Karnataka High Court

Mrs Baby vs Mr Vasantha Gowda on 7 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                   -1-
                                                            NC: 2024:KHC:31393
                                                          MFA No. 9953 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 7TH DAY OF AUGUST, 2024

                                                BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 9953 OF 2018 (MV)


                      BETWEEN:
                      1. MRS BABY
                         W/O SHIVAPPA POOJARY
                         AGED ABOUT 61 YEARS.

                      2.    MISS VISHALAKSHI
                            D/O.SHIVAPPA POOJARY
                            AGED ABOUT 35 YEARS

                            BOTH RESIDING AT SHIVAPRASAD NILAYA
                            MAROOR VILLAGE & POST, MOODABIDRI
                            MANGALURU TALUK, D.K.DISTRICT -574227.
                                                                  ...APPELLANTS
                      (BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)

                      AND:
                      1. MR VASANTHA GOWDA
Digitally signed by
HEMALATHA A              S/O.MONAPPA GOWDA
Location: HIGH           AGED ABOUT 33 YEARS
COURT OF                 RESIDING AT SAMRUDDI NILAYA
KARNATAKA
                         HOKKILA, NADA VILLAGE
                         BELTHANGADY TALUK, D.K. PIN-574214.

                      2.    MR SHIJU
                            S/O.T.C.VARGEES
                            MAJOR,
                            R/AT THADATHIL, H NO. 1-248
                            UDAYA NAGARA, MUDUR POST
                            KUNDAPUR ATALUK
                            UDUPI DISTRICT PIN-576201.
                            -2-
                                       NC: 2024:KHC:31393
                                    MFA No. 9953 of 2018




3.   UNITED INDIA INSURANCE CO.LTD
     MICRO OFFICE BUILDING, 2ND FLOOR
     SHRI KATHYAYINI BUS STAND
     BELTHANGADY TALUK
     REPRESENTED BY ITS DIVISIONAL OFFICER
     RAMBAHVAN COMPLEX
     KODIALBAIL, MANGALURU TALUK
     D.K.DISTRICT PIN-575003.
                                         ...RESPONDENTS
(BY SRI.M U POONACHA., ADVOCATE FOR R3:
NOTICE TO R1 & R2 ARE DISPENSED WITH
V/O DATED: 28.10.2022)
     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.09.2018
PASSED IN MVC NO.1025/2016     ON THE FILE OF     THE
PRINCIPAL SENIOR CIVIL JUDGE AND MACT, MANGALURU,
DAKSHINA KANNADA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:   HON'BLE MR JUSTICE H.T. NARENDRA PRASAD


                    ORAL JUDGMENT

1. This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the claimants challenging by the judgment dated

20.09.2018 passed by MACT, Mangaluru, D.K. in MVC

No.1025/2016.

NC: 2024:KHC:31393

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

stated are that on 27.05.2016, when the deceased

Vishwanatha Poojary was proceeding by walk on the left

side of the road, at Kinnigogi Kuvettu Village, at that time,

a car bearing registration No.KA-20-B-7011 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

succumbed to the injuries.

3. The claimants filed a petition under Section 166 of

the Act seeking compensation for the death of the

deceased along with interest.

4. Upon service of notice, the respondents appeared

through counsel and respondent Nos.1 and 3 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

NC: 2024:KHC:31393

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.P14. On behalf of respondents, no witness was

examined but 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

succumbed to the injuries. The Tribunal further held that

the claimants are entitled to a compensation of

Rs.534,000/- along with interest at the rate of 6% p.a.

and directed the Insurance Company 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 assert that the deceased had a

monthly income of Rs.20,000/- by doing centering work.

NC: 2024:KHC:31393

However, the assessment of income of the deceased at

Rs.6000/- by the Tribunal is unjustified and erroneous.

b) Secondly, as per the evidence of PW-1, the age of

the deceased at the time of accident was 38 years. Even

as per ration card Ex.P-10 and PM report Ex.P-3, the age

of the deceased is shown as 38 years. The Tribunal has

not relied on the said documents and has wrongly

assessed the age of the deceased as 41 years.

c) Thirdly, 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], the claimants are entitled for future prospects.

d) Fourthly, as per the law laid down by the Hon'ble

Supreme Court in the case of PRANAY SETHI (supra),

the claimants are entitled for Rs.15,000/- towards 'loss of

estate' and Rs.15,000/- towards 'funeral expenses'.

e) Fifthly, as per the judgment of the Hon'ble Supreme

Court in the case of MAGMA GENERAL INSURANCE CO.

LTD. -V- NANU RAM [2018 ACJ 2782], each of the

NC: 2024:KHC:31393

claimants is entitled to compensation of Rs.40,000/- under

the head of 'loss of love and affection and consortium'.

f) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is inadequate and on the lower side.

With the above contentions, the learned counsel

sought to allow the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

a) Firstly, although the claimants claim that the

deceased was earning Rs.20,000/- per month, they have

failed to substantiate their claim with supporting

documents. Consequently, the Tribunal has correctly

assessed the income of the deceased notionally.

b) Secondly, the claimants themselves have produced

the voter ID card (Ex.P-10) of the deceased, which is an

authenticated document. As per the voter ID, the age of

NC: 2024:KHC:31393

the deceased is 41 years. On the basis of the same, the

Tribunal has rightly taken the age of deceased as 41

years.

c) Secondly, since the claimants have not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

d) 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.

With the above contentions, the learned counsel

sought to dismiss 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 Vishwanatha Poojary died in

the road traffic accident occurred on 27.05.2016 due to

rash and negligent driving of the offending vehicle by its

driver.

NC: 2024:KHC:31393

10. The claimants claim that deceased was earning

Rs.20,000/- per month, but failed to produce supporting

documents to substantiate their claim. In the absence of

proof of income, the notional income has to be assessed.

According to the guidelines issued by the Karnataka State

Legal Services Authority, for accidents occurred in the year

2016, the notional income of the deceased shall be taken

at Rs.9,500/- p.m.

Regarding age of the deceased, the claimants

themselves have produced the voter ID card of the

deceased, which is an authenticated document. As per the

voter ID, the age of the deceased is 41 years. On the basis

of the same, the Tribunal has rightly taken the age of

deceased as 41 years. To the monthly income of

Rs.9,500/-, 25% 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.11,875/-. Since the

deceased was a bachelor, it is appropriate to deduct 50%

of the income of the deceased towards personal expenses

NC: 2024:KHC:31393

and remaining amount has to be taken as his contribution

to the family. The deceased was aged about 41 years at

the time of the accident and multiplier applicable to his

age group is '14'. Thus, the claimants are entitled to

compensation of Rs.9,97,500/- (Rs.11,875*12*14*50%)

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. Thus, the claimants are entitled to the following

compensation:

- 10 -

                                                     NC: 2024:KHC:31393





              Compensation under                    Amount in
                different Heads                       (Rs.)

           Loss of dependency                          9,97,500

           Funeral expenses                               15,000

           Loss of estate                                 15,000

           Loss of Filial consortium                      80,000

                            Total                    11,07,500

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

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.11,07,500/- as against

Rs.534,000/- 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