Karnataka High Court
Smt.N.Bhagya Alias Bhagya vs Srinivasa Reddy on 31 January, 2022
Bench: S G Pandit, Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MFA No.102508 OF 2019 (MV-D)
C/W
MFA No.103913 OF 2019(MV-D)
IN MFA NO.102508/2019
BETWEEN:
M/S. NEW INDIA ASSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER,
EDIGA HOSTEL, COMPOUND COURT ROAD,
BALLARI-583101
ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. G.N. RAICHUR, ADVOCATE)
AND
1. SMT. N. BHAGYA @ BHAGYA W/O UDAYA KUMAR
@ NESE NAGALI UDAYA KUMAR @ NESE UDAY
AGED ABOUT 28 YEARS, R/O WEAVER COLONY,
NEAR SATHYANARAYANA SWAMY TEMPLE,
RAYADURGA, ANANTHAPUR DIST.
PRESENTLY RESIDING AT GUGGARAHATTI
BALLARI-583101.
2. N.N. NAGARAJU @ NESE NAGALI NAGARAJU
2
S/O N. THIMMAPPA @ N. TIPPESWAMY
AGED ABOUT 50 YEARS, R/O WEAVER COLONY
NEAR SATHYANARAYANA SWAMY TEMPLE,
RAYADURGA, ANANTHAPUR DIST.
PRESENTLY RESIDING AT GUGGARAHATTI
BALLARI-583101.
3. SMT. NAGAMANI @ NAGALI NAGAMANI
W/O N.N. NAGARAJU AGED ABOUT 48 YEARS,
R/O WEAVER COLONY NEAR SATHYANARAYANA
SWAMY TEMPLE, RAYADURGA, ANANTHAPUR DIST.
PRESENTLY RESIDING AT GUGGARAHATTI
BALLARI-583101.
4. MINOR N. SHANMUKHA SAI KUMAR S/O LATE
UDAYA KUMAR @ NESE NAGALI UDAYA KUMAR
@ NESE UDAY, AGED ABOUT 7 YEARS,
R/O WEAVER COLONY
NEAR SATHYANARAYANA SWAMY TEMPLE,
RAYADURGA, ANANTHAPUR DIST.
PRESENTLY RESIDING AT GUGGARAHATTI
BALLARI-583101.
5. MINOR N. CHARITHA KUMAR @ CHARITH
S/O LATE UDAYA KUMAR @ NESE NEGALI
UDAYA KUMAR @ NESE UDAYA
AGED ABOUT 6 YEARS, R/O WEAVER COLONY
NEAR SATHYANARAYANA SWAMY TEMPLE,
RAYADURGA, ANANTHAPUR DIST.
PRESENTLY RESIDING AT GUGGARAHATTI
BALLARI-583101.
RESPONDENTS 4 AND 5 ARE MINORS
REP. BY THEIR MOTHER AND NATURAL GUARDIAN
SMT. N. BHAGYA @ BHAGYA W/O UDAYA KUMAR
@ NESE NAGALI UDAYA KUMAR @ NESE UDAY
6. SRINIVASA REDDY S/O NAGA REDDY
AGED ABOUT 39 YEARS, DRIVER OF BST PRIVATE
BUS BEARING REG. NO.AP-02-Y-8020,
R/0 KANIKAL BANDE VILLAGE, PAVAGADA TQ,
3
TUMKUR DIST.
7. B.S.JANARDHANA @ JANARDHANA BYALLA
S/O LATE B. SREEKANTAIAH
AGED ABOUT 51 YEARS, OCC:OWNER OF BST
PRIVATE BUS BEARING REG. NO.AP-02-Y-8020
R/O NO.17-3-2020, PENUKONDA ROAD,
HINDUPUR, ANANTHAPUR DIST-AP-500024.
...RESPONDENTS
(BY SRI.MANJUNATH G PATIL, ADV. FOR R1 TO R5)
(R6 & R7-SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 5.2.2019 PASSED IN MVC NO.201/2016
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.11
AND II ADDL. SENIOR CIVIL JUDGE, BALLARI BY
EXONERATING THE APPELLANT INSURANCE COMPANY FROM
LIABILITY AND REDUCINGTHE COMPENSATION BY
ALLOWING THIS APPEAL WITH COST IN THE ENDS OF
JUSTICE AND EQUITY.
IN MFA NO.103913/2019
BETWEEN:
1. SMT. N. BHAGYA @ BHAGYA W/O UDAYA KUMAR
@ NESE NAGALI UDAYA KUMAR @ NESE UDAY
AGED ABOUT 28 YEARS,
2. N.N. NAGARAJU @ NESE NAGALI NAGARAJU
S/O N. THIMMAPPA @ N. TIPPESWAMY
AGED ABOUT 50 YEARS,
3. SMT. NAGAMANI @ NAGALI NAGAMANI
W/O N.N. NAGARAJU AGED ABOUT 48 YEARS,
4. MINOR N. SHANMUKHA SAI KUMAR S/O LATE
UDAYA KUMAR @ NESE NAGALI UDAYA KUMAR
@ NESE UDAY, AGED ABOUT 7 YEARS,
4
5. MINOR N. CHARITHA KUMAR @ CHARITH
S/O LATE UDAYA KUMAR @ NESE NEGALI
UDAYA KUMAR @ NESE UDAYA
AGED ABOUT 6 YEARS,
APPELLANTS 4 AND 5 ARE MINORS REP. BY THEIR
MOTHER AND NATURAL GUARDIAN SMT. N. BHAGYA @
BHAGYA W/O UDAYA KUMAR @ NESE NAGALI UDAYA
KUMAR @ NESE UDAY
ALL ARE R/O WEAVER COLONY NEAR
SATHYANARAYANA SWAMY TEMPLE,
RAYADURGA, ANANTHAPUR DIST.
PRESENTLY RESIDING AT GUGGARAHATTI
BALLARI-583101.
....APPELLANTS
(BY SRI. MANJUNATH G PATIL, ADVOCATE)
AND
1. SRINIVASA REDDY S/O NAGA REDDY
AGED ABOUT 39 YEARS, DRIVER OF BST PRIVATE
BUS BEARING REG. NO.AP-02-Y-8020,
R/0 KANIKAL BANDE VILLAGE, PAVAGADA TQ,
TUMKUR DIST-563010.
2. B.S.JANARDHANA @ JANARDHANA BYALLA
S/O LATE B. SREEKANTAIAH
AGED ABOUT 51 YEARS, OCC:OWNER OF BST
PRIVATE BUS BEARING REG. NO.AP-02-Y-8020
R/O NO.17-3-2020, PENUKONDA ROAD,
HINDUPUR, ANANTHAPUR DIST-AP-500024.
3. M/S. NEW INDIA ASSURANCE CO. LTD.
BY ITS DIVISIONAL MANAGER
EDIGA HOSTEL COMPOUND,
COURT ROAD, BALLARI-583101.
...RESPONDENTS
(BY SRI. G.N. RAICHUR, ADV. FOR R3)
(R1 & R2-NOTICE DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
5
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE
COMPENSATION FROM RS.21,29,600/- TO RS.29,00,000/- IN
MVC NO.201/2016 DATED 5.2.2019 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.11 AND II ADDL.
SENIOR CIVIL JUDGE, BALLARI IN THE ENDS OF JUSTICE
AND EQUITY.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they
are taken up for final disposal, with the consent of learned
counsel for both the parties.
2. The insurer is in appeal in MFA
No.102508/2019 challenging the quantum of
compensation, whereas the claimants are also in appeal in
MFA No.103913/2019 praying for enhancement of
compensation, not being satisfied with the compensation
awarded under judgment and award dated 5.2.2019
passed in MVC No.201/2016 on the file of the learned II
Addl. Senior Civil Judge and Member, MACT-XI, Ballari (for
short, 'Tribunal').
3. The claimants, who are the wife, parents and
minor children of the deceased Uday Kumar, filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
seeking compensation for the accidental death of Uday
Kumar, which had taken place on 21.12.2015 involving
Tata Ace Auto bearing registration No.KA-34/A-5084 and
Private Bus bearing registration No.AP-02-Y-8020. It is
stated that the deceased was aged 27 years as on the date
of the accident and was earning Rs.10,000/- per month
working as Driver of TATA Ace Auto.
4. Before the Tribunal, the claimants examined
PW1 and got marked the documents as
Exs.P1 to P14 in support of their case, whereas
respondent/Insurance Company examined RW1 and
marked two documents as Ex.R1 & R2. The Tribunal based
on the material evidence on record awarded total
compensation of Rs.21,29,600/- with interest at 9% per
annum on the following heads:
Loss of Dependency Rs.20,19,600/-
Towards transportation of
Dead body & cremation Rs. 10,000/-
Loss of consortium Rs. 50,000/-
Loss of estate Rs. 20,000/-
Loss of love & affection Rs. 30,000/-
Total Rs.21,29,600/-
5. While awarding the above compensation, the
Tribunal assessed the notional income of the deceased at
Rs.8,800/- per month and added 50% towards future
prospects. The claimants not being satisfied with the
quantum of compensation awarded by the Tribunal are
before this Court praying for enhancement of
compensation and insurer is in appeal questioning the
quantum as well as interest of 9% per annum.
6. Heard the learned counsel for the claimants as
well as learned counsel for the insurance company and
perused the appeal papers along with original records.
7. Sri. Manunath G Patil, learned counsel for the
claimants in support of his appeal would submit that the
income of the deceased assessed by the Tribunal at
Rs.8,800/- per month is on the lower side and the Tribunal
ought to have assessed the income of the deceased at
Rs.10,000/- per month, since the deceased was working as
Driver of Tata Ace Auto. It is his submission that claimant
No.1 being wife of the deceased would be entitled to
Rs.44,000/- towards spousal consortium and claimants 2
to 5 would be entitled to Rs.40,000/- each towards
parental and filial consortium as held by the Hon'ble Apex
Court in the case of Magma General Insurance
Company Ltd., Vs. Nanu Ram and Others, reported in
2018 ACJ 2782. Thus, he prays for allowing the appeal
filed by the claimants.
8. Sri. G.N. Raichur, learned counsel appearing
for the insurance company in support of his appeal would
contend that in the absence of any documentary evidence,
the Tribunal has rightly assessed income of the deceased
at Rs.8,800/- per month. He further submits that the
Tribunal committed an error in adding 50% of the
assessed income towards future prospects instead of 40%,
as held by the Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi &
Others, 2017(16) SCC 680. It is his submission that
while awarding compensation on the head of loss of
dependency, the Tribunal had wrongly taken the age of the
deceased as 27 years, since as per Ex.P5-PM report, the
age of the deceased was 30 years as on the date of the
accident. It is further submitted that the Tribunal also
committed an error in granting interest at 9% per annum
instead of 6% per annum. Thus, he prays for dismissal of
the appeal filed by the claimants and to reduce the
compensation as well as rate of interest from 9% to 6%
per annum by allowing the appeal filed by the insurance
company.
9. As stated above, there is no dispute with
regard to the accident and accidental death of deceased
Uday Kumar in these appeals. It is the contention of the
appellants-claimants that the notional income of the
deceased assessed by the Tribunal at Rs.8,800/- per
month is on the lower side and it ought to have assessed
the same at Rs.10,000/- per month. Admittedly, the
deceased was a driver of Tata Ace Auto. But, the claimants
have not produced any document to prove the income of
the deceased. In the absence of any documents to prove
the income of the deceased, the Tribunal has rightly
assessed the notional income of the deceased taking note
of the accident was of the year 2015 and also occupation
of the deceased, who was working as driver of Tata Ace
Auto. Therefore, the notional income of the deceased at
Rs.8,800/- per month assessed by the Tribunal is just and
proper, which needs no interference by this Court.
10. Further, the Tribunal committed an error in
adding 50% of the assessed income towards future
prospects of the deceased. In the case of Pranay Sethi
(supra), the Hon'ble Supreme Court has held that
wherever the deceased was aged below 40 years, the
claimants would be entitled for addition of 40% of the
assessed income towards future prospects. Therefore, in
the instant case, the claimants would be entitled for
addition of 40% of the assessed income towards future
prospects.
11. Further, the Tribunal committed an error in
adopting multiplier of '17'. The Tribunal had taken the age
of the deceased as 27 years. As per Ex.P5-PM report, the
age of the deceased was 30 years as on the date of the
accident. Therefore, taking note of the same, the proper
multiplier would be '16' instead of '17'. Deduction of 1/4th
towards personal expenses of the deceased is just and
proper. Thus, the claimants would be entitled to
compensation on the head of loss of dependency at
Rs.17,74,080/- (Rs.8800 + 40% x 12 x 16 x 3/4).
12. 1st claimant being the wife of the deceased
Uday Kumar is entitled for Rs.44,000/- towards spousal
consortium, whereas 2nd and 3rd claimants being parents of
the deceased would be entitled to Rs.40,000/- each
towards filial consortium and 4th and 5th claimants being
children of the deceased would be entitled for Rs.40,000/-
each towards parental consortium as held by the Hon'ble
Apex Court in Magma General Insurance Co. Ltd.
(supra). Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.17,74,080/-
(Rs.8800 + 40% x 12 x 16 x 3/4)
2. Loss of estate Rs. 15,000/-
3. Spousal consortium Rs. 44,000/-
4. Filial consortium (Rs.40,000 Rs. 80,000/-
each to claimants 2 and 3)
5. Parental consortium Rs. 80,000/-
(Rs.40,000/- each to claimants
4 and 5)
6. Transportation and funeral Rs. 15,000/-
expenses
Total Rs.20,08,080/-
13. Thus, the claimants would be entitled to total
compensation of Rs.20,08,080/- as against
Rs.21,29,600/-awarded by the Tribunal.
14. The Tribunal while awarding compensation
granted rate of interest at 9% per annum. Taking note of
the present rate of Bank interest, we are inclined to reduce
the rate of interest on the compensation amount from 9%
awarded by the Tribunal to 6% per annum.
15. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of
the Tribunal is modified to the extent
that the claimants are entitled to total
compensation of Rs.20,08,080/- as
against Rs.21,29,600/-awarded by the
Tribunal.
c) The rate of interest at 9% awarded by
the Tribunal is reduced to 6% per
annum.
d) The entire compensation amount will
bear interest at the rate of 6% per
annum from the date of claim petition
till date of realization.
e) The apportionment, deposit and
disbursement shall be made as per
the award of the Tribunal.
f) Draw modified award accordingly.
g) Amount in deposit, if any, before this
Court be transmitted to the Tribunal
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
