Karnataka High Court
Smt Jayanthi vs The Manager on 27 September, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:35312
MFA No. 6628 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6628 OF 2018 (MV)
BETWEEN:
1. SMT JAYANTHI
W/O RANGASWAMY
AGED ABOUT 27 YEARS.
2. SMT PUTTAMMA
W/O LATE SAGANAIAH
AGED ABOUT 58 YEARS
BOTH ARE R/O BIDAREKERE VILLAGE
THATTEKERE POST, KASABA HOBLI
HASSAN TALUK & DISTRICT
...APPELLANTS
(BY SRI. GIRISH B BALADARE ., ADVOCATE)
Digitally signed
by
DHANALAKSHMI AND:
MURTHY
Location: High
Court of 1. THE MANAGER
Karnataka NATIONAL INSURANCE CO. LTD.,
MANJUNATHA COMPLEX
OLD BUS STAND, HASSAN - 573201.
2. MANJUNATHA
S/O JAVARAIAH
D GROUP EMPLOYEE
ICHANAHALLI VILLAGE
ELECHAGAHALLI POST
KASABA HOBLI
-2-
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MFA No. 6628 of 2018
HOLENARSIPURA TALUK
HASSAN DISTRICT -573201.
...RESPONDENTS
(BY SRI. B A RAMAKRISHNA., ADVOCATE FOR R1:
NOTICE TO R2 IS HELD SUFFICIENT
VIDE ORDER DATED: 16.08.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02/11/2017,
PASSED IN MVC NO.1537/2015, ON THE FILE OF THE II
ADDITIONAL DISTRICT & SESSIONS JUDGE & ADDITIONAL
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, 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 02.11.2017 passed by the II
Additional District & Sessions Judge & Additional MACT,
Hassan (hereinafter referred to as 'the Tribunal') in MVC
No.1537/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 25.05.2014, the deceased
Rangaswamy was proceeding by walk on the left side of
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MFA No. 6628 of 2018
Tank bund of Hanumanahalli towards Basavanahalli
village. At that time, a motorcycle bearing registration No.
KA-13/EB-4086 which was being ridden in a rash and
negligent manner, dashed against the deceased. As a
result of the aforesaid accident, the deceased sustained
grievous injuries and succumbed to the injuries in the
hospital on 26.05.2014 at 6.15 p.m.
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, respondents 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 petition itself
is false and frivolous in the eye of law. It was further
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
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MFA No. 6628 of 2018
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.
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.P11. On behalf of
respondents, one witness was examined as RW-1 and got
exhibited documents namely Ex.R1 to Ex.R10. 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.10,58,000/- along
with interest at the rate of 6% p.a. and since at the time
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MFA No. 6628 of 2018
of the accident, the rider of the offending vehicle was not
holding a valid driving licence and the insured has violated
the policy conditions, directed the owner of the offending
vehicle 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:
(i) Firstly, the claimants claim that the deceased was
earning Rs.20,000/- per month by doing agriculture and
catering work. But the Tribunal is not justified in taking
the monthly income of the deceased as only Rs.8,500/-.
(ii) Secondly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE
CO. LTD. vs. PRANAY SETHI AND OTHERS reported in
AIR 2017 SC 5157, in case the deceased was self-
employed or on a fixed salary, an addition of 40% of the
established income towards 'future prospects' should be
the warrant where the deceased was below the age of 40
years. The same may be considered.
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MFA No. 6628 of 2018
(iii) Thirdly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. Vs. NANU RAM reported in 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'.
(iv) Fourthly, even though the rider of the offending
vehicle was not holding a valid and effective driving licence
and the insured has violated the policy condition, but in
view of the law laid down by the Apex Court in the case of
PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND
ANOTHER' AIR 2018 SC 592 and a Full Bench judgment
of this Court in 'NEW INDIA ASSURANCE CO. LTD.
BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020
Kar.2239, in respect of third party is concerned, the
insurance company has to pay the compensation amount
with liberty to recover the same from the owner of the
offending vehicle, the insured. Hence, he prays for
allowing the appeal.
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MFA No. 6628 of 2018
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
(i) Firstly, even though the claimants claim that the
deceased was earning Rs.20,000/- 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 compensation towards 'future prospects'.
(iii) 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.
(iv) Fourthly, as on the date of the accident the rider
of the offending vehicle was not holding a valid and
effective driving licence. Since the insured has violated
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MFA No. 6628 of 2018
the policy condition, Insurance Company is not liable to
pay the compensation. The Tribunal has rightly exonerated
the Insurance Company from payment of compensation.
Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award and the original records.
9. It is not in dispute that Rangaswamy died in the
road traffic accident occurred due to rash and negligent
driving of the offending vehicle by its driver.
10. The claimants claim that deceased was earning
Rs.20,000/- 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 2014, the notional income of the
deceased has to be taken at Rs.8,500/- p.m. To the
aforesaid income, 40% has to be added on account of
future prospects in view of the law laid down by the
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Constitution Bench of the Supreme Court in 'PRANAY
SETHI' (supra). Thus, the monthly income comes to
Rs.11,900/-. Since there are two dependents, it is
appropriate to deduct 1/3rd of the income of the deceased
towards personal expenses and remaining amount, i.e.,
Rs.7,933/- has to be taken as his contribution to the
family. The deceased was aged about 25 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.17,13,528/- (Rs.7,933*12*18) on
account of 'loss of dependency'.
11. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'. Claimant No.1, wife of the deceased is entitled
for compensation of Rs.40,000/- under the head of 'loss of
spousal consortium'. In view of the law laid down by the
Supreme Court in the case of 'MAGMA GENERAL
INSURANCE' (supra), claimant No.2, mother of the
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deceased is entitled for compensation of Rs.40,000/-
under the head of 'loss of filial consortium' .
12. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 17,13,528
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Filial consortium 40,000
Total 18,23,528
Re.liability:
13. In respect of liability, even though the rider of
the offending vehicle was not holding a valid and effective
driving licence and the insured has violated the policy
conditions, but in view of the law laid down by the Apex
Court in the case of PAPPU (supra) and a Full Bench of
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MFA No. 6628 of 2018
this Court in the case of YALLAVVA (supra), the
Insurance Company has to pay the compensation amount
at the first instance with liberty to recover the same from
the owner of the offending vehicle.
14. In the result, I pass the following order:
(i) The appeal is allowed in part.
(ii) The judgment of the Claims Tribunal is
modified.
(iii) The claimants are entitled to a total
compensation of Rs.18,23,528/- as against
Rs.10,58,000/- awarded by the Tribunal.
(iv) In view of the law laid down by the Hon'ble
Apex Court in PAPPU (supra) and Full
Bench of this Court in YELLAVVA (supra),
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 with
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liberty to recover the same from the owner
of the offending vehicle.
(v) In view of the order dated 13.09.2023
passed by this Court, the claimants are not
entitled to interest for the delayed period of
163 days in filing the appeal.
Sd/-
JUDGE
CM
