Karnataka High Court
Mr K Chandrashekar vs National Insurance Co Ltd 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.469 OF 2020(MV)
BETWEEN:
1. MR K CHANDRASHEKAR
S/O CHINNABBA ODEYAR
AGED ABOUT 54 YEARS.
2. SMT.PUSHPALATHA
W/O K. CHANDRASHEKAR
AGED ABOUT 49 YEARS
BOTH ARE R/AT NO.214
21ST CROSS, 14TH MAIN
KUMARSWAMY LAYOUT
BENGALURU-560078.
...APPELLANTS
(BY SRI. K.T.GURUDEVA PRASAD., ADV.)
AND
1. NATIONAL INSURANCE CO LTD
TP CLAIMS HUB
NO. 144-145, 2ND FLOOR
SHUBARAM COMPLEX
M G ROAD
2
BENGALURU 560001
REP BY ITS MANAGER.
2. MR. RAMACHANDRA V
S/O DORESWAMY REDDY
NO.89, 1ST MAIN
1ST CROSS, BALAJI LAYOUT
SUBRAMANYAPURA POST
UTTARAHALLI
BENGALURU-560061.
...RESPONDENTS
(BY SRI. ASHOK N PATIL, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED: 17.06.2022)
THIS MFA IS FILED U/S.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DT.26.02.2019
PASSED IN MVC NO.5339/2017 ON THE FILE OF THE
V ADDITIONAL SMALL CAUSES JUDGE AND XXIV
ACMM, MEMBER, MACT, BENGALURU (SCCH-20),
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 and award dated
26.2.2019 passed by the Motor Accident Claims
Tribunal, Bengaluru in MVC 5339/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 23.7.2017, when the
deceased Kavitha C was proceeding in Maruthi Van
bearing registration No.KA-02-Z-9248 on Vellore-
Ambur NH Road, at that time, the driver of the said
car drove the same in a rash and negligent manner,
the front tyre of the car got burst, he lost control and
dashed to the median and the car toppled. As a result
of the aforesaid accident, the deceased sustained
grievous injuries and succumbed to the injuries on
11.8.2017.
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.1 appeared through counsel and filed written
statement in which the averments made in the
petition were denied.
The respondent No.2 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.P21. On behalf of
respondents, two witnesses were examined as RWs-1
and 2 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 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.16,45,651/-
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 23 years at the time of the accident
and she was earning Rs.15,000/- per month by
working as a Computer Operator at Om Shakthi
Industries and produced Ex.P18, Salary certificate. But
the Tribunal is not justified in taking the monthly
income of the deceased as merely as Rs.7,000/-. Even
as per the guidelines issued by the Karnataka State
Legal Services Authority, for the accident taken place
in the year 2017, the notional income of the deceased
has to be taken at Rs.11,000/- p.m. In support of his
contention, he has relied upon the Division Bench
judgment of this Court in MFA 1863/2012 disposed of
23.6.2020.
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, the claimants claim that the deceased
was earning Rs.15,000/- per month by working as a
Computer Operator at Om Shakthi Industries and
produced Ex.P18, Salary certificate. The salary
certificate is only in respect of Rs.7,800/-. They have
not produced any other documents to show that she
was earning Rs.15,000/- p.m. Therefore, the Tribunal
has rightly assessed the income of the deceased
notionally at Rs.7000/- p.m.
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
Kavitha.C. 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 by working as a Computer
Operator at Om Shakthi Industries and produced
Ex.P18, Salary certificate and even though the salary
certificate is only in respect of Rs.7,800/- p.m., in
addition, she was earning Rs.15,000/-. The claimants
except producing Ex.P-18, they have not produced
any other documents to prove the income of the
deceased. The Division Bench of this Court in MFA
1863/2017 disposed of on 23.6.2020 has held that
even though if the income pleaded by the claimants is
far less than the notional income, this Court can
exercise power under Order 41 Rule 33 of CPC and
award just and reasonable compensation. 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 2017, the notional
income of the deceased has to be taken at
Rs.11,000/- p.m.
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 'PRANAY SETHI' (supra). Thus, the monthly
income comes to Rs.15,400/-. Since the deceased
was a spinster, it is appropriate to deduct 50% 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 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.16,63,200/- (Rs.15,400*12*18*50%) 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), claimants, 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 16,63,200
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Medical expenses 557,251
Total 23,30,451
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.23,30,451/- as against
Rs.16,45,651/- 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
