Karnataka High Court

Y J Gange Gowda vs Chandrashekar on 18 January, 2022

Bench: M.G.S. Kamal

                            1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF JANUARY, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             M.F.A. NO.3990 OF 2016 (MV-D)


BETWEEN:

1.    Y.J.GANGE GOWDA
      S/O JAYARAMAIAH
      AGED ABOUT 42 YEARS

2.    BHARATHI
      W/O Y.J.GANGE GOWDA
      AGED ABOUT 41 YEARS

      BOTH ARE RESIDENT OF
      YELECHAGERE VILLAGE
      KASABA HOBLI
      NELAMANGALA TALUK
      BENGALURU RURAL DISTRICT
      PIN - 562 123
                                         ... APPELLANTS
(BY SRI. R.LAKSHMANA, ADVOCATE)

AND

1.    CHANDRASHEKAR
      S/O LATE MUDDEGOWDA
      R/AT MUDDEGOWDARA THOTA
      ALUR POST, DASANAPURA HOBLI
      BENGALURU - 562 123

2.    M/S.BHARTI AXA GENERAL
      INSURANCE CO LTD.
      BY ITS MANAGER
      1ST FLOOR, FERNS ICON
      SURVEY NO.28
      DODDANEKUNDI VILLAGE
                                 2


     K.R.PURAM HOBLI
     BENGALURU - 37.
                                              ... RESPONDENTS

(BY SRI. D.MANJUNATH, ADVOCATE FOR R.2;
     R.1- SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:14.11.2014 PASSED IN
MVC NO.1381/2013 ON THE FILE OF THE JUDGE, COURT OF
SMALL CAUSES, 26TH ACMM (SCCH-09), BENGALURU,
PARTLY    ALLOWING    THE    CLAIM   PETITION   FOR
COMPENSATION     AND   SEEKING    ENHANCEMENT    OF
COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                        JUDGMENT

The present appeal is filed by the appellants/claimants

aggrieved by the judgment and award dated 14.11.2014

passed in MVC No.1381/2012 on the file of the Small Causes

& MACT, Bengaluru (SCCH-9) (hereinafter for short, 'the

Tribunal').

2. Facts leading up to filing of the aforesaid appeal

are that ON 19.01.2013, G. Yuvaraj, aged about 18 years

studying in II PUC was going as a pillion rider in motorbike

bearing registration No.KA-41-X-1950 on Magadi-Bengaluru

road, when he reached near Ramanathapura at 3.30 p.m.,

the rider of the SAID motorbike namely Sunil Kumar lost

control of the same resulting in the accident. Due to impact,

G. Yuvaraj, sustained fatal injuries and died on the way to

hospital. Thereupon, the appellants/claimants being the

parents of the deceased filed a claim petition seeking

compensation in a sum of Rs.20 lakhs on the premise that the

deceased was a student and his death occurred due to rash

and negligent riding of the offending motorbike. The untimely

death of the deceased had caused severe emotional and

financial distress to the claimants. Hence, claimants filed

claim petition.

3. Upon service of notice, respondent Nos.1 and 2

appeared before the Tribunal filed statement of objections.

Respondent No.1 contended that the bike was insured with

the insurance company and the same was in force as on the

date of accident. However, it is denied that the accident in

question had occurred on account of rash and negligent riding

of the offending motorbike. Respondent No.2 contended taht

the rider of the bike did not have valid driving licence and

that there was violation of Policy conditions by the owner of

the bike. Hence, sought for dismissal of the claim petition

4. Based on the pleadings of the parties, the

Tribunal framed issues and recorded evidence. Further

claimant No.1 examined himself as PW.1 and exhibited 11

documents, marked as Exs.P1 to P.11. No evidence has been

led in on behalf of the respondents.

5. On appreciation of evidence, the Tribunal held

that accident in question resulting death of the deceased had

occurred on account of rash and negligent riding of the motor

bike by its rider. Consequently, held claimants are entitled for

a compensation of Rs.4,90,000/- with interest at 6% p.a.,

from the date of accident till realization and since the vehicle

was insured by respondent No.2, respondent No.2 directed to

pay compensation with interest at 6% per annum from the

date of petition till realization. Aggrieved by the same, the

appellant/claimants are before this Court seeking

enhancement of compensation.

6. Learned counsel for the appellants/claimants

reiterating the grounds urged in the appeal memo submitted

that compensation awarded by the Tribunal is on very lower

side. The Tribunal has not awarded any compensation under

"Future prospects" and also under "Conventional heads" as

laid by the Hon'ble Apex Court in the case of National

Insurance Company Limited v. Pranay Sethi and

Others, reported in (2017)16 SCC 680 and Magma

General Insurance Company Limited v. Nanu Ram and

Others reported in 2018 ACJ 2782, Hence, seeks for

enhancement of compensation.

7. Learned counsel for respondent No.2 - Insurance

Company justifying the award passed by the Tribunal

submitted that there is no grounds made out by the

appellants/claimants seeking for enhancement of

compensation. No proof of income of the deceased has been

furnished as he was just a student and therefore,

compensation awarded by the Tribunal is just and proper,

warranting no interference. Hence, prays to dismiss the

appeal.

8. Heard learned counsel for the parties and perused

the records.

9. On thoughtful consideration of the rival

submission made by the learned counsel for the parties, the

only point would arise for consideration is:

Whether the claimants have made out a

case for enhancement of compensation?

10. The accident in question involving motorcycle

resulting in Yuvaraj sustaining fatal injuries and consequent

death is not disputed. Though the appellants/claimants have

sought for compensation of Rs.20 lakhs, no evidence with

regard to any income being earned by the deceased is

furnished. The Tribunal relying upon the Judgment of the

Apex Court in the case of KISHAN GOPAL AND OTHERS vs.

LALA AND OTHERS (2013 ACJ 2594), has taken the

notional income of the deceased at Rs.30,000/- p.m., and has

further adopted the age of the younger parent of the

deceased for applying the multiplier of 15. The Tribunal has

not awarded any amount towards future prospects and under

loss of consortium.

11. In the instant case, the deceased was aged about

18 years. The age limit for the purpose of applying

appropriate multiplier is 15 and above. Therefore, reliance

placed on by the Tribunal on Krishan Gopal Case (supra) for

arriving notional income and taking the age of younger parent

for applying multiplier is inappropriate.

12. This Court in the absence of any evidence with

regard to income of the victim in road traffic accident takes

into consideration the chart prepared by the Karnataka State

Legal Services Authority. As per the chart, the notional

income in respect of the victims of road traffic accident of the

year 2013 is fixed at Rs.8,000/- per month and the same is

taken as notional income of the deceased in the instant case

as well. In view of the law laid down by the Hon'ble Apex

Court in the case of Pranay Sethi (supra), since the age of

the deceased was below 40 years, 40% added towards

"Future prospects". Since the deceased is bachelor, 50% of

the income should be deducted towards his personal

expenses (Rs.8,000 + 40% = Rs.11,200/-,

Rs.11,200/2=Rs.5,600/-). Considering the age of the

deceased, proper multiplier 18 is taken into consideration.

Calculating as above, "Loss of dependency would be

Rs.5,600x12x18 = Rs.12,09,600/-. Further, in view of the

law laid down by the Hon'ble Apex Court in the case of

MAGMA GENERAL INSURANCE COMPANY LIMITED

VERSUS NANU RAM ALIAS CHUHRU RAM AND OTHERS

[2018) 18 SCC 130] which clarified in the subsequent

judgment of the Apex Court in the case of UNITED INDIA

INSURANCE CO. LTD., VS. SATINDER KAUR @

SATWINDER KAUR & ORS. [2020 SCC ONLINE SC 410],

the claimants being the parents of the deceased are entitled

for Rs.40,000/- each towards "Loss of consortium". In

addition, the appellants/claimants are entitled for Rs.15,000/-

towards loss of estate and Rs.15,000/- towards funeral

expenses. Hence, the appellants/claimants are entitled for

enhanced compensation of Rs.13,19,600/- as follows:

           Heads           By Tribunal       By this Court
   Loss of dependency      Rs.4,50,000/-     Rs.12,09,600/-
   Towards             Rs.15,000/-           Rs.15,000/-
   transportation   of
   dead body, Funeral
   expenses         &
   obsequies
   ceremony
   Loss of consortium Rs.15,000/-            Rs.80,000/-
   (40,000x2)
   Loss of estate          Rs.10,000/-       Rs.15,000/-
   Total                   Rs.4,90,000/-     Rs.13,19,600/-

13. Thus, the claimants are entitled for enhanced

compensation of Rs.13,19,600/- instead of Rs.4,90,000/-

awarded by the Tribunal together with interest at 6% per

annum and therefore the point raised above is answered

accordingly. Hence, the following order is passed:

ORDER

i. The appeal filed by the

appellants/claimants is allowed in part. The

judgment and award passed by the Tribunal

in MVC No.1381/2013 is modified.


      ii.    The appellants/claimants are entitled

      for      enhanced         compensation            of

      Rs.13,19,600/-     instead       of   Rs.4,90,000/-

      awarded by the Tribunal together with