Karnataka High Court

Bhimaraya And Anr vs Devindrappa And Anr on 16 April, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                          MFA No.201666 of 2021




                                 IN THE HIGH COURT OF KARNATAKA

                                         KALABURAGI BENCH

                              DATED THIS THE 16TH DAY OF APRIL, 2024

                                                PRESENT

                           THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                  AND
                               THE HON'BLE MR. JUSTICE K V ARAVIND

                           MISCL. FIRST APPEAL NO.201666 OF 2021 (MV-D)

                      BETWEEN:

                      1.   BHIMARAYA
                           S/O DEVAPPA
                           AGE ABOUT 53 YEARS
                           OCC: AGRICULTURE

                      2.   BHIMAVVA
                           W/O BHIMARAYA
                           AGE: 51 YEARS
                           OCC: HOUSEHOLD WORK

Digitally signed by        BOTH ARE R/O MADNAL VILLAGE
BASALINGAPPA
SHIVARAJ                   TALUK: SHAHAPUR
DHUTTARGAON
Location: High
                           DIST: YADAGIRI
Court Of Karnataka

                           NOW RESIDING AT PLOT NO.33
                           BHAVANI BUILDING UDAY NAGAR
                           NEW JEWARGI ROAD
                           KALABURAGI - 585 101.
                                                                   ...APPELLANTS

                      (BY SRI SANGANABASAVA B.PATIL, ADVOCATE)

                      AND:

                      1.   DEVINDRAPPA
                             -2-
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                                    MFA No.201666 of 2021




     S/O SAIBANNA
     AGE: MAJOR
     OCC: OWNER OF TRACTOR
     BEARING NO.KA-33/T-5020
     R/O SIRWAL, TQ: SHAHAPUR
     DIST: YADGIR - 585 223.

2.   THE MANAGER
     L & T GENERAL INSURANCE CO.LTD.,
     1ST FLOOR, SHUNAM BUILDING
     # 7 MAGRATH ROAD
     BENGALURU - 560 025.
                                           ...RESPONDENTS

(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
V/O DATED 01.02.2022 NOTICE TO R1 IS DISPENSED WITH)


      THIS MFA IS FILED UNDER SECTION 173(1) OF THE

MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS

AND MODIFY THE JUDGMENT AND AWARD DATED 23.04.2021

PASSED BY THE HON'BLE I ADDITIONAL SENIOR CIVIL JUDGE

AND M.A.C.T. AT KALABURAGI, AT: KALABURAGI IN M.V.C.

NO.472/2018   AND   BE   PLEASED   TO   ALLOW   THE   CLAIM

PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE

APPELLANTS HEREIN IN THE INTEREST OF JUSTICE AND

EQUITY.


      THIS MFA COMING ON FOR ADMISSION THIS DAY

H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
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                                     MFA No.201666 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 23.04.2021 passed by the

I Additional Senior Civil Judge and MACT, Kalaburagi in

MVC No.472/2018.

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

stated are that on 03.12.2016 at about 6.15 a.m., when

the deceased Marthandappa along with his brother was

proceeding on his motorcycle bearing registration No.KA-

33/S-7495 towards his land at Mudnal village, at that

time, a tractor bearing registration No.KA-33/T-5020

which was being driven in a rash and negligent manner,

dashed against the deceased. As a result of the aforesaid

accident, the deceased sustained grievous injuries and he

was hospitalized. On 23.02.2017, he 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, both respondents appeared

through their respective counsels. The respondent No.2

filed written statement denying the averments made in the

claim 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 the case,

examined claimant No.2 as PW-1 and got exhibited

documents namely Ex.P1 to Ex.P19. On behalf of

respondents, two witnesses were examined as RW-1 &

RW-2 and got exhibited documents namely Ex.R1 to

Ex.R2. 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

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further held that the claimants are entitled to a

compensation of Rs.17,36,650/- along with interest at the

rate of 6% p.a. and directed the respondent No.2 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 25 years at the time of the accident and he

was earning Rs.10,000/- per month. But the Tribunal is

not justified in taking the monthly income of the deceased

as merely as Rs.8,750/-.

b) Secondly, as per the law laid down by the Hon'ble

Supreme Court in the case of NATIONAL INSURANCE CO.

LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC

5157], 40% of the income of the deceased is to be added

towards future prospects.

c) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

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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

not established by the claimants by producing documents.

Therefore, the Tribunal has rightly assessed the income of

the deceased notionally.

b) Secondly, since the claimants have not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

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 sought for

dismissal of the appeal.

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8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

9. It is not in dispute that Marthandappa died in the

road traffic accident occurred on 03.12.2016 due to rash

and negligent driving of the offending vehicle Tractor

bearing registration No.KA-33/T-5020 by its driver.

10. Even though the claimants claim that deceased was

earning Rs.10,000/- per month, they have not produced

any documents to prove the income of the deceased. In

the absence of proof of income, the Tribunal has rightly

assessed the notional income of the deceased at

Rs.8,750/- To the aforesaid income, 40% 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.12,250/-. Since he is a bachelor, it is

appropriate to deduct ½ of the income of the deceased

towards personal expenses and remaining amount has to

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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.13,23,000/-

(Rs.6,125*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'.

12. In view of the law laid down by the Supreme Court in

the case of 'MAGMA GENERAL INSURANCE' (supra),

claimant Nos.1 and 2, parents of the deceased are entitled

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

'loss of filial consortium'.

13. The compensation of Rs.9,45,400/- awarded by the

Tribunal under the head of 'medical expenses' is as per the

medical bills produced by the claimants. The same is just

and reasonable.

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14. Thus, the claimants are entitled to the following

compensation:

            Compensation under            Amount in
              different Heads               (Rs.)

           Loss of dependency               13,23,000

           Funeral expenses                    15,000

           Loss of estate                      15,000

           Loss of Filial consortium           80,000

                            Total:         14,33,000

           Less: 25% negligence              3,58,250
           on the part of the
           deceased

                       Balance:             10,74,750

           Add: Medical Bills                9,45,400

                  Compensation:            20,20,150

15. In the result, the following order is passed: