Karnataka High Court
Nethravathi S vs Mohan G V on 13 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:45389
MFA No. 751 of 2021
C/W MFA No. 422 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 751 OF 2021 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 422 OF 2022(MV)
IN MFA 751/2021
BETWEEN:
1. NETHRAVATHI S
@ NETHRAVATHI
W/O LATE SRINIVASA @ SRINIVAS
NOW AGED ABOUT 40 YEARS
2. RAMYA S
D/O SRINIVASA @ SRINIVAS
NOW AGED ABOUT 21 YEARS
3. RASHMI S
Digitally signed S/O SRINIVASA @ SRINIVAS
by
DHANALAKSHMI NOW AGED ABOUT 19 YEARS
MURTHY ALL ARE R/AT TALAVARA BEEDI
Location: High SIDDA NAYAKA CIRCLE
Court of
Karnataka NEAR TERUMALLESHWARA TEMPLE
HIRIYUR.
...APPELLANTS
(BY SRI. RAGHU R.,ADVOCATE)
AND:
1. MOHAN G V
S/O LATE VEERAPPA G
R/AT VENUKAL GUDDA VILLAGE
HIRIYUR TALUK-572143.
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MFA No. 751 of 2021
C/W MFA No. 422 of 2022
2. THE BRANCH MANGER
THE NATIONAL INSURANCE CO LTD
BRANCH OFFICE
JAGALUR MAHALINGAPPA TOWERS
P B ROAD, CHITRADURGA-577501
...RESPONDENTS
(BY SMT. SHIVALEELA C S.,ADVOCATE AND
SRI. K MURTHY, ADVOCATE FOR R1:
SRI. JANARDHAN REDDY, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 03.07.2020
PASSED IN MVC NO. 141/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, ADDITIONAL MACT, HIRIYUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA 422/2022
BETWEEN:
MOHAN G V
S/O LATE VEERAPPA G
AGED ABOUT 51 YEARS
R/AT VENUKAL GUDDA VILLAGE
HIRIYUR TALUK
CHITRADURGA DISTRICT-572143.
...APPELLANT
(BY SRI. MURTHY K., ADVOCATE)
AND:
1. NETHRAVATHI S
@ NETHRAVATHI
W/O LATE SRINIVASA @ SRINIVAS
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NC: 2023:KHC:45389
MFA No. 751 of 2021
C/W MFA No. 422 of 2022
NOW AGED ABOUT 40 YEARS
2. RAMYA S
D/O SRINIVASA @ SRINIVAS
NOW AGED ABOUT 21 YEARS
3. RASHMI S
S/O SRINIVASA @ SRINIVAS
NOW AGED ABOUT 19 YEARS
R1 TO R3 ARE R/AT TALAVARA BEEDI
SIDDA NAYAKA CIRCLE
NEAR TERUMALLESHWARA TEMPLE
HIRIYUR.
4. THE BRANCH MANGER
THE NATIONAL INSURANCE CO LTD
AT JAGALUR MAHALINGAPPA TOWERS
P B ROAD, CHITRADURGA-577501
... RESPONDENTS
(BY SRI. RAGHU R., ADVCOATE FOR R1 TO R3:
SRI. ASHOK N PATIL, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 03.07.2020
PASSED IN MVC NO. 141/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, ADDITIONAL MACT, HIRIYUR,
AWARDING ACOMPENSATION OF RS. 14,64,206/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 751 of 2021
C/W MFA No. 422 of 2022
JUDGMENT
1. MFA 751/2021 is filed by the claimants and MFA
422/2022 is filed by the owner of the offending vehicle
under Section 173(1) of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the Act', for short) being
aggrieved by the judgment and award dated 3.7.2020
passed by the MACT, Hiriyur in MVC 141/2018.
2. Facts giving rise to the filing of the appeals briefly
stated are that on 2.11.2017, when the deceased
Srinivasa was traveling in a Maruthi Omni Car bearing
registration No.KA-01-MG-2912 near the land of Koli
Kenganna on the service road of NH-4, Hiriyur, at that
time, Mahindra Bolero vehicle, bearing registration No.KA-
16-C-8048 which was being driven in a rash and negligent
manner, dashed against the car of the deceased. As a
result of the aforesaid accident, the deceased sustained
grievous injuries and succumbed to the injuries.
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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 respondents appeared
through counsel and filed written statements denying the
averments made in the claim petition.
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 the case,
examined claimant No.1 as PW-1 and got exhibited
documents namely Ex.P1 to Ex.P14. On behalf of
respondents, two witnesses were examined as RWs-1 and
2 and got exhibited documents namely Ex.R1 to Ex.R6.
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
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the claimants are entitled to a compensation of
Rs.14,64,206/- along with interest at the rate of 6% p.a.
and directed the Insurance Company to deposit the
compensation amount along with interest with liberty to
recover the same from the owner of the offending vehicle.
Being aggrieved, these appeals have 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 48 years at the time of the accident and he
was earning Rs.50,000/- per month by working as
Manager at Viajayalakshmi Transport Office. But the
Tribunal is not justified in taking the monthly income of
the deceased as merely as Rs.11,000/-.
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 25% of the established
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income towards 'future prospects' should be the warrant
where the deceased was between the age group of 40-50
years. The same shall 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 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 filed by the claimants.
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7. On the other hand, the learned counsel for the owner
of the offending vehicle has raised the following counter-
contentions:
a) Firstly, as on the date of the accident, the offending
vehicle was covered with valid insurance policy. As per
Section 66 of the Act, if the unladen weight of the vehicle
is less than 3000 kilograms, permit is not required. But
the Tribunal has erred in holding that the offending vehicle
was not having valid permit as on the date of accident and
that the insured has violated the policy conditions and
accordingly, it has erred in directing the Insurance
Company to pay the compensation with liberty to recover
the same from the owner of the offending vehicle.
b) Secondly, even though the claimants claim that the
deceased was earning Rs.50,000/- per month, the same is
not established by the claimants by producing documents.
In the absence of proof of income, the income of the
deceased assessed by the Tribunal at Rs.11,000/- is on
the higher side.
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c) Secondly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
d) 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 excessive. Hence, he prays for allowing the
appeal filed by the owner of the offending vehicle.
8. The learned counsel for the Insurance Company has
contended that it is not in dispute that the offending
vehicle was not having valid permit as on the date of
accident. As per Section 66 of the MV Act, permit is not
required, if the gross vehicle weight does not exceed
3,000 kilograms. However, in the case on hand, as per
Ex.R-6, insurance policy, the gross vehicle weight is 3225
Kilograms. Therefore, permit is required. Since, the
insured has violated the policy conditions, the Tribunal has
rightly exonerated the Insurance Company from liability.
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9. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
10. It is not in dispute that Srinivasa died in the road
traffic accident occurred on 2.11.2017 due to rash and
negligent driving of the offending vehicle by its driver.
11. The claimants claim that deceased was earning
Rs.50,000/- 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. The Tribunal considering the age and avocation
of the deceased and also considering the guidelines issued
by the Karnataka State Legal Services Authority, has
rightly taken the notional income of the deceased at
Rs.11,000/- p.m. for the accident taken place in the year
2017. To the aforesaid income, 25% 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
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Rs.13,750/-. Since there are 3 dependents, it is
appropriate to deduct 1/3rd 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 48 years at the time of the accident and
multiplier applicable to his age group is '13'. Thus, the
claimants are entitled to compensation of Rs.14,30,000/-
(Rs.13,750*12*13*2/3) 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.40,000/- 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
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for compensation of Rs.40,000/- each under the head of
'loss of parental consortium'.
14. The compensation of Rs.225,102/- awarded by the
Tribunal under the head of 'medical expenses' is as per the
medical bills produced by the claimants. The same is just
and reasonable.
15. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 14,30,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of Parental consortium 80,000
Medical expenses 2,25,102
Total 18,05,102
16. Regarding Liability: It is not in dispute that the
offending vehicle was not having valid permit as on the
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date of accident. As per Section 66 of the MV Act, permit
is not required, if the gross vehicle weight does not exceed
3,000 kilograms. However, in the case on hand, as per
Ex.R-6, insurance policy, the gross vehicle weight is 3225
Kilograms. Therefore, permit is required. Since, the
insured has violated the policy conditions, the Tribunal has
rightly exonerated the Insurance Company from liability
and ordered for pay and recover. There is no error in the
said finding of the Tribunal.
17. In the result, the following order is passed:
ORDER
a) The appeal filed by the claimants is allowed in part
and the appeal filed by the owner of the offending vehicle
is dismissed.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total compensation of
Rs.18,05,102/- as against Rs.14,64,206/- awarded by
the Tribunal.
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d) The amount deposited by the owner of the offending
vehicle before this Court is ordered to be transferred to
the Tribunal forthwith.
e) After deducting the amount already deposited by the
owner of the offending vehicle, the Insurance Company is
directed to deposit the remaining compensation amount
along with interest at 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. Thereafter, the Insurance Company is at liberty
to recover the said amount from the owner of the
offending vehicle.
f) The apportionment, deposit and release of amount
shall be made in terms of the award of the Tribunal.
Sd/-
JUDGE
DM
