Karnataka High Court

Smt. Shanthi B K vs D Ananthakrishna on 10 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.3928 OF 2018(MV)


BETWEEN:

1 . SMT. SHANTHI B K
    W/O MUNIRAJU V
    AGED 47 YEARS.

2 . MUNIRAJU V
    S/O LATE M VENKATAPPA
    AGED ABOUT 62 YEARS

     BOTH R/AT #295, HARANGI ROAD
     GUMMANAKOLLI VILLAGE
     MULLUSOGE POST
     KUSHALNAGAR
     SOMWARPET TALUK-571234.
                                        ...APPELLANTS

(BY SMT. SUMA KEDILAYA, ADV. FOR
SRI. PADMANABHA KEDILAYA V., ADV.)

AND

1.     D ANANTHAKRISHNA
       S/O SUBBAPPA GOWDA
       AGED ABOUT 45 YEARS
       R/AT DUDDAHITLU HOUSE,
       AMARA MUDNOOR VILLAGE AND POST
                            2



     SULLIA TALUK
     DAKSHINA KANNADA-574239.

2.   ROYAL SUNDARAM GENERAL
     INSURANCE CO LTD
     EMKAYS SHALIMAR COMPLEX
     3RD FLOOR, KANKANADY
     MANGALORE-575002.
                                        ...RESPONDENTS
(BY SRI. KRISHNAMOORTHY D. ADV. FOR R1;
SRI. C.R.RAVISHNAKAR, ADV. FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
01/01/2018, PASSED IN MVC NO.192/2016, ON THE FILE
OF THE I ADDITIONAL DISTRICT JUDGE AND MACT,
KODAGU, MADIKERI, PARTLY ALLOWING THE CLAIM
PETITION    FOR    COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR HEARING, 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 01.01.2018 the

Motor Accident Claims Tribunal, Madikeri in MVC

No.192/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 23.09.2016 at about 08.00

P.M., the deceased was returning to Gummankolli

Village, Somwarpet Taluk, after finishing welding

work. When he reached near Manjanna Chicken Stall

of Periyapatna Town on Periyapatna-Kushalnagar

Road, the driver of the Lorry bearing Registration

No.KA-19-A-3941 came in a rash and negligent

manner from opposite side i.e., Kushalnagar side and

dashed the Motorbike on the right side of the road in

which the said Lorry was proceeding. 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 driver of the

offending vehicle had valid driving licence. Hence, he

prays for dismissal of the claim petition.

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 other two witnesses as PW-2 and PW-3 and got

exhibited documents namely Ex.P1 to Ex.P18. On

behalf of respondents, two witnesses were examined

as RW-1 and RW-2 and got exhibited documents

namely Ex.R1 to Ex.R12. 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.9,75,400/- 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. The learned counsel 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.700/- per day by doing welding

work in M/s. Rajmohan Engineering Works. To that

effect, they have produced Certificate issued by the

employer as per Ex.P16 and they have also examined

employer as PW-3, he has categorically stated that

the deceased was paid Rs.700/- per day. But the

Tribunal has failed to consider this aspect of the

matter, has taken the monthly income of the

deceased as Rs.6,000/- is on lower side.

Secondly, 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'.

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 Insurance Company has raised the following

counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.700/- per day and they have

produced Ex.P16 Certificate which is issued after the

death of the deceased, they have not produced any

other document which are related to the income of the

deceased before his death and no bank statement has

been produced to show that his monthly income was

Rs.700/- per day. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, 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.

Lastly, in view of judgment of the 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 claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. 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 Lokesh 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.700/- per day and they have produced Certificate

issued by the employer as per Ex.P16 and they have

also examined employer as PW-3. But they have not

produced any Bank Statement to show that he was

earning Rs.700/- per day. 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.

In view of the law laid down by the Constitution

Bench of the Supreme Court in NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157] (supra), the Tribunal

has rightly considered 40% of the income of the

deceased on account of future prospects. Thus, the

monthly income comes to Rs.13,300/-. Since the

deceased was a bachelor, the Tribunal has rightly

deducted 50% of the income of the deceased towards

personal expenses and thus, the monthly income

comes to Rs.6,650/-. 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.13,56,600/- (Rs.6,650*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), claimants are the parents of the deceased,

are entitled for compensation of Rs.40,000/- each

under the head of 'loss of filial consortium' .

The compensation of Rs.88,600/- awarded by

the Tribunal for 'Medical Expenses' is just and

reasonable.

10. Thus, the claimants are entitled to the

following compensation:

         Compensation under           Amount in
            different Heads              (Rs.)
        Loss of dependency              13,56,600
        Funeral expenses                   15,000
        Loss of estate                     15,000
        Loss of Filial consortium          80,000
        Medical Expenses                   88,600
                        Total          15,55,200

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.15,55,200/- as against

Rs.9,75,400/- awarded by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest at 9%

p.a. (the enhanced compensation shall carry interest