Karnataka High Court
Smt. Anusuya D vs Cholamandalam M S Gic Ltd on 23 August, 2023
Bench: H T Prasad
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NC: 2023:KHC:30105
MFA No. 7587 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 7587 OF 2018 (MV)
BETWEEN:
1. SMT. ANUSUYA D
W/O LATE DEVA K
AGED ABOUT 39 YEARS.
2. KUM YOKSHITHA
D/O LATE DEVA K
AGED ABOUT 13 YEARS
3. MASTER MANISH
S/O LATE DEVA K
AGED ABOUT 6 YEARS
APPELLANT Nos. 2 & 3 ARE
REPRESENTED THROUGH NATURAL
GUARDIAN MOTHER SMT ANUSUYA
1ST APPELLANT
Digitally signed by
DHANALAKSHMI ALL ARE R/AT NO.E-170, 10TH CROSS
MURTHY WARD NO.1, KAMMAGONDANAHALLI
Location: High JALAHALLI WEST, BENGALURU-560015.
Court of
Karnataka ...APPELLANTS
(BY SRI. GURUDEV PRASAD K T., ADVOCATE)
AND:
1. CHOLAMANDALAM M S GIC LTD
T.P.CLAIM HUB, GOLDEN HEIGHTS
VI FLOOR, 59TH CROSS
4TH M BLOCK, DR.RAJKUMAR ROAD
NEAR SUJATHA THEATER
-2-
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MFA No. 7587 of 2018
BENGALURU-560010
REP. BY ITS MANAGER.
2. MR CHAND PASHA
S/O MANUVAR KHAN
R/AT VALMIKINAGAR
BASAVANAHALLI, KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT PIN-560020
...RESPONDENTS
(BY SRI.H.S. LINGARAJ., ADVOCATE FOR R1:
NOTICE TO R2 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04/06/2018,
PASSED IN MVC NO.5774/2017, ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE & XXIV ACMM., MEMBER,
MACT, (SCCH-20), MAYO HALL UNIT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, 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 04.06.2018 passed by the
MACT, Bengaluru in MVC No.5774/2017.
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MFA No. 7587 of 2018
2. Facts giving rise to the filing of the appeal briefly
stated are that on 28.09.2017 at about 07.30 p.m. near
electric transformer, Jhonson godown, Jalahally west,
Bengaluru while the deceased-Deva K was crossing
Kammagonahalli main road, at that time, the driver of the
canter bearing Registration No.KA-52-5532 came in a rash
and negligent manner, so as to endanger human life,
dashed to the deceased. 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 summons, the respondent No.1
appeared through counsel and 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. The age, occupation and income of the
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MFA No. 7587 of 2018
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.2 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
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.P13. On behalf of
respondents, one witness was examined as RW-1 but no
document has been produced. 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
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MFA No. 7587 of 2018
a compensation of Rs.13,30,000/- 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 at the time of the
accident and he was earning Rs.24,000/- per month by
working as painter. But the Tribunal is not justified in
taking the monthly income of the deceased as merely as
Rs.9,000/-.
b) 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.44,000/- under the head
of 'loss of love and affection and consortium'.
c) Lastly, considering the age and avocation of the
deceased, the overall compensation awarded by the
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MFA No. 7587 of 2018
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.24,000/- 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, 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.
c) 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
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MFA No. 7587 of 2018
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 Deva K died in the road traffic
accident occurred on 28.09.2017 due to rash and
negligent driving of the offending vehicle by its driver.
11. The claimants claim that deceased was earning
Rs.24,000/- 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 2017, the notional income of the
deceased has to be taken at Rs.11,000/- p.m. The
Tribunal considering the law laid down by the Constitution
Bench of the Supreme Court in NATIONAL INSURANCE CO.
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MFA No. 7587 of 2018
LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157],
has rightly added 25% towards future prospects. Thus,
the monthly income comes to Rs.13,750/-. Since there are
three dependents, it is appropriate to deduct 1/3rd of the
income of the deceased towards personal expenses. Thus,
the monthly income comes to Rs.9,167/-. The Tribunal has
rightly applied the multiplier as '14'. Thus, the claimants
are entitled to compensation of Rs.15,40,056/- (Rs.9,167
*12*14) 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'. Claimant No.1, wife of the deceased is entitled
for compensation of Rs.44,000/- under the head of 'loss of
spousal consortium'.
13. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra), claimant
Nos.2 and 3, children of the deceased are entitled for
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MFA No. 7587 of 2018
compensation of Rs.44,000/- each under the head of 'loss
of parental consortium'.
14. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 15,40,056
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 44,000
consortium
Loss of Parental 88,000
consortium
Total 17,02,056
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.
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MFA No. 7587 of 2018
c) The claimants are entitled to a total compensation of
Rs.17,02,056/- as against Rs.13,30,000/- 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 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
