Karnataka High Court

Thimmaiah vs H N Puppannashetty 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.2925 OF 2019(MV)

BETWEEN:

1.    THIMMAIAH
      S/O DODDA YELLAPPA
      AGED ABOUT 56 YEARS.

2.    SANTHOSH
      S/O THIMMAIAH
      AGED ABOUT 37 YEARS.

3.    ANANDA
      S/O THIMMAIAH
      R/AT SARASWATHIPURA VILLAGE
      KADUR TALUK,
      CHIKKAMAGALURU DISTRICT-577 101
                                   ...APPELLANTS

(BY SRI.GREESHA S.N., ADV. FOR
SRI.MANJUNATH N D., ADV.)

AND

1.    H N PUPPANNASHETTY
      S/O MANJAPPA SHETTY
      R/AT AMRUTHESHWARA NILAYA
                            2



      ALDUR AT POST, HOSAHALLI
      CHIKKAMAGALUR TALUK & DISTRICT.

2.    THE MANAGER
      UNITED INDIA INSURANCE
      COMPANY LTD.,
      BRANCH OFFICE
      CRESCENT COURT
      1ST FLOOR,K.M.ROAD
      CHIKKAMAGALURU-577 101.
                                       ...RESPONDENTS
(BY SRI.S.V. HEGDE MULKHAND, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:22.02.2018 PASSED IN MVC NO.126/2015 ON
THE FILE OF THE SENIOR CIVIL JUDGE, MMACT,
KADUR, CHIKKAMGALU DISTRICT, 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 dated 22.02.2018 passed

by the Motor Accident Claims Tribunal, Kadur,

Chikkamagalur District in MVC No.126/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 28.07.2014 at about 10.45

a.m., the deceased-Vasanthamma as a pillion rider

was proceeding on a motorcycle bearing Registration

No.KA-18/EA-2031 and the same was ridden by one

Vijay in a moderate speed towards Kadur. At that

time, the driver of the Maruthi Omni Car bearing

Registration No.KA.18/N 4822 drove the same in a

rash and negligent manner and dashed to the right

side of the motorbike. 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. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was due to the rash

and negligent riding of the motorcycle by the rider

himself. The rider of the motorcycle did not possess

valid driving licence as on the date of the accident.

The liability is subject to terms and conditions of the

policy. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the

petition.

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.P15. On behalf of

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R12. 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.6,89,000/- along with interest at

the rate of 7% 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 50 years at the time of the accident

and she was earning Rs.10,000/- per month by doing

agriculture and vending vegetable. But the Tribunal is

not justified in taking the monthly income of the

deceased as merely as Rs.6,000/-.

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

10% of the established income towards 'future

prospects' should be the warrant where the deceased

was aged between the age group of 50-60 years. The

same may be considered.

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], 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, 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.10,000/- 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, the Tribunal

has rightly not granted any 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.

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 7% interest is on the

higher side. Hence, he prays for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that Vasanthamma 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.10,000/- 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.

Since the deceased was aged more than 50

years, to the aforesaid income, 10% 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.9,350/-. The Tribunal has rightly

deducted 1/3rd of the income of the deceased towards

personal expenses and therefore, the monthly income

comes to Rs.6,234/-. The Tribunal has also rightly

considered the multiplier applicable to the age group

of the deceased as '13'. Thus, the claimants are

entitled to compensation of Rs.9,72,504/-

(Rs.6,234*12*13) 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'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimant No.1, wife of the deceased is

entitled for compensation of Rs.40,000/- under the

head of 'loss of spousal consortium', 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'.

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under           Amount in
           different Heads             (Rs.)
       Loss of dependency               9,72,504
       Funeral expenses                   15,000
       Loss of estate                     15,000
       Loss of spousal                    40,000
       consortium
       Loss of Parental                     80,000
       consortium
                      Total           11,22,504

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.11,22,504/- as against

Rs.6,89,000/- awarded by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 7%

p.a. (the enhanced compensation shall carry interest