Karnataka High Court

Lakshmaiah vs Ravikumar B M on 13 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                          NC: 2023:KHC:45611
                                                        MFA No. 4992 of 2021




                        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. 4992/2021 (MV-D)

                   BETWEEN:

                   1.    LAKSHMAIAH
                         S/O MUNISWAMY
                         AGED 44 YEARS,

                   2.    NITHYA
                         D/O LAKSHMAIAH
                         AGED 18 YEARS,

                         BOTH R/AT NO.233, NERIGA
                         KUGUR, ANEKAL TALUK,
                         BANGALORE-562 125

                                                               ...APPELLANTS
                          (BY SRI JAGADEESH H.T., ADVOCATE)
Digitally signed
by                 AND:
DHANALAKSHMI
MURTHY
Location: High     1.    RAVIKUMAR B M
Court of
Karnataka                S/O MUIYALLAPPA
                         NO.134, BILLAURA,
                         SARJAPURA,
                         ANEKAL TALUK-562 125
                         BANGALORE.

                   2.    THE MANAGER,
                         M/S UNITED INDIA
                         INSURANCE CO. LTD
                         KRUSHI BHAVAN,
                         5TH AND 6TH FLOOR,
                         NARUPATHUNGA ROAD,
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                                           NC: 2023:KHC:45611
                                        MFA No. 4992 of 2021




    HUDSON CIRCLE,
    BANGALORE-560 001.

                                               ...RESPONDENTS
     (BY SRI RAVISH BENNI, ADVOCATE)

                             ***

     MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.02.2020 PASSED IN MVC
NO. 7047/2018 ON THE FILE OF THE IX ADDITIONAL SMALL
CAUSES JUDGE AND ACMM, MEMBER, MACT, BENGALURU
SCCH-24, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION    AND     SEEKING    ENHANCEMENT    OF
COMPENSATION, ETC.,

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

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 19.02.2020 passed by the IX Addl. Small

Causes & C/c XXII ASCJ and MACT, Bangalore (SCCH-24) in

2. Facts giving rise to the filing of the appeal briefly

stated are, that on 09.11.2018 at about 8.00 am Smt.

Munithayamma was traveling as a pillion rider being driven by

her brother on Motor Cycle bearing Registration No.KA-51 EW-

1403 and when they reached near Neriga Village Lake, Neriga

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Village, Sarjapura Hobli, Anekal Taluk, Bangalore, the rider of

the Motor Cycle rode the same in a high speed, rash and

negligent manner and suddenly taken right turn and applied

the brake, as a result the pillion rider fell down and sustained

grievous injuries all over the body and on 10.11.2018 she

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 to respondents, they have

appeared through their respective counsel and only respondent

No.2 filed written statement and respondent No.1 not filed

objection statement. Respondent No.2 denied the averments

made in the claim petition. It was pleaded that the petition

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

pleaded that the Motor Cycle was not insured at the time of

accident and the liability if any, is subject to terms and

conditions of the policy. The respondent No.1 entrusted the

vehicle knowingly to a person who did not have valid and

effective driving licence and there is a breach of contract and

violation of terms and conditions of the policy. Respondent

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No.2 sought permission to take defence under Section 170 of

MV Act. 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. 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 PW1 and another witness as PW2

and got exhibited documents namely Ex.P1 to Ex.P21. On

behalf of respondents, one witness was examined as RW1 and

got exhibited documents namely Ex.R1 to Ex.R3. The Claims

Tribunal, by the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent riding of

the offending vehicle by its rider, 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.9,97,500/- along with interest at the rate

of 6% p.a. and directed respondent No.2 - Insurance company

to deposit the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

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6. Sri Jagadeesha.H.T, the learned counsel for the

claimants has raised the following contentions:

a) Firstly, at the time of accident deceased was

earning Rs.15,000/- per month, but the Tribunal has

taken notional income of the deceased at Rs.7,000/-

per month, which is on the lower side.;

b) Secondly, there are two claimants, who are

depending upon the income of the deceased. In

view of the law laid down by the Hon'ble Supreme

Court in the case of SARLA VERMA vs DELHI

TRANSPORT COPORATION reported in AIR 2009

SC 3104 , the Tribunal ought to have deducted

1/3rd towards personal expenses, but the Tribunal

has deducted 50% out of the income of the

deceased towards personal expenses.;

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'.;

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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.

7. On the other hand, Sri Ravish Benni, 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.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 at Rs.7,000/- per month.;

(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

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of the deceased, the overall compensation

awarded by the Tribunal is just and reasonable.;

(d) Lastly, the claimants are husband and daughter

of the deceased. They are not depending upon

the income of the deceased. Claimant No.2 is a

minor depending upon the income of the father.

Therefore, the Tribunal has rightly deducted 50%

from the income assessed with respect to

deceased towards personal expenses. 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 Munithayamma, died in the

road traffic accident occurred on 09.11.2018 due to rash and

negligent riding of the Motor Cycle bearing Registration No. KA-

51 EW-1403 by its rider.

10. Even though the claimants have claimed that the

deceased was earning 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

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Karnataka State Legal Services Authority, for the accident

taken place in the year 2018, the notional income of the

deceased has to be taken at Rs.12,500/- p.m.

11. 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 the case of

NATIONAL INSURANCE COMPANY LIMITED vs PRANAY

SETHI AND OTHERS reported in (2017) 16 SCC 680. Thus,

the income would be Rs.15,625/- (Rs.12,500/- + Rs.3,125/-

@ 25%).

12. It is the specific case of PW1 that claimant Nos.1

and 2 are depending upon the income of the deceased. In the

cross-examination, respondent has not elicited any worth while

information against the claim of the claimants. Therefore, in

view of the judgment of the Hon'ble Supreme Court in the case

of SARLA VERMA (supra), since there are two dependants,

1/3rd of the income has to be deducted towards personal

expenses. Accordingly, the income of the deceased would be

Rs.10,417/- (Rs.15,625/- (-) Rs.5,208/- @ 1/3rd of

Rs.15,625/-).

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13. The deceased was aged 47 years at the time of the

accident and multiplier applicable to her age group is '13'.

Thus, the claimants are entitled to compensation of

Rs.16,25,052/- (Rs.10,417/- X 12 X 13) on account of 'loss of

dependency'.

14. 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'.

15. In view of the law laid down by the Supreme Court

in the case of MAGMA GENERAL INSURANCE COMPANY

LIMITED (supra), the Claimant No.1, husband of the

deceased is entitled for compensation of Rs.40,000/- under

the head of 'loss of spousal consortium' and the Claimant No.2,

daughter of the deceased is entitled for compensation of

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

16. The compensation of Rs.2,45,000/- 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.

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17. Thus, the claimants are entitled to the following

compensation:

                 Compensation under                   Amount in
                   different Heads                      (Rs.)

               Loss of dependency                           16,25,052

               Funeral, obsequies                             15,000
               ceremony and conveyance
               expenses

               Loss of estate                                 15,000

               Loss of spousal consortium                     40,000

               Loss of Parental                               40,000
               consortium

               Medical expenses                              2,45,000

                                Total                   19,80,052

18. In the result, the following order is passed: