Karnataka High Court
Ananda vs Kiran R on 23 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 1365 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1365 OF 2021 (MV)
BETWEEN:
1. ANANDA
S/O LATE NARAYANAPPA
AGED ABOUT 43 YEARS
R/O KENDATTI VILLAGE
KOLAR TALUK.
2. SURESH K N
S/O LATE NARAYANAPPA
AGED ABOUT 53 YEARS
R/O KENDATTI VILLAGE
VOKKALERI HOBLI, KOLAR TALUK.
3. RAMESH N
S/O LATE NARAYANAPPA
AGED ABOUT 55 YEARS
Digitally signed
R/AT 3RD CROSS
by NEW POST OFFICE ROAD
DHANALAKSHMI ARAKESHWARA NAGARA
MURTHY
Location: High
MANDYA.
Court of
Karnataka 4. MANJUNATHA N
S/O LATE NARAYANAPPA
AGED ABOUT 37 YEARS
ASSISTANT PROFESSOR
MECHANICAL ENGINEERING DEPARTMENT
BAHUBALI COLLEGE OF ENGINEERING
SHRAVANA BELAGOLA,HASSAN.
...APPELLANTS
(BY SMT. SWATI G HEGDE, ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H.,ADVOCATE)
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MFA No. 1365 of 2021
AND:
1. KIRAN R
S/O D.D.RANGEGOWDA
R/AT NO.S 1317 4TH CROSS
2ND STAGE, BHARATHNAGAR
BENGALURU-560 091.
2. ORIENTAL INSURANCE CO. LTD.,
#1 AND 2, 2ND FLOOR, 1ST CROSS
SIDDAPURA, OPP 9TH CROSS
WILSON GARDEN, BENGALURU-560 027
REP BY ITS BRANCH MANAGER.
3. GIRIJAMMA N
W/O RAJANNA
D/O LATE NARAYANAPPA
AGED ABOUT 48 YEARS
R/AT KESHAVANAGARA
KHADRIPURA, KOLAR CITY, KOLAR.
...RESPONDENTS
(BY SRI.M.S.SRIRAM., ADVOCATE FOR R2:
NOTICE TO R1 & R3 ARE D/W V/O DATED:31.03.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 19.09.2019
PASSED IN MVC NO. 157/2016 ON THE FILE OF THE MACT
AND III ADDITIONAL SENIOR CIVIL JUDGE, KOLAR,
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:
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MFA No. 1365 of 2021
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 19.09.2019 passed by the
MACT and III Additional Senior Civil Judge, Kolar in MVC
No.157/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 01.05.2016 at about 01.00 p.m., the
deceased Lakshmamma while standing near Kendati Gate,
the rider of the Royal Enfield Motorcycle bearing
Registration No.KA-02-JF-3691 from the Bengaluru to
Chennai side came in a rash and negligent manner and
dashed against the said Lakshmamma. 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 respondent Nos.1 and 2
appeared through counsel and only respondent No.2 alone
filed written statement in which the averments made in
the petition were denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. 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 PW-1 and got exhibited
documents namely Ex.P1 to Ex.P12. On behalf of
respondents, neither examined any witness nor exhibited
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any document. 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.1,21,700/- along with interest at the
rate of 6% 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 60 years at the time of the accident and she
was earning Rs.10,000/- per month by doing agricultural
work and milk vending. But the Tribunal is not justified in
taking the monthly income of the deceased as merely as
Rs.7,000/-.
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b) Secondly, the claimants are major sons and
respondent No.3 is married daughter of the deceased and
they are depending upon the income of the deceased. But
the Tribunal has failed to grant any compensation towards
loss of dependency.
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.
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/- per month, the same is
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not established by the claimants by producing documents.
Therefore, the Tribunal has rightly assessed the income of
the deceased notionally.
b) Secondly, at the time of the accident, the deceased
was aged about 60 years. The claimants are major sons
and respondent No.3 is the married daughter and they are
not depending upon the income of the deceased.
Therefore, the Tribunal has rightly not granted any
compensation for loss of dependency.
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. 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.
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9. It is not in dispute that Lakshmamma died in the
road traffic accident occurred on 01.05.2016 due to rash
and negligent riding of the offending vehicle by its rider.
10. The claimants claim that deceased was earning
Rs.10,000/- 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.
11. The claimants and respondent No.3 are the major
sons and married daughter of the deceased and they are
not depending upon the income of the deceased.
Therefore, the Tribunal has rightly held that they are not
entitled for the compensation under the head of 'loss of
dependency'. However, since the claimants are major sons
and respondent No.3 is the married daughter of the
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deceased, they are entitled for the compensation under
the head of 'loss of estate'. The Division Bench of this
Court in MFA No.7318/2016 disposed of on 23.10.2020
has calculated the 'loss of estate' by taking 50% of the
income of the deceased. Thus, the monthly income of the
deceased comes to Rs.4,750/-. The deceased was aged
about 60 years at the time of the accident and multiplier
applicable to his age group is '9'. Thus, the claimants are
entitled to compensation of Rs.5,13,000/-
(Rs.4,750*12*9) on account of 'loss of estate'.
In addition, the claimants and respondent No.3 are
entitled to 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), claimants,
sons of the deceased and respondent No.3, daughter of
the deceased, are entitled for compensation of
Rs.40,000/- each under the head of 'loss of parental
consortium'.
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13. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 5,13,000
Funeral expenses 15,000
Loss of Parental 2,00,000
consortium
Total 7,28,000
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.
c) The claimants are entitled to a total compensation of
Rs.7,28,000/- as against Rs.1,21,700/- awarded by the
Tribunal.
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d) The Insurance Company is directed to deposit the
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.
Sd/-
JUDGE
HA
