Karnataka High Court

Anusuya vs Jalil on 26 May, 2022

Bench: H T Prasad

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 26TH DAY OF MAY 2022

                     BEFORE

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

          MFA No.885 OF 2021(MV)

BETWEEN

1 . ANUSUYA
    W/O LATE YOGESHA
    @ K.T. RANGEGOWDA
    AGED ABOUT 38 YEARS

2 . NIRMALA
    D/O LATE YOGESH
    @ K.T. RANGEGOWDA
    AGED ABOUT 22 YEARS

3 . GNANESHAGOWDA
    S/O LATE YOGESHA
    @ K.T. RANGEGOWDA
    AGED ABOUT 18 YEARS

4 . THIMMAMMA
    W/O LATE THIMMEGOWDA
    AGED ABOUT 68 YEARS

   ALL ARE R/AT
   KALLAHALLY VILLAGE,
   KATTAYA HOBLI,
   HASSAN TALUK 573201
   NOW RESIDING AT
   HEMAVATHI NAGARA
                             2



     5TH CROSS, HASSAN-573201.
                                         ...APPELLANTS
(BY SRI BYRA REDDY.G.S FOR
    SMT.KAVITHA H C, ADVOCATES)

AND

1.    JALIL
      S/O MOHAMMED
      AMBEDKAR NAGARA,
      BEHIND K.P.T.C.L
      HASSAN CITY-573201.

2.   MANAGER
     SRI RAM GENERAL INSURANCE COMPANY LTD
     OPPOSITE BOWRING HOSPITAL
     SHIVAJINAGAR,
     BENGALURU-06.
                                    ...RESPONDENTS
(BY SRI PRADEEP.B, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH)

      THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DT.20.03.2020 PASSED IN
MVC NO.1528/2017 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HASSAN,
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:
                                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 20.03.2020 passed

by the Motor Accident Claims Tribunal, Hassan in MVC

1528/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 28.05.2017 at about 07.00

P.M., near Marganahally gate, on Hassan-

Shankaranahally gate, while the claimant along with

another person riding the bike bearing Registration

No.KA-13-K-949, the driver of the Tractor bearing

Registration No.KA-34-N-1248 drove the same in a

rash and negligent manner and dashed against the

bike of 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

Nos.1 and 2 being the owner and insurer have

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. It was pleaded by the owner of the offending

vehicle that the petition itself is false and frivolous in

the eye of law. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant.

It was pleaded by the insurer that the age,

occupation and income of the deceased are denied.

The quantum of compensation claimed by the

claimants is exorbitant. It was further pleaded that

the accident was not occurred due to negligence on

the part of the driver of the offending vehicle. The

liability is subject to terms and conditions of the

policy. 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-2

and got exhibited documents namely Ex.P.1 to

Ex.P.25. On behalf of respondents, one witness was

examined as RW-1 and no document was exhibited.

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.11,10,000/- 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. Sri Byra Reddy G. S., learned counsel for

Smt. Kavitha H. C., learned counsel for the claimants

has raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 48 years at the time of the accident

and he was earning Rs.30,000/- per month by

working as agriculturist and carpenter. But the

Tribunal is not justified in taking the monthly income

of the deceased as merely as Rs.8,500/-.

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 aged between 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'.

Lastly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for enhancement of

compensation.

7. Per contra, Sri Pradeep B, learned counsel

for the Insurance Company has raised the following

counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.30,000/- 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.

Lastly, in view of judgment of the 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 claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. 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 Yogesha @

K T Rangegowda 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.30,000/- 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 2017, the notional

income of the deceased has to be taken at

Rs.11,000/- 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.13,750/-. Since there are four

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

income of the deceased towards 'personal expenses'.

Thus, the monthly income comes to Rs.10,312/-. The

deceased was aged about 48 years at the time of the

accident and multiplier applicable to his age group is

'13'. Thus, the claimants are entitled to compensation

of Rs.16,08,672/- (Rs.10,312*12*13) 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 No.1, wife of the deceased is

entitled for compensation of Rs.40,000/- under the

head of 'loss of spousal consortium', 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 is 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               16,08,672
       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                  17,98,672

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.17,98,672/- as against

Rs.11,10,000/- awarded by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation amount shall carry interest at

6% per annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (enhanced compensation amount shall carry