Karnataka High Court
Neelavathi @ Neelamma vs Narayanaswamy on 20 September, 2023
Bench: H T Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO.2305 OF 2018(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.2306 OF 2018(MV)
IN MFA 2305/2018
BETWEEN:
1. NEELAVATHI @ NEELAMMA
W/O LATE S KUMARA
AGED ABOUT 30 YEARS
2. N K RADHIKA
D/O LATE S KUMARA
AGED 12 YEARS
Digitally signed 3. N K RAGHAVA
by S/O LATE S KUMARA
DHANALAKSHMI
MURTHY AGED 10 YEARS
Location: High APPELLANT Nos. 2 & 3 ARE BEING MINORS
Court of
Karnataka R/P BY THEIR NATURAL GUARDIAN
MOTHER NEELAVATHI @ NEELAMMA
4. SANNA NINGEGOWDA
S/O MARILINGEGOWDA
AGED 72 YEARS
5. MAKAMMA
W/O SANNA NINGEGOWDA
AGED ABOUT 62 YEARS
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ALL ARE RESIDING AT
NAGARAGHATTA VILLAGE
PERIYAPATNA TALUK
MYSORE DISTRICT - 570038
NOW R/AT C/O DODDEGOWDA
PALAHALLI VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT -571438. ...APPELLANTS
(BY SRI. SREENIVASAN M Y.,ADVOCATE)
AND:
1. NARAYANASWAMY
S/O RANGASWAMY
MAJOR
R/AT BHERYA VILLAGE AND POST
HOSA AGRAHARA HOBLI
K R NAGARA TALUK
MYSORE DISTRICT - 570041.
2. BRANCH MANAGER
ROYAL SUNDARAM ALLIANCE INS. CO LTD
NO 133, 3RD FLOOR
SHIKA TOWERS
RAMAVILAS ROAD
MYSORE - 570024. ...RESPONDENTS
(BY SRI.C.R. RAVISHANKAR., ADVOCATE FOR
SRI. K SURYANARAYANA RAO, ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH V/O DATED:
17.08.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:18.12.2017 PASSED IN MVC NO.836/2016 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT,
SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM
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PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA 2306/2018
BETWEEN:
1. PUTTAMMA
W/O LATE S KUMARA
AGED ABOUT 23 YEARS
2. ANNEGOWDA
S/O LATE THAMMEGOWDA
AGED ABOUT 52 YEARS
3. JAYAMMA
W/O ANNEGOWDA
AGED ABOUT 50 YEARS
ALL ARE RESIDING AT
NAGARAGHATTA VILLAGE
PERIYAPATNA TALUK
MYSORE DISTRICT - 570038
NOW R/AT C/O SANNEGOWDA
R/AT BABURAYANAKOPPALU VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT -571438. ...APPELLANTS
(BY SRI. SREENIVASAN M Y.,ADVOCATE)
AND:
1. NARAYANASWAMY
S/O RANGASWAMY
MAJOR
R/AT BHERYA VILLAGE AND POST
HOSA AGRAHARA HOBLI
K R NAGARA TALUK
MYSORE DISTRICT - 570041.
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2. BRANCH MANAGER
ROYAL SUNDARAM ALLIANCE INS. CO LTD
NO 133, 3RD FLOOR
SHIKA TOWERS, RAMAVILAS ROAD
MYSORE - 570024. ...RESPONDENTS
(BY SRI.C.R. RAVISHANKAR., ADVOCATE FOR
SRI. K SURYANARAYANA RAO, ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 17.08.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:18.12.2017 PASSED IN MVC NO.727/2016 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT,
SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the claimants under
Section 173(1) of the Motor Vehicles Act, (for short, 'the
Act') being aggrieved by the judgment and award dated
18.12.2017 passed by the Principal Senior Civil Judge,
MACT, Srirangapatna (for short, 'the Tribunal') in MVC
Nos.836/2016 and 727/2016, respectively. Since the
challenge is to the same judgment, both the appeals are
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clubbed together, heard and common judgment is being
passed.
2. Facts giving rise to the filing of the appeals
briefly stated are that, on 09.12.2015 at about 2.20 p.m.
the deceased S.Kumara and Kumara were proceeding in a
motorcycle bearing registration No. KA-45/R-3970 on
Echuru - Bettadapura road, Piriyapatna Taluk,
Bhuvanahalli gate. At that time, a Mahindra Bolero maxi
truck bearing registration No. KA-09/C-3169 which was
being driven in a rash and negligent manner, dashed
against the motorcycle. As a result of the aforesaid
accident, the deceased persons sustained grievous injuries
and succumbed to the injuries.
3. The claimants filed petitions under Section 166
of the Act seeking compensation for the death of the
deceased persons 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.
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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. The driver of the offending vehicle did
not possess valid driving licence as on the date of the
accident. 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 and
hence he 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 three witnesses as PW-1 to PW-3 and got
exhibited documents namely Ex.P1 to Ex.P21. 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
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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.14,98,000/- and Rs.19,05,000/-
respectively, along with interest at the rate of 9% p.a. and
directed the Insurance Company to deposit the
compensation amount along with interest. Being not
satisfied with the quantum of compensation, claimants
have filed these appeals.
MFA No.2305/2018 arising out of MVC No.836/2016:
6. The learned counsel for the claimants has
raised the following contentions:
(i) Firstly, the claimants claim that the deceased was
earning Rs.25,000/- per month, but the Tribunal is not
justified in taking the monthly income of the deceased as
only Rs.7,500/-.
(ii) Secondly, there are five dependents. But the
Tribunal deducted 1/3rd of the income of the deceased
towards personal expenses instead of 1/4.
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(iii) Thirdly, 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.25,000/- per month, no
documents are produced to prove the same. Hence, the
Tribunal has rightly considered the income of the claimant
as Rs.7,500/- per month.
(ii) Secondly, considering the age and avocation of
the deceased, the overall compensation awarded by the
Tribunal is just and reasonable.
(iii) Thirdly, in view of the law laid down by a
Division Bench of this Court in the case of MS.JOYEETA
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BOSE AND OTHERS vs. VENKATESHAN.V AND
OTHERS (MFA 5896/2018 and connected matters
disposed of on 24.8.2020) the rate of interest awarded
by the Tribunal @ 9% p.a. has to be reduced to 6% p.a.
Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and the original records.
9. It is not in dispute that S.Kumara died in the
road traffic accident occurred on 09.12.2015 due to rash
and negligent driving of the Truck bearing registration
No.KA-09/C-3169 by its driver.
10. Even though the claimants have claimed that
deceased was earning Rs.25,000/- per month, they have
not produced any document to establish the same.
Therefore, the notional income has to be assessed as per
the guidelines issued by the Karnataka Legal Services
Authority. For the accident occurred in 2015, the notional
income has to be fixed at Rs.9,000/-. In view of the law
laid down by the Constitution Bench of the Supreme Court
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in PRANAY SETHI (supra), 40% has to be added on
account of future prospects. Thus, the monthly income
comes to Rs.12,600/-, out of which, since there are five
dependents, 1/4th of the income has to be deducted
towards personal expenses of the deceased. The
deceased was aged about 27 years at the time of the
accident and multiplier applicable to his age group is '17'.
Thus, the claimants are entitled to compensation of
Rs.19,27,800/- (Rs.9,450*12*17) on account of 'loss of
dependency'. In addition, the claimants are entitled to
Rs.15,000/- each on account of 'loss of estate' and 'funeral
expenses'.
11. In view of the law laid down by the Supreme
Court in MAGMA GENERAL INSURANCE (supra), the
claimant No.1 is entitled for compensation of Rs.40,000/-
under the head 'loss of spousal consortium', claimant Nos.
2 and 3 are entitled to compensation of Rs.40,000/- each
under the head of 'loss of parental consortium' and
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claimant Nos. 4 and 5 are entitled to compensation of
Rs.40,000/- each under the head 'loss of filial consortium'.
12. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,27,800
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of parental 80,000
consortium
Loss of filial consortium 80,000
Total 21,57,800
The claimants are entitled to a total compensation of
Rs.21,57,800/- as against Rs.14,98,000/- awarded by the
Tribunal.
MFA No.2306/2018 arising out of MVC No.727/2016:
13. The learned counsel for the claimants has
raised the following contentions:
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(i) Firstly, the claimants claim that the deceased was
earning Rs.25,000/- per month, but the Tribunal is not
justified in taking the monthly income of the deceased as
only Rs.7,500/-.
(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.
14. 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.25,000/- per month, no
documents are produced to prove the same. Hence, the
Tribunal has rightly considered the income of the claimant
as Rs.7,500/- per month.
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(ii) Secondly, considering the age and avocation of
the deceased, the overall compensation awarded by the
Tribunal is just and reasonable.
(iii) Thirdly, in view of the law laid down by a
Division Bench 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 rate of interest awarded
by the Tribunal @ 9% p.a. has to be reduced to 6% p.a.
Hence, he prays for dismissal of the appeals.
15. Heard the learned counsel for the parties.
Perused the judgment and the original records.
16. It is not in dispute that Kumara died in the road
traffic accident occurred on 09.12.2015 due to rash and
negligent driving of the Truck bearing registration No.KA-
09/C-3169 by its driver.
17. Even though the claimants have claimed that
deceased was earning Rs.25,000/- per month, they have
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not produced any document to establish the same.
Therefore, the notional income has to be assessed as per
the guidelines issued by the Karnataka Legal Services
Authority. For the accident occurred in 2015, the notional
income has to be fixed at Rs.9,000/-. In view of the law
laid down by the Constitution Bench of the Supreme Court
in PRANAY SETHI (supra), 40% has to be added on
account of future prospects. Thus, the monthly income
comes to Rs.12,600/-, out of which, 1/3rd of the income
has to be deducted towards personal expenses of the
deceased. The deceased was aged about 26 years at the
time of the accident and multiplier applicable to his age
group is '17'. Thus, the claimants are entitled to
compensation of Rs.17,13,600/- (Rs.8,400*12*17) on
account of 'loss of dependency'. In addition, the claimants
are entitled to Rs.15,000/- each on account of 'loss of
estate' and 'funeral expenses'.
18. In view of the law laid down by the Supreme
Court in MAGMA GENERAL INSURANCE (supra), the
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claimant No.1 is entitled for compensation of Rs.40,000/-
under the head 'loss of spousal consortium', claimant Nos.
2 and 3 are entitled to compensation of Rs.40,000/- each
under the head of 'loss of filial consortium'. The
compensation awarded by the Tribunal under the head
'medical expenses' and 'hospitalization charges' is
retained.
19. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 17,13,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of filial consortium 80,000
Medical expenses & 4,07,000
hospitalization charges
Total 22,70,600
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The claimants are entitled to a total compensation of
Rs.22,70,600/- as against Rs.19,05,000/- awarded by the
Tribunal.
20. Accordingly, I pass the following order:
(i) Both the appeals are allowed in part.
(ii) The judgment of the Claims Tribunal is modified.
(iii) The claimants in MFA No.2305/2018 are entitled
to total compensation of Rs.21,57,800/- as against
Rs.14,98,000/- awarded by the Tribunal.
(iv) The claimants in MFA No.2306/2018 are entitled
to total compensation of Rs.22,70,600/- as against
Rs.19,05,000/- awarded by the Tribunal.
(v) The enhanced compensation carries interest @
6% p.a.
(vi) 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
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realization, within a period of six weeks from the date of
receipt of copy of this judgment.
Sd/-
JUDGE
CM
