Karnataka High Court

Ashok Kumar Yadav vs Mr Jagajit Singh Parmar on 27 May, 2022

Bench: H T Prasad

                               1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27th DAY OF MAY 2022

                          BEFORE

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

                MFA No.5900 OF 2018 (MV)

BETWEEN:

1. Ashok Kumar Yadav,
   S/o Bharat Yadav,
   Aged about 42 years,

2. Mira Devi,
   W/o Ashok Kumar Yadav
   @ Ashok Yadav,
   Aged about 40 years,

Both are residing at
Village Ketuka Bariaul Post,
Darbhanga District,
Bihar Street - 846 005.              ... Appellants

(By Sri.Shantharaj K, Advocate)

AND:

1. Mr.Jagajit Singh Parmar,
   S/o Not known,
   Aged 52 years,
   Village Kandihill,
   Taluk Bhiwandi,
   District Thane,
   Maharashtra.
                             2



2. The New India Assurance
   Company Limited,
   By its Manager,
   Jain Towers, D.O.-110800.
   10TH & 11TH Floor,
   17 Mathew Road,
   Opp.Roxy Cinema,
   Maharashtra.

3. Ramaswamy K P,
   S/o Ponnagoundar,
   Aged about 42 years,
   Murugan Roadlines,
   Kottai Kadu, Sankari Taluk,
   Salem, Tamil Nadu - 637 301.

4. Magma HDI Gen. Ins. Co. Ltd.,
   By its Manager,
   2nd Floor, Sri Complex,
   No,1510, Thrichy Road,
   Coimbatore - 641 018.                 ... Respondents

(By Sri. K. Nagarajaiah, Advocate for R2;
    Sri. Ravi.S.Samprathi, Advocate fir R4;
         Notice to R1 & R3 are dispensed with)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 23/03/2018 passed
in MVC No.721/2016 on the file of the Senior Civil Judge &
JMFC., and Additional MACT, Sira, 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:
                                    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 23.03.2018 passed

by the Motor Accident Claims Tribunal, Sira in MVC

No.721/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.06.2016 at about 11.00

p.m., the deceased Rakesh Kumar Yadav was

proceeding in the lorry bearing registration No. MH-

04/F-8727 as a cleaner from Mumbai to Bangalore.

When the said lorry reached near Hiriyur - Sira NH 48

road, opposite to Muthu Daba Hotel, Tavarekere, Sira,

Tumkur District, at that time, the driver of the lorry

drove the same in a rash and negligent manner and

dashed to another lorry bearing registration No.TN-

52/A-9394 which was parked on the left side of the

road. As a result of the aforesaid accident, the

deceased 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

Nos.2, 3 and 4 appeared through counsel and

respondent Nos. 2 and 4 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 by

respondent No.2 that the accident was due to the

negligence of lorry bearing registration No.TN--52/A-

9394. It was further pleaded 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.

It was pleaded by respondent No.4 admitting

that the lorry bearing registration No.TN-52/A-9394 is

insured with it. It was further pleaded that the

accident took place due to sole negligence of the

driver of the offending lorry and the driver of the

another lorry parked the same on the extreme left

side of the road with all precautionary measures and

the driver of the offending lorry drove the same at a

high speed and in a rash and negligent manner and

dashed again the parked lorry and the Insurance

Company is not liable to pay the compensation.

Hence, they 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, one witness was examined

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

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.10,82,000/- along with interest at

the rate of 9% p.a. and directed the respondent Nos.

2 and 4 to deposit 70% and 30% of the compensation

amount, respectively, 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.12,000/- per month by working as a

cleaner. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.9,000/-.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. vs. PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157, 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 same

may be considered.

Thirdly, as per the law laid down by the Hon'ble

Supreme Court in the case of PRANAY SETHI

(supra), the claimants are entitled for Rs.15,000/-

towards 'loss of estate' and Rs.15,000/- towards

'funeral expenses'.

Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he 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 earning Rs.12,000/- 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 9% 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 records.

9. It is not in dispute that deceased Rakesh

Kumar Yadav 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.12,000/- per month. But they have not produced

any documents to prove the income of the deceased.

But as per the police records it is very clear that the

deceased was a cleaner. Considering his age and

avocation, I am of the opinion that the notional

income of the deceased has to be assessed as

Rs.10,000/- per month. 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 'PRANAY SETHI' (supra).

Thus, the monthly income comes to Rs.14,000/-.

Since the deceased was a bachelour, it is appropriate

to deduct 50% 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 20 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.15,12,000/- (Rs.7,000*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

CO. LTD. Vs. NANU RAM reported in 2018 ACJ

2782, 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' .

10. Thus, the claimants are entitled to the

following compensation:

         Compensation under           Amount in
            different Heads              (Rs.)
        Loss of dependency              15,12,000
        Funeral expenses                   15,000
        Loss of estate                     15,000
        Loss of Filial consortium          80,000
                        Total          16,22,000

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.16,22,000/- as against

Rs.10,82,000/- 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 respondent Nos. 2 and 4 herein, i.e., New

India Assurance Company Ltd and MAGMA HDI

General Insurance Co., are directed to deposit 70%

and 30% of the compensation amount along with