Karnataka High Court
Smt Gangamma O N vs Sri A V Rakesh on 23 August, 2023
Bench: H T Prasad
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NC: 2023:KHC:30033
MFA No. 7438 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. 7438 OF 2018 (MV)
BETWEEN:
1. SMT GANGAMMA O N
W/O O B NANIYAPPA
AGED ABOUT 52 YEARS.
2. SRI O B NANIYAPPA
S/O LATE BHEEMAIAH O B
AGED ABOUT 60 YEARS
BOTH ARE R/AT MEGATHALU VILLAGE
MAKKANDOOR POST
MADIKERI TALUK-571 201.
...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 HOSABADVANE
MADDUR TOWN AND POST
MANDYA DISTRICT-571 428.
2. IFFCO TOKIO GENERAL INSURANCE CO.LTD
BEHIND LABOUR OFFICE, AKSHAY BHANDAR
KUVEMPUNAGAR, MYSORE CITY-570 023
...RESPONDENTS
(BY SRI.C.SHANKAR REDDY, ADVOCATE FOR R2:
NOTICE TO R1 IS HELD SUFFICIENT V/O DATED: 7.4.2022)
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MFA No. 7438 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.59/2016 ON THE FILE OF THE PRL.
DISTRICT & SESSIONS JUDGE, KODAGU MADIKERI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, 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 2.2.2018 passed by the
MACT, Kodagu at Madikeri in MVC 59/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 27.2.2016, when the deceased
Poovanna along with two others were returning in Maruthi
car bearing registration No.KA-02-MD-5790 near Dava
Workshop, Bylukuppe Village, at that time, one Eicher
lorry bearing registration No.KA-11-A-4964 which was
being driven in a rash and negligent manner, dashed
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MFA No. 7438 of 2018
against the vehicle of 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.2
appeared through counsel and filed written statement in
which the averments made in the petition were denied.
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-2 and other witness as
PW-4 and got exhibited documents namely Ex.P1 to
Ex.P27. On behalf of respondents, no witness was
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MFA No. 7438 of 2018
examined but got exhibited documents 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.
6. The learned counsel for the claimants has raised the
following contentions:
a) Firstly, the claimants claim that the deceased was
aged about 22 years at the time of the accident and he
was studying final year BHRD and also earning
Rs.10,000/- to Rs.15,000/-. The Tribunal is not justified in
taking the monthly income of the deceased as merely as
Rs.7,500/-.
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MFA No. 7438 of 2018
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 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'.
d) 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.
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7. 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/- to Rs.15,000/- 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
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
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at 9% p.a. on the compensation amount is on the higher
side. Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
9. It is not in dispute that Ponnanna died in the road
traffic accident occurred on 27.2.2016 due to rash and
negligent driving of the offending vehicle by its driver.
10. The claimants claim that deceased was a final year
student of BHRD and also earning Rs.10,000/- to
Rs.15,000/- 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
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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 bachelor, 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 22 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.14,36,400/-
(Rs.13,300*12*18*50%) on account of 'loss of
dependency'.
11. 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'.
12. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
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MFA No. 7438 of 2018
claimants, parents of the deceased are entitled for
compensation of Rs.40,000/- each under the head of 'loss
of filial consortium'.
13. 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
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 15,46,400
14. 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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c) The claimants are entitled to a total compensation of
Rs.15,46,400/- as against Rs.840,000/- 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
enhanced compensation amount along with interest @ 6%
p.a. 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.
f) The apportionment, deposit and release of amount
shall be made in terms of the award of the Tribunal.
Sd/-
JUDGE
DM
