Karnataka High Court
Syamalamma vs Cholamandalam M S General ... on 13 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.4515 OF 2020(MV)
BETWEEN:
1. SYAMALAMMA
W/O. M ESHWARA GOWDA.
AGED ABOUT 46 YEARS.
2. M. SRINIVASULU
S/O. M ESHWARA GOWDA
AGED ABOUT 24 YEARS.
3. CHINNAVENKATAPPA
S/O.LATE CHANGAPPA
AGED ABOUT 74 YEARS.
4. NAGARATHNAMMA
W/O. CHINNAVENKATAPPA
AGED ABOUT 64 YEARS
ALL ARE R/AT. NO. 4/81
GANGAVARAM, MAREDUPALLI
CHITTOR, GANGAVARAM
AP-517408.
...APPELLANTS
(BY SRI. RANGEGOWDA N R., ADV.)
2
AND
1. CHOLAMANDALAM M S GENERAL
INSRURANCE CO LTD
UNITED 4, LEVEL 6
GOLDEN HEIGHTS COMPLEX
5TH COMPLAINANT CROSS
INDUSTRIEAL SUB URB
4TH -M-BLOCK,RAJAJINAGAR
BANGALORE 560010.
2. KANCHAM NARAYANA REDDY
S/O. KANCHI REDDY
MAJOR
D. NO. 6-8/1,BELLAM MADUGU
BAU REDDY PALLE
BELUPALE, CHITTOR
ANDHRA PRADESH-517432.
...RESPONDENTS
(BY SRI. H.S. LINGARAJ, ADV. FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED. 29.01.2020, PASSED IN MVC NO.5169/2018,
ON THE FILE OF THE I-ADDITIONAL SMALL CAUSES
JUDGE AND MACT, (SCCH-11), BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, THIS DAY,
THE 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 29.1.2020 passed
by the Motor Accident Claims Tribunal, Bangalore in
MVC 5169/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 03.08.2018 at about 8.30
pm when the deceased Eshwara Gowda was
proceeding on two wheeler bearing registration
No.TN-22-AZ-3364 near at Moram Cross on
Palamaner-Baireddypalli road, NH-219 road, Chittoor,
AP, at that time, a TATA Ace bearing registration
No.AP-03-TA-7206 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 respondents
appeared through counsel and filed written statements
in which the averments made in the petition were
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 rash and negligent
riding of the motorcycle by the deceased himself.
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.2 as PW-1
and got exhibited documents namely Ex.P1 to Ex.P12.
On behalf of respondents, one witness was examined
as RW-1 and got exhibited documents namely Ex.R1
to Ex.R4. 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.12,80,000/-
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 47 years at the time of the accident
and he was earning Rs.20,000/- per month by
working as Sericulture cultivation and milking cows.
But the Tribunal is not justified in taking the monthly
income of the deceased as merely as Rs.9,000/-.
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
25% of the established income towards 'future
prospects' should be the warrant where the deceased
was between the age group of 40-50 years. The
Tribunal has rightly considered the same.
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'.
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.20,000/- 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'.
Thirdly, interest awarded by the Tribunal at 9%
p.a. on the compensation amount is on the higher
side.
Fourthly, 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 deceased Eshwara
Gowda 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.20,000/- 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.
The Tribunal has rightly added 25% on account
of future prospects in view of the law laid down by the
Constitution Bench of the Supreme Court in 'PRANAY
SETHI' (supra). Further, the Tribunal has rightly
applied multiplier of '13' and deducted 1/3rd of the
income of the deceased towards personal expenses.
Thus, the claimants are entitled to compensation of
Rs.16,25,000/- (Rs.15,625*12*13*2/3) 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, son 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 16,25,000
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 18,15,000
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.18,15,000/- as against
Rs.12,80,000/- awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest at 9%
p.a. (the enhanced amount shall carry 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
DM
