Karnataka High Court
Shivanna B C vs Sri Parmesh on 10 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1256 OF 2021(MV)
BETWEEN:
1 . SHIVANNA B C
S/O LATE CHIKKANNA @ BUDDAIAH
AGED ABOUT 60 EYARS.
2 . GOWRAMMA
W/O LATE SHIVANNA B C
AGED ABOUT 55 YEARS.
3 . CHANNEGOWDA B S
S/O SHIVANNA B C
AGED ABOUT 35 YEARS.
4 . CHANDRAKALA B S
D/O SHIVANNA B C
AGED ABOUT 36 YEARS
5 . ANITHALAKSHMI B S
D/O SHIVANNA B C
AGED ABOUT 30 YEARS
ALL ARE R/A
BAGENAHALLI VILLAGE
KOTHAGERE HOBLI
2
KUNIGAL TALUK
TUMKUR DIST
...APPELLANTS
(BY SRI.SYED AKBAR PASHA, ADV.)
AND
1. SRI PARMESH
S/O THAMMAIAH
AGED ABOUT 44 YEARS
R/O ITI HEMBDI ROAD
KAVALAGUNDI POST
BHADRAVATHI
SHIVAMOGGA DIST.
2. THE MANAGER UNITED INDIA
INSURNACE CO LTD
MICRO OFFICE
OPP MUNICIPAL OFFICE
NEAR CANARA BANK
B M ROAD, KUNIGAL, TUMKURU.
...RESPONDENTS
(BY SRI. ANOOP S., ADV. FOR
SRI. B.C. SEETHARAMA RAO, ADV. FOR R2:
R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED.
01.07.2020, PASSED IN MVC NO.336/2016, ON THE
FILE OF THE SENIOR CIVIL JUDGE AND MACT-XV,
KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION
3
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT 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 1.7.2020 passed by
the Senior Civil Judge and MACT, Kunigal in MVC
336/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 21.11.2015 the deceased
Krishna Murthy was walking on the left side of the
road at NH-206, bypass Road, Vishveswara Cross,
Bhadravathi, at that time, a Tempo Traveler bearing
registration No.KA-15-2937 which was being driven in
a rash and negligent manner, dashed against the
deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed
to the injuries.
3. The claimants filed a petition under Section
166 of the Act seeking compensation for the death of
the deceased along with interest.
4. On service of summons, the respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied.
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
documents namely Ex.P1 to Ex.P17. On behalf of
respondents, one witness was examined as RW-1 and
got exhibited documents namely Ex.R1 to Ex.R7. 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 vehicle by its
driver, as a result of which, the deceased sustained
injuries and succumbed to the injuries. The Tribunal
further held that the claimants are entitled to a
compensation of Rs.10,10,800/- along with interest at
the rate of 6% p.a. and directed the owner of the
offending vehicle to deposit the compensation amount
along with interest. Being aggrieved, this appeal has
been filed.
6. The learned counsel for the claimants has
raised the following contentions:
Regarding liability: The Tribunal after considering
the materials available on record has given a clear
finding that as on the date of the accident, the owner
of the offending vehicle had no valid permit and
therefore, exonerated the Insurance Company from
liability and fastened the liability on the owner of the
offending vehicle. He contended that the Apex Court
in the case of AMRUT PAUL SINGH AND ANOTHER V.
TATA AIG GENERAL INSURANCE COMPANY LIMITED
AND OTHERS [(2018) 7 SCC 558], has held that even
if there is no valid permit, in respect of third party risk
is concerned, the Insurance Company is liable to pay
compensation to the claimants and later recover the
same from the owner of the offending vehicle.
Regarding Quantum of compensation: Firstly,
the claimants claim that the deceased was aged about
31 years at the time of the accident and he was
earning Rs.30,000/- per month by working as
Contractor and Rs.2,00,000/- per annum from
agricultural work. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.7,000/-.
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 [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. The same has been
rightly considered by the Tribunal.
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 under the head of 'loss of love and
affection and consortium'.
Fourthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. 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:
Regarding Liability: It is not in dispute that as on
the date of accident the offending vehicle was not
having valid permit. Since, the insured has violated
the policy conditions, the Tribunal has rightly
exonerated the Insurance Company from liability and
fastened liability on the owner of the offending
vehicle.
Regarding quantum of compensation: Firstly,
even though the claimants claim that the deceased
was earning Rs.30,000/- per month by working as
Contractor and Rs.2,00,000/- per annum from
agricultural work, 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 prays for
dismissal of the appeal.
8. The owner of the offending vehicle is
served and unrepresented.
9. Heard the learned counsel for the parties
and perused the records.
10. 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.
Regarding Liability
The Tribunal after considering the materials
available on record has rightly held that as on the
date of the accident, the owner of the offending
vehicle had no valid permit and hence, the Insurance
Company is not liable to pay compensation. But,
however, in view of decision of the Apex Court in the
case of AMRUT PAUL (supra), since third party risk is
involved and the offending vehicle was covered with
valid insurance policy, the Insurance Company is
directed to pay compensation to the claimants with
liberty to recover the same from the owner of the
offending vehicle. Hence, the finding of the Tribunal in
respect of liability is concerned, the same is modified.
Regarding Quantum of Compensation:
The claimants claim that the deceased was
earning Rs.30,000/- per month by working as
Contractor and Rs.2,00,000/- per annum from
agricultural work and produced bank statement and
pass books. Except producing bank statement and
pass books, they have not produced any other
documents such as income tax returns to prove the
income of the deceased. In the absence of proof of
income, the notional income has to be assessed. As
per the guidelines issued by the Karnataka State Legal
Services Authority, for the accident taken place in the
year 2015, the notional income of the deceased has to
be taken at Rs.9,000/- p.m.
To the aforesaid amount, 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). Thus, the monthly
income comes to Rs.12,600/-. Out of which, it is
appropriate to deduct 50% of the income of the
deceased towards personal expenses since the
deceased was a bachelor and remaining amount has
to be taken as his contribution to the family. The
deceased was aged about 31 years at the time of the
accident and multiplier applicable to his age group is
'16'. Thus, the claimants are entitled to compensation
of Rs.12,09,600/- (Rs.12,600*12*16*50%) 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 the case of 'MAGMA GENERAL
INSURANCE' (supra), claimant Nos.1 and 2, parents
of the deceased are entitled for compensation of
Rs.40,000/- each under the head 'loss of filial
consortium' .
11. 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
12. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimants are entitled to a total
compensation of Rs.13,19,600/-.
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.
The Insurance Company is at liberty to recover
the same from the owner of the offending vehicle.
Sd/-
JUDGE
DM
