Karnataka High Court

Smt Shriveni vs Divisional Manager on 7 June, 2022

Bench: H T Prasad

                            1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF JUNE 2022

                          BEFORE

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

               MFA No.9249 OF 2018 (MV)

BETWEEN:

1. Smt. Shriveni,
   W/o Late Shivakumar,
   Aged about 24 years,

2. Unnamed Baby,
   D/o Late Shivakumar,
   Aged about 2 years 1 Month

Since minor represented by his
Natural Guardian mother 1st appellant.

3. Smt. Kalamani,
   W/o Palani,
   Aged about 49 years,

4. Sri. Palani,
   S/o Magali,
   Aged 49 years,

All are residing at Ambedkar Nagar,
Uthandiyoor Village and Post,
Sathyamangala Taluk, Erode District,
Tamil Nadu State - 638 001.
                                             ... Appellants

(By Smt.K.Suma., Advocate for
    Sri. Padmanabha Kedilaya.V., Advocate)
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AND:

Divisional Manager,
KSRTC Transport Corporation,
Puttur Division, Puttur - 574 201.
                                               ... Respondent
(By Sri.Ashok.N.Nayak, Advocate)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 01.02.2018 passed
in MVC No.113/2016, on the file of the Principal District
Judge & MACT, Kodagu - Madikeri, partly allowing the
claim petition for compensation and seeking enhancement
of compensation.

      This MFA, coming on for Hearing, 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 01.02.2018 passed

by the Motor Accident Claims Tribunal, Kodagu at

Madikeri in MVC No.113/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 24.06.2016 at about 3.45

p.m. the deceased Shivakumar and Raju were

returning to their house on B.M.road near Kedakal

Village. At that time, a KSRTC bus bearing

registration No.KA-19/F-2945 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.

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

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. 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.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P8. On behalf of

respondents, one witness was examined as RW-1 and

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.12,07,000/- along with interest at the rate of

9% p.a. and directed the KSRTC 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.500/- per day by working as a coolie.

But the Tribunal is not justified in taking the monthly

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

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 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. 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'.

Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for allowing the appeal.

7. On the other hand, the learned counsel for

the Corporation has raised the following counter-

contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.500/- per day, 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'.

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.

Fourthly, 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 judgment and award and the original

records.

9. It is not in dispute that deceased

Shivakumar 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.500/- per day. 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 'PRANAY SETHI' (supra). Thus, the monthly

income comes to Rs.13,300/-. Since there are 4

dependents, the Tribunal has rightly deducted 1/4th of

the income of the deceased towards personal

expenses and remaining amount, i.e., Rs.9,975/- has

to be taken as his contribution to the family. The

deceased was aged about 32 years at the time of the

accident and multiplier applicable to his age group is

'16'. Thus, the claimants are entitled to compensation

of Rs.19,15,200/- (Rs.9,975*12*16) 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 No.2, daughter of the

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

under the head of 'loss of parental consortium' and

claimant Nos.3 and 4, 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              19,15,200
       Funeral expenses                   15,000
       Loss of estate                     15,000
       Loss of spousal                    40,000
       consortium
       Loss of Parental                     40,000
       consortium
       Loss of Filial consortium           80,000
                       Total           21,05,200

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.21,05,200/- as against

Rs.12,07,000/- 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 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 date of filing of the claim