Karnataka High Court

Shanthamma vs K S Riyazuddin on 11 July, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JULY 2022

                    BEFORE

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

           MFA No.685 OF 2021(MV)
BETWEEN:

1.   SHANTHAMMA
     W/O. NAGAPPA
     AGED ABOUT 56 YEARS.

2.   NAGAPPA
     S/O. LATE HEGGAPPA
     AGED ABOUT 71 YEARS
     AGRICULTURIST.

3.   NAGAVENI
     D/O. NAGAPPA,
     AGED ABOUT 32 YEARS,
     ALL ARE RESIDING AT
     DANDINAKURUBARAHATTY VILLAGE
     CHITRADURGA TALUK-577 501.

4.   BHAGYAMMA
     W/O. GURUMURTHAPPA
     AGED ABOUT 36 YEARS
     HOUSEHOLD WORK
     R/AT MATADA KURUBARAHATTY VILLAGE
     CHITRADURGA TALUK-577 501.
                                  ...APPELLANTS

(BY SRI.R SHASHIDHARA, ADV.)
                         2




AND:

1.     K S RIYAZUDDIN
       S/O. M. K. SIRAJUDDIN
       AGE MAJOR
       R/O. BADA MAKHAN, HORAPET
       CHITRADURGA-577 501.

2.     THE MANAGER
       SRIRAM GENERAL INSURANCE
       COMPANY. LTD.,
       E/8 EPIP, RIICO
       SITAPURA, JAIPUR
       RAJASTHAN-302 022.

3.     H. Y. MAHESH
       S/O. HOSAYALLAPPA
       MAJOR
       RESDING AT
       DANDINAKURUBARAHATTY VILLAGE
       CHITRADURGA TALUK-577 501.

4.     THE BRANCH MANAGER
       RELIANCE GENERAL INSURANCE CO. LTD.,
       BRANCH OFFICE MAGANOOR
       BASAPPA COMMERCIAL COMPLEX
       NEAR K.S.R.T.C. BUS STAND
       B.D. ROAD,
       CHITRADURGA-577 501.
                                   ...RESPONDENTS

(BY SRI. B.C. SHIVANNE GOWDA, ADV. FOR R2:
    SRI. H.C BETSUR, ADV. FOR R4:
    NOTICE TO R1 & R3 ARE DISPENSED WITH
    V/O DATED: 11.07.2022)
                            3




     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
16.03.2016 PASSED IN MVC NO. 9/2014 ON THE FILE
OF THE IST ADDITIONAL SENIOR CIVIL JUDGE, IVTH
MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     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 dated 16.03.2016 passed

by the Motor Accident Claims Tribunal, Chitradurga in

MVC No.9/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 17.03.2013 at about 05.00

A.M., the deceased-Mylarappa for vegetable business

at Chitradurga boarded Auto bearing Registration

No.KA-16-A-2501 at D.K.Hally with other inmates.

Near Karnataka Poultry Form SH-48 road, D.K.Hally,

Chitradurga, the driver of the Lorry bearing

Registration No.KA-16-5518 parked on the road

without observing traffic rules and regulations, without

switching on indicator in reckless manner. At that

time, the driver of the Auto to give side to opposite

vehicle, turned and dashed against parked lorry. 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.2 and 4 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 further pleaded

that the quantum of compensation claimed by the

claimants is exorbitant. Hence, he sought for

dismissal of the petition.

The respondent Nos.1 and 3 did not appear

before the Tribunal inspite of service of notice and

hence were 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 got exhibited documents namely Ex.P1 to Ex.P12.

On behalf of respondents, two witnesses were

examined as RW-1 and RW-2 and got exhibited

documents namely Ex.R1 to Ex.R4. 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.11,43,000/- along with interest at the rate of

8% p.a. and directed respondent Nos.2 and 4 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 23 years at the time of the accident

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

working as a driver of Auto and doing vegetable

business. But the Tribunal is not justified in taking the

monthly income of the deceased as merely as

Rs.6,500/-.

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 allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Companies 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, in view of the law laid down by the

Constitution Bench of the Supreme Court in

NATIONAL INSURANCE CO. LTD. -v- PRANAY

SETHI AND OTHERS [AIR 2017 SC 5157], the

Tribunal instead of considering 40% of the income of

the deceased, has considered 50%.

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 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 Mylarappa died in

the road traffic accident occurred due to rash and

negligent driving of the offending vehicles by its

drivers bearing Registration Nos.KA-16-A-2501 and

KA-16-5518.

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 2013, the notional

income of the deceased has to be taken at Rs.8,000/-

p.m.

Since the deceased was aged about 23 years, 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. -v- PRANAY

SETHI AND OTHERS [AIR 2017 SC 5157]. Thus, the

monthly income comes to Rs.11,200/-. Since the

deceased was a bachelor as on the date of the

accident, it is appropriate to deduct 50% of the

income of the deceased towards personal expenses

and therefore, the monthly income comes to

Rs.5,600/-. The deceased was aged about 23 years at

the time of the accident and multiplier applicable to

his age group is '18'. Thus, the claimants are entitled

to compensation of Rs.12,09,600/- (Rs.5,600*12*18)

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 Nos.1 and 2, parents of the

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

each 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                   12,09,600
         Funeral expenses                        15,000
         Loss of estate                          15,000
         Loss of Filial consortium               80,000
                         Total               13,19,600

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.13,19,600/- as against

Rs.11,43,000/- 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.

Respondent No.2/Sriram General Insurance

Company is directed to deposit 75% of the

compensation amount and respondent No.4/Reliance