Karnataka High Court

Asha vs Divisional Controller on 7 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                              NC: 2024:KHC:31443
                                                           MFA No. 1701 of 2020




                           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. 1701 OF 2020 (MV)
                      BETWEEN:
                      1. ASHA
                         W/O LATE KUMARA @ KARIAIAH
                         AGED ABOUT 27 YEARS.

                      2.    REKHA @ ROHINI
                            D/O LATE KUMARA @ KARIAIAH
                            AGED ABOUT 9 YEARS
                            BEING MINOR REPRESENTED BY MOTHER
                            ASHA BEING HER NATURAL GUARDIAN.

                      3.    RAJINI
                            W/O LATE KUMARA @ KARIAIAH
                            AGED ABOUT 26 YEARS

                      4.    ROHITH
                            D/O LATE KUMARA @KARIAIAH
                            AGED ABOUT 7 YEARS
Digitally signed by
HEMALATHA A           5.    RANJITHA
Location: HIGH              D/O LATE KUMARA @ KUMARAIAH
COURT OF
KARNATAKA                   AGED ABOUT 6 YEARS

                            APPELLANT NOS. 4 & 5 ARE MINORS
                            REPRESENTED BY THEIR MOTHER
                            APPELLANT NO.3

                      6.    JAYAMMA
                            W/O LATE RUDRAIAH BHADRAIAH
                            AGED ABOUT 59 YEARS
                            ALL ARE R/AT AMBEDKAR NAGAR
                            ALURU TALUK, HASSAN DISTRICT - 573 201
                                                                     ...APPELLANTS
                            -2-
                                        NC: 2024:KHC:31443
                                     MFA No. 1701 of 2020




(BY SRI. BYRAREDDY G.S., ADVOCATE FOR
SMT.KAVITHA H C.,ADVOCATE)
AND:
DIVISIONAL CONTROLLER
KSRTC HASSAN DIVISION
HASSAN - 573 201
                                            ...RESPONDENT
(BY SRI.D VIJAYKUMAR., ADVOCATE)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.08.2019
PASSED IN MVC NO. 1018/2015 ON THE FILE OF THE 5TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING    ENHANCEMENT     OF
COMPENSATION.

    THIS APPEAL, COMING ON FOR ORDERS, 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 the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants challenging

the judgment and award dated 19.08.2019 passed by

the MACT, Hassan in MVC 1018/2015.

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

stated are that on 28.12.2014, when the deceased

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Kumara @ Kariyaiah was proceeding on the side of the

road near Konepete Masjid, Aluru Town, at that time,

KSRTC bus bearing registration No.KA-13-F-1642 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 respondent appeared

through counsel and 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

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the case, examined claimant No.1 as PW-1, and got

exhibited documents namely Ex.P1 to Ex.P10. On behalf

of respondents, one witness was examined as RW-1 but

no document was produced. 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.17,33,000/- along

with interest at the rate of 9% p.a. and directed the

KSRTC 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 was

aged about 35 years at the time of the accident and had

a monthly income of Rs.30,000/- by working as a

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Mason. However, the assessment of income of the

deceased at Rs.8,000/- by the Tribunal is unjustified and

erroneous.

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], in cases, where the deceased was self-

employed or received a fixed salary, an addition of 40%

of the established income towards 'future prospects' is

warranted when the deceased was below the age of 40

years. This principle has been rightly considered by the

Tribunal.

c) Thirdly, 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 claimants is entitled to

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

love and affection and consortium'.

NC: 2024:KHC:31443

d) 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

KSRTC Company has raised the following counter-

contentions:

a) Firstly, although the claimants claim that the

deceased was earning Rs.30,000/- 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, 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

NC: 2024:KHC:31443

deceased, the overall compensation awarded by the

Tribunal is just and reasonable.

d) Lastly, in light of the Division Bench decision of this

Court in the case of MS.JOYEETA BOSE AND OTHERS

-V- VENKATESHAN.V AND OTHERS (MFA

5896/2018 AND CONNECTED MATTERS DISPOSED

OF ON 24.8.2020), the rate of interest awarded by the

Tribunal at 9% p.a. on the compensation amount is on

the higher side.

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 Kumara died in the road

traffic accident occurred on 28.12.2014 due to rash and

negligent driving of the offending vehicle by its driver.

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10. The claimants claim that deceased was earning

Rs.30,000/- 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 2014, the notional income of the

deceased shall 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

Constitution Bench of the Supreme Court in 'PRANAY

SETHI' (supra). Thus, the monthly income comes to

Rs.11,900/-. Considering the number of dependents, the

Tribunal has deducted 1/4th of the income of the

deceased towards personal expenses and remaining

amount has been as his contribution to the family. The

deceased was aged about 35 years at the time of the

accident and multiplier applicable to his age group is

'16'. Thus, the claimants are entitled to compensation

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of Rs.17,13,600/- (Rs.11,900*12*16*3/4) 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'.

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

in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimant Nos.2, 4 and 5, children of the

deceased are entitled for compensation of Rs.40,000/-

each under the head of 'loss of parental consortium' and

claimant No.6, mother of the deceased is entitled for

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

filial consortium'.

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NC: 2024:KHC:31443

13. Thus, the claimants are entitled to the following

compensation:

Compensation under different Amount in Heads (Rs.) Loss of dependency 17,13,600 Funeral expenses 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Loss of Parental consortium 1,20,000 Loss of Filial consortium 40,000 Total 19,43,600 Less: Rs.50,000/- already paid 50,000 as interim compensation Balance 18,93,600

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