Karnataka High Court
Padmanabhan Duraisamy vs Rainbow Ready Mix Concrete on 5 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.4981 OF 2020(MV)
BETWEEN:
1 . PADMANABHAN DURAISAMY
S/O. DURAISAMY
AGED ABOUT 51 YEARS.
2 . KILAIMATHI
W/O. PADMANABHAN
AGED ABOUT 45 YEARS.
BOTH ARE R/AT NO. 2/36
AGRAM VILLAGE
POCHMALLI TALUK
KRISHNAGIRI
TAMILNADU 635204.
...APPELLANTS
(BY SRI.GURUDEV PRASAD K T., ADV.)
AND
1. RAINBOW READY MIX CONCRETE
NEXT TO IOCL FUEL STATION
MANDUR VILLAGE
BIDARAHALLI POST
BANGALURU-560049.
2
2. IFFCO TOKIO GENERAL CO. LTD
NO. 141, 3RD MAIN
SRI. SHANTHI TOWERS
5TH FLOOR, EAST OF NGEF LAYOUT
KASURINAGAR
BENGALURU 560043.
REP BY ITS MANAGER
...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION
173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 02.11.2019 PASSED IN MVC
NO.3337/2019 ON THE FILE OF THE XV ADDITIONAL
SMALL CAUSES JUDGE AND XXIII ACMM, MEMBER,
MACT, BENGALURU, MAYO HALL UNIT, SCCH-19
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, 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 and award dated
2.11.2019 passed by the Motor Accident Claims
Tribunal, Bengaluru in MVC 3337/2019.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 23.5.2019, when the
deceased Kiruba Shankar.P was riding Activa Honda
bearing registration No.KA-03-HD-6024 on Ayyappa
Nagar Main road, K.R.Puram Bengaluru, at that time,
a cement Mixer lorry bearing registration No.KA-53-D-
5396 which was being driven in a rash and negligent
manner, dashed against the vehicle of 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 their respective counsel and filed
written statements in which the averments made in
the petition were denied.
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.P26.
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 claimants are entitled to a
compensation of Rs.19,24,400/- along with interest at
the rate of 9% 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 22 years at the time of the accident
and he has completed B.Tech and he was earning
Rs.30,000/- per month by conducting tuitions. But the
Tribunal is not justified in taking the monthly income
of the deceased as merely as Rs.12,000/-. In support
of his contention, he has relied upon division bench
decision of this Court passed in MFA 3469/2019
disposed of 29.8.2019.
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 [2018 ACJ
2782], the Tribunal has rightly awarded
compensation of Rs.80,000/- under the head of 'loss
of filial consortium'.
Fourthly, considering the age and avocation of
the deceased, the overall compensation awarded by
the Tribunal 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 earning Rs.30,000/- 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, 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.
Fourthly, the interest awarded by the Tribunal at
9% p.a. on the compensation amount is on the higher
side. 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 Kiruba
Shankar 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 aged
about 22 years at the time of the accident and he has
completed B.Tech and he was earning Rs.30,000/- per
month by conducting tuitions. But they have not
produced any documents to prove the income of the
deceased. The Division Bench of this Court in MFA
3469/2019 disposed of on 29.8.2019, considering the
academics and co-curriculum achievements of the
deceased, who was an engineering student, has taken
the notional income of the deceased at Rs.15,000/-
p.m. while calculating the 'loss of dependency'. Even
as per the guidelines issued by the Karnataka State
Legal Services Authority, for the accident taken place
in the year 2019, the notional income of the deceased
has to be taken at Rs.14,000/- p.m. Therefore, in the
case on hand, considering the age of the deceased
and considering that deceased had completed B.Tech
and had a bright future, I am of the opinion that the
notional income of the deceased can be taken at
Rs.15,000/- p.m.
To the aforesaid income, 40% has been rightly
added by the Tribunal 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.21,000/-.
Since the deceased was a bachelor, the Tribunal has
deducted 50% of the income of the deceased towards
personal expenses and remaining amount has to be
taken as his contribution to the family. The deceased
was aged about 22 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.22,68,000/- (Rs.21,000*12*18*50%) on account
of 'loss of dependency'.
In addition, the Tribunal has rightly awarded
compensation of Rs.15,000/- on account of 'loss of
estate' and compensation of Rs.15,000/- on account
of 'funeral expenses'.
Further, in view of the law laid down by the
Supreme Court in the case of 'MAGMA GENERAL
INSURANCE' (supra), the Tribunal has rightly
awarded compensation of Rs.80,000/- 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 22,68,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 23,78,000
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.23,78,000/- as against
Rs.19,24,400/- awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest at 9%
p.a. (enhanced amount shall carry 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.
Sd/-
JUDGE
DM
