Karnataka High Court

Sulochana And Ors vs Ankit And Anr on 19 April, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                        MFA No.200477 of 2022




                                 IN THE HIGH COURT OF KARNATAKA

                                       KALABURAGI BENCH

                              DATED THIS THE 19TH 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.200477 OF 2022 (MV-D)


                      BETWEEN:

                      1.   SMT. SULOCHANA
                           W/O SHARANAPPA INGALESHWAR
                           AGE: 52 YEARS,
                           OCC: HOUSEHOLD WORK

                      2.   PARASHURAM
                           S/O SHARANAPPA INGALESHWAR
                           AGE: 29 YEARS
                           OCC: COOLIE
Digitally signed by
VARSHA N              3.   SIDRAM
RASALKAR
Location: HIGH             S/O SHARANAPPA INGALESHWAR
COURT OF
KARNATAKA                  AGE: 27 YEARS
                           OCC: COOLIE
                           ALL ARE R/O SHIKARKHANE
                           NEAR OLD MILK DAIRY
                           GANDHI NAGAR
                           VIJAYAPURA - 586 103.
                                                                 ...APPELLANTS

                      (BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
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                                        MFA No.200477 of 2022




AND:

1.    SRI ANKIT
      S/O JAGADISH PANCHAMIA
      AGE: 42 YEARS
      OCC: BUSINESS
      R/O HANSARAJ TOWER
      WING B-5, OPP. AMRUTWADI
      NEW RADHAKRISHNA PLOT
      AKOLA - 444 001
      (STATE MAHARASHTRA).

2.    THE MANAGER LEGAL
      THE CHOLAMANDALAM
      M.S GENERAL INSURANCE COMPANY LTD,
      UNIT 9TH FLOOR, LEVEL-06
      GOLDEN HEIGHTS COMPLEX
      59TH "C" CROSS,
      INDUSTRIAL SUBRUB,
      RAJAJI NAGAR, 4TH MAIN,
      BENGALURU - 560 010.
                                                ...RESPONDENTS

(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
R1 SERVED)

       THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND      AWARD        DATED        30.12.2021     PASSED     IN
M.V.C.NO.488/2019 ON THE FILE OF THE COURT OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MOTOR
ACCIDENT     CLAIMS    TRIBUNAL       NO.XII    VIJAYAPURA   AT
VIJAYAPURA AND ALLOW THIS APPEAL BY ENHANCING THE
COMPENSATION     AMOUNT       BY     RS.15,04.000/-   ONLY   AS
CLAIMED BY THE APPELLANTS BEFORE THIS HON'BLE COURT.
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                                     MFA No.200477 of 2022




     THIS MFA COMING ON FOR ADMISSION THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:


                        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 30.12.2021 passed by the

III Additional Senior Civil Judge and MACT-XII, Vijayapura

in MVC No.488/2019.

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

stated are that on 28.01.2019, when the deceased -

Santosh along with his friend Raju was proceeding on

motorcycle bearing registration No.KA-28/EN-5717 from

his residence to Indi road, at that time, a lorry bearing

registration No.MH-30/BD-0125 came from back side

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 was

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, the respondent Nos.1 and 2

appeared through their counsel and filed separate 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.1 as PW-1 and another witness as

PW-2 and got exhibited documents namely Ex.P1 to Ex.P8.

On behalf of respondents, one witness was examined as

RW-1 and got exhibited documents namely Ex.R1. 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

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succumbed to the injuries. The Tribunal further held that

the claimants are entitled to a compensation of

Rs.14,98,000/- along with interest at the rate of 6% p.a.

and directed the respondent No.2 to deposit the

compensation amount along with interest with liberty to

recover the same from the owner of the vehicle. 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 29 years at the time of the accident and he

was earning Rs.20,000/- per month. But the Tribunal is

not justified in taking the monthly income of the deceased

as merely as Rs.10,000/-.

b) Secondly, he contended that there are three

dependents. The Tribunal has deducted 50% of the income

of the deceased towards his personal expenses instead of

1/3rd of the income.

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c) Thirdly, as per the judgment of the Hon'ble Supreme

Court in the case of MAGMA GENERAL INSURANCE CO.

LTD. -V- NANU RAM AND OTHERS [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'.

d) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

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.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 at Rs.10,000/- per month.

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b) Secondly, since the claimant Nos.2 and 3 are the

major brothers of the deceased, they are not dependent

on the income of the deceased. Therefore, the Tribunal

has rightly deducted 50% of the income of the deceased

for his personal expenses.

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 prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

9. It is not in dispute that Santosh died in the road

traffic accident occurred on 28.01.2019 due to rash and

negligent driving of the offending vehicle Lorry bearing

registration No.MH-30/BD-0125 by its driver.

10. Even though the claimants claim that the deceased

was earning Rs.20,000/- per month, they have not

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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 2019, the notional income

of the deceased has to be taken at Rs.13,250/- 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

Constitution Bench of the Supreme Court in NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS

[AIR 2017 SC 5157].. Thus, the monthly income comes

to Rs.18,850/-. Even though there are three claimants,

claimant Nos.2 and 3 are major brothers of the deceased

and they are not dependent on the deceased, hence, the

Tribunal rightly deducted 50% of the income of the

deceased for personal expenses and rightly added

multiplier of '17' to his age group. Thus, the claimants are

entitled to compensation of Rs,18,92,100/-

(Rs.9,275*12*17) on account of 'loss of dependency'.

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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 No.1, mother of the deceased is entitled for

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

filial consortium'.

13. Thus, the claimants are entitled to the following

compensation:

            Compensation under           Amount in
              different Heads              (Rs.)

           Loss of dependency               18,92,100

           Funeral expenses                    15,000

           Loss of estate                      15,000

           Loss of filial consortium           40,000

                            Total           19,62,100

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

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                                    ORDER
     a)      The appeal is allowed in part.

     b)      The judgment of the Claims Tribunal is modified.

     c)      The        claimants     are       entitled   to      a     total
     compensation          of   Rs.19,62,100/-                as       against

Rs.14,98,000/- awarded by the Tribunal.

d) The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.