Karnataka High Court

Devamma vs The Manager on 1 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                               -1-
                                                           NC: 2023:KHC:43345
                                                       MFA No. 1450 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 1ST DAY OF DECEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 1450 OF 2021 (MV)
                   BETWEEN:

                   1.    DEVAMMA
                         W/O GINISWAMY
                         AGED ABOUT 52 YEARS

                   2.    KUMARA
                         S/O GINISWAMY
                         AGED ABOUT 37 YEARS

                   3.    RUKMINI
                         D/O GINISWAMY
                         AGED ABOUT 30 YEARS
                         ALL ARE R/AT CHINDEGOWDA
                         NAKOPPALU VILLAGE
                         ARAKERE HOBLI
                         SRIRANGAPATANA TALUK
Digitally signed
                         MANDYA DISTRICT-571438.
by                                                              ...APPELLANTS
DHANALAKSHMI
MURTHY
                   (BY SRI. VIJAY KUMAR T.,ADVOCATE)
Location: High
Court of
Karnataka          AND:

                   1.    THE MANAGER
                         UNITED INDIA INSURANCE CO LTD.,
                         BALLAL CIRCLE
                         MYSURU DISTRICT-570004.

                   2.    HONNAGANGADHARA
                         S/O SRIKANTASWAMY
                         MAJOR
                         R/AT KUDERU VILLAGE
                         SANTHEMARAHALLI HOBLI
                               -2-
                                           NC: 2023:KHC:43345
                                         MFA No. 1450 of 2021




     CHAMARAJANAGARA TALUK
     & DISTRICT-571440.
                                                ...RESPONDENTS
(BY SRI. S V HEGDE MULKHAND.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH V/O DATED: 21.07.2022)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 16.12.2019
PASSED IN MVC NO. 106/2019 ON THE FILE OF                   THE
ADDITIONAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPATNA,
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 16.12.2019 passed by the

MACT, Srirangapatna in MVC 106/2019.

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

stated are that on 19.8.2018, when the deceased

Gangadhara was proceeding on TVS Excel bearing

registration No.KA-11-EF-2488 on Srirangapatna-Bannuru

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Road, near Haralikatte of Bangiibore, Mandya, at that

time, a Maxi Cab bearing registration No.KA-06-C-7794

which was being driven in a rash and negligent manner,

dashed against 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 respondents appeared

through counsel and filed written statements in which the

averments made in the petition were denied.

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-1 and another witness as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P12. On behalf of respondents, neither any witness was

NC: 2023:KHC:43345

examined nor any document was 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 a compensation of Rs.11,18,000/- 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 35 years at the time of the accident and he

was earning Rs.20,000/- per month by doing coolie work.

But the Tribunal is not justified in taking the monthly

income of the deceased as merely as Rs.7,500/-.

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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 has been rightly considered by the Tribunal.

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.20,000/- 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, the compensation awarded by the Tribunal

under the head of 'loss of consortium' is on the higher

side.

d) Fourthly, 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.

e) Lastly, in view of the Division Bench decision of this

Court in the case of MS.JOYEETA BOSE AND OTHERS -

NC: 2023:KHC:43345

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.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

9. It is not in dispute that Gangadhara died in the road

traffic accident occurred on 19.8.2018 due to rash and

negligent driving of the offending vehicle by its driver.

10. The claimants claim that deceased was earning

Rs.20,000/- 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 2018, the notional income of the

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

aforesaid income, the Tribunal has rightly added 40% 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.17,500/-. Since the deceased was a 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 35 years at the time of the accident and

multiplier applicable to his age group is '16'. Thus, the

claimants are entitled to compensation of Rs.16,80,000/-

(Rs.17,500*12*16*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'.

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12. In view of the law laid down by the Supreme Court in

the case of 'MAGMA GENERAL INSURANCE' (supra),

claimant No.1, mother of the deceased alone is entitled for

compensation of Rs.40,000/- 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             16,80,000

          Funeral expenses                  15,000

          Loss of estate                    15,000

          Loss of Filial consortium         40,000

                           Total        17,50,000

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