Karnataka High Court

Smt. Pushpa vs The Manager 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.425 OF 2020(MV)

BETWEEN:

1.     Smt. Pushpa,
       W/o Shivanna,
       Aged about 41 years.

2.     Sonika S.,
       D/o Late Shivanna,
       Aged about 18 years.

       Both are Residing at:
       Dundanahalli,
       Maddur Taluk,
       Mandya District.                    ... Appellants

(By Sri. Ananda K.S., Advocate)

AND:

1.     The Manager,
       United India Insurance Co. Ltd.,
       5th and 6th Floor,
       Krushi Bhavan Building,
       Hudson Circle,
       Bengaluru-560 001.

2.     Mr. Srinivasa V.,
       S/o Venkataravanappa,
       R/at Pathapalya Village and Post,
       Bagepalli Taluk,
                             2



     Chikkaballapura District.           ... Respondents

(By Sri. P.B.Raju, Advocate for R1:
Notice to R2 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:9.07.2019 passed
in MVC No.6781/2018 on the file of the XVI Additional.
Judge court of Small Causes, Member MACT, Bengaluru,
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 09.07.2019 passed

by the Motor Accident Claims Tribunal, Bengaluru City,

SCCH-15 in MVC No.6781/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 13.10.2018 at about 12.30

p.m. the deceased Sachin was proceeding on his

motorcycle bearing registration No.KA-11/EF-6927 as

a pillion rider. When they reached Muthanallur circle,

Chandapura road, near Ramasagara village, at that

time, a Eicher lorry bearing registration No.KA-

40/8658 which 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 spot.

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 another witness as PW-2 and got exhibited

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

respondents, neither any witness was examined nor

got exhibited documents. 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.14,11,000/- along with interest at the rate of 7%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Ananda K.S., the learned counsel for

the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.17,500/- per month by working as a

Assistant Cashier at Green Park Bar and Restaurant.

But the Tribunal is not justified in taking the monthly

income of the deceased as only Rs.9,000/-.

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 P.B.Raju, 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.17,500/- 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 7% 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 Sachin 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.17,500/- per month and produced the salary

certificate as per Ex.P9 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 2018, the notional income of the deceased has to

be taken at Rs.12,500/- p.m. To the aforesaid

income, since the deceased was aged about 19 years,

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.17,500/-. 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.8,750/- has to be

taken as his contribution to the family. The deceased

was aged about 19 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.18,90,000/- (Rs.8,750*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 No.1 is entitled for

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

of filial consortium' and claimant No.2 is entitled for

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

of love and affection'.

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under            Amount in
           different Heads              (Rs.)
       Loss of dependency              18,90,000
       Funeral expenses                   15,000
       Loss of estate                     15,000
       Loss of love and                   40,000
       affection
       Loss of filial consortium           40,000
                        Total          20,00,000

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.20,00,000/- as against

Rs.14,10,800/- 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

the compensation amount along with interest @ 7%

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

compensation) from the date of filing of the claim