Karnataka High Court
Sri Devendra vs Sri Dinesha N P on 24 November, 2023
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MFA No. 927/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 927/2021 (MV-D)
BETWEEN:
1. SRI DEVENDRA,
S/O BIMARAYA,
AGED ABOUT 42 YEARS,
2. SMT. MAHADEVI,
W/O DEVENDRA,
AGED ABOUT 38 YEARS
BOTH ARE RESIDING AT:
NO.101, 16TH 'A' CROSS,
DODDATHOGUR, NEELADRINAGAR,
ELECTRONIC PHASE I,
BANGALORE - 560100 ... APPELLANTS
(BY SRI SREENIVASAIAH A., ADVOCATE)
Digitally
signed by K S AND:
RENUKAMBA
Location:
High Court of 1. SRI DINESHA N. P.,
Karnataka
S/O PUTTEGOWDA,
NO.154/11, HULIMANGALA, JIGANI HOBLI,
ANEKAL TALUK, BENGALURU
2. THE MANAGER,
ROYAL SUNDARAM GENERAL INS. CO . LTD.,
NO.30, 3RD FLOOR, JNR CITY CENTRE,
RAJARAM MOHANROY ROAD,
BANGALORE - 560027 ... RESPONDENTS
(BY SRI P.B. RAJU, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/C/O DTD: 15.06.2022)
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MFA No. 927/2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 02.01.2020 PASSED IN MVC NO. 5622/2018 ON THE FILE
OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND ACMM,
MEMBER-MACT, BENGALURU (SCCH-5), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL
DISPOSAL THIS DAY, K.S. MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
"Whether the compensation awarded to the appellants
under the award in MVC No.5622/2018 passed by the VIII
Additional Small Causes Judge and the Motor Accident Claims
Tribunal (SCCH-5), Bengaluru is just?" is the question in this
case.
2. The appellants were claimant Nos.1 and 2 and the
respondents were respondent Nos.1 and 2 before the Tribunal.
For the purpose of convenience, the parties are referred to
henceforth according to their ranks before the Tribunal.
3. Claimant Nos.1 and 2 are the father and mother of
deceased - Rakesh. On 07.09.2018 at 2.15 p.m., when Rakesh
was proceeding on his motor cycle bearing No.KA-51-X-4925,
lorry bearing No.KA-51-C-2579 hit him near Nanjapura Cross,
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within the limits of Hebbagodi Police Station. In the accident,
Rakesh suffered grievous injuries and died at the spot.
4. Regarding the accident one Mohan filed complaint
against the driver of lorry bearing No.KA-51-C-2579 alleging
that the accident and consequential death of Rakesh occurred
due to actionable negligence of the driver of the lorry. Based
on the said complaint, Hebbagodi Police registered FIR as per
Ex.P1 against the said driver for the offences punishable under
Sections 279 and 304(A) of the Indian Penal Code, 1860
(hereinafter referred to as 'IPC' for short). On investigation,
the said police filed charge-sheet as per Ex.P6 against the
driver of the lorry for the offences punishable under Sections
279 and 304(A) of IPC. At the relevant time, the respondent
Nos.1 and 2 were the registered owner and insurer of lorry
bearing No.KA-51-C-2579.
5. The claimants filed MVC No.5622/2018 before the
Tribunal claiming that Rakesh was employed as a Pump
Attendant and earning more than Rs.15,000/- per month. They
further claimed that they were dependent on the income of the
deceased and due to his death, they suffered financially and
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emotionally. They claimed compensation of Rs.30,00,000/-
from the respondents.
6. Respondent No.1 did not contest the petition.
Respondent No.2 - the Insurer alone contested the petition
denying the actionable negligence on the part of the driver of
the insured lorry, age, occupation, income of the deceased and
its liability to pay compensation. Respondent No.2 also
contended that there was breach of policy condition and
therefore, it was not liable to pay the compensation.
7. Before the Tribunal, in support of claim of the
claimants, petitioner No.2 was examined as PW.1. On behalf of
the claimants, Exs.P1 to P12 were marked. The respondents
did not lead any evidence.
8. The trial Court, on hearing the parties by the
impugned award held that the accident and consequential
death of Rakesh occurred due to actionable negligence on the
part of the driver of lorry No.KA-51-C-2579. The Tribunal
based on Ex.P10 - the Ration Card, considered the age of the
deceased as 15 years.
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9. The Tribunal relying on the judgments of the
Hon'ble Supreme Court in Kishan Gopal and Another V/s.
Lala and Others1, assessed the income of the deceased at
Rs.30,000/- p.a. On the ground that he was aged 15 years,
applying 18 multiplier, the Tribunal awarded compensation of
Rs.5,40,000/- on the head of loss of dependency. The Tribunal
in all awarded compensation of Rs.6,35,000/- on different
heads as per the table below:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency Rs.5,40,000/-
2. Loss of Filial Consortium Rs. 80,000/-
3. Funeral Expenses Rs. 15,000/-
TOTAL Rs.6,35,000/-
10. The claimants challenged the said award on the
ground that the assessment of the age of the deceased at 15
years is contrary to the evidence on record. Consequently, the
application of the judgment of the Hon'ble Supreme Court in
Kishan Gopal's case referred to supra was erroneous. It is
contended that the compensation awarded on the other heads
is also on the lower side.
11. Learned counsel for respondent No.2 - the Insurer
justifies the award on the ground that claimants themselves
2013(4) T.A.C. 5 (S.C.)
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had produced the Ration Card, therefore, that becomes their
evidence. He submits as per Ration Card, the age of the
deceased was 15 years. Therefore, the impugned judgment
and award needs to be maintained.
ANALYSIS
12. The occurrence of the accident due to rash and
negligent driving of lorry by the driver of insured lorry is not
under challenge. The finding of the Tribunal regarding death of
the deceased due to actionable negligence on the part of the
driver of the lorry is also not under challenge. The whole issue
is whether the age assessed by the Tribunal is correct?
13. In the claim petition, the claimants contended that
the deceased was aged 19 years at the time of accident. To
prove their relationship and the age of the deceased, the
claimants produced Exs.P7 to P10 - the Aadhar Cards of the
claimants, deceased and their Ration Card.
14. The records show that before the Tribunal, the
originals of Exs.P7 to P10 were produced and the Tribunal on
verifying the copies with record to the originals marked the
copies and returned the original Ration Card. Therefore, there
is no reason to disbelieve the same. Those documents were
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also not disputed. Similarly, the Post Mortem report as per
Ex.P5 was also not disputed.
15. In Ex.P5 - the Post Mortem report, age of deceased
is shown as 19 years. In Ex.P7 - Aadhar Card, the date of birth
of the deceased was entered as 03.01.2000. Those two
documents were more reliable as compared to the Ration Card.
If the claimant had any intention to suppress the age of the
deceased and mislead the Court, they would not have produced
the Ration Card. Who made entry in ration card is not
forthcoming. Under the circumstances, the Tribunal committed
error in relying on Ex.P10 - the Ration Card rather than Ex.P5 -
Post Mortem report and Ex.P7 - Aadhar Card of the deceased.
Therefore, the age of the deceased has to be taken as 19
years. In such event, the judgment in Kishan Gopal's case
referred to Supra relied on by the Tribunal is not applicable.
16. As per the judgment of Hon'ble Supreme Court in
Sarla Varma v. Delhi Transport Corporation2, applicable
multiplier for the age of 19 years is '18'. Though the claimant
alleged that deceased was employed as Pump Attendant, no
evidence was adduced in proof of the same. Therefore, the
AIR 2009 SC 3104
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income of the deceased has to be notionally assessed. The
accident occurred in the year 2018. Having regard to the age
of the deceased, the prevailing wage rates and cost of living
during 2018, reasonable notional income is Rs.12,500/- p.m.
Since the deceased was Bachelor, as per the judgment in Sarla
Varma's case referred to Supra, 50% of his income has to be
deducted for his personal expenses. Therefore, his monthly
income comes to Rs.6,250/- (Rs.12,500/- X 50%).
17. As per the judgment of the Hon'ble Supreme Court
in National Insurance Company Limited vs. Pranay Sethi3
and having regard to the age and employment of the deceased,
40% has to be super added to the income of the deceased by
way of future prospects. Therefore, his monthly income for the
purpose of assessing the loss of dependency comes to
Rs.8,750/- (Rs.6,250 + Rs.2,500). Therefore, compensation
payable on the head of loss of dependency comes to
Rs.18,90,000/- (Rs.8,750/- X 12 X 18).
18. The claimants being the parents of the deceased
are entitled to compensation on the head of loss of filial
consortium at Rs.40,000/- each with escalation at 10% in view
AIR 2017 SC 5157
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of the judgment of the Hon'ble Supreme Court in Pranay
Sethi's case referred to supra, which comes to (Rs.44,000 x 2)
Rs.88,000/-.
19. Similarly, as per the judgment of Hon'ble Supreme
Court in Pranay Sethi's case referred to supra, on the
conventional head of funeral expenses and loss of estate, they
are entitled for compensation of Rs.15,000/- + Rs.15,000/-
respectively with escalation of 10%, which comes to (Rs.16,500
x 2) Rs.33,000/-. Therefore, the just compensation payable is
as follows:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency Rs.18,90,000/-
2. Consortium Rs. 88,000/-
3. Funeral expenses and loss Rs. 33,000/-
of estate
TOTAL Rs.20,11,000/-
Less: Awarded by the Tribunal Rs. 6,35,000/-
Enhanced Compensation Rs.13,76,000/-
20. Therefore, the appeal deserves to be allowed-in-
part. Hence, the following:
ORDER
i) Appeal is allowed-in-part.
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ii) The appellants/claimants are awarded enhanced
compensation of Rs.13,76,000/- with interest
thereon at 6% p.a. from the date of the petition till
its realization.
iii) Respondent No.2 - the Insurer shall deposit the
enhanced compensation before the Tribunal within
four weeks from the date of receipt of copy of this
order.
iv) The order of the Tribunal with regard to
apportionment and investment is maintained.
v) Registry shall transmit the trial Court records to the
Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
VBS
