Karnataka High Court

The Regional Manager vs Smt Shobha on 30 May, 2022

Bench: H T Prasad

                           1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF MAY 2022

                         BEFORE

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

              MFA No.1235 OF 2015 (MV)
                        C/W
             MFA CROB No.49 OF 2019(MV)

IN M.F.A.No.1235/2015:

BETWEEN:

The Regional Manager,
The Oriental Insurance Co. Ltd.,
Regional Office, 4th Floor,
44/45, Leo Shopping Complex,
Residency Road,
Bangalore-25.
                                          ... Appellant
(By Smt.Harini Shivananda, Advocate)

AND:

1. Smt Shobha ,
   W/o Late Jayanna @ Jayappa,
   Aged About 32 Years,

2. Mst. J.Manu,
   S/o Late Jayanna @ Jayappa,
   Aged About 12 Years,

3. Kum. Anusha,
   D/O Late Jayanna @ Jayappa,
   Aged About 9 Years,
                             2



4. Kum Gouthami,
   D/o Late Jayanna @ Jayappa,
   Aged about 6 years,

Since Respondent No.2 to 4 are minors
is represented by their mother &
natural guardian respondent no.1.
All are R/at Nallagutlahalli Village,
Kamasamudram Post,
Bangarpet Tq,
Kolar District-563 114.

5. Sri.S. Karunakaran,
   S/O Srinivasagowda,
   TSR Bus
   R/at Thoppanahalli(V) & (P)
   Bangarpet Tq,
   Kolar District-563 114.

6. Smt.Anandamma,
   W/O Late Varadaraju @ Varadarajappa,
   Aged About 62 Years,
   R/A Nallagutlahalli Village,
   Kamasamudram Post,
   Bangarpet Tq, Kolar District-563114.
                                           ... Respondents
(By Sri.Gopala Krishna.N., Advocate for R1 to R4;
 Notice to R5 & R6 are served but unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 16.09.2014 passed
in MVC No.391/2013 on the file of the Presiding officer,
Fast Track Court, Member, MACT, K.G.F., Awarding
compensation of Rs.7,00,000/- with interest @ 6% from
the date of the petition till realization.
                             3



IN M.F.A.CROB.No.49/2019:

BETWEEN:

1. Smt Shobha ,
   W/o Late Jayanna @ Jayappa,
   Aged About 36 Years,

2. Mast. J.Manu,
   S/o Late Jayanna @ Jayappa,
   Aged About 16 Years,

3. Kum. Anusha,
   D/o Late Jayanna @ Jayappa,
   Aged About 13 Years,

4. Kum Gouthami,
   D/o Late Jayanna @ Jayappa,
   Aged about 10 years,

Minor Cross Objectors No.2 to 4 are
represented by natural guardian/their mother,
1st Cross-Objector herein
All are R/at Nallagutlahalli Village,
Kamasamudram Post, Bangarpet Tq,
Kolar District-563 114.
                                      ... Cross Objectors
(By Sri.Gopal Krishna N., Advocate)

AND:

1. The Oriental Insurance Company Limited.,
   Regional Office, 44/45,
   Leo Shopping Complex,
   Residency Road, Bangalore-25.
   Rep by its Manager.
                            4



2. Sri.S. Karunakaran,
   S/O Srinivasagowda,
   Major in age,
   TSR Bus
   R/at Thoppanahalli(V) & (P)
   Bangarpet Tq,
   Kolar District-563 114.

3. Smt.Anandamma,
   W/O Late Varadaraju @ Varadarajappa,
   Aged About 66 Years,
   R/A Nallagutlahalli Village,
   Kamasamudram Post,
   Bangarpet Tq, Kolar District-563114.
                                          ... Respondents
(By Smt.Harini Shivananda, Advocate for R1;
     Notice to R2 & R3 is dispensed with)

      This MFA.CROB in MFA.1235/2015 filed under
Order 41 Rule 22 of CPC read with Section 173(1) of
MV Act, 1988, against the Judgment and Award dated
16.09.2014 passed in MVC.No.391/2013 on the file of
the presiding officer, Fast Track Court, K.G.F, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.

    This MFA c/w MFA.CROB coming on for
Admission this day, the Court delivered the following:

                    JUDGMENT

MFA No.1235/2015 is filed by the Insurance

Company under Section 173(1) of the Motor Vehicles

Act, (for short, 'the Act') whereas MFA Crob.No.

49/2019 is filed by the claimants under Order 41 Rule

22 of CPC being aggrieved by the judgment and award

dated 16.09.2014 passed by the MACT, K.G.F. in MVC

No.391/2013. Since the challenge is to the same

judgment, both the appeal and cross objection are

clubbed together, heard and common judgment is

being passed.

2. Facts giving rise to the filing of the appeal

and cross-objection briefly stated are that on

10.02.2012 at about 4.30 to 5.00 p.m. the deceased

Jayanna @ Jayappa was proceeding in an Ape Auto

bearing registration No.KA-07/A-1372 on the left side

of Kamasamudra road near Ramalingapura bus stop.

At that time, the driver of T.S.R. bus bearing

registration No.KA-22/C-3399 came from opposite

direction in a rash and negligent manner and dashed

against the said auto. 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 notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petitions were

denied. The age, avocation and income of the

deceased are denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the driver of the offending vehicle

did not have 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. Hence, he

sought for dismissal of the petitions.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and 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 claimant No.1 was

examined as PW-1 and got exhibited documents

namely Ex.P1 to Ex.P23. On behalf of the

respondents, neither any witness was examined nor

got exhibited documents. 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 claimant sustained injuries. The Tribunal

further held that the claimants are entitled to

compensation of Rs.7,00,000/- 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, the appeal and cross-

objection have been filed.

6. The learned counsel appearing for the

Insurance Company has raised the following

contentions:

Firstly, even though the claimants claim that

deceased was earning Rs.9,000/- per month but they

have not produced any document to establish the

same. Under those circumstances the notional income

assessed by the Tribunal at Rs.6,000/- is on the

higher side.

Secondly, since it is a case of death the Tribunal

is not justified in awarding compensation of

Rs.50,000/- under the head 'loss of future prospects'.

Thirdly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable.

Fourthly, as on the date of the accident the

offending vehicle was not having fitness certificate, it

was expired and it was not renewed. Hence, insured

has violated the policy conditions and Insurance

Company is not liable to pay the compensation. But

the Tribunal has wrongly fastened the liability on the

Insurance Company. Hence, she prays for allowing

the appeal filed by the Insurance Company.

7. On the other hand, learned counsel appearing

for the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.9,000/- per month by working as a

mason. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.6,000/-.

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, as per the judgment of the Hon'ble

Supreme Court in the case of SARLA VERMA AND

OTHERS -V- DELHI TRANSPORT CORPORATION

AND ANOTHER reported in (2009) 6 SCC 121,

since there are 5 dependents, personal expenses of

the deceased has to be deducted at 1/4th, but the

Tribunal has erred in deducting 50%.

Fifthly, in view of the law laid down by the

Hon'ble Supreme Court in the case of MAGMA

GENERAL INSURANCE CO. LTD. Vs. NANU RAM

reported in 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'.

Sixthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side.

Seventhly, the Insurance Company has not

produced any document to prove that the offending

vehicle was not having fitness certificate as on the

date of the accident. As on the date of the accident,

the offending vehicle was having valid registration

certificate and it has not been cancelled. Under these

circumstances, Insurance Company is liable to pay the

compensation. In support of his contentions, he relied

on a judgment of a Division Bench of this Court in MFA

No.5993/2015 disposed of on 22.12.2020. Hence, he

prays for allowing the cross-objection.

8. Heard the learned counsel for the parties and

perused the records.

9. It is not in dispute that deceased Jayanna @

Jayappa 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 2012, the notional

income of the deceased has to be taken at Rs.7,000/-

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.9,800/-. Since there are 5

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

income of the deceased towards personal expenses

and remaining amount, i.e., Rs.7,350/- has to be

taken as his contribution to the family. The deceased

was aged about 35 years at the time of the accident

and multiplier applicable to his age group is '16' but

the Tribunal erroneously taken the multiplier as '15'.

Thus, the claimants are entitled to compensation of

Rs.14,11,200/- (Rs.7,350*12*16) 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 to 4, children of

the deceased are entitled for compensation of

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

consortium' and respondent No.3, who is the mother

of the deceased is entitled for compensation of

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

consortium' .

The compensation awarded by the Tribunal

under the head 'medical expenses' is retained.

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under            Amount in
           different Heads              (Rs.)
       Loss of dependency               1411,200
       Funeral expenses                   15,000
       Loss of estate                     15,000
       Loss of spousal                    40,000
       consortium
       Loss of Parental                      120,000
       consortium
       Loss of Filial consortium           40,000
                       Total           16,41,200


     The      claimants    are    entitled    to    a     total

compensation       of     Rs.16,41,200/-       as       against

Rs.7,00,000/- awarded by the Tribunal.

11. Even though the Insurance Company has

taken a defence that the offending vehicle was not

having valid fitness certificate but they have not

proved the same by examining an officer or transport

authority. Even assuming that if there is no fitness

certificate, it is not in dispute that as on the date of

the accident the offending vehicle was having valid

registration certificate and the same has not been

cancelled. A Division Bench of this Court in MFA

No.5993/2015 disposed of on 22.12.2020, under

similar circumstances, has held that the Insurance