Karnataka High Court
Smt Sowmya vs Eshwaraiah on 4 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.2686 OF 2018(MV)
BETWEEN:
1. Smt. Sowmya,
W/o Late. Gangadhar
@ Manjunath,
Aged about 32 years.
2. Guruprasad H.G.,
S/o Late Gangadhar
@ Manjunath,
Aged about 12 years.
3. Punyashree,
S/o Late Gangadhar
@ Manjunath,
Aged about 10 years.
4. Karigowda,
S/o Late. Kempegowda,
Aged about 69 years.
Appellant Nos. 2 & 3 are
Minors represented by
Their mother Sowmya as
Guardian.
All are residing at:
Hindumarnahalli village,
Dabbeghatta Hobli,
2
Turuvekere Taluk,
Tumakuru District.
... Appellants
(By Sri. Shripad V Shastri., Advocate)
AND:
1. Eshwaraiah,
S/o Late. Nanjappa,
Major,
R/at Thoremavinahalli Village,
Turuvekere Taluk,
Tumakuru District,
K.H.Road-572101.
2. HDFC Ergo General Insurance Co. Ltd.,
2nd Floor, No.25,
No.2, Shankaranayana
Building, M.G.Road,
Bengaluru - 560 001. ... Respondents
(By Sri.D.Vijayka Kumar, Advocate for R2:
Notice to R1 is served and unrepresented)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:28.11.2017 passed
in MVC No.1400/2014 on the file of the Senior Civil Judge
& MACT, Turuvekere, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
This MFA, coming on for hearing, this day, this
Court, delivered the following:
3
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 28.11.2017 passed
by the Motor Accident Claims Tribunal, Turuvekere in
MVC No.1400/2014.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 21.06.2014 at 7.00 p.m. the
deceased Gangadhar @ Manjunath was proceeding on
motorcycle bearing registration No.KA-06/S-5145
from Turuvekere towards Dabbeghatta near Sulekere.
At that time, a tractor bearing registration No.KA-
44/T-6656 which was being driven in a rash and
negligent manner, came from the opposite direction
came to the extreme right side of the road and dashed
against the motorcycle. As a result of the aforesaid
accident, the deceased sustained grievous injuries and
succumbed to the injuries on 22.06.2014.
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
Nos.1 and 2 appeared through counsel and filed
separate written statement in which the averments
made in the petition were denied. The age,
occupation and income of the deceased are denied. It
was pleaded that the petition itself is false and
frivolous in the eye of law. It was further pleaded that
the quantum of compensation claimed by the
claimants is exorbitant. Hence, they sought for
dismissal of the petition.
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.P1 to Ex.P16. On behalf of
respondents, one witness was examined as RW-1 and
got exhibited document 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.9,75,000/- 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.
6. Sri Shriprad V.Shastri, the learned counsel
for the claimants has raised the following contentions:
Firstly, the claimants claim that the deceased
was earning Rs.20,000/- per month by working as
agriculturist and vegetable vendor. But the Tribunal is
not justified in taking the monthly income of the
deceased as only Rs.6,000/-.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. vs. PRANAY SETHI AND
OTHERS reported in AIR 2017 SC 5157, the
claimants are entitled to addition of 40% of the
income towards future prospects.
Thirdly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. Vs. 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'.
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, Sri D.Vijaya Kumar, the
learned counsel for the Insurance Company has raised
the following counter-contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.20,000/- per month, 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, the Tribunal contrary to the law laid
down by the Hon'ble Apex Court in the case of
PRANAY SETHI (supra) has awarded compensation
of Rs.40,000/- towards 'loss of estate' and
Rs.25,000/- towards 'funeral expenses'.
Fourthly, on appreciation of oral and
documentary evidence and considering the age and
avocation of the deceased, the overall compensation
awarded by the Tribunal is just and reasonable.
Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award and the original
records.
9. It is not in dispute that deceased
Gangadhar died in the road traffic accident occurred
due to rash and negligent driving of the offending
vehicle by its driver.
The claimants claim that deceased was earning
Rs.20,000/- per month. But they have not produced
any documents to prove the income of the deceased.
In the absence of proof of income, the notional income
has to be assessed. 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 income, 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.11,900/-. Since there are 4
dependents, the Tribunal has rightly deducted 1/4th of
the income of the deceased towards personal
expenses and remaining amount, i.e., Rs.8,925/- has
to be taken as his contribution to the family. The
deceased was aged about 38 years at the time of the
accident and multiplier applicable to his age group is
'15'. Thus, the claimants are entitled to compensation
of Rs.16,06,500/- (Rs.8,925*12*15) on account of
'loss of dependency'.
In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of
estate' and compensation of Rs.15,000/- on account
of 'funeral expenses'. Claimant No.1, wife of the
deceased is entitled for compensation of Rs.40,000/-
under the head of 'loss of spousal consortium'.
In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL
INSURANCE' (supra), claimant Nos.2 and 3, children
of the deceased are entitled for compensation of
Rs.40,000/- each under the head of 'loss of parental
consortium' and claimant No.4, father of the deceased
are entitled for compensation of Rs.40,000/- each
under the head of 'loss of filial consortium' .
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 16,06,500
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Loss of Filial consortium 40,000
Total 17,96,500
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.17,96,500/- as against
Rs.9,75,000/- awarded by the Tribunal.
The HDFC Ergo General Insurance Company -
respondent No.2 herein is directed to deposit the
compensation amount along with interest @ 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.
Sd/-
JUDGE
Cm/-
