Karnataka High Court
Smt Ponnamma C S vs Sri A V Rakesh on 9 August, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:28101
MFA No. 7436 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 7436 OF 2018 (MV)
BETWEEN:
1. SMT PONNAMMA C S
W/O.C.C.SOMAIAH
AGED ABOUT 51 YEARS.
2. SRI C C SOMAIAH
S/O LATE C.C.CHINNAPPA
AGED ABOUT 58 YEARS
BOTH ARE RESIDING AT THANTIPALA
MEGHATHALU VILLAGE
MAKKANDOOR POST AND PANCHAYATH
MADIKERI TALUK-571201.
...APPELLANTS
(BY SRI. PADMANABHA KEDILAYA V.,ADVOCATE)
AND:
Digitally signed
by
DHANALAKSHMI 1. SRI A V RAKESH
MURTHY S/O VENKATASWAMY V C
Location: High AGED ABOUT 27 YEARS
Court of R/AT D.NO.724, CHOWDAMMA MAHAL
Karnataka TEACHERS COLONY, HOSABADAVANE
MADDUR TOWN & POST,MANDYA DISTRICT 571428.
2. IFFCO TOKIO GENERAL INSURANCE CO.LTD.
BEHIND LABOUR OFFICE
AKSHAY BANDHAR, KUVEMPU NAGAR
MYSORE CITY-23.
...RESPONDENTS
(BY SRI.C SHANKAR REDDY., ADVOCATE:
NOTICE TO R1 IS D/W V/O DATED: 09.8.2023)
-2-
NC: 2023:KHC:28101
MFA No. 7436 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:02.02.2018
PASSED IN MVC NO.58/2016 ON THE FILE OF THE PRINCIPAL
DISTRICT & SESSIONS JUDGE, KODAGU, MADIKERI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. 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 and award dated 02.02.2018 passed by the
MACT, Madikeri in MVC No.58/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 27.02.2016 around 04.45 p.m., near
Dava Workshop, Bylukuppe Village, when the deceased -
C. S. Poovanna along with others returning in a Maruthi
Car bearing Registration NoKA-02-MD-5790, at that time,
the driver of Eicher Lorry bearing Registration No.KA-11-
A-4964 came in a rash and negligent manner and caused
accident. a result of the same, the deceased and others
NC: 2023:KHC:28101
MFA No. 7436 of 2018
sustained grievous injuries and succumbed to the injuries
in 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 No.2
appeared through counsel and filed written statement in
which the averments made in the petition were denied.
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.
5. The respondent No.1 did not appear before the
Tribunal inspite of service of notice and hence was placed
ex-parte.
6. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
NC: 2023:KHC:28101
MFA No. 7436 of 2018
the evidence. The claimants, in order to prove their case,
examined claimant No.1, mother of the deceased as PW-1
and got exhibited documents namely Ex.P1 to Ex.P27. On
behalf of respondents, no witness was examined but got
exhibited a 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.8,40,000/- 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.
7. The learned counsel for the claimants has raised the
following contentions:
a) Firstly, the claimants claim that the deceased was
aged about 21 years at the time of the accident and he
was a student of Final year in Bachelor of Human Resource
NC: 2023:KHC:28101
MFA No. 7436 of 2018
Development and he was also assisting his parents and
earning Rs.10,000/- per month. But the Tribunal is not
justified in taking the monthly income of the deceased as
merely as Rs.7,500/-.
b) 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.
c) 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'.
d) Fourthly, 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
NC: 2023:KHC:28101
MFA No. 7436 of 2018
Rs.40,000/- under the head of 'loss of love and affection
and consortium'.
e) Lastly, considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is on the lower side. Hence, he prays for allowing
the appeal.
8. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
a) Firstly, even though the claimants claim that the
deceased was earning Rs.10,000/- 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.
b) Secondly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
c) Thirdly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
NC: 2023:KHC:28101
MFA No. 7436 of 2018
deceased, the overall compensation awarded by the
Tribunal is just and reasonable.
d) Lastly, in view of the Division Bench decision of this
Court in the case of MS.JOYEETA BOSE AND OTHERS -V-
VENKATESHAN.V AND OTHERS (MFA 5896/2018 AND
CONNECTED MATTERS DISPOSED OF ON 24.8.2020), THE
RATE OF interest granted by the Tribunal at 9% p.a. on
the compensation amount is on the higher side. Hence, he
prays for dismissal of the appeal.
9. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
10. It is not in dispute that C. S. Poovanna died in the
road traffic accident occurred on 27.02.2016 due to rash
and negligent driving of the offending vehicle by its driver.
11. At the time of the accident, the deceased was aged
about 21 years and he was a student of Final year in
Bachelor of Human Resource Development and the
NC: 2023:KHC:28101
MFA No. 7436 of 2018
claimants claim that deceased assisting his parents by
earning Rs.10,000/- 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 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, the Tribunal has rightly deducted
50% of the income of the deceased towards
personal expenses. Thus, the monthly income comes to
Rs.6,650/-. The deceased was aged about 21 years at the
time of the accident and multiplier applicable to his age
group is '18'. Thus, the claimants are entitled to
NC: 2023:KHC:28101
MFA No. 7436 of 2018
compensation of Rs.14,36,400/- (Rs.6,650*12*18) on
account of 'loss of dependency'.
12. 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'.
13. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
claimants, parents of the deceased are entitled for
compensation of Rs.40,000/- each under the head of 'loss
of filial consortium'.
14. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 14,36,400
Funeral expenses 15,000
- 10 -
NC: 2023:KHC:28101
MFA No. 7436 of 2018
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 15,46,400
15. In the result, I pass the following order:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is
modified.
c) The claimants are entitled to a total
compensation of Rs.15,46,400/- as
against Rs.8,40,000/- awarded by the
Tribunal.
d) In view of judgment of the Division Bench
of this Court in the case of 'MS.JOYEETA
BOSE' (supra), the enhanced compensation
shall carry interest at 6% per annum.
e) The Insurance Company is directed to
deposit the compensation amount along
with interest from the date of filing of the
- 11 -
NC: 2023:KHC:28101
MFA No. 7436 of 2018
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
