Madhu Priya vs Balaji Stone Crusher
2022 Latest Caselaw 10373 Kant

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     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.5285 OF 2020(MV)
BETWEEN:

1.     Madhu Priya,
       W/o Late Ravindra Kumar
        @ Ravindra,
       Aged about 24 years.

2.     R. Pranathi,
       D/o Late Ravindra Kumar
       @ Ravindra,
       Aged about 3 years,

       Since minor rep. by natural
       Guardian mother Appellant No.1.

3.     Sri. Appaiah,
       S/o Late Krishnappa,
       Aged about 57 years.

4.     Smt. Nagamani,
       W/o Appaiah,
       Aged about 52 years.

5.     Sri. Sunil,
       S/o Appaiah,
       All are residing at
       Hulimangala Hoskote Village,
       Lakkur Hobli, Malur Taluk,
       Kolar District.                   ...Appellants

(By Sri. Kailash SHankar P.S., Advocate)
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AND:

1.     Balaji Stone crusher,
       Harada Kothur Village,
       Tekal Hobli, Malur Taluk,
       Kolar District-562104
       Represented by its Proprietor.

2.     The Manager,
       HDFC ERGO General Insurance Co ltd.,
       Regional Office No.25/1,
       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: 30.06.2022)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:06.12.2019 passed
in MVC No.4617/2018 on the file of the XIX Additional
Judge and Member, MACT, Court of Small Causes
Bengaluuru, SCCH-17, 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 06.12.2019 passed

by the XIX Additional Judge & Member, MACT, Court

of Small Causes, Bengaluru in MVC No.4617/2018.

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-Ravindra Kumar was proceedings

towards Malur from Bangarpet as a pillion rider 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.P16. On behalf of

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R5. 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.17,96,500/- along with interest at

the rate of 8% 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, the learned counsel for

the claimants has raised the following contentions:

Firstly, the claimants claim that at the time of

the accident deceased was earning Rs.18,000/- per

month by working as a mason. But the Tribunal is not

justified in taking the monthly income of the deceased

as merely as Rs.8,500/-.

Secondly, the date of birth of the deceased is

06.09.1994 and the same is evident from the school

records which is produced as Ex.P15 and also in the

Aadhar card which is produced as Ex.P16 the year of

birth is mentioned as 1994. Even as per the

postmortem report at Ex.P6, the age of the deceased

is mentioned as 25 years. The Tribunal only on the

basis of Election ID card wherein the date of birth of

the deceased has been mentioned as 05.04.1980 has

taken the age as 38 years. 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.18,000/- 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, it is very clear from the Election ID

card which is produced as Ex.P14 wherein the date of

birth of the deceased is mentioned as 05.04.1980.

Considering the same, the Tribunal has rightly

assessed the age of the deceased as 38 years.

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.

Lastly, 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 8% interest 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 Ravindra

Kumar 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.18,000/- 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 5 dependents, the

Tribunal has rightly deducted 1/4th of the income of

the deceased towards personal expenses and

remaining amount, i.e, Rs.13,125/- has to be taken

as his contribution to the family.

In respect of the age of the deceased is

concerned, as per the evidence of PW-1 he was born

on 06.09.1994, at the time of the accident he was

aged about 24 years. Even as per school records

which is produced as Ex.P15, the date of birth of the

deceased is mentioned as 06.09.1994. In the Aadhar

card, the year of birth of the deceased is mentioned

as 1994. Even in the postmortem report, the age of

the deceased is mentioned as 25 years. Considering

the evidence of PW-1 and considering the aforesaid

documents, I am of the opinion that at the time of the

accident deceased was aged about 25 years and

multiplier applicable to his age group is '18'. Thus,

the claimants are entitled to compensation of

Rs.28,35,000/- (Rs.13,125*12*18) on account of 'loss

of dependency' instead of Rs.16,06,500/- awarded by

the Tribunal.

In respect of compensation awarded by the

Tribunal on the other heads is concerned, the same is

just and reasonable.

10. In the result, the appeal is allowed in part.

The judgment of the Claims Tribunal is modified.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (interest @ 6% p.a. on the enhanced

compensation) 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/-