Karnataka High Court

Smt Krishnamma vs M/S Balaji Stone Crusher on 6 July, 2022

Bench: H T Prasad

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 6TH DAY OF JULY 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.2432 OF 2021(MV)

BETWEEN:

1.     Smt. Krishnamma,
       W/o Late Munikrishna,
       D/o Gurappa,
       Aged about 37 years.

2.     Kum. Bhanupriya,
       D/o Late Munikrishna,
       Aged about 15 years.

3.     Master Ranjith Kumar,
       S/o Late. Munikrishna,
       Aged about 13 years.

       Appellant Nos. 2 & 3 are Minors
       Rep. by their natural guardian,
       Smt. Krishnamma.                  ... Appellants

(By Sri.Kailas Shankar P.S., Advocate)

AND:

1.     M/s. Balaji Stone crusher,
       Rep. by its Manager, Keshavamuthy,
       Tekal Hobli, Malur Taluk.

2.     The Manager,
       HDFC ERGO General Insurance Co ltd.,
       Regional Office No.25/1,
                            2



     2nd Floor building No.2,
     Shankaranarayana Building
     M.G.Road, Bangalore-560 001.      ... Respondents

(By Sri.B.Pradeep Advocate For R2:
Notice to R1 is D/W v/o dated: 30.07.2021)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:09.03.2021 passed
in MVC No.4833/2018 on the file of the I Additional Small
Causes Judge and MACT, Bengaluru SCCH-11, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for admission, this day, this
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 09.03.2021 passed

by the I Additional Small Causes Judge & MACT,

Bengaluru in MVC No.4833/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 03.07.2018 at about 05.00

P.M., the deceased-Munikrishna along with pillion rider

was proceeding towards Malur from Bangarpet on a

TVS Jupiter Scooter, ridden by one Munikrishna slowly

and cautiously by observing all the traffic rules and

regulations, when they reached near Rampura Gate,

on Bangarpet-Tekal-Malur road, the driver of the

tipper lorry bearing Registration No.KA-53-D-3488

came from opposite side with high speed and in a rash

and negligent manner, dashed against the Tata Ace

and in turn TVS Jupiter Scooter and dragged both Tata

Ace and Scooter for a distance of ten feet. 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 respondent

Nos.1 and 2 have appeared through counsel and filed

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

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.P19. On behalf of

respondents, two witnesses were examined as RW-1

and RW-2 and got exhibited documents namely Ex.R1

to Ex.R3. 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.16,76,500/-

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. Sri Kailas Shankar P.S., the learned

counsel for the claimants has raised the following

contentions:

Firstly, the claimants claim that the deceased

was aged about 36 years at the time of the accident

and he was earning Rs.20,000/- per month by

working as a driver. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.8,500/-.

Secondly, 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], each of the claimants are entitled for

compensation of Rs.40,000/- under the head of 'loss

of love and affection and consortium'.

Thirdly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for enhancement of

compensation.

7. On the other hand, Sri B.Pradeep, 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, 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.

Thirdly, in view of judgment of the Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters disposed of

on 24.8.2020), the claimants are entitled for 6%

interest but the Tribunal has granted 9% interest

which is on the higher side. Hence, he sought for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that deceased

Munikrishna 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 2018, the notional

income of the deceased has to be taken at

Rs.12,500/- 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 NATIONAL INSURANCE CO. LTD. vs. PRANAY

SETHI AND OTHERS reported in AIR 2017 SC

5157. Thus, the monthly income comes to

Rs.17,500/-. 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.,13,125/- has to be taken as

his contribution to the family. The deceased was aged

about 36 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.23,62,500/- (Rs.13,125*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, mother of the

deceased is entitled for compensation of Rs.40,000/-

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               23,62,500
       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               25,52,500

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.25,52,500/- as against

Rs.16,76,500/- awarded by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE (supra)', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest at 9%

p.a. (the enhanced compensation shall carry interest