Karnataka High Court
Gowramma vs Chandrika Devaru on 15 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.652 OF 2021(MV)
BETWEEN:
1. GOWRAMMA
W/O LATE THIMMAPPA
AGED 57 YEARS
2. T UMESH
S/O LATE THIMMAPPA
AGED 40 YEARS
BOTH ARE R/O KODIHALLI VILLAGE
KASABA HOBLI
TIPTUR TALUK
TUMKUR DISTRICT-572201.
...APPELLANTS
(BY SRI. GIREESHA N.D., ADV. FOR
SRI.MANJUNATH N D., ADV.)
AND
1. CHANDRIKA DEVARU
W/O LATE ANANDAKUMAR T C
AGED ABOUT 47 YEARS
WORKING AS MANAGER
2
AT NANO CARMAL LTD.
45TH CROSS, 8TH BLOCK
JAYANAGARA BENGALURU CITY
RESIDING AT 2089
24 A CROSS, KARISANDRA
BANASHANKARI 2ND STAGE
BENGALURU 563139.
2. THE MANAGER
TATA AIG GENERAL INSURANCE
CO LTD.
5TH FLOOR, WEST ENTRANCE
KHANIJA BHAVAN
RACE COURSE ROAD
BENGALURU 560001.
...RESPONDENTS
(BY SRI.S.V. HEGDE MULKHAND, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 22.03.2021)
THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.31.08.2019 PASSED IN MVC NO.431/2017 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR,
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:
3
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
31.8.2019 passed by the Senior Civil Judge and JMFC,
Tiptur in MVC 431/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 17.11.2016, when the
deceased Thimmappa was proceeding on his Bajaj
Discovery Motor bike bearing registration No.KA-44-L-
0557 on the left side of the road from Tiptur town
towards Hassan Circle, at that time, a car bearing
registration No.KA-05-MC-7215 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 respondents
appeared through their counsel and filed written
statements in which the averments made in the
petition were denied.
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.P9. 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.4,40,000/- 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 60 years at the time of the accident
and he was earning Rs.20,000/- per month by
working as agricultural work. But the Tribunal is not
justified in taking the monthly income of the deceased
as merely as Rs.4,500/-.
Secondly, 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.20,000/- 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, the compensation awarded by the
Tribunal under the head of 'loss of love and affection'
is on the higher side and contrary to law laid down by
the Hon'ble Apex Court in the case of MAGMA
GENERAL INSURANCE CO. LTD. -V- NANU RAM
[2018 ACJ 2782],.
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
Thimmappa 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 2016, the notional
income of the deceased has to be taken at Rs.9,500/-
p.m.
Considering the number of dependents, the
Tribunal has rightly deducted 1/3rd 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 60 years
at the time of the accident and multiplier applicable
to his age group is '9'. Thus, the claimants are
entitled to compensation of Rs.6,84,000/-
(Rs.9,500*12*9*2/3) 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 No.2, son of the
deceased are entitled for compensation of Rs.40,000/-
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 684,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 40,000
consortium
Total 794,000
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.794,000/- as against
Rs.440,000/- 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.
Sd/-
JUDGE
DM
