Karnataka High Court

Venkatamma vs Ravi on 23 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                       NC: 2023:KHC:42205
                                                     MFA No. 7792 of 2022




                        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. 7792 OF 2022 (MV)
                   BETWEEN:

                   1.    VENKATAMMA
                         W/O LATE MARIKANCHIGAIAH
                         NOW AGED ABOUT 60 YEARS
                         R/A MADENAHALLI VILLAGE
                         KASABA HOBLI, GUBBI TALUK
                         TUMKURU DISTRICT.

                   2.    MAHADEVAMMA
                         W/O RANGASWAMI
                         D/O LATE MARIKANCHIGAIAH
                         NOW AGED AOUT 41 YEARS
                         R/A HALEGUBBI
                         PRABHUVANAHALLI POST
                         KASBA HOBLI, GUBBI TALUK
                         TUMAKURU DISTRICT.
Digitally signed
by                 3.    MOHAN. M.R
DHANALAKSHMI
MURTHY                   S/O LATE RAMANNA
Location: High           GRANDSON OF LATE MARIKANCHIGAIAH
Court of
Karnataka                AGED ABOUT 18 YEARS
                         R/A MADENAHALLI VILLAGE
                         KASABA HOBLI, GUBBI TALUK
                         TUMKUR DISTRICT.

                   4.    SANTHOSHA .M.M
                         S/O LATE MARIKANCHIGAIAH
                         AGED ABOUT 37 YEARS
                         R/A MADENAHALLI VILLAGE
                         KASABA HOBLI, GUBBI TALUK
                         TUMKUR DISTRICT.
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                                       NC: 2023:KHC:42205
                                    MFA No. 7792 of 2022




5.   VEENA.M.M
     W/O GURURAJ
     D/O LATE MARIKANCHIGAIAH
     NOW AGED ABOUT 35 YEARS
     R/A 8TH CROS, PALANAJOGIHALLI
     322ND CROSS, MALLATHAHALLI POST
     DODDABALLAPURA TALUK
     BANGALORE RURAL DSITRICT.

6.   PUSHAPALATHA M
     W/O HANUMANTHARAYAPPA
     D/O LATE MARIKANCHIGAIAH
     NOW AGED ABOUT 33 YEARS
     R/A MIDIGESHI, MIDIGESHI HOBLI
     MADHUGIRI TALUK, TUMKUR DISTRICT.
                                              ...APPELLANTS
(BY SRI. RAGHU R.,ADVOCATE)

AND:

1.   RAVI
     S/O VENKATESHAIAH
     NOW AGED ABOUT 34 YEARS
     R/AT MUGGADAVARA BEEDI
     GUBBI TOWN 572216
     TUMAKURU DISTRICT.

2.   THE MANAGER
     THE UNITED INDIA ISNURANCE CO., LTD.,
     1ST FLOOR, JAYADEVA COMPLEX
     P.B. NO. 54, B.H. ROAD
     TUMAKURU CITY-572101.
                                             ...RESPONDENTS
(BY SRI.LAKSHMI NARASAPPA., ADVOCATE FOR
SRI. A.M. VENKATESH, ADVOCATE FOR R2: NOTICE TO
R1 IS DISPENSED WITH V/O DATED: 23.11.2023)
     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.07.2022
PASSED IN MVC NO. 407/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, ADDITIONAL MACT-17, GUBBI,
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                                           NC: 2023:KHC:42205
                                        MFA No. 7792 of 2022




PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

    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 dated 19.07.2022 passed by the Senior Civil

judge and Addl. MACT, Gubbi (for short 'the Tribunal') in

MVC No.407/2021.

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

stated are that on 13.04.2021 at about 12.00 noon, the

deceased Marikanchigaiah was proceeding on a TVS XL

bearing registration No.KA-02/ED-5318 from his village

Madenahalli to Gubbi via Madenahalli, K.S.Palya road. At

that time, a car bearing registration No.KA-01/MA-9388

which was being driven in a rash and negligent manner,

dashed against the vehicle of the deceased. As a result of

the aforesaid accident, the deceased fell down, sustained

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grievous injuries and succumbed to the injuries at the

hospital.

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 respondent No.2 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 rash and negligent riding of the motorcycle

by 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 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.

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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.4 as PW-1 and got exhibited

documents namely Ex.P1 to Ex.P14. On behalf of

respondents, neither any witness was examined nor got

exhibited documents. 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.12,94,000/- 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:

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(i) Firstly, the claimants claim that at the time of the

accident the deceased was earning Rs.40,000/- per

month. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.14,000/-.

(ii) Secondly, at the time of the accident the

deceased was aged about 59 years. As per the law laid

down by the Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157, the claimants

are entitled for addition of 10% towards 'future prospects'.

(iii) Thirdly, as per the judgment of the 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:

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(i) Firstly, even though the claimants claim that the

deceased was earning Rs.40,000/- 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.

(ii) Secondly, since the claimants have not

established the income of the deceased, they are not

entitled for addition of future prospects.

(iii) Thirdly, claimant No.1 alone is depending upon

the deceased and all other claimants are major son and

married daughters and they are not depending upon the

income of the deceased. But the Tribunal erred in

deducting 1/4th towards personal expenses of the

deceased instead of 50%.

(iv) Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the higher

side contrary to the judgment of the Apex Court in the

cases of PRANAY SETHI (supra) and MAGMA GENERAL

INSURANCE (supra).

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(v) Fifthly, 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 Marikanchigaiah died in

the road traffic accident occurred on 13.04.2021 due to

rash and negligent driving of the car bearing registration

No.KA-01/MA-9388 by its driver.

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 2021, the notional income has to be taken at

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Rs.15,000/- p.m. To the aforesaid amount, 10% 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 Rs.16,500/-. There are six claimants. In the

evidence they claimed that they are depending upon the

income of the deceased. Since claimant Nos. 2, 5 and 5

are married daughters, they are living separately and they

are not depending upon the income of the deceased.

Considering the evidence of PW1, it is seen that only

claimant Nos. 1 and 3 are depending upon the income of

the deceased. Therefore, 1/3rd has to be taken for

deduction of personal expenses of the deceased instead of

1/4th and therefore, the monthly income comes to

Rs.11,000/-. The deceased was aged about 59 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.11,88,000/- (Rs.11,000*12*9) on

account of 'loss of dependency'. In addition, the

claimants are entitled to Rs.15,000/- on account of 'loss of

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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 Rs.40,000/- for 'loss of spousal

consortium' and claimant Nos.2, 4, 5 and 6 are entitled for

compensation of Rs.40,000/- each under the head of 'loss

of parental consortium'.

11. Thus, the claimants are entitled to the following

compensation:

            Compensation under          Amount in
              different Heads             (Rs.)

           Loss of dependency            11,88,000

           Funeral expenses                 15,000

           Loss of estate                   15,000

           Loss of spousal                  40,000
           consortium

           Loss of Parental               1,60,000
           consortium

                            Total       14,18,000

12. In view of the above, I pass the following order: