Karnataka High Court

The Branch Manager vs Smt Anajanabai on 25 November, 2021

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF NOVEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              MFA No.2829 OF 2020(MV)

BETWEEN:

THE BRANCH MANAGER
THE ORIENTAL INSURANCE COMPANY LTD.,
NO.20 PB NO.210 D NO.618
CHAMARAJA DOUBLE ROAD
MYSURU-24
NOW REPRESENTED BY ITS MANAGER
REGIONAL OFFICE
LEO SHOPPING COMPLEX
44/45 RESIDENCY ROAD
BANGALORE-560025
                                         ...APPELLANT

(BY SRI.HARINI SHIVANANDA, ADV.)

AND

1.     SMT ANAJANABAI
       W/O SRINIVASARAO N
       AGED ABOUT 59 YEARS

2.     SRINIVASARAO N
       S/O A NARASINGARAO N
       AGED ABOUT 63 YEARS

       BOTH ARE RESIDING AT
                            2



     NO.30 LIG 2ND A MAIN
     SHARADADEVINAGAR
     MYSURU-570023.

3.   N RAGHUNANDAN
     SINCE DEAD REP BY HIS LR's

3(a). SRI. NAGARAJAN
      S/O V SHESHA IYENGAR
      AGED ABOUT 58 YEARS
      NO.79 2ND STAGE NEAR RAILWAY LINE
      B BLOCK J P NAGAR
      MYSURU -570008.
                                         ...RESPONDENTS

(BY SRI. P.NATARAJU, ADV. FOR R1 & R2:
    R3(a) SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
02.08.2019 PASSED IN MVC NO.1339/2009 ON THE FILE
OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND MACT, MYSURU, AWARDING COMPENSATION OF
RRS.10,04,000/- WITH INTEREST AT 6 PERCENT P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT IN THE
TRIBUNAL.


    THIS MFA COMING ON FOR ORDERS, 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 Insurance Company

being aggrieved by the judgment dated 02.08.2019

passed by the Motor Accident Claims Tribunal, Mysuru

in MVC No.1339/2009.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 23.01.2003 at about 12.00

noon, near Prabhudeva Petrol Bunk, near one culvert

on Bengaluru-Mysuru road, near Srirangapatna, when

the deceased was proceeding on motorcycle bearing

registration No.KA-09-V-8858 as a pillion rider along

with his friend Raghunandan, who was a rider of the

said motorcycle and rode the same in a rash and

negligent manner and dashed to the Ambassador Car

bearing registration No.KA-09-422. 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 being the insurer has appeared through counsel

and filed written statement in which the averments

made in the petition were denied. It was pleaded that

the petition itself is false and frivolous in the eye of

law. It was further pleaded that the accident was due

to the rash and negligent driving of the driver of the

car and the same has been admitted and lodged the

complaint against the driver of the car by the

deceased before succumbed to the injuries. Therefore,

the petition is non bad non-joinder of necessary

parties and mis-joinder of necessary parties. The

liability is subject to terms and conditions of the

policy. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the

petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

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.P.1 to Ex.P.14. On behalf of

respondents, two witnesses were examined as RW-1

and RW-2 and got exhibited documents namely Ex.R.1

to Ex.R.3. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent riding of the

offending vehicle by its rider, 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.10,04,000/-

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 counter-

contentions:

Firstly, at the time of the accident, the deceased

was aged about 24 years. The claimants have not

produced any evidence or documents with regard to

the income of the deceased. Therefore, the monthly

income of the deceased assessed by the Tribunal

Rs.4,000/- is on higher side.

Secondly, in view of 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], the Tribunal instead of

considering 40% of the income of the deceased

towards 'future prospects' has wrongly considered

50% and the claimants are entitled for Rs.15,000/- for

'loss of estate' and Rs.15,000/- for 'funeral expenses'.

But the Tribunal has erred in granting Rs.20,000/-

each on the head of 'loss of estate' and 'funeral

expenses' is on higher side. The same is contrary to

the law laid down by the Hon'ble Supreme Court in

the case 'PRANAY SETHI' (Supra).

Thirdly, in view of 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'. But the Tribunal

has erred in granting Rs.1,00,000/- for 'love and

affection' is also on higher side. Therefore, she

sought for allowing the appeal filed by the Insurance

Company.

7. On the other hand, the learned counsel for

the claimant has raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 24 years at the time of the accident

and he was earning Rs.6,701/- per month by working

in the factory. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.4,000/- is on lower side.

Secondly, considering the age, avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he sought for

dismissal of the appeal field by the Insurance

Company.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that deceased died in

the road traffic accident occurred due to involvement

of the vehicles bearing registration No.KA-09-V-8858

and registration No.KA-09-422.

Even though the claimants claims that the

deceased was earning Rs.6,701/- per month and they

have produced salary certificate but they have failed

to examine the author of the document. Therefore,

the Tribunal has rightly assessed the monthly income

of the deceased as Rs.4,000/-. 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.5,600/-. Since the deceased was a bachelor at the

time of the accident, it is appropriate to deduct 50%

of the income of the deceased towards personal

expenses. Thus, the monthly income comes to

Rs.2,800/-. The deceased was aged about 24 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.6,04,800/- (Rs.2,800*18*12)

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), claimants, parents of the deceased are

entitled for compensation of Rs.40,000/- each under

the head 'loss of filial consortium' .

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under           Amount in
            different Heads             (Rs.)
       Loss of dependency                   6,04,800
       Funeral expenses                      15,000
       Loss of estate                        15,000
       Loss of Filial consortium             80,000
                        Total           7,14,800

11. 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.7,14,800/-.

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 amount in deposit before this Court shall be

transmitted to the Tribunal.

In view of the disposal of the appeal,