Karnataka High Court
The Divisional Manager vs Narayana Nayak 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.4644 OF 2016(MV)
BETWEEN:
THE DIVISIONAL MANAGER
NEW INDIA ASSURENCE CO LTD.,
(REPRESENTED BY ITS
DIVISIONAL MANAGER)
3RD FLOOR
ESSEL CHAMBERS
KARANGALPADY
MANGALORE - 575 003.
...APPELLANT
(BY SRI.SANMATHI E I., ADV.)
AND
1. NARAYANA NAYAK
AGED ABOUT 54 YEARS
S/O LATE SRINIVAS NAYAK
2. SMT. MERA NAYAK
AGED ABOUT 52 YEARS.
3. MANASA
AGED ABOUT 26 YEARS
2
D/O NARAYANA NAYAK
R1 TO R3 ARE R/AT
DOOR NO. 1-94/13
SURYANARAYANA TEMPLE
MAROLI, MANGALORE-575003.
4. IVAN SATHISH FRONTEIRO
AGED ABOUT 47 YEARS
S/O FRANCIS FRONTERIO
R/AT LIZ HOME, ST. JOSEPH NAGAR, KANKANADY
POST, MANGALORE.
...RESPONDENTS
(BY SRI.G.RAVISHANKAR SHASTRY, ADV.
FOR R1 TO R3: R4 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED:07.04.2016 PASSED IN MVC NO.982/14 ON THE
FILE OF THE MACT-II, 1ST ADDITIONAL DISTRICT &
SESSIONS JUDGE, D.K., MANGALORE, AWARDING
COMPENSATION OF RS.14,03,000/- WITH INTEREST AT
6% P.A. FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT 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 Insurance Company being
aggrieved by the judgment dated 7.4.2016 passed by the I
Addl. District Judge & II Addl. Motor Accident Claims
Tribunal, Mangalore (DK) in MVC 982/2014.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 20.4.2014 the deceased Manoj
was riding motorcycle bearing registration No.KA-19-X-
313 along with a pillion rider, from Shivabagh towards
city Hospital infront of property Builder Mallikatta
Mangaluru, at that time, bus bearing registration No.KA-
19-C-883 which was being driven in a rash and
negligent manner, dashed against the vehicle of 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 respondents
appeared through counsel and only respondent No.2
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-2 and another
witnesses as PW-1, 3, 4 and 5 and got exhibited
documents namely Ex.P1 to Ex.P30. On behalf of
respondents, no witness was examined and got
exhibited documents namely Ex.R1 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.14,03,000/- along with interest at the rate of 6% p.a.
and directed the Insurance Company to deposit the
compensation amount along with interest. Being
aggrieved, this appeal has been filed by the Insurance
Company.
6. The learned counsel for the Insurance
Company has raised the following contentions:
Firstly, the claimants claim that the deceased was
aged about 21 years at the time of the accident and he
was earning Rs.8,500/- per month by working at
Peninsular Honda Showroom. But the same is not
proved by producing any cogent evidence and
documents. In the absence of proof of income, the
income assessed by the Tribunal at Rs.8,000/- p.m. is
on the higher side.
Secondly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'. However, even
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 is not justified in adding 50% of the income.
Thirdly, the compensation awarded by the Tribunal
under the conventional heads is also on the higher side.
Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for
the claimants has raised the following counter-
contentions:
Firstly, the claimants claim that the deceased was
earning Rs.8,500/- per month by working at Peninsular
Honda Showroom and produced appointment letter and
attendance register at Ex.P-29 and 30 and also
examined PW-5, representative from the company. Even
as per the guidelines issued by the Karnataka State
Legal Services Authority, for the accident taken place in
the year 2014, the notional income of the deceased has
to be taken at Rs.8,500/- p.m. Therefore, the Tribunal
has rightly assessed the income of the deceased at
Rs.8,000/- p.m.
Secondly, on appreciation of oral and documentary
evidence, the Tribunal has awarded just and reasonable
compensation. Hence, he prays for dismissal of the
appeal.
8. Heard the learned counsel for the parties and
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.
The claimants claim that the deceased was earning
Rs.8,500/- per month by working at Peninsular Honda
Showroom. Even as per the guidelines issued by the
Karnataka State Legal Services Authority, for the
accident taken place in the year 2014, the notional
income of the deceased has to be taken at Rs.8,500/-
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) instead of 50% added by the
Tribunal. 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'. Further, in
view of the law laid down by the 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 Rs.40,000/- under the head of
'loss of consortium'.
Therefore, on reassessment of compensation by
this Court, it appears that the compensation of
Rs.14,03,000/- awarded by the Tribunal is just and
reasonable. Hence, there is no scope of reduction of
compensation.
10. In the result, the appeal is dismissed. The
judgment and award of the Tribunal is confirmed.
The amount in deposit is ordered to be transferred
to the Tribunal forthwith.
Sd/-
JUDGE
DM
