Karnataka High Court

Parvathamma vs V.Sivabalan on 22 June, 2022

Bench: H T Prasad

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
         DATED THIS THE 22ND DAY OF JUNE 2022
                           BEFORE

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

                 MFA No.8577 OF 2019(MV)
BETWEEN:

1.     Parvathamma,
       W/o Narayanappa M.,
       Now aged about 43 years.

2.     Sharadha G.N.,
       S/o Narayanappa M.,
       Now aged about 25 years.

3.     Murali G.N.,
       S/o Narayanappa M.,
       Aged about 19 years.

4.     Narayanappa M.,
       S/o Mariswamappa,
       Aged about 51 years.

       All are residing at Bethur Road,
       4th Cross, Medar Oni,
       Davanagere Town-577 599.           ... Appellants

(By Sri.Rangegowda N.R., Advocate)
AND:

1.     V. Sivabalan,
       S/o Velu,
       Aged Major,
       R/o Door No.2/164-I,
       Kumaran Nagara,
       Jagirredipatti Mamangam Salem
       T.N. Sate.
                             2



2.   The Divisional Manager,
     Magama HDI General Insurance Co. Ltd.,
     Divisional Office,
     1st Floor, Menerva Circle,
     H.M.Street, J.C.Road,
     Bangalore.                      ... Respondents

(By Sri.B.Pradeep, Advocate for R2:
Notice to R1 is dispensed with)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:07.08.2019 passed
in MVC No.1176/2018 on the file of the I Additional Senior
Civil Judge and Additional MACT-IV, Chitradurga, 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 07.08.2019 passed

by the Motor Accident Claims Tribunal, Chitradurga in

MVC No.1176/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 27.04.2018 at about 4.00

p.m. the deceased Nagaraju was proceeding in a lorry

bearing registration No.KL-05/X-8639 . The lorry due

to mechanical problem, halted at Kalmarahalli village

of Challakere Taluk and therefore, the said lorry was

hooked to another lorry bearing registration No.KA-

01/4207. When the said lorries reached near IUDP

Layout of Davanagere - Bangalore NH-4 road, another

lorry bearing registration No.TN-30/BK-4833 driven by

its driver in a rash and negligent manner dashed to

the hind portion of the lorry bearng registration

No.KL-05/X-8639. As a result of the aforesaid

accident, the deceased fell on the road, 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

No.2 appeared through counsel and filed written

statement 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 that the accident was due to

the rash and negligence and unmindful pulling of lorry

bearing registration No.KL-05/X-8639 by another lorry

bearing registration No.KA-01/4207. It was further

pleaded that the owners of said two lorries and

respective insurance companies are necessary parties

to the petition. 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, he

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 got exhibited documents namely Ex.P1 to Ex.P9.

On behalf of respondents, no witness was examined

but got exhibited documents namely Ex.R1 to Ex.R2.

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.9,37,200/- along with interest at

the rate of 7% 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 earning Rs.20,000/- per month by working as a

coolie. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.6,000/-.

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'. Hence, he

prays for enhancement of compensation.

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, 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.

Fourthly, 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 7% 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 Nagaraju

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. To the aforesaid income, the

Tribunal has rightly added 40% 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,. Thus, the monthly income comes to

Rs.17,500/-. Since the deceased was a bachelor,

50% has to be deducted towards personal expenses

and remaining amount, i.e., Rs.8,750/- has to be

taken as his contribution to the family. The deceased

was aged about 24 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.18,90,000/- (Rs.8,750*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 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                 18,90,000
         Funeral expenses                      15,000
         Loss of estate                        15,000
         Loss of Filial consortium             80,000
                         Total             20,00,000

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.20,00,000/- as against

Rs.9,37,200/- 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.

he Insurance Company is directed to deposit

the compensation amount along with interest @ 7%

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

compensation) from the date of filing of the claim