Karnataka High Court

Smt Vidya vs M Chandrashekara Shetty on 1 June, 2022

Bench: H T Prasad

                              1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 1ST DAY OF JUNE 2022

                          BEFORE

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

                MFA No.476 OF 2018 (MV)
                          C/W
                MFA No.3951 OF 2017 (MV)

IN MFA NO.476/2018:

BETWEEN:

The United India Insurance Co. Ltd.,
Divisional; Manager, Divisional Office,
Jewel Plaza, Maruthi Veethika,
Opp:Shrinidhi Medicals,
Near Chittaranjan Circle,
Udupi.
Represented by Divisional Manager,
Manipal, Dist:Udupi.
                                           ... Appellant
(By Sri.Ravish Benni, Advocate)

AND:

1. Smt.Vidya,
   W/o Late Chandrashekar Acharya,
   Aged about 42 years,

2. Shravya,
   D/o Late Chandrashekar Acharya,
   Aged about 16 years,

3. Swajan,
   S/o Late Chandrashekar Acharya,
   Aged about 14 years,
                              2



2nd and 3rd respondent are Minors,
Rep. by their natural guardian mother 1st respondent.

All are residing at Shilpa Kuteera,
Temple Road, Ambalpady Village,
Ambalady, Udupi Taluk & District - 576 145.

4. N.Chandrashekara Shetty,
   Aged about 68 years,
   S/o Ramarao,
   R/o Ramaprasad House,
   Nandilike Village & Post,
   Karkala Taluk, District:Udupi.
                                           ... Respondents
(By Sri.Pratheep.K.C., Advocate for R1 to R3;
  Notice to R4 is dispensed with)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 20.01.2017 passed
in MVC No.91/2015 on the file of the Additional Senior
Civil Judge, Additional MACT,               Udupi, awarding
compensation of Rs.12,04,000/- with interest at 6% p.a.
from the date of petition till the date of realization.

IN MFA NO.3951/2017:

BETWEEN:

1. Smt.Vidya,
   W/o Late Chandrashekar Acharya,
   Aged about 41 years,

2. Shravya,
   D/o Late Chandrashekar Acharya,
   Aged about 15 years,

3. Swajan,
   S/o Late Chandrashekar Acharya,
   Aged about 13 years,
                               3



Appellant No.2 & 3 are Minors,
Rep. by their natural guardian mother
Appellant No.1.

All are residing at Shilpa Kuteera,
Temple Road, Ambalpady Village,
Ambalady, Udupi Taluk,
Udupi District - 576 145.
                                               ... Appellants
(By Sri.Pratheep.K.C., Advocate)

AND:

1. M.Chandrashekara Shetty,
   Aged about 68 years,
   S/o Rama Rao,
   R/o Rama Prasad House,
   Nandilike Village & Post,
   Karkala Taluk, Udupi District- 575 004.

2. The United India Insurance Co. Ltd.,
   Rep. by its nearest Divisional Manager,
   Divisional Office,
   Jewel Plaza, Maruthi Veethika,
   Opp:Shrinidhi Medicals,
   Near Chittaranjan Circle,
   Udupi- 575 065.
                                             ... Respondents
(By Sri.Ravish Benni, Advocate for R2;
  Notice to R1 is dispensed with)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 20.01.2017 passed
in MVC No.91/2015 on the file of the Additional Senior
Civil Judge and Additional MACT, At Udupi, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

      These appeals, coming on for Admission, this day,
this Court, delivered the following:
                               4



                       JUDGMENT

MFA No.476/2018 is filed by the Insurance

Company whereas MFA No.3951/2017 is filed by the

claimants under Section 173(1) of the Motor Vehicles

Act, (for short, 'the Act') being aggrieved by the

judgment and award dated 20.01.2017 passed by the

MACT, Udupi in MVC No.91/2015. Since the challenge

is to the same judgment, both the appeals are clubbed

together, heard and common judgment is being

passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 11.10.2014 at about 6.15

p.m. the deceased Chandrashekar Acharya was

moving from Karavali junction towards Ambalpady. At

that time, the deceased stopped the motorcycle on

the extreme left side of the road to purchase cloth

near Bombay Bazar and when he stepped towards the

said Bazar, at that time one Tipper Lorry bearing

registration No.KA-20/B-1547 coming from the same

direction knocked the deceased along with 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

No.2 appeared through counsel and filed separate

written statement 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 driver of the offending

vehicle had no a valid driving licence as on the date of

the accident. It was further pleaded that the accident

occurred due to rash and negligent riding of the

deceased himself. It was further pleaded that the

liability is subject to terms and conditions of the

policy. It was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, he sought for dismissal of the petition.

The respondent No.1 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.P9. On behalf of

respondents, no witness was examined but got

exhibited one document namely Ex.R1. 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

6% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, these appeals have been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.25,000/- 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, there are 3 dependents. The Tribunal

has erred in deducting 1/4th of the income of the

deceased towards personal expenses.

Thirdly, contrary to the judgment of the Hon'ble

Apex Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. Vs. NANU RAM reported in

2018 ACJ 2782, the compensation awarded by the

Tribunal under the head 'loss of consortium and loss

of love and affection' is on the higher side. Hence he

sought for reduction of compensation.

7. On the other hand, learned counsel appearing

for the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.25,000/- per month by working as a

carpenter. He has also produced the letter issued by

one Nagesh Hegde stating that the deceased was

earning Rs.800/- per day. Under these circumstances,

the notional income assessed by the Tribunal is on the

lower side.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. vs. PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157, in case the

deceased was self-employed or on a fixed salary, an

addition of 10% of the established income towards

'future prospects' should be the warrant where the

deceased was between the age of 50 to 60. The same

may be considered.

Thirdly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for enhancement of

compensation.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that deceased

Chandrashekhar Acharya 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.25,000/- per month by working as a carpenter.

Except producing the letter issued by one Nagesh

Hegde they have not produced any other document to

establish the same and even they have not examined

the author of the said document. Therefore, the

Tribunal has considered the notional income of the

claimant as Rs.8,000/- but the same is on the lower

side. Even as per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2014, the notional

income of the deceased has to be taken at Rs.8,500/-

p.m. Since the deceased was aged about 52 years, to

the aforesaid income, 10% 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.9,350/-. Since there are 3

dependents, it is appropriate to deduct 1/3rd of the

income of the deceased towards personal expenses

and remaining amount, i.e., Rs.6,234/- has to be

taken as his contribution to the family. The deceased

was aged about 52 years at the time of the accident

and multiplier applicable to his age group is '11'.

Thus, the claimants are entitled to compensation of

Rs.8,22,888/- (Rs.6,234*12*11) 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'. Claimant No.1, wife of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2 and 3, children

of the deceased are entitled for compensation of

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

consortium' .

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under          Amount in
           different Heads            (Rs.)
       Loss of dependency              8,22,888
       Funeral expenses                  15,000
       Loss of estate                    15,000
       Loss of spousal                   40,000
       consortium
       Loss of Parental                    80,000
       consortium
                      Total            9,72,888

11. In the result, the appeals are allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.9,72,888/- as against

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

The Insurance Company is directed to deposit

the compensation amount along with 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.

Excess amount, if any, before this Court shall be

refunded to the appellant in MFA No.476/2018 after