Karnataka High Court

Smt Laxmi vs Parvathamma on 14 July, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF JULY 2022

                    BEFORE

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

          MFA No.4148 OF 2021(MV)

BETWEEN

1.   SMT LAXMI
     W/O LATE MAHADEVA
     AGED 25 YEARS.

2.   KUM CHARULATHA
     D/O LATE MAHADEVA
     AGED ABOUT 7 YEARS,

3.   LOKESH
     S/O LATE MAHADEVA
     AGED 5 YEARS

4.   SMT. MANIYAMMA
     W/O LAKKEGOWDA
     AGED 55 YEARS

5.   SRI LAKKEGOWDA
     S/O LATE KARIGOWDA
     AGED 60 YEARS

     ALL ARE R/AT 4TH BLOCK
     JANATHA EXTENSION
     GANDANAHALLI VILLAGE
                          2




      K R NAGAR TALUK
      MYSORE DIST - 571 603.
                                    ...APPELLANTS

(BY SRI. PRITHVI RAJ B N., ADV.)

AND

1.    PARVATHAMMA
      W/O D D KUMARA
      AGED 50 YEARS
      R/AT KARGAYYA KOPPALAU VILLAGE
      GALIGEKERE POST
      K R NAGAR TALUK
      MYSURU - 571 601.

2.    THE MANAGER
      SHRIRAM GENERAL INSURANCE CO LTD.,
      NO. 5/14
      III FLOOR, S V ARCADE
      BILIKALLI MAIN ROAD
      M B POST, BENGALURU - 560 076.

                                   ...RESPONDENTS

(BY SRI.B.C. SHIVANNE GOWDA, ADV. FOR R2:
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THEJUDGMENT AND AWARD DATED
29.07.2019 PASSED IN MVC NO.142/2016 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC K R
NAGAR, THE PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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     THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimants being aggrieved

by the judgment dated 29.7.2019 passed by MACT,

K.R.Nagara in MVC 142/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.12.2015, when the

deceased Mahadeva was proceeding on his motorcycle

towards Hassan Mysuru road near Kakanahalli cross,

at that time, a lorry bearing registration No.KA-01-C-

6695 which was being driven 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.

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 two witnesses as PWs-2 and 3 and got exhibited

documents namely Ex.P1 to Ex.P13. On behalf of

respondents, neither any witness was examined nor

any document was 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.16,06,200/- along with interest at the rate of 9%

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 31 years at the time of the accident

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

working as Computer Operator and produced Ex.P-8

and 12, certificates issued by the employer. But the

Tribunal is not justified in taking the monthly income

of the deceased as merely as Rs.7,000/-.

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

40% of the established income towards 'future

prospects' should be the warrant where the deceased

was below the age of 40 years. The same has been

rightly considered by the Tribunal.

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, 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.10,000/- per month and

produced Ex.P-8 and 12, certificates issued by the

employer, they have not examined the employer.

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, in view of the Division Bench decision

of this Court in the case of Ms.Joyeeta Bose and

others -v- Venkateshan.V and others (MFA

5896/2018 and connected matters disposed of

on 24.8.2020), the rate of interest granted by the

Tribunal at 9% 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 Mahadeva

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 and produced Ex.P-8 and 12,

certificates issued by the employer. But they have not

examined the employer. 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.7,000/- p.m.

To the aforesaid income, 40% has been rightly

added by the Tribunal 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.12,600/-.

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 31 years at the

time of the accident and multiplier applicable to his

age group is '16'. Thus, the claimants are entitled

to compensation of Rs.18,14,400/-

(Rs.12,600*12*16*3/4) 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 and 3, children

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of parental

consortium' and claimant Nos.4 and 5, 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             18,14,400
       Funeral expenses                  15,000
       Loss of estate                    15,000
       Loss of spousal                   40,000
       consortium
       Loss of Parental                    80,000
       consortium
       Loss of Filial consortium          80,000
                       Total          20,44,400

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.20,44,400/- as against

Rs.16,06,200/- awarded by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest at 9%

p.a. (enhanced amount shall carry interest at 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.

In view of the order dated 14.7.2022 passed by