Karnataka High Court
Shivanna vs Dayananda A C on 3 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.781 OF 2021(MV)
BETWEEN:
1. SHIVANNA,
S/O THIMMAIAH,
AGED ABOUT 52 YEARS,
2. SMT.MANAGALA GOWRAMMA,
W/O THIMMAIAH,
AGED ABOUT 47 YEARS,
3. YOGGESHA.N.S.,
S/O SHIVANNA,
AGED ABOUT 23 YEARS,
APPELLANT NO.1 TO 3 ARE
R/O NIRUVAGALLU KAREKODI,
HANDANAKERE HOBLI,
CHIKKAYANAYAKANAHALLI TALUK - 572 214.
TUMKUR DISTRICT.
...APPELLANTS
(BY SRI.JAGADEESH.H.T., ADVOCATE)
AND:
1. DAYANANDA A.C.,
S/O CHIKKANNA,
MAJOR,
R/AT APPANAHALLI VILLAGE,
HAAGALVADI HOBLI,
2
GUBBI TALUK,
TUMKUR DISTRICT - 572 212.
2. RELIANCE GENERAL INSURANCE
CO.LTD.,
HAVING BRANCH OFFICE AT
BALAJI TOWERS,1ST FLOOR,
ASHOK NAGAR, B.H.ROAD,
TUMKUR - 572 101.
REP BY MANAGER.
...RESPONDENTS
(BY SRI.H.S.LINGARAJ, 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
06.01.2021 PASSED IN MVC NO.542/2019 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC AND XIX MACT,
CHIKKANAYAKANAHALLI, PARTLY ALLOWING THE CALIM
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 06.01.2021 passed
by the Motor Accident Claims Tribunal,
Chikkanayakanahalli in MVC No.542/2019.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 26.10.2018 at about 01.00
PM, the deceased was returning to his Village by walk
on the left side of the road and when he was near the
house of Siddaiah, the driver of the JCB bearing
Registration No.KA-06-P-3689 came in high speed,
rash and negligent manner dashed to the deceased
from back side. 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 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. It was
further pleaded that the accident was due to
negligence on the part of the deceased and not on the
part of the driver of the offending vehicle. It was
further pleaded that the offending vehicle was insured
with Insurance Company and the policy was in force
as on the date of the accident and the driver of the
offending vehicle had valid driving licence. Hence, the
Insurance Company is liable to pay the compensation.
It was pleaded by the Insurance Company that
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. 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, they 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 got exhibited documents namely Ex.P1 to Ex.P13.
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.11,60,000/- 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, this appeal has been
filed.
6. Sri Jagadeesh H. T., learned counsel for the
claimants has raised the following contentions:
Firstly, the claimants claim that the deceased
was aged about 24 years at the time of the accident
and he was earning Rs.25,000/- per month by
working as Coolie. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.10,000/-.
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 H. S. Lingaraj, 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.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, 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 Umesh 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. 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.
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.17,500/-. Since the deceased was a
bachelor as on the date of the accident, it is
appropriate to deduct 50% of the income of the
deceased towards 'personal expenses' and thus, the
monthly income comes to Rs.8,750/-. The deceased
was aged about 24 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.18,90,000/- (Rs.8,750*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' .
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 18,90,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 20,00,000
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.20,00,000/- as against
Rs.11,60,000/- 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.
Sd/-
JUDGE
HA/-
