Karnataka High Court
Smt Susheelamma vs Sri Shaik Shajahan 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.1060 OF 2022(MV)
BETWEEN:
1 . SMT.SUSHEELAMMA,
W/O LINGAPPA,
NOW AGED ABOUT 46 YEARS,
2 . KUM.NETHRAVATHI,
D/O LINGAPPA,
NOW AGED ABOUT 32 YEARS,
BOTH ARE RESIDING AT
SUBHASH ROAD,
NEAR DIAMOND TALKIES,
CHINTAMANI TOWN,
CHIKKABALLAPUR DISTRICT.
...APPELLANTS
(BY SRI.JAGADISH.G.KUMBAR, ADVOCATE FOR
SRI. RAVINDRA.P, ADVOCATE)
AND:
1. SRI.SHAIK SHAJAHAN,
S/O SHAIK MUNAF
MAJOR BY AGE
RESIDING AT NO.6-738, T B ROAD,
KALIKRI VILLAGE AND POST,
CHITTOOR DISTRICT,
ANDHRA PRADESH -517 001.
2
2. THE IFFCO TOKIO GENERAL INSURANCE COMPANY
LTD.,
SRI SHANTHI TOWERS,
5TH FLOOR NO.141, 3RD MAIN,
EAST TO NGEF LAYOUT,
KASTURINAGAR,
BENGALURU-560 043.
REP BY ITS MANAGER
...RESPONDENTS
(BY SRI.D.VIJAYAKUMAR, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED 10.01.2017 IN MVC
NO.1464/2016 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT, BENGALURU, (SCCH-17),
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 10.01.2017 passed
by the Motor Accident Claims Tribunal, Bengaluru in
MVC No.1464/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 21.12.2015, the deceased
along with his friends were returning to Chintamani
town from Bengaluru in TATA ACE Vehicle bearing
Registration No.KL-01/BE-8864 on Bengaluru-
Hosakote road around 12.00 mid night near
Karapanahalli gate, Nandagudi Hobli, Hosakote Taluk,
at that time, the driver of the Bolero Vehicle bearing
Registration No.AP-03/TC-7026 came from opposite
direction in a high speed, rash and negligent manner
and caused accident by head on collision. 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 being the owner and insurer of the
offending vehicle have appeared through counsel and
filed written statement in which the averments made
in the petition were denied.
It was pleaded by the owner that the petition
itself is false and frivolous in the eye of law. The
driver of the offending vehicle possessed valid driving
licence as on the date of the accident. 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.
It was pleaded by the insurer of the offending
vehicle that the accident was due to the rash and
negligent driving of driver of TATA ACE. The liability is
subject to terms and conditions of the policy. 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.2 as PW-2
and another witness as PW-3 and got exhibited
documents namely Ex.P14 to Ex.P20. On behalf of
respondents, neither examined any witness nor
exhibited any document on their behalf. 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.11,96,000/- 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. Sri Jagadish G Kumbar, learned counsel for
Sri Ravindra.P, for the claimants has raised the
following contentions:
Firstly, the claimants claim that the deceased
was aged about 26 years at the time of the accident
and he was earning Rs.20,000/- per month by doing
Pani Puri Business. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.7,000/-.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS [AIR 2017 SC 5157], in case the deceased
was self-employed or on a fixed salary, an addition of
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 years. The same may be
considered.
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'.
Lastly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. Hence, he prays for allowing the appeal.
7. Per contra, Sri D. Vijaykumar, learned
counsel for the 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, since the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Lastly, 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. 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 Narendra 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 2015, the notional
income of the deceased has to be taken at Rs.9,000/-
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 'PRANAY SETHI' (supra). Thus, the monthly income
comes to Rs.12,600/-. Since the deceased was a
bachelor at the time of the accident, it is appropriate
to deduct 50% of the income of the deceased towards
personal expenses and therefore the monthly income
comes to Rs.6,300/-. The deceased was aged about
26 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.12,85,200/-
(Rs.6,300*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' and
claimant No.3, sister of the deceased 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 12,85,200
Funeral expenses 15,000
Loss of estate 15,000
Loss of love and
40,000
affection
Loss of Filial consortium 80,000
Total 14,35,200
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.14,35,200/-. (The enhanced
compensation will not carry any interest).
The Insurance Company is directed to deposit
the enhanced compensation amount 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.
Sd/-
JUDGE
HA
