Karnataka High Court

Shobha vs H Paul Naveen on 22 July, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF JULY 2022

                   BEFORE

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

           MFA No.3233 OF 2021(MV)
BETWEEN:

1.   SHOBHA
     W/O LATE NAGARAJA NAYDU
     AGED ABOUT 37 YEARS.

2.   E ESHAWAR NAIDU
     S/O LATE NAGARAJA NAYDU
     AGED ABOUT 20 YEARS.

3.   N SOUJANYA
     D/O LATE NAGARAJA NAYDU
     AGED ABOUT 16 YEARS

4.   N HEDMA
     D/O LATE NAGARAJA NAYDU
     AGED ABOUT 12 YEARS.

     APPELLANT Nos. 3 & 4 ARE MINORS
     REPRESENTED BY THEIR MOTHER 1ST
     APPELLANT AS NATURAL GUARDIAN.

5.   NARASIMHA NAIDU
     S/O LATE RAMA NAIDU
     AGED ABOUT 78 YEARS.
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6.   INDRAVANAMMA
     W/O NARASIMHA NAIDU
     AGED ABOUT 72 YEARS

     ALL ARE RESIDING AT
     METYBANDA, THIPPADODDI
     KOLAR -563132.
                                  ...APPELLANTS
(BY SRI.JAGADEESH G. KUMBAR , ADV. FOR
    SRI. SREENIVASAIAH A., ADV.)

AND:

1.   H PAUL NAVEEN
     S/O V HENDRY
     NO 2, JAWAHAR ROAD
     RAMAN NAGAR, CHENNAI
     TAMIL NADU 600 100.

2.   THE MANAGER
     UNISTED INDIA INSURANCE
     COMPANY LTD, R.O NO 18
     5TH FLOOR, KRUSHI BHAVAN
     HUDSON CIRCLE
     BENGALURU 560001.
                                 ...RESPONDENTS
(BY SRI.G.S MARULAIAH, ADV. FOR R2:
    NOTICE TO R1 IS DISPENSED WITH
    V/O DATED: 22.07.2022)

    THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DATED: 04.12.2020 PASSED ON MVC NO.1394/2017
ON THE FILE OF THE X ADDITIONAL JUDGE, COURT
OF SMALL CAUSES, MACT, BENGALURU, (SCCH-16),
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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 dated 04.12.2020 passed

by the X Additional Judge, Court of Small Causes,

Bengaluru in MVC No.1394/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.03.2012 at about 10.20

p.m., the deceased-Nagaraja Naydu was riding his

motorcycle bearing Registration No.KA-07-S-6170 on

Chittur-Bangarupalem road. When he reached near

Mathyam Cross Road, the driver of the Accent Car

bearing Registration No.TN-02-K-2436 drove the same

in a rash and negligent manner came to the wrong

side from the opposite direction and dashed to the

motorcycle of 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

Nos.1 and 2 have appeared through counsel and only

respondent No.2 has filed written statement in which

the averments made in the petition were denied. It

was pleaded that the petition itself is false and

frivolous in the eye of law. The age, occupation and

income of the deceased are denied. It was further

pleaded that the quantum of compensation claimed by

the claimants is exorbitant. Hence, he 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.P9. On behalf of

respondents, three witnesses were examined as RW-1

to RW-3 and got exhibited documents namely Ex.R1

to Ex.R6. 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.12,04,000/-

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 37 years at the time of the accident

and he was earning Rs.900/- to Rs.1000/- per day by

working as Mason. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.6,000/-.

Secondly, since there are six dependents, the

Tribunal instead of deducting 1/5th of the income of

the deceased towards personal expenses, has

deducted 1/4th.

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, the compensation awarded by the

Tribunal under the conventional heads 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.900/- to Rs.1000/- per day,

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.

Lastly, in view of judgment of the 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 claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. Hence, he prays for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that Nagaraja Naydu

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.900/- to Rs.1000/- per day. 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 2012, the notional income of the deceased has to

be taken at Rs.7,000/- p.m.

The Tribunal has rightly added 40% of the

income of the deceased towards future prospects.

Therefore, 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. -

v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157].

Thus, the monthly income comes to Rs.9,800/-. Since

there are six dependents, in view of the law laid down

by the Constitution Bench of the Supreme Court in

Smt. Sarla Verma & Ors.Vs. Delhi Transport

Corporation & Anr. in Civil Appeal No.3483 of 2008,

it is appropriate to deduct 1/5th of the income of the

deceased towards personal expenses and therefore,

the monthly income comes to Rs.7,840/-. The

deceased was aged about 37 years at the time of the

accident and multiplier applicable to his age group is

'15'. Thus, the claimants are entitled to compensation

of 14,11,200/-. (Rs.7,840*12*15) 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, wife of the deceased is

entitled for compensation of Rs.40,000/- under the

head of 'loss of spousal consortium', claimant Nos.2, 3

and 4, children of the deceased are entitled for

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

'loss of parental consortium' and claimant Nos.5 and

6, 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              14,11,200
        Funeral expenses                      15,000
        Loss of estate                        15,000




         Loss of spousal                           40,000
         consortium
         Loss of Parental                         1,20,000
         consortium
         Loss of Filial consortium                 80,000
                            Total           16,81,200

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.16,81,200/- as against

Rs.12,04,000/- awarded by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest at 9%

p.a. (the enhanced compensation shall carry interest