Karnataka High Court

Stm Hasina vs Smt Thimmakka 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.1370 OF 2021 (MV)
BETWEEN:

SMT HASINA
W/O LATE SHEKH AHMED
AGED ABOUT 43 YEARS
THAGACHAGUPPE VILLAGE
KUMBLUGODU POST
KENGERI HOBLI
BANALORE-560 060                      ...APPELLANT

(BY SRI.PUTTA SWAMY C., ADV.)

AND:

1.     SMT THIMMAKKA
       S/O CHIKKANARAYANAPPA
       NO.26 SEEGEHALLI VILLAGE
       K GOLLAHALLI POST
       KENGERI HOBLI
       BANGALORE SOUTH TALUK

2.     TATA AIG INSURANCE COMPANY
       LTD.,LEGAL OFFICE
       NO.69 2ND FLOOR JP AND
       JAMBUKESWAR ARCADE
       MILLERS ROAD BANGALORE-52
       (REPRESENTED BY ITS MANGER)
                                     ...RESPONDENTS
                            2




(BY SRI.JANARDHAN REDDY, ADV. FOR R2;
    NOTICE TO R-1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
18.12.2017 PASSED IN MVC NO.7513/2016 ON THE FILE
OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND
MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU
SCCH-18 PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       SEEKING    ENHANCEMENT      OF
COMPENSATION.

    THIS MFA COMING ON FOR ORDERS THIS DAY, THE
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 claimant being

aggrieved by the judgment dated 18.12.2017 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC No.7513/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 05.09.2016 at about 03.00

P.M., the deceased was proceeding in the motorcycle

bearing Registration No.KA-04-HU-7674 as a pillion

rider near Doddakuntenhalli Village, Bidadi Hobli,

Ramanagar Taluk, at that time, the driver of the

Tractor bearing Registration No.KA-41-T-1478 drove

the same in a rash and negligent manner and dashed

against the motorcycle. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimant 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 separate 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 claimant is exorbitant.

It was pleaded by the insurer of the offending

vehicle that the driver of the offending vehicle did not

possess valid driving licence as on the date of the

accident and had no valid permit and FC. 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 claimant is exorbitant.

Hence, he 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 claimant, in order to

prove her case, examined her self as PW-1 and

another witness as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.17. On behalf of respondents,

neither examined any witness nor exhibited any

document. 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 claimant is

entitled to a compensation of Rs.12,64,782/- 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 Puttaswamy.C, learned counsel for the

claimant has raised the following contentions:

Firstly, the claimant claim that the deceased was

aged about 23 years at the time of the accident and

he was earning Rs.15,000/- per month by doing petty

business. But the Tribunal is not justified in taking the

monthly income of the deceased as merely as

Rs.7,500/-.

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

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 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 allowing the appeal.

7. Per contra, Sri Janardhan Reddy, learned

counsel for the Insurance Company has raised the

following counter-contentions:

Firstly, even though the claimant claim that the

deceased was earning Rs.15,000/- per month, the

same is not established by the claimant by producing

documents. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, since the claimant has not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

Thirdly, 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.

Lastly, 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 Tippu Sultan died in

the road traffic accident occurred due to rash and

negligent driving of the offending vehicle by its driver.

The claimant claim that deceased was earning

Rs.15,000/- per month. But she has 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 2016, the notional

income of the deceased has to be taken at Rs.9,500/-

p.m.

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.13,300/-. Since the deceased was a

bachelor at the time of the accident, it is appropriate

to deduct 50% of the income of the deceased towards

'personal expenses'. Thus, the monthly income comes

to Rs.6,650/-. The deceased was aged about 23 years

at the time of the accident and multiplier applicable to

his age group is '18'. Thus, the claimant is entitled to

compensation of Rs.14,36,400/- (Rs.6,650*12*18) on

account of 'loss of dependency'.

In addition, the claimant is 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 is a mother of the deceased, is

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

head of 'loss of filial consortium' .

The compensation of Rs.1,00,782/- awarded by

the Tribunal towards 'Medical Expenses' is just and

reasonable.

10. Thus, the claimant is entitled to the

following compensation:

         Compensation under             Amount in
            different Heads                (Rs.)
        Loss of dependency                14,36,400
        Funeral expenses                     15,000
        Loss of estate                       15,000
        Loss of Filial consortium            40,000
        Medical Expenses                    100,782
                        Total            16,07,182

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.16,07,182/- as against Rs.12,64,782/-

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 at 9%

p.a. (enhanced compensation amount shall carry