Karnataka High Court
Gowramma vs Vijayakumar 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.6280 OF 2018(MV)
BETWEEN
1 . GOWRAMMA
W/O LATE VEERABHADRAIAH H N
AGED ABOUT 59 YEARS
2 . GURUSIDDAPPA
S/O LATE VEERABHADRAIAH H N
AGED ABOUT 46 YEARS.
BOTH ARE RESIDENTS OF
M HOSAHALLI VILLAGE
NITTUR HOBLI, GUBBI TALUK
TUMKUR DISTRICT - 572 216.
...APPELLANTS
(BY SRI K.N.SUNIL FOR SRI RAMESH.K.R, ADVOCATES)
AND
1. VIJAYAKUMAR
S/O LATE NARASIMHAIAH
MAJOR
R/AT SATHENAHALLI VILLAGE
AND POST, CHELUR HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT - 572 216.
2
2. THE MANAGER
SRIRAM GENERAL INSURANCE CO LTD.,
E-8, RIICO INDUSTRIAL AREA,
SITAPURA, JAIPUR
RAJASTHAN STATE - 302 022.
BRANCH OFFICE
THE MANAGER
SRIRAM GENERAL INSURANCE CO LTD.,
S.S.CORNER, 3RD FLOOR,
OPPOSITE TO BOWRING HOSPITAL
SHIVAJINAGARA
BENGALURU - 560 001.
3. NAGARAJU S R
S/O RANGAIAH
AGED ABOUT 50 YEARS,
R/AT SATHENAHALLI VILLAGE
AND POST, CHELUR HOBLI
GUBBI HOBLI, GUBBI TALUK
TUMKUR DISTRICT - 572 216.
...RESPONDENTS
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R2;
NOTICE TO R1 SERVED AND UNREPRESENTED;
NOTICE TO R3 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 22.01.2018 PASSED
IN MVC NO.1555/2014 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, GUBBI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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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 22.01.2018 passed
by the Additional Senior Civil Judge & JMFC, Gubbi in
MVC No.1555/2014.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 17.08.2014 at about 07.00
P.M. when the deceased was proceeding in the
motorcycle as a pillion rider from Chelur to his Village
and one Mahadevaiah was the rider of the said
motorcycle. When they reached near Chand Pasha's
Puncture shop at Chelur on Chelur-Nittur road, the
driver of the TATA-HGV Lorry bearing Registration
No.AP-21-T-6927 drove the same in high speed and in
a rash and negligent manner and suddenly over took
the bike and applied the brake in the center of the
road. As a result of the same, the rider of the
motorcycle without any alternative dashed against the
lorry. Due to impact, 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.2 and 3 have appeared through counsel and only
respondent No.2/Insurance Company has 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 rider
himself. The driver of the offending vehicle did not
possess valid driving licence as on the date of the
accident. The liability is subject to terms and
conditions of the policy. 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. 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.2 as PW-1
and got exhibited documents namely Ex.P.1 to
Ex.P.25. On behalf of respondents, one witness was
examined as RW-1 and got exhibited documents
namely Ex.R.1 to Ex.R.3. 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.8,41,200/- along with interest at the rate of 6%
p.a. and directed the Insurance Company to deposit
the compensation amount along with interest. Being
aggrieved, this appeal has been filed.
6. Sri K. N. Sunil, learned counsel appearing
for Sri K. R. Ramesh, learned counsel for the
claimants has raised the following contentions:
Firstly, the claimants claim that the deceased
was aged about 60 years at the time of the accident
and he was earning Rs.9,000/- per month by working
as agriculturist. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.6,000/-.
Secondly, 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'.
Thirdly, 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 B. C. Shivanne Gowda,
learned counsel for the Insurance Company has raised
the following counter-contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.9,000/- 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, 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 Veerabhadraiah
H.N. 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.9,000/- 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 2014, the notional
income of the deceased has to be taken at Rs.8,500/-
p.m.
To the aforesaid income, 10% 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. -v- PRANAY
SETHI AND OTHERS [AIR 2017 SC 5157],. Thus, the
monthly income comes to Rs.9,350/-. Since there are
two dependents, it is appropriate to deduct 1/3rd of
the income of the deceased towards personal
expenses. Thus, the monthly income comes to
Rs.6,234/-. The deceased was aged about 60 years at
the time of the accident. The Tribunal considering the
same, has rightly taken the multiplier applicable to his
age group as '9'. Thus, the claimants are entitled to
compensation of Rs.6,73,272/- (Rs.6,234*12*9) 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 No.2,
son of the deceased is entitled for compensation of
Rs.40,000/- under the head of 'loss of parental
consortium'.
The compensation awarded by the Tribunal
under the head of 'Medical Expenses' is just and
reasonable.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 6,73,272
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 40,000
consortium
Medical Expenses 2,86,000
Total 10,69,272
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.10,69,272/- as against
Rs.8,41,200/- awarded by the Tribunal.
The Insurance Company 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
HA/-
