
16.11.2018 PASSED IN MVC NO.333/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., AND MACT,
HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A. No.5738 OF 2019
BETWEEN:
1. SRI RANGAPPA
S/O CHIKKAPPA
AGED ABOUT 50 YEARS
2. SMT JAYAMMA
W/O RANGAPPA
MVC, AGED ABOUT 4 YEARS
MFA HOUSE HOLD WORK
BOTH ARE R/O DEVEPURA VILLAGE
HOSADURGA TALUK
HOSADURGA TALUK
CHITRADURGA DISTRCIT- 577 501.
...APPELLANTS
(BY SRI. MANJUNATH N.D., ADVOCATE)
AND:
1. C. NAGARAJU
S/O HANUMANTHAPPA
MAJOR, UPPAR COLONY
SAI NAGAR
GOWRIBIDANUR TOWN
CHIKKABALLAPUR DIST
OWNER OF LORRY BEARING
REG NO.AP-04/V-1347
5
2. TANWEEN SULTHANA
S/O SHUAUDDIN MAJOR
R/O OPP. TVS SHOW ROOM
MALLANDUR ROAD
CHIKKAMAGALURU DISTRICT
OWNER OF LORRY BEARING
NO.KA-40-911.
3. THE REGIONAL MANAGER
SRIRAM GENERAL INSURANCE CO LTD.,
MONARCHAPHK CHAMBER
2ND INFANTRY ROAD
OPP. INPENTER WEDDING HALL
BANGALORE - 01.
... RESPONDENTS
(BY SRI. CHETAN A.C., ADVOCATE FOR R1, R2 -SERVED
SRI. B.C. SHIVANNE GOWDA ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED
16.11.2018 PASSED IN MVC NO.226/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., AND MACT,
HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals have been filed by the claimants
under Section 173(1) of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the Act', for short)
challenging the judgment and award dated
16.11.2018 passed in MVC Nos.226/2013, 332/2013
and 333/2013 by the Motor Accident Claims Tribunal
at Hosadurga ('Tribunal' for short). Since, all the
appeals arise out of the same accident as well as a
common judgment, they were heard together and are
being decided by this common judgment.
2. The brief facts of the case are that on
18/02/2013 at about 11.30 p.m., when the deceased
persons namely, Raghu, Harisha and Sudha were
proceeding in a motorcycle bearing Reg.No.KA-04/EZ-
6899, which was being ridden by Harisha and rest
were as pillion riders, from Hosadurga to Gollarahalli
Camp, near garden of Erana at Guttikatte village, in
Hosadurga Taluk. At that time, a Lorry bearing
Reg.No.AP-04-V-1347 being driven by its driver in a
rash and negligent manner and hit the motorcycle of
the deceased. As a result, they sustained grievous
injuries and succumbed to the injuries at the spot.
3. The claimants filed the respective claim
petitions before the Tribunal under Section 166 of the
Motor Vehicles Act in MVC Nos.226/2013, 332/2013
and 333/2013 respectively, seeking compensation
along with interest for the death of the deceased
persons.
4. On service of notice in all the petitions,
respondent Nos.1 to 3 appeared through their
respective counsel, but respondent No.3 only filed
written statement, wherein it was denied the age,
occupation, income and injuries sustained by the
deceased. The driver of the offending vehicle did not
have valid driving licence as on the date of the
accident to drive the same. The driver of the offending
vehicle was not made as party to the petitions and the
same are not maintainable. Hence, he sought for
dismissal of the petitions.
5. To establish their case, claimants in MVC
No.226/2013, 332/2013 and 333/2013 were
themselves examined as PWs.1 to 3 and got exhibited
23 documents namely, Exs.P1 to P23. On the other
hand, an official of RTO Chikkamagaluru, driver and
owner of the offending vehicle and Law Officer of
respondent No.3 were examined as RWs.1 to 4
respectively and got exhibited 4 documents as per
Exs.R1 to 4. On appreciation of the oral and
documentary evidence, the Tribunal granted
compensation of Rs.5,90,000/-, 5,90,000/- and
Rs.4,19,000/- with interest at 6% p.a. in MVC
Nos.226/2013, 332/2013 and 333/2013 respectively
and fastened liability on the owner of the offending
vehicle. Since there was subsistence of policy,
directed the insurance company to deposit the
compensation amount with liberty to recover the same
from owner of the offending vehicle. Being aggrieved
by the same, the claimants have filed these appeals.
6. MFA.5729/2019 (arising out of
MVC.332/2013):
Sri Manjunath N.D., learned counsel for the
claimants has raised the following contentions:
Firstly, the claimants claim that at the time of
accident the deceased was earning Rs.15,000/- per
month as an agriculturist. But the Tribunal is not
justified in taking the notional income of the deceased
as Rs.5,000/-, which is on lower side.
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 [AIR 2017 SC 5157], in case the deceased
was self-employed or on a fixed salary, an addition of
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 years. But the Tribunal has
failed to consider the same.
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, the
learned counsel appearing for the claimants prays for
enhancement of compensation.
7. Per contra, Sri B.C.Shivannegowda, learned
counsel for the Insurance Company has raised the
following counter-contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.15,000/- per month, the
same is not established by the claimants by producing
documents. Therefore, the Tribunal has rightly
assessed the income of the deceased notionally.
Secondly, since the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Thirdly, on appreciation of oral and documentary
evidence, the Tribunal has awarded just and
reasonable compensation. Hence, he sought for
dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award of the Tribunal.
9. It is not in dispute that deceased Harish
died in the road traffic accident occurred due to rash
and negligent driving of the offending vehicle by its
driver. The claimants have not produced documentary
proof with regard to the actual income of the
deceased. In the absence of income proof, the
notional income has to be assessed as per the
guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken place
in the year 2013, the notional income has to be taken
at Rs.8,000/- p.m. Accordingly, income of the
deceased is considered as Rs.8,000/- per month. In
view of the law laid down by the Supreme Court in the
case of HEM RAJ Vs- ORIENTAL INSURANCE
COMPANY LIMITED AND OTHERS reported in
(2018) 15 SCC 654, has held that '40% increase on
estimated income towards future prospects is required
to be taken into account in absence of actual evidence
of income where income is determined by guess
work'. Therefore, to the aforesaid monthly notional
income, 40% 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) and also in view of the above said
judgment in the case of 'HEM RAJ' (supra). Thus,
the monthly income comes to Rs.11,200/-. Since the
deceased was a bachelor, it is appropriate to deduct
50% of the income of the deceased towards his
personal expenses and therefore, the monthly income
comes to Rs.5,600/-. The deceased was aged about
18 years at the time of the accident and multiplier
applicable to his age group is '18'. Thus, the
claimants are entitled to compensation of
Rs.12,09,600/- (Rs.5,600*12*18) on account of 'loss
of dependency'.
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'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE',
claimants, parents of the deceased are entitled for
compensation of Rs.40,000/- each under the head of
'loss of filial consortium' .
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,09,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 13,19,600
11. MFA.5738/2019 (arising out of
MVC.226/2013):
Sri Manjunath N.D., learned counsel for the
claimants has raised the following contentions:
Firstly, the claimants claim that at the time of
accident the deceased was earning Rs.10,000/- per
month by doing agricultural work. But the Tribunal is
not justified in taking the notional income of the
deceased as Rs.5,000/-, which is on lower side.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of PRANAY SETHI
(supra), in case the deceased was self-employed or on
a fixed salary, an addition of 40% of the established
income towards 'future prospects' should be the
warrant where the deceased was below the age of 40
years. But the Tribunal has failed to consider the
same.
Thirdly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE (supra), each of the claimants are
entitled for compensation of Rs.40,000/- under the
head of 'loss of love and affection and consortium'.
Hence, the learned counsel appearing for the
claimants prays for enhancement of compensation.
12. Per contra, Sri B.C.Shivannegowda, learned
counsel for the Insurance Company has raised the
following counter-contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.10,000/- per month, the
same is not established by the claimants by producing
documents with regard to the actual income of the
deceased. Therefore, the Tribunal has rightly assessed
the income of the deceased notionally.
Secondly, since the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Thirdly, on appreciation of oral and documentary
evidence, the Tribunal has awarded just and
reasonable compensation. Hence, he sought for
dismissal of the appeal.
13. Heard the learned counsel for the parties
and perused the judgment and award of the Tribunal.
14. It is not in dispute that deceased Raghu
died in the road traffic accident occurred due to rash
and negligent driving of the offending vehicle by its
driver. The claimants have not produced documentary
proof with regard to the actual income of the
deceased. In the absence of income proof, the
notional income has to be assessed as per the
guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken place
in the year 2013, the notional income has to be taken
at Rs.8,000/- p.m. Accordingly, income of the
deceased is considered as Rs.8,000/- per month. In
view of the law laid down by the Supreme Court in the
case of HEM RAJ (supra), has held that '40% increase
on estimated income towards future prospects is
required to be taken into account in absence of actual
evidence of income where income is determined by
guess work'. Therefore, to the aforesaid monthly
notional income, 40% 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) and also in view of the above said
judgment in the case of 'HEM RAJ' (supra). Thus,
the monthly income comes to Rs.11,200/-. Since the
deceased was a bachelor, it is appropriate to deduct
50% of the income of the deceased towards his
personal expenses and therefore, the monthly income
comes to Rs.5,600/-. The deceased was aged about
20 years at the time of the accident and multiplier
applicable to his age group is '18'. Thus, the
claimants are entitled to compensation of
Rs.12,09,600/- (Rs.5,600*12*18) on account of 'loss
of dependency'.
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'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE',
claimants, parents of the deceased are entitled for
compensation of Rs.40,000/- each under the head of
'loss of filial consortium' .
15. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,09,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 13,19,600
16. MFA.5727/2019 (arising out of
MVC.333/2013):
Sri Manjunath N.D., learned counsel for the
claimant has raised the following contentions:
Firstly, the claimant has claimed that at the time
of accident the deceased was aged about 25 years,
was an employee in Garments at Bengaluru and was
earning of Rs.10,000/- per month as a salary. But the
Tribunal is not justified in taking the notional income
of the deceased as Rs.3,000/-, which is on lower side.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of PRANAY SETHI
(supra), in case the deceased was self-employed or on
a fixed salary, an addition of 40% of the established
income towards 'future prospects' should be the
warrant where the deceased was below the age of 40
years. But the Tribunal has failed to consider the
same.
Thirdly, the claimant was entirely depending
upon the income of the deceased and further
contended that the Tribunal instead of deducting 1/3rd
of the income of the deceased but has wrongly
deducted 50% of the income of the deceased as a
personal expenses. Hence, the learned counsel
appearing for the claimant prays for enhancement of
compensation.
17. Per contra, Sri B.C.Shivannegowda, learned
counsel for the Insurance Company has raised the
following counter-contentions:
Firstly, even though the claimant claims that the
deceased was earning Rs.10,000/- per month, the
same is not established by the claimant by producing
documents with regard to the actual income of the
deceased. Therefore, the Tribunal has rightly assessed
the income of the deceased notionally as Rs.3,000/-
per month.
Secondly, since the claimant has not established
the income of the deceased, he is not entitled for
compensation towards 'future prospects'.
Thirdly, the claimant is the husband of the
deceased and he was not depending upon the income
of the deceased. Therefore, the Tribunal, considering
the same has rightly deducted 50% of the income of
the deceased towards personal expenses of the
deceased.
Fourthly, on appreciation of oral and
documentary evidence, the Tribunal has awarded just
and reasonable compensation. Hence, he sought for
dismissal of the appeal.
18. Heard the learned counsel for the parties
and perused the judgment and award of the Tribunal.
19. It is not in dispute that deceased Sudha
died in the road traffic accident occurred due to rash
and negligent driving of the offending vehicle by its
driver. The claimant has not produced documentary
proof with regard to the actual income of the
deceased. In the absence of income proof, the
notional income has to be assessed as per the
guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken place
in the year 2013, the notional income has to be taken
at Rs.8,000/- p.m. Accordingly, income of the
deceased is considered as Rs.8,000/- per month. In
view of the law laid down by the Supreme Court in the
case of HEM RAJ (supra) has held that '40% increase
on estimated income towards future prospects is
required to be taken into account in absence of actual
evidence of income where income is determined by
guess work'. Therefore, to the aforesaid monthly
notional income, 40% 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) and also in view of the above said
judgment in the case of 'HEM RAJ' (supra). Thus,
the monthly income comes to Rs.11,200/-. The
claimant is the husband of the deceased and he was
not depending upon the income of the deceased.
Therefore, he is not entitled for compensation towards
'loss of dependency'. However, but he is entitled for
compensation under the head of 'loss of estate'. In
view of the law laid down by a Division Bench of this
Court in MFA.No.7318/2016 disposed of on 23-
10-2020, following the judgment of the Hon'ble Apex
Court in the case of NATIONAL INSURANCE
COMPANY Vs. VINISH JOHN & OTHERS reported in
(2018) 3 SCC 619, it is appropriate to deduct 50%
of the income of the deceased towards personal
expenses and therefore, the monthly income comes to
Rs.5,600/-. The deceased was aged about 25 years at
the time of accident and multiplier applicable to her
age group is '18'. Thus, the claimant is entitled to
compensation of Rs.12,09,600/- (Rs.5,600*12*18) on
account of 'loss of estate'.
In addition, the claimant is entitled to
Rs.15,000/- on account of 'funeral expenses'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
being husband of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of consortium' .
20. Thus, the claimant is entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of estate 12,09,600
Funeral expenses 15,000
Loss of consortium 40,000
Total 12,64,600
Therefore, the claimants in MFA.5729/2019 and
MFA.5738/2019 are entitled to a total compensation of
Rs.13,19,600/- each and claimant in MFA.5727/2019
is entitled to a total compensation of Rs.12,64,600/-
as against the compensation awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment with
liberty to recover the same from owner of the
offending vehicle.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeals are allowed-in-part.
Sd/-
JUDGE
Mkm/-
