Karnataka High Court

Smt Yashodamma vs Sri Somashekar B S on 19 July, 2022

Bench: H T Prasad

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 19TH DAY OF JULY 2022

                           BEFORE

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

                 MFA No.1349 OF 2021(MV)

BETWEEN:

1.     Smt. Yashodamma,
       Aged about 52 years,
       W/o Shivanna.

2.     Shivanna,
       Aged about 55 years,
       S/o Putteboregowda.

       Both are R/at C/o
       Hotel Vasanthamma,
       Kodiyala Village,
       Arakere Hobli,
       Srirangapatna Taluk,
       Mandya District-571401.         ... Appellants

(By Sri. Gireesha S.N., Advocate for
Sri. Manjunath N.D., Advocate)

AND:

1.     Sri. Somashekar B.S.,
       S/o Subbegowda,
       Aged about 45 years,
       R/at Ballenahalli Village,
       Bukanakere Hobli,
       Krishnarajapet Taluk,
       Mandya District-571401.
                              2



2.   The Manager,
     Reliance General Insurance Co. Ltd.,
     Mysore Trade Towers,
     In front of KSRTC Bus Stand,
     Mysore-Bangalore Road,
     Mysore-560 001.                    ... Respondents

(By Lakshminarayana C., Advocate for R2:
Notice to R1 is D/W v/o dated: 19.07.2022)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:13.03.2020 passed
in MVC No.515/2017 on the file of the Principal Senior Civil
Judge & Member MACT, Srirangapatana, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for orders, 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 13.03.2020 passed

by the Senior Civil Judge and Motor Accident Claims

Tribunal, Srirangapatana, in MVC No.515/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 28.10.2016 at about 10.00

p.m. the deceased Balagangadhara was proceeding on

motorcycle bearing registration No.KA-11/EA-2685 as

a pillion rider. When they reached near Leelavathi

Extensin on Mysore - Bangalore road, Maddur Town,

at that time, a tempo bearing registration No.KA-

17/B-0100 was being driven in a rash and negligent

manner, dashed against the motorcycle. As a result

of the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries at 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

Nos.1 and 2 appeared through counsel and filed

separate written statements 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 quantum of compensation claimed by the

claimants is exorbitant. Hence, they sought for

dismissal of the petition.

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.P19. On

behalf of respondents, two witnesses were examined

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

namely Ex.R1 to Ex.R3. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent

riding/driving of the offending vehicle by its

rider/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.10,70,000/- and directed the

Insurance Company to deposit 80% of the total

compensation amount, i.e., Rs.8,56,000/- along with

interest at the rate of 9% p.a. Being aggrieved, this

appeal has been filed.

6. Sri Manjunath, the learned counsel for the

claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.30,000/- per month by working in a

garments as well as doing agriculture. But the

Tribunal is not justified in taking the monthly income

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

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 enhancement of

compensation.

7. On the other hand, Sri Lakshminarayana,

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.30,000/- 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, 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 law laid down by a

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 rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that Balagangadhara

died in the road traffic accident occurred due to

contributory negligence of the deceased at 20% and

the driver of the offending vehicle at 80%.

The claimants claim that deceased was earning

Rs.25,000/- per month by working in a garment and

doing agriculture. They have produced the salary

certificate as per Ex.P7 to 11 to show that the

claimant was earning Rs.7,099/-. But they have not

produced any documents to prove the agriculture

income of the deceased. 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. A Division Bench of this Court in MFA

No.1863/2017 disposed of on 23.06.2020 has held

that this Court while exercising the power under Rule

33 of CPC can consider the notional income as per the

guidelines issued by the Karnataka Legal Services

Authority. Accordingly, the monthly income of the

deceased has to be assessed as Rs.9,500/-. 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. vs. PRANAY

SETHI AND OTHERS reported in AIR 2017 SC

5157. Thus, the monthly income comes to

Rs.13,300/-. Since the deceased was a bachelor, it is

appropriate to deduct 50% of the income of the

deceased towards personal expenses and remaining

amount, i.e., Rs.6,650/- has to be taken as his

contribution to the family. The deceased was aged

about 30 years at the time of the accident and

multiplier applicable to his age group is '17'. Thus,

the claimants are entitled to compensation of

Rs.13,56,600/- (Rs.6,650*12*17) 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                 13,56,600
         Funeral expenses                      15,000
         Loss of estate                        15,000
         Loss of Filial consortium             80,000
                         Total             14,66,600

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.14,66,600/- as against

Rs.10,70,000/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

80% of the compensation amount, i.e.,

Rs.11,73,280/- along with interest @ 9% p.a.

(interest @ 6% p.a. on the enhanced compensation)