Karnataka High Court

Smt Latha S K vs Yogananda B on 24 May, 2022

Bench: H T Prasad

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 24TH DAY OF MAY 2022

                      BEFORE

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

         MFA No.896 OF 2018(MV)
      C/W MFA CROB.NO.51/2018(MV)

IN MFA NO.896/2018

BETWEEN

BRANCH MANAGER
BHARATHI AXA GIC LTD.
NO.2951-A, D29/1
1ST FLOOR, TEMPLE ROAD,
KALIDASA CIRCLE,
V.V.MOHALLA,
MYSORE-570 002

NOW REP. BY ITS LEGAL MANAGER
BHARATHI AXA GIC LTD.
1ST FLOOR, FERNS ICON,
SURVEY NO.28, DODDANEKUNDI,
K.R.PURAM HOBLI,
BANGALORE-560 037.
                                   ...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)

AND

1 . SMT. LATHA S.K.
                       2




   W/O LATE NAGARAJU,
   NOW AGED ABOUT 39 YEARS

2 . JEEVANKUMAR B.N.
    S/O LATE NAGARAJU,
    NOW AGED ABOUT 20 YEARS

3 . KUM.CHAITHRA B.N.
    D/O LATE NAGARAJU,
    AGED ABOUT 18 YEARS

4 . SMT.SIDDAMMA
    W/O LATE CHANNARASANAYAKA,
    NOW AGED ABOUT 67 YEARS

   ALL ARE R/AT DASTIKOLA VILLAGE,
   BILIKERE HOBLI,
   HUNSUR TALUK,
   MYSURU -571 104.

5 . YOGANANDA
    S/O BASAVARAJU,
    NOW AGED ABOUT 38 YEARS
    NO.28, FIRE BRIGADE QUARTERS,
    SARASWATHIPURAM,
    MYSURU-570 009.

6 . GOPAL REDDY
    S/O VENKATARAMANA REDDY,
    NOW AGED ABOUT 47 YEARS
    NO.314, NANJANGUD ROAD,
    BANDIPALYA,
    MYSURU -571 124.
                                ...RESPONDENTS
(BY SRI M.NAGESH, ADVOCATE FOR R1 TO R4;
                          3




NOTICE TO R5 AND R6 IS DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
04.10.2017 PASSED IN MVC NO.920/2016 ON THE
FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL
CAUSES, SENIOR CIVIL JUDGE, AS A PRESIDING
OFFICER,     MACT,     MYSURU,     AWARDING
COMPENSATION OF RS.16,62,000/- WITH INTEREST
AT 9% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.

IN MFA CROB.NO.51/2018

BETWEEN

1 . SMT. LATHA S K
    W/O LATE NAGARAJU
    AGED ABOUT 39 YEARS,

2 . SRI JEEVANKUMAR B N
    S/O LATE NAGARAJU
    AGED ABOUT 20 YEARS,

3 . KUM CHAITHRA B N
    D/O LATE NAGARAJU
    AGED ABOUT 18 YEARS,

4 . SMT SIDDAMMA
    W/O LATE CHANNARASANAYAKA
    AGED ABOUT 67 YEARS,

   ALL ARE RESIDING AT
   DASTIKOLA VILLAGE,
   BILIKERE HOBLI
                        4




     HUNSUR TALUK
     MYSURU DISTRICT-571
                              ..CROSS OBJECTORS
(BY SRI NAGESH M, ADVOCATE)

AND

1.    YOGANANDA B
      S/O SRI BASAVARAJU
      AGED ABOUT 38 YEARS,
      NO.28, FIRE BRIGADE QUARTERS
      SARASWATHIPURAM
      MYSURU-570 009

2.    GOPAL REDDY
      S/O VENKATARAMANA REDDY
      AGED ABOUT 47 YEARS,
      NO.314, NANJANAGUD ROAD,
      BANDIPALYA
      MYSURU-570 003

3.   BHARATHI AXA GENERAL INSURANCE CO. LTD.,
     NO.2951/A, D.29/1, 1ST FLOOR
     TEMPLE ROAD,
     KALIDASA CIRCLE,
     V V MOHALLA,
     MYSURU-570 002
                                  ...RESPONDENTS
(BY SRI B.PRADEEP, ADVOCATE FOR R3;
NOTICE TO R1 AND R2 IS DISPENSED WITH)

    THIS MFA.CROB IN MFA.896/2018 FILED UNDER
ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT
AND AWARD DATED 04.10.2017 PASSED IN
MVC.NO.920/2016 ON THE FILE OF THE PRL. JUDGE,
                                  5




COURT OF SMALL CAUSES, AS PRESIDING OFFICER,
AND SENIOR CIVIL JUDGE, MACT, MYSURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

    THIS MFA A/W MFA.CROB COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                           JUDGMENT

MFA 896/2018 is filed by the Insurance

Company and MFA CROB 51/2018 is filed by the

claimants being aggrieved by the judgment dated

4.10.2017 passed by the Motor Accident Claims

Tribunal, Mysuru in MVC 920/2016.

2. Facts giving rise to the filing of the appeal

and cross objection briefly stated are that on

23.6.2016, the deceased Nagaraju was proceeding on

motorcycle bearing registration No.KA-09-HE-0883

near Police check post at Bhugathagalli Village on

Mysuru-Bannur main road, at that time, a lorry

bearing registration No.KA-09-A-5877 which was

being driven in a rash and negligent manner, dashed

against the motorcycle. 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

No.3 appeared through counsel and filed written

statement 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. The driver of the offending vehicle

and rider of the motorcycle did not possess valid

driving licence as on the date of the accident. Hence,

he sought for dismissal of the petition.

The respondent Nos.1 and 2 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, neither any witness was

examined nor any document was produced. 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.16,62,000/- 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, the present appeal and

cross objection have been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.750/- per day by doing bar bending

work and Mestri work and produced salary certificate

at Ex.P-8. But they have not examined the author of

the salary certificate to prove the income of the

deceased. In the absence of proof of income, the

income assessed by the Tribunal at Rs.12,000/- p.m.

is on the higher side.

Secondly, since the claimants have not

established the income of the deceased, they are not

entitled for compensation towards 'future prospects'.

Thirdly, the compensation awarded by the

Tribunal under the head of 'loss of consortium' and

'funeral expenses' are on the higher side and contrary

to 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].

Fourthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side.

Fifthly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is excessive. Hence, he prays for allowing the

appeal filed by the Insurance Company.

7. On the other hand, the learned counsel for

the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 41 years at the time of the accident

and he was earning Rs.750/- per day by doing bar

bending work and Mestri work and produced salary

certificate at Ex.P-8. But the Tribunal is not justified

in taking the monthly income of the deceased as

merely as Rs.12,000/-.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of PRANAY SETHI

(supra), in case the deceased was self-employed or on

a fixed salary, an addition of 40% of the established

income towards 'future prospects' should be the

warrant where the deceased was below the age of 40

years. The Tribunal has failed to consider 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 cross objection

filed by the claimants.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

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.750/- per day by doing bar bending work and

Mestri work and produced salary certificate at E.xP-8,

Rs.10,000/- per month. But they have not examined

the author of the salary certificate 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 2016, the notional income of the deceased has to

be taken at Rs.9,500/- 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.11,875/-. Since there are four

dependents, it is appropriate to deduct 1/4th of the

income of the deceased towards personal expenses

and remaining amount has to be taken as his

contribution to the family. The deceased was aged

about 41 years at the time of the accident and

multiplier applicable to his age group is '14'. Thus,

the claimants are entitled to compensation of

Rs.14,96,250/- (Rs.11,875*12*14*3/4) 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 Nos.2 and 3, children

of the deceased are entitled for compensation of

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

consortium' and claimant No.4, mother of the

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

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                 14,96,250





       Funeral expenses                      15,000
       Loss of estate                        15,000
       Loss of spousal                       40,000
       consortium
       Loss of Parental                      80,000
       consortium
       Loss of Filial consortium            40,000
                       Total            16,86,250


     11.   In   the   result,    the   appeal     and      cross

objection are disposed of. The judgment of the

Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.16,86,250/- as against

Rs.16,62,000/- awarded by the Tribunal.

In view of the Division Bench decision of this in

the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020),

the interest granted by the Tribunal at the rate of

9% p.a. on the compensation amount is reduced to

6% p.a.