Karnataka High Court
Smt Asha H N vs Ningaraju on 7 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.177 OF 2020(MV)
BETWEEN:
1. SMT ASHA H N
W/O LATE NAGESHA
AGE 33 YEARS.
2. PRIYANKA H N
D/O LATE NAGESHA
AGED ABOUT 14 YEARS.
3. DRUTHI H N
D/O LATE NAGESHA
AGED ABOUT 6 YEARS.
APPELLANT Nos. 2 & 3 ARE MINORS
REPT BY THEIR NATURAL GUARDIAN
MOTHER APPELLANT No.1
4. SHANKARALINGE GOWDA
S/O LATE NANJAPPAGOWDA
AGED ABOUT 59 YEARS.
5. SMT.PUTTATHAYAMMA
W/O SHANKARALINGE GOWDA
AGED ABOUT 51 YEARS
2
ALL ARE R/AT HIRISAVE VILLAGE
AT POST AND HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT.
...APPELLANTS
(BY SRI.HALESHA R G., ADV.)
AND
1. NINGARAJU
S/O BOREGOWDA
MUDDANAHALLI VILLAGE
DODDAMAGGE HOBLI
ARKALAGUDU TALUK
HASSAN DISTRICT.
2. SHRIRAM GENERAL INSURANCE
COMPANY LTD.,
REGIONAL OFFICE NO.14
2ND FLOOR, MONARCH CHAMBER
INFANTRY ROAD
BENGALURU-01.
...RESPONDENTS
(BY SRI.H.N. KESHVA PRASHANTH, 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
09.05.2019 PASSED IN MVC NO.2085/2018 ON THE
FILE OF THE JUDGE, COURT OF SMALL CAUSES,
MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU
(SCCH-09), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
3
THIS MFA COMING ON FOR ORDERS, 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 9.5.2019
passed by the Motor Accident Claims Tribunal,
Bengaluru in MVC 2085/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 15.3.2018, when the
deceased Nagesha was riding motorcycle bearing
registration No.KA-13-Q-3621 on NH-75, Hassan to
Bengaluru service road, near public toilet, Hirisae
town, Channarayapatna, at that time, a swift car
bearing registration No.KA-13B-934 which was being
driven in a rash and negligent manner, dashed against
the motorcycle 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 respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied.
The respondent No.1 did not appear before the
Tribunal inspite of service of notice and hence was
placed ex-parte.
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.P17. On behalf of
respondents, one witness was examined as RW-1 and
no document is 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.16,47,416/- 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. The learned counsel for the claimants has
raised the following contentions:
Firstly, the claimants claim that the deceased
was aged about 45 years at the time of the accident
and he was earning Rs.40,000/- per month by running
Prajwal Daba. But the Tribunal is not justified in taking
the monthly income of the deceased as merely as
Rs.9,000/-.
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
25% of the established income towards 'future
prospects' should be the warrant where the deceased
was between the age group of 40-50 years. The same
has been rightly considered by the Tribunal.
Thirdly, 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.40,000/- 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
8% 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 Nagesha
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.40,000/- 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.
The Tribunal has rightly considered addition of
25% to the income of the deceased 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.15,625/-. Considering the number of dependents,
the Tribunal has rightly deducted 1/4th 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 45 years
at the time of the accident and multiplier applicable
to his age group is '14'. Thus, the claimants are
entitled to compensation of Rs.19,68,750/-
(Rs.15,625*12*14*3/4) on account of 'loss of
dependency'.
In addition, the Tribunal has rightly awarded
compensation of Rs.15,000/- on account of 'loss of
estate', compensation of Rs.15,000/- on account of
'funeral expenses', compensation of Rs.40,000/- to
claimant No.1 under the head of 'loss of spousal
consortium' and compensation of Rs.160,000/-
(Rs.40,000x4) under the head of 'loss of consortium'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,68,750
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of consortium 1,60,000
(Rs.40,000*4)
Total 21,98,750
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.21,98,750/- as against
Rs.16,47,416/- awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest at 8%
(enhanced amount shall carry interest at 6% p.a.)
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
