Karnataka High Court
Sri Venaktesh vs Gopalan International School on 7 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
-1-
NC: 2023:KHC:44428
MFA No. 4863 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4863 OF 2020 (MV)
BETWEEN:
1. SRI VENAKTESH
S/O DURGAPPA
AGED ABOUT 52 YEARS.
2. GAJENDRA
S/O VENKATESH
AGED ABOUT 14 YEARS.
3. PRASANNA
S/O VENKATESH
AGED ABOUT 11 YEARS.
4. PALLAVI
D/O VENKATESH
AGED ABOUT 9 YEARS
Digitally signed APPELLANT Nos. 2 TO 4 ARE MINORS
by REP. BY THEIR FATHER AND NATURAL
DHANALAKSHMI
MURTHY GUARDIAN I E APPELLANT NO.1
Location: High ALL ARE RESIDING AT BAGALUR COLONY
Court of BAGALUR, BENGALURU -560 048
Karnataka
...APPELLANTS
(BY SRI. GURUDEV PRASAD K T.,ADVOCATE)
AND:
1. GOPALAN INTERNATIONAL SCHOOL
BLOCK 13 DODDA ANEKUNDI
2ND STAGE BROKFIELD
BENGALURU -560 048
-2-
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MFA No. 4863 of 2020
2. THE ORIENTAL INSU. CO. LTD.,
T P HUB REGIONAL OFFICE
NO.44/4 LEO SHOPPING COMPLEX
RESIDENCY ROAD, CROSS
BENGALURU-560025.
...RESPONDENTS
(BY SRI. A M VENKATESH., ADVOCATE FOR R2:
NOTICE TO R1 IS SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.12.2019
PASSED IN MVC NO.6612/2018 ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM,
MEMBER, MACT, MAYO HALL UNIT, BENGALURU, SCCH-
20,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
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 dated 10.12.2019 passed by the Motor
Accidents Claims Tribunal & V Addl. Judge, SCCH-20, Mayo
Hall Unit, Bengaluru (for short 'the Tribunal') in MVC
No.6612/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 23.08.2018 at about 12.45 p.m.
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the deceased Manoj Kumar was fixing the silencer under
the school bus bearing registration No.KA-03/C-8504. At
that time, the driver of the said bus, without observing the
deceased suddenly drove the bus and the rear right side
wheel ran over the head of the deceased and he died at
the spot.
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 age, occupation and income of the deceased are
denied. It was pleaded that the accident was due to the
negligence of the deceased himself. It was further pleaded
that the driver of the offending vehicle did not possess
valid driving licence as on the date of the accident. It was
further pleaded that the liability is subject to terms and
conditions of the policy. It was further pleaded that the
quantum of compensation claimed by the claimants is
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exorbitant. Hence, he sought for dismissal of the petition.
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-1 and got exhibited
documents namely Ex.P1 to Ex.P13. On behalf of
respondents, one witness was examined as RW-1 and got
exhibited documents namely Ex.R1 to Ex.R2. 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.13,91,000/- 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.
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6. The learned counsel for the claimants has
raised the following contentions:
(i) Firstly, the claimants claim that at the time of the
accident the deceased was working as a cleaner and was
earning Rs.15,000/- per month. But the Tribunal is not
justified in taking the monthly income of the deceased as
only Rs.9,000/-.
(ii) Secondly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM reported in 2018
ACJ 2782, each of the claimants are entitled for
compensation under the head of 'loss of love and affection
and consortium'. Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following contentions:
(i) 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.
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Therefore, the Tribunal has rightly assessed the income of
the deceased notionally.
(ii) Secondly, considering the age and avocation of
the deceased, the compensation awarded by the Tribunal
is just and reasonable.
(iii) Thirdly, in view of the Division Bench decision of
this Court in the case of MS.JOYEETA BOSE AND
OTHERS vs. VENKATESHAN.V AND OTHERS (MFA
5896/2018 and connected matters disposed of on
24.8.2020), the interest granted by the Tribunal at the
rate of 9% p.a. 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.
9. It is not in dispute that Manoj Kumar died in the
road traffic accident occurred on 23.08.2018 due to rash
and negligent driving of the school bus bearing registration
No.KA-03/C-8504 by its driver.
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10. The claimants have not produced any evidence or
documents with regard to the income of the deceased.
Therefore, the notional income has to be assessed as per
the guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken place in
the year 2018, the notional income has to be taken at
Rs.12,500/- p.m. To the aforesaid amount, 40% 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 NATIONAL INSURANCE CO. LTD. -v- PRANAY
SETHI AND OTHERS reported in AIR 2017 SC 5157.
Thus, the monthly income comes to Rs.17,500/-, out of
which, since deceased was a bachelour, it is appropriate
to deduct 50% towards personal expenses and therefore,
the monthly income comes to Rs.8,750/-. The deceased
was aged about 20 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.18,90,000/-
(Rs.8,750 *12*18) on account of 'loss of dependency'. In
addition, the claimants are entitled to Rs.15,000/- on
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account of 'loss of estate' and Rs.15,000/- on account of
'funeral expenses'. In view of the law laid down by the
Supreme Court in MAGMA GENERAL INSURANCE
(supra), the claimant No.1 is entitled to compensation of
Rs.40,000/- under the head of 'loss of filial consortium'.
11. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 18,90,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 40,000
Total 19,60,000
12. In view of the above, I pass the following order:
(i) The appeal is allowed in part.
(ii) The judgment of the claims Tribunal is modified.
The claimants are entitled to a total compensation of
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Rs.19,60,000/- in place of Rs.13,91,000/- awarded by the
Tribunal.
(iii) 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.
(iv) The enhanced compensation carries interest @
6% p.a.
Sri A.M.Venkatesh is permitted to file vakalath within
six weeks.
Sd/-
JUDGE
CM
