Karnataka High Court

Sri. Hanumantha Rao H K vs Icici Lombard Gen Ins Co Ltd 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.8398 OF 2019(MV)

BETWEEN:

1.     Sri Hanumantha Rao H.K.
       S/o.Krishnamurthy Rao H.,
       Aged about 57 years.

2.    Smt.Jayalakshmi S.
      W/o.Hanumantha Rao H.K.
      Aged about 52 years.
Both are R/at No.1014,
Sai Krishna Nilaya,
BEL North Gate,
Near Kabir Ashram,
Deshabanunagara,
Vidyaranyapura,
Bengaluru - 560 092.                     ... Appellants

(By Smt.Nithya V., for Sri M.H.Prakash, Advocate)

AND:

1.     ICICI Lombard Gen. Ins. Co.Ltd.
       Office at No.89, 2nd Floor,
       SVR Complex,
       Hosur Main Road, Madiwala,
       Bengaluru - 560 068,
       Rep. by its Manager.

2.     Zoom Car India Pvt. Ltd.
       No.308, 1 to 3rd Floor,
                                 2



      100 Feet Road,
      Indiranagara 1st Stage,
      Bangalore - 560 038,
      Rep. by its Manager.

3.    Sri Chethan Ravindran,
      S/o.Ravindran N.
      Aged about 24 years,
      No.1929, 'C' Block,
      Sahakaranagara,
      Bengaluru - 560 092.                 ... Respondents

(By Sri.Mallikarjuna Reddy N.A., for Sri
 B.Pradeep, Advocate for R1:
Notice to R2 & R3 dispensed with)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 06.06.2018 passed
in MVC No.3847/2015 on the file of the MACT, Bengaluru,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.

      This MFA, coming on for admission, 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 06.06.2018 passed

by the Motor Accident Claims Tribunal, Bengaluru City

(SCCH-4) in MVC No.3847/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 13.09.2015 at about 3.30

p.m. the deceased Sagar @ Shashank was proceeding

in a Zoom car bearing registration No. KA-03/AC-0013

from Chunchi falls view point towards Bengaluru.

When they reached near Chunchi Falls Bridge,

Kanakapura Taluk, Ramanagara District, at that time,

the driver of the said vehicle drove the same at a high

speed and in a rash and negligent manner, lost control

over the vehicle and suddenly applied the brake and

toppled the car into the canal and caused the

accident. 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 to 3 appeared through counsel and respondent

Nos.1 and 2 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.1 that at the time of the accident

the vehicle was not in the possession of the first

respondent and therefore, it is not a necessary or

proper party.

It was pleaded by respondent No.2 that the

driver of the offending vehicle did not possess valid

driving licence as on the date of the accident. It was

further pleaded that the liability is subject to terms

and conditions of the policy. 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 got exhibited documents namely Ex.P1 to Ex.P19.

On behalf of respondents, one witness was examined

as RW-1 and got exhibited documents namely Ex.R1

to Ex.R5. 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.18,45,000/-

along with interest @ 8% 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, at the time of the accident the deceased

was aged about 19 years and was studying in third

semester of B.E. in Sai Vidya Institute of Technology,

he has very good academic qualification and he is very

good opportunity to get good job after completion of

his graduation and he was also conducting tuitions

and earning Rs.8,000/- per month. The monthly

income assessed by the Tribunal is on the lower side.

In support of her contentions, she has relied on the

judgment of a Division Bench of this Court in MFA

No.294/2006 disposed of on 09.02.2010 wherein

this Court has assessed the income of the engineering

student at Rs.20,000/-. She has also relied on the

judgment of another Division Bench of this Court in

MFA No.9897/2008 disposed of on 10.11.2014

wherein in similar situation the notional income has

been considered as Rs.25,000/-.

Secondly, 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'.

Thirdly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, she 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 studying in third semester of B.E. and

he is very good at studies, no document has been

produced to show the co-curricular achievement and

academic achievements of the deceased. Even

though they claimed that deceased was earning

Rs.8,000/- per month by taking tuitions, to that effect

they have not produced any document to establish the

same. In support of his contentions, he relied on the

judgment of a Division Bench of this Court in MFA

No.3469/2019 disposed of on 29.08.2019

wherein this Court after considering the academic and

co-curricular achievement of a student of fourth

semester has considered the notional income as

Rs.15,000/- per month. He has also relied on the

judgment of a Division Bench of this Court in MFA

No.7647/2016 disposed of on 17.12.2020

wherein for the death of an engineering student the

monthly income has been considered as Rs.8,500/-.

Therefore, he contended that in the case on hand,

after considering the evidence of the parties and the

materials available on record the Tribunal has rightly

considered Rs.12,000/- per month.

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.

Thirdly, 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 8% 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.

9. It is not in dispute that deceased Sagar

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver. It is also not in dispute that at the time of the

accident he was aged about 19 years and was

studying in third semester of B.E. in Sai Vidya

Institute of Technology. The claimants have produced

the certificate issued by the College as per Ex.P9 and

four marks cards of the deceased as per Exs.P14 to

P17. There is no other supporting document of the

academic and co-curricular achievement of the

deceased.

10. Considering the evidence of the parties and

the materials available on record I am of the opinion

that the monthly income of the deceased has to be

assessed as Rs.15,000/-. 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 NATIONAL INSURANCE

CO. LTD. vs. PRANAY SETHI AND OTHERS

reported in AIR 2017 SC 5157, 'PRANAY SETHI'.

Thus, the monthly income comes to Rs.21,000/-.

Since the deceased was a bachelor, it is appropriate to

deduct 50% of the income of the deceased towards

personal expenses and remaining amount, i.e.,

Rs.10,500/- has to be taken as his contribution to the

family. The deceased was aged about 19 years at the

time of the accident and multiplier applicable to his

age group is '18'. Thus, the claimants are entitled to

compensation of Rs.22,68,000/- (Rs.10,500*12*18)

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), claimant Nos.1 and 2, parents

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of filial

consortium' .

11. Thus, the claimants are entitled to the

following compensation:

         Compensation under           Amount in
            different Heads              (Rs.)
        Loss of dependency              22,68,000
        Funeral expenses                   15,000
        Loss of estate                     15,000
        Loss of Filial consortium          80,000
                        Total          23,78,000

12. 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.23,78,000/- as against

Rs.18,44,400/- 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 @ 8%

p.a. (interest @ 6% p.a. on the enhanced

compensation) from the date of filing of the claim