Karnataka High Court
Gowramma vs Chandan 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.1618 OF 2021 (MV)
BETWEEN:
1. Gowramma,
W/o Late Basavaraju,
Now aged about 54 years,
2. K.B.Mahadevaswamy,
S/o Late Basavaraju,
Now aged about 31 years,
Appellant No.1 and 2 are
R/at Mellahalli Village,
Maddur Taluk,
Mandya District,
Appellant No.1 and 2 now
R/at 12th Cross, V.V.Nagar,
Kallahalli Extension, Mandya.
3. Renuka,
W/o Somegowda,
Now aged about 37 years,
R/at Kyathegowdanadoddi Village,
Malavalli Taluk,
Mandya District.
4. K.B.Radha,
W/o Jalendra,
Now aged about 34 years,
2
R/at No.Ravani Village,
Malavalli Taluk,
Mandya District.
... Appellants
(By Sri.Raghu.R., Advocate)
AND:
1. Chandan,
Major,
S/o Somasundra.S.,
R/at No.26, 1st A Cross,
Chikkabommasandra, GKVK post,
Yelahanka New Town, Bangalore.
Indira Colony, Sompura Hobli,
Nelamangala Taluk,
Bangalore District - 562 123.
2. The Manager, Legal Claims,
ICICI Lombard Gen. Ins. Co., Ltd.,
Mytri Arket, New Kantharaj Road,
Near Saraswathi Talkies,
Saraswathi Puram,
Mysore - 570 001.
... Respondents
(By Sri.B.Pradeep, 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 14.01.2020 passed
in MVC No.1446/2018 on the file of the II Additional
Senior Civil Judge & MACT, Mandya, 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:
3
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 14.01.2020 passed
by the Motor Accident Claims Tribunal, Mandya in MVC
No.1446/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 02.09.2018 at about 6.30
p.m., the deceased Bsavaraju was proceeding on his
bicycle on Malavalli - Maddur road. When he reached
near Gudigere gate, at that time, a car bearing
registration No.KA-50/M-7074 which was being driven
in a rash and negligent manner, dashed against the
deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed
to the injuries at the hospital.
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 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 accident was due to
the negligence of the deceased himself. The driver of
the offending vehicle did not possess valid driving
licence as on the date of the accident. 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.P8. On behalf of
respondents, no witness was examined but got
exhibited 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.6,70,200/- 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, 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 earning Rs.30,000/- per month by doing
agriculture, milk vending and dairy farming. But the
Tribunal is not justified in taking the monthly income
of the deceased as only Rs.8,000/-.
Secondly, there are four dependents. The
Tribunal instead of deducting 1/3rd of the income of
the deceased has erroneously deducted 50% towards
personal expenses of the deceased.
Thirdly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. Hence, he sought for enhancement of
compensation.
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.30,000/- 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, the claimant Nos.2, 3 and 4 are major
sons and married daughters. Only claimant No.1 -
wife of the deceased alone is depending upon the
income of the deceased. Therefore, the Tribunal has
rightly deducted 50% of the income of the deceased
towards his personal expenses.
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. 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
Basavaraju 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.30,000/- 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 2018, the notional
income of the deceased has to be taken at
Rs.12,500/- p.m. Since the deceased was aged about
58 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 NATIONAL INSURANCE CO. LTD.
vs. PRANAY SETHI AND OTHERS reported in AIR
2017 SC 5157. Thus, the monthly income comes to
Rs.13,750/-. Since the deceased as a married person
and first claimant is his wife, , it is appropriate to
deduct 1/3rd of the income of the deceased towards
personal expenses and remaining amount, i.e.,
Rs.9,167/- has to be taken as his contribution to the
family. The deceased was aged about 58 years at the
time of the accident and multiplier applicable to his
age group is '9'. Thus, the claimants are entitled to
compensation of Rs9,90,036/- (Rs.9,167*12*9) 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 to 4, 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 9,90,036
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 120,000
consortium
Total 11,80,036
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.11,80,036/- as against
Rs.6,70,200/- 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.
Sd/-
JUDGE
Cm/-
