Karnataka High Court
Sri. Ramesh Ganiga vs Smt. Nayana R Ganiga on 9 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.7487 OF 2016 (MV)
BETWEEN:
1. Smt.Sharada Ganiga,
W/o Late Prakash Ganiga,
Aged about 36 years,
2. Minor Shradha,
D/o Late Prakash Ganiga,
Aged about 13 years,
3. Minor Shreyas,
S/o Late Prakash Ganiga,
Aged about 9 years,
Appellant Nos.2 and 3 are
Represented by their
Guardian/ mother
Smt.Sharada Ganiga.
All are residing at
Trasi Village and Post,
Near Kalyani School,
Kundapura Taluk - 576 201
Udupi District. ... Appellants
(By Sri.Nagaraja Hegde., Advocate)
AND:
1. Smt.Nayana R. Ganiga,
2
W/o Ramesh Ganiga,
Aged about 39 years,
R/o Samrudhi,
Kollur Village and Post,
Kundapura Taluk,
Udupi District - 576 201.
2. United India Insurance Co. Ltd.,
Kanchana Towers, NH-66,
Kundapura Taluk, Udupi District -576 201.
Represented by its Branch Manager.
3. The Divisional Controller,
Karnataka State Road
Transport Corporation,
Mangalore Division, Bejai,
Mangalore- 575 001.
4. The Oriental Insurance Co. Ltd.,
No.1001/56, Jayalaxmi Mansion,
2nd Floor, Dr.Rajkumar Road,
4th block, Rajajinagar, Bengaluru - 10.
Represented by its Branch Manager.
... Respondents
(By Sri.Ravish Benni, Advocate for R2;
Sri.R.Manjunath, Advocate for R3;
Sri.A.N.Krishna Swamy, Advocate for R4;
Notice to R1 served but unrepresented)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 01.06.2016 passed
in MVC No.607/2012 on the file of the Addl. District and
Sessions judge and Addl. M.A.C.T. Udupi (sitting at
Kundapura) Kundapura, partly allowing the claim petition
for compensation and seeking enhancement of
compensation.
This appeal, 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 01.06.2016 passed
by the Motor Accident Claims Tribunal, Udupi (sitting
at Kundapura) Kundapura in MVC No.607/2012.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 26.12.2011 at about 6.30
p.m. the deceased Prakash Ganiga was proceeding in
Mahendra Logan car bearing registration No.KA-20/N-
3654 from Udupi towards Kundapura side. When they
reached near Mahalasa Oil Mill, Karkada Village of
Udupi, at that time, the driver of the car went wrong
side and dashed against the KSRTC bus bearing
registration No.KA-19/F-2698 which was coming from
Kundapura side towards Udupi side. 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
Nos.2 to 4 appeared through counsel and filed
separate written statements 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 by
respondent No.2 that the accident was due to the rash
and negligent driving of the driver of stage carriage
vehicle bearing registration No.KA-09/F-2698 and the
driver of the car bearing registration No.KA-20/N-
3654 was not holding a valid and effective driving
licence and hence respondent No.2 is not liable to pay
the compensation.
It was pleaded by respondent No.3 that the
accident has occurred due to rash and negligent
driving of the driver of the car bearing registration
No.KA-20/N-3654 and no liability can be fixed on
respondent No.3 to pay the compensation.
It was pleaded by respondent No.4 that the
accident occurred due to exclusive negligence of the
driver of the car bearing registration No.KA-20/N-
3654 not by contributory negligence of the KSRTC bus
bearing registration No.KA-19/F-2698 and no liability
can be fixed on respondent No.4. Hence, they 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.P17. 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.23,09,000/- along with interest at the rate of
6% p.a. and directed respondent No.2 to deposit the
compensation amount along with interest. Being
aggrieved, this appeal has been filed.
6. Sri Nagaraja Hegde, the learned counsel for
the claimants has raised the following contentions:
Firstly, the claimants claim that the deceased
was earning Rs.40,000/- per month from business.
They have also produced the income tax returns of
the deceased for the years 2009-10, 2010-11 and
2011-12. But the Tribunal is not justified in taking the
monthly income of the deceased as only Rs.15,000/-.
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, the
claimants are entitled for Rs.15,000/- towards 'loss of
estate' and Rs.15,000/- towards 'funeral expenses'.
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, Sri Ravish Benni, the
learned counsel for the second respondent - Insurance
Company has raised the following counter-
contentions:
Firstly, even though the claimants have
produced income tax returns for 2009-10 and 2010-
11, but they have not produced the acknowledgement
for the year 2011-12. Therefore, the Tribunal has
rightly assessed the notional income of the deceased
as Rs.15,000/- per month.
Secondly, the Tribunal instead of adding 25%
towards future prospects has considered addition of
30% which is contrary to the law laid down by the
Hon'ble Apex Court in the case of PRANAY SETHI
(supra).
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.
Perused the judgment and award and the original
records.
9. It is not in dispute that deceased Prakash
Ganiga 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.40,000/- per month. They have also produced the
income tax returns for the years 2009-10, 2010-11
and 2011-12. They have produced acknowledgment
for 2009-10 and 2010-11 but they have not produced
acknowledgement for 2011-12. Considering the
income tax returns of the previous years, I am of the
opinion that the monthly income of the deceased can
be considered as Rs.18,000/-. In respect of addition
of future prospects is concerned, he was aged about
43 years. In view of the law laid down by the
Constitution Bench of the Supreme Court in 'PRANAY
SETHI' (supra) 25% has to be added towards future
prospects instead of 30% added by the Tribunal.
Thus, the monthly income comes to Rs.22,500/-.
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.15,000/- has to be taken as his contribution to the
family. The deceased was aged about 43 years at the
time of the accident and multiplier applicable to his
age group is '14'. Thus, the claimants are entitled to
compensation of Rs.25,20,000/- (Rs.15,000*12*14)
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 25,20,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Total 26,70,000
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.26,70,000/- as against
Rs.23,09,000/- 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
Cm/-
