Karnataka High Court
Veerabhadregowda vs Divisional Controller on 21 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1750 OF 2019(MV)
BETWEEN:
1. VEERABHADREGOWDA
S/O LATE MARIGOWDA
AGED ABOUT 54 YEARS.
2. LAXMI
D/O VEERABHADREGOWDA
AGED ABOUT 28 YEARS.
3. RAVIKUMAR
S/O VEERABHADREGOWDA
AGED ABOUT 27 YEARS.
4. RADHA
D/O VEERABHADREGOWDA
W/O MANIKANTA
AGED ABOUT 24 YEARS
RESIDING AT PALIVAN COLONY
KODASIGE CHEKKURU POST
H D KOTE TALUK
MYSORE DISTRICT-571114.
...APPELLANTS
(BY SRI.PADMANABHA KEDILAYA V., ADV.)
2
AND
DIVISIONAL CONTROLLER
KSRTC RURAL DIVISION
BANNIMANTAP
MYSURU-570015.
...RESPONDENT
(BY SMT. SHWETHA ANAND, ADV.)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
22/09/2018, PASSED IN MVC NO.1101/2015, ON THE
FILE OF THE SENIOR CIVIL JUDGE & JMFC., AND
MACT, H.D.KOTE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION 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 and award dated
22.9.2018 passed by the Motor Accident Claims
Tribunal, H.D.Kote in MVC 1101/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 30.8.2015, when the
deceased Muniyamma proceeding in autorickshaw
from Handpost of H.D.Kote near Kote Palace hotel, at
that time, a KSRTC bus bearing registration No.KA-09-
F-3745 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.
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.P9.
On behalf of respondents, no witness was examined
but got exhibited documents 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.80,000/- along with interest at
the rate of 6% 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 aged about 45 years at the time of the accident
and she was earning Rs.400/- per day working as
coolie. But the Tribunal is not justified in taking the
monthly income of the deceased as merely as
Rs.6,000/-.
Secondly, the claimants are entirely depending
on the income of the deceased. The Tribunal has erred
in coming to the conclusion that claimants are not
entitled for 'loss of dependency'. Even if it is held that
the claimants are not entitled for 'loss of dependency',
however, they are entitled for 'loss of estate'. The
Division Bench of this court in MFA 7318/2016
disposed of on 23.10.2020 by following the judgment
of the Apex Court in the case of National Insurance
Company -V- Vinish Jain And Others (2018) 3 SCC
619 has calculated the 'loss of estate' by deducting
50% of the income of the deceased towards personal
expenses and remaining towards contribution to
family. Further, 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 40-50 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'. 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.400/- 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 are husband and
major sons of the deceased and they are not
depending on the income of the deceased as they
have their own sources of income for their livelihood,
they are not entitled for 'loss of dependency'. Further,
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. 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
Muniyamma 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 aged
about 45 years at the time of the accident and earning
Rs.400/- 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 2015, the notional
income of the deceased has to be taken at Rs.9000/-
p.m.
To the aforesaid income, 25% 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.11,250/-.
The claimants are husband and major sons of
the deceased and they are not depending on the
income of the deceased. Hence, they are not entitled
for compensation under the head of 'loss of
dependency'. However, they are entitled for
compensation under the head of 'loss of estate'. The
Division Bench of this court in MFA 7318/2016
disposed of on 23.10.2020 by following the judgment
of the Apex Court in the case of National Insurance
Company -V- Vinish Jain And Others (2018) 3 SCC
619 has awarded the 'loss of estate' by deducting
50% of the income of the deceased towards personal
expenses. Hence, out of monthly income of
Rs.11,250/- of the deceased, it is appropriate to
deduct 50% of the income of the deceased towards
personal expenses and remaining amount has to be
taken as her contribution to the family. The deceased
was aged about 45 years at the time of the accident
and multiplier applicable to her age group is '14'.
Thus, the claimants are entitled to compensation of
Rs.9,45,000/- (Rs.11,250*12*14*50%) on account of
'loss of estate'
In addition, the claimants are entitled to
Rs.15,000/- on account of 'funeral expenses'.
Claimant No.1, husband of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of spousal consortium'.
Supreme Court in the case of 'MAGMA
GENERAL INSURANCE' (supra), claimant Nos.2 to 4,
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 945,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 120,000
consortium
Total 11,35,000
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.11,35,000/- as against
Rs.80,000/- awarded by the Tribunal.
The Corporation 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
DM
