Karnataka High Court
Smt Nagamma vs Shri Ranganatha R on 8 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.4715 OF 2020(MV)
BETWEEN:
1. Smt. Nagamma,
W/o Late Swamy,
Aged about 39 years.
2. Master Yogesha,
S/o Late Swamy,
Aged about 17 years.
Since Minor Rep. by mother
Appellant No.1.
3. Shri. Premkumar,
S/o Late Swamy,
Aged about 26 years.
4. Shri. Hemanthakumar,
S/o Late Swamy,
Aged about 34 years.
All are residing at Galipura,
Chamarajanagara Taluk,
Now R/a C/o Prabhudas,
P.G.Palya, Kollegal Taluk,
Chamarajanagara-571313. ... Appellants
(By Sri. Sanath Kumara K.M., Advocate)
2
AND:
1. Shri. Ranganatha R.,
S/o Late Ramu,
Major,
No.16/58, Railway Extension,
2nd Cross, Chamaraja Nagara-571313.
2. HDFC ERGO General Insurance
Company Ltd.,
II floor, Mysore Trade Centre,
Opp: KSRTC bus Stand,
B.N.Road, Mysuru-570001. ... Respondents
(By Sri. D.Vijaya Kumara., Advocate for R2:
Notice to R1 is served and unrepresented)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:30.01.2020 passed
in MVC No.133/2016 on the file of the Senior Civil Judge &
JMFC & MACT, Kollegal, 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 30.01.2020 passed
by the Senior Civil Judge and JMFC & MACT, Kollegala,
in MVC No.133/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 04.10.2015 the deceased
Swamy was proceeding on TVS Moped bearing
registration No.KA-10/H-4927 from Kannegala village
to Chamarajanagara on Chamarajanagara -
Santhemaralli road. When he reached near newly
constructed bridge in Jalahalli Hundi Village on the left
side of the road, at that time, a motorcycle bearing
registration No.KA-11/H-0695 which was being ridden
in a rash and negligent manner, dashed against the
deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed
to the injuries on the way to the hospital.
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 age, occupation and income
of the deceased are 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 moped by the
deceased himself. It was further pleaded that the
driver of the offending vehicle did not possess valid
driving licence as on the date of the accident. It was
further pleaded that the liability is subject to terms
and conditions of the policy. 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 other two witnesses as PW-2 and PW-3 and got
exhibited documents namely Ex.P1 to Ex.P7. 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 riding of the
offending vehicle by its rider, 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.9,41,200/- along
with interest at the rate of 6% p.a. and directed the
Insurance Company to deposit the compensation
amount along with interest. Being aggrieved, this
appeal has been filed.
6. Sri Sanath Kumara K.M., the learned
counsel for the claimants has raised the following
contentions:
Firstly, the claimants claim that the deceased
was earning Rs.15,000/- per month by working as a
beedi roller. But the Tribunal is not justified in taking
the monthly income of the deceased as only
Rs.8,000/-.
Secondly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. Vs. NANU RAM reported in
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 allowing the appeal.
7. On the other hand, Sri D.Vijayakumar, 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.15,000/- 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.
Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that Swamy 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.15,000/- 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 2015, the notional
income of the deceased has to be taken at Rs.9,000/-
p.m. To the aforesaid income, the Tribunal has rightly
added 10% 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.9,900/-. Since there are 4 dependents, it is
appropriate to deduct 1/4th of the income of the
deceased towards personal expenses and remaining
amount, i.e., Rs.7,425/- has to be taken as his
contribution to the family. The deceased was aged
about 54 years at the time of the accident and
multiplier applicable to his age group is '11'. Thus,
the claimants are entitled to compensation of
Rs.9,80,100/- (Rs.7,425*12*11) 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 to 4, 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 9,80,100
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 1,20,000
consortium
Total 11,70,100
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.11,70,100/- as against
Rs.9,41,200/- awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest @ 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
Cm/-
