Karnataka High Court

Devendra R vs Ananda Kumar S V on 30 June, 2022

Bench: H T Prasad

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30TH DAY OF JUNE 2022

                           BEFORE

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

                 MFA No.1165 OF 2020(MV)

BETWEEN:

1.     Devendra R.,
       S/o Late Ramegowda,
       Aged about 45 years.

2.     Jayalakshmamma,
       W/o Devendra,
       Aged about 41 years.

3.     Meghana,
       D/o Devendra,
       Aged about 23 years.

       All are residing at
       Sathenhalli Village,
       Bindiganavele Hobli,
       Nagamangala Taluk,
       Mandya District.                  ... Appellants

(By Sri.P. Kailash Shankar., Advocate)

AND:

1.     Anandakumar S.V.,
       S/o Venkatashamappa,
       Aged about 50 years,
       R/at No.43/44,
       Sanatha Chethana,
       1st Main Road, 3rd Cross,
                             2



     Rajeshwari Layout,
     K.R.Puram Post,
     Bengaluru-560 036.

2.   The Manager,
     The United India Insurance Co. Ltd.,
     Regional Office No.18,
     Krishi Bhavan, 5th Floor,
     Opp: Hudson Circle,
     Nrupathunga Road,
     Bengaluru-560 001.

3.   The Manager,
     SMP Carries India Pvt. Ltd.,
     No.1, 317, Thiruchengode Road,
     Thiruchengode Taluk,
     Nammakkal District,
     Palliagaharam,
     Tamilnadu State-638008.

4.   The Manager,
     New India Assurance Co.Ltd.,
     Thiruchengode(722300),
     Door No.26, Tlus Complex,
     2nd Floor, 27/4, Sankari Road,
     Tiruchengode,
     Tamilnadu State-637 211.

     And also at
     The Manager New India
     Assurance Co. Ltd.,
     Regional Office No.9/2,
     Mahalakshmi Chambers,
     M.G.Road, Bangalore-560 001        ... Respondents

(By Sri.Janardhana Reddy, Advocate for R2:
Sri. Ravishankar A., Advocate for R4:
Notice to R1 & R3 is served and unrepresented)
                             3



      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:14.08.2019 passed
in MVC No.2054/2017 on the file of the I Additional Small
Causes Judge and MACT, Bengaluru (SCCH-11), 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 14.08.2019 passed

by the Motor Accident Claims Tribunal, Bangalore

(SCCH-11) in MVC No.2054/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 31.12.2016 at about 4.00

p.m. the deceased Amitha was proceeding in a car

bearing registration No.KA-53/B-8519. When they

reached near Agachahalli gate - NH-75 road Bellur

Hobli, Nagamangala Taluk, Mandya District, at that

time, the driver of the car in which claimant was

traveling, drove the same at a high speed and in a

rash and negligent manner, dashed to the lorry

bearing registration No.TN-34/P-3440. As a result of

the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries on

01.01.2017.

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

Nos.2 and 4 appeared through counsel and filed

written statements in which the averments made in

the petition were denied. The age, occupation and

income of the deceased are denied.

The respondent Nos.1 and 3 did not appear

before the Tribunal inspite of service of notice and

hence were 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 got exhibited documents namely Ex.P1 to Ex.P11.

On behalf of respondents, one witness was examined

as RW-1 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.12,56,530/-

along with interest at the rate of 9% p.a. and directed

the respondent No.2 Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Kailas Shankar, the learned counsel for

the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.20,000/- per month by working as an

agriculturist and milk vending business. But the

Tribunal is not justified in taking the monthly income

of the deceased as only Rs.8,000/-.

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 Janardhan Reddy,

the learned counsel for the respondent No.2 -

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, 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.

Thirdly, 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 records.

9. It is not in dispute that deceased Amitha

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.20,000/- 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. 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 claimant was a bachelour, 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 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.14,36,400/- (Rs.6,650*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 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' and claimant No.3 is entitled to

Rs.40,000/- for 'loss of love and affection'.

The compensation awarded towards 'medical

expenses' at Rs.16930/- is just and reasonable.

10. Thus, the claimants are entitled to the

following compensation:

          Compensation under           Amount in
             different Heads             (Rs.)
         Loss of dependency             14,36,400
         Funeral expenses                  15,000
         Loss of estate                    15,000
         Medical expenses                  16,930
         Loss of love and                  40,000
         affection
         Loss of Filial consortium          80,000
                         Total          16,03,330

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.16,03,330/- as against

Rs.12,56,530/- 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 second respondent - United India Insurance

Company is directed to deposit the compensation

amount along with interest @ 9% p.a. (interest @

6% p.a. on the enhanced compensation) from the