Karnataka High Court
K M Venkateshappa vs Syed Amjad Ahamed on 26 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8120 OF 2018(MV)
BETWEEN:
1. K M VENKATESHAPPA
AGED ABOUT 53 YEARS
S/O LATE MUNIYAPPA.
2. KEMPAMMA
AGED ABOUT 48 YEARS
W/O K.M.VENKATESHAPPA.
3. PAVITHRA K V
AGED ABOUT 22 YEARS
D/O K.M.VENKATESHAPPA.
4. KRISHNAMURTHY
AGED ABOUT 13 YEARS
S/O K.M.VENKATESHAPPA
MINOR REP BY HIS MOTHER
KEMPAMMA
ALL ARE RESIDING AT
CHOKKAHALLI VILLAGE
SULIBELE HOBLI
HOSAKOTE TALUK
...APPELLANTS
2
(BY SMT. SHRUTHI SHETTY, ADV. FOR
SRI.PAVANA CHANDRA SHETTY H., ADV.)
AND
1. SYED AMJAD AHAMED
S/O SYED AHAMED
R/AT RAHAMATH NAGAR
C.B.ROAD, KOLAR-563101.
2. ICICI LOMBARD GENERAL INS. CO.LTD.,
SVR COMPLEX
OPP: FUNUM FURNITURES
HOSUR MAIN ROAD
BENGALURU
REP BY ITS AUTHORIZED OFFICER.
3. VENKATAMMA
AGED ABOUT 48 YEARS
W/O K.M.VENKATESHAPPA
R/AT KURUBARA PET
MULABAGAL-563131
(DECEASED SRINIVAS
NATURAL MOTHER)
...RESPONDENTS
(BY SRI.H.N.KESHAVA PRASHATH, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 26.11.2021)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED:02.02.2018 PASSED IN MVC NO.29/2015 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM AT MACT, KOLAR, PARTLY ALLOWING THE
3
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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 claimants being
aggrieved by the judgment dated 2.2.2018 passed by
the Senior Civil Judge and MACT, Kolar in MVC
29/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 27.11.2014 the deceased
Srinivas along with other were traveling in the
motorcycle bearing registration No.KA-53-EE-2187
from Arahalli side and reached main road, at that
time, tipper lorry bearing registration No.KA-03-B-
2016 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 respondents
appeared through counsel and filed written statement.
Respondent Nos.1 and 2 have totally denied the
averments made in the petition.
The respondent No.3 has stated that she is the
husband of claimant No.1 and mother of the deceased
and she was depending on the income of the deceased
and hence she is entitled or compensation.
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 got exhibited documents namely Ex.P1 to Ex.P16.
On behalf of respondents, neither any witness was
examined nor any document was produced. 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 claimant Nos.1, 3, 4 and
respondent No.3 are entitled to a compensation of
Rs.17,90,850/- 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.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, the claimants claim that the deceased
was aged about 26 years at the time of the accident
and he was working at Celebrations Apparel Ltd. as
Operation Tech and earning Rs.15,000/- per month
and produced Ex.P-10, pay confirmation letter and he
was earning Rs.30,000/- by doing poultry farm
business. But the Tribunal is not justified in taking the
monthly income of the deceased as merely as
Rs.12,000/-.
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:
Firstly, even though the claimants claim that the
deceased was working at Celebrations Apparel Ltd. as
Operation Tech and earning Rs.15,000/- per month
and he was earning Rs.30,000/- by doing poultry farm
business, 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, since claimant No.2 is not the natural
mother of the deceased Srinivas, the claimant Nos.2,
3 and 4 are not entitled for any compensation.
Fourthly, 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 judgment and award of the Tribunal.
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 aged
about 26 years at the time of the accident and he was
working at Celebrations Apparel Ltd. as Operation
Tech and earning Rs.15,000/- per month and
produced Ex.P-10, pay confirmation letter and he was
earning Rs.30,000/- by doing poultry farm business.
The same is not established by the claimants by
producing documents and they have not examined the
employer of the deceased. The Tribunal considering
the evidence of the claimant and considering Ex.P-10,
has rightly assessed the income of the deceased
notionally at Rs.12,000/- 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.16,800/-. 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 26 years at the time of the
accident and multiplier applicable to his age group is
'17'. Thus, the claimants are entitled to compensation
of Rs.17,13,600/- (Rs.16,800*12*17*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 No.1 and respondent
No.3, 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 17,13,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 18,23,600
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.18,23,600/-.
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 apportionment shall be made in terms of the
award of the Tribunal.
Sd/-
JUDGE
DM
