Karnataka High Court
S D Hanuman vs Srinivas S on 9 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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NC: 2024:KHC:1075-DB
MFA No. 8517 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 8517 OF 2016 (MV-D)
BETWEEN:
1. S.D.Hanuman
S/o Dodda Hanumaiah,
Aged about 58 years,
2. T.Dayamani,
W/o S.D.Hanuman
Aged about 44 years,
Both are R/o No.295,
4th Main Road, 1st Stage,
Digitally Manjunath Nagara,
signed by
VEENA
KUMARI B
Bengaluru-560 010.
Location:
High Court
...Appellants
of Karnataka
(By Sri. Chethan D T., Advocate)
AND:
1. Srinivas S
S/o Sridhar S.T.,
Major, R/o Kithiganur,
K.R.Puram Post,
Bengaluru-560 036.
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MFA No. 8517 of 2016
2. Bharti Axa, General Insurance Co.Ltd.,
Pride Quadra, No.30,
3rd Floor, Bellary Road,
Hebbal,
Bengaluru-560 024.
...Respondents
(By Sri. Krishna Kishore S., Advocate for R-2,
And R-1 served - unrepresented)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act praying to call for the records in
MVC.No.3335/2014, on the file of Motor Vehicle Accident
Claims Tribunal, SCCH-14, at Bengaluru City and modify the
judgment and award dated 06.04.2015, by allowing this
appeal, with costs and grant such other and further reliefs, as
this Hon'ble Court deems fit to grant in the facts and
circumstances of the case, in the interest of justice and equity.
This Miscellaneous First Appeal coming on for Admission
through Physical Hearing/Video Conferencing, this day,
Dr.H.B.Prabhakara Sastry, J., delivered the following:
JUDGMENT
The present appeal is filed by the claimants under
Section 173 (1) of the Motor Vehicles Act, 1988, seeking
enhancement of the compensation awarded by the learned
XVI Addl.Judge, Court of Small Causes & and Motor
Accidents Claims Tribunal, (SCCH-14), Bengaluru,
(hereinafter for brevity referred to as 'the Tribunal'),
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in its judgment and award dated 06.04.2015, in
M.V.C.No.3335/2014.
2. The summary of the case of the present
appellants as claimants before the Tribunal was that, the
claimants are the parents of the deceased Shashidhar,
who was said to be aged 20 years at the time of the
accident and was a student. On the date 24.06.2014, at
about 12.45 p.m., while the deceased was travelling in
Toyota Innova Car bearing registration No.KA-53-N-7776,
along with his friends to Davanagere from Bengaluru, near
SSIM Hospital, Railway Underpass Bridge, Davanagere,
due to the rash and negligent driving by the driver of the
said motorcar, it dashed against a Tractor-Trailor bearing
registration No.KA-17-TA-7115 and MEW 8891. Due to
the said road traffic accident, deceased Shashidhar
sustained grievous injuries on his head, chest and other
parts of the body. Though he was immediately shifted to
the nearest SSIM Hospital, however, he succumbed to the
injuries while being taken to the hospital. The contention
of the claimants being the parents of the deceased
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Shashidhar is that, prior to the accident, the deceased was
studying in Engineering course and was also working as a
part-time Data Operator and Sales Executive in
M/s.Olympic Sports and earning more than `30,000/- per
month. Due to the untimely death of deceased
Shashidhar, the parents are put to great loss and mental
agony. With this, the claimants have claimed
compensation of a sum of `35 lakhs with interest
thereupon from respondent Nos.1 and 2, arraying them as
the owner and insurer of the alleged offending vehicle i.e.,
Toyota Innova Car bearing registration No.KA-53-N-7776.
3. In response to the notice, it is only respondent
No.2-Insurance Company, appearing through its learned
counsel, filed its written statement and the respondent
No.1 had remained ex parte. In its written statement, the
respondent No.2-Insurance Company denied the manner
of occurrence of road traffic accident, the age and the
alleged studentship of the deceased. However, it admitted
the issuance of policy in favour of respondent No.1 with
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respect to Toyota Innova Car bearing registration
No.KA-53-N-7776.
4. Before the Tribunal, the claimant No.1 got himself
examined as PW-1 and also examined one Darshan D., as
PW-2 and got marked documents from Exs.P-1 to P-11.
On behalf of the respondents, neither any witnesses were
examined nor any documents were produced.
5. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the
compensation under the following heads with the sum
shown against them:
Sl.
Particulars Amount in `
No.
1 Loss of dependency 7,56,000/-
2 Love and affection 50,000/-
3 Transportation of dead body and 25,000/-
funeral expenses
Total 8,31,000/-
6. The Tribunal awarded compensation of a sum of
`8,31,000/- with interest at `9% per annum thereupon
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from the date of petition till the date of realisation, holding
the owner and Insurer jointly and severally liable to pay
the said compensation and directed the Insurer to deposit
the award amount. It is against the said judgment and
award passed by the Tribunal, the claimants have filed this
appeal seeking enhancement of compensation.
7. The respondent No.2 herein (insurer) is
represented by its counsel. Though the respondent No.1
is served, but, he has remained unrepresented.
8. Records from the Tribunal pertaining to the matter
were called for and the same are placed before the Court.
9. Though this appeal is posted for admission, with
the consent from both parties, the matter was taken up for
arguments on main on merits.
10. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
Tribunal.
11. Heard the arguments of learned counsel for the
appellant and learned counsel for respondent No.2-
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Insurance Company. Perused the materials placed before
this Court, including memorandum of appeal, impugned
judgment and also the records of the Tribunal.
12. The learned counsel for the appellants
(claimants) in his argument submitted that the present
appeal is for the enhancement of the compensation. Even
though the notional income prevailing for the relevant year
2014 was `8,500/- per month, however, the Tribunal has
taken the income only at `6,000/- per month, which is a
meager sum. With this, he contended that taking the
income of the deceased at a minimum of `8,500/- per
month, the quantum of compensation if calculated, it
exceeds more than what the Tribunal has awarded in the
impugned judgment. With this, he prayed to allow the
appeal.
13. Per contra, learned counsel for respondent No.2-
Insurance Company in his argument submitted that the
deceased was only a student of Engineering, as such, the
Tribunal has rightly taken the income at `6,000/- per
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month. Under the said circumstances, the impugned
judgment and award does not warrant any interference at
the hands of this Court.
14. The present appeal being the claimants appeal
and respondent No.2 (insurer) having not preferred either
cross-objection or a counter appeal, the question of
occurrence of accident on the date, time and place as
alleged by the claimants and also the alleged rash and
negligent driving on the part of the driver of the motorcar
is not in dispute.
15. The claimants in support of their claim petition
examined two witnesses, among whom, the first witness
i.e., PW-1 was the claimant No.1. They also got examined
one Darshan D., as PW-2 alleging him to be an eye
witness to the accident. Both PW-1 and PW-2 in their
evidence have stated that the road traffic accident in
question has occurred solely due to the rash and negligent
driving of the Toyota Innova Car bearing registration
No.KA-53-N-7776 by its driver. Among these two
witnesses, PW-2 claims himself to be an eye witness to the
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accident. On behalf of the claimants, the documents from
Exs.P-1 to P-11 were marked, which inter alia includes
copies of FIR, complaint, charge sheet, scene of offence
panchanama, rough sketch of scene of offence, inquest
panchanama, post mortem report and the Motor Vehicle
Inspector's report from Exs.P-1 to P-7.
16. In the cross-examination of PW-1 and PW-2,
nothing could be elicited to weaken the case of the
claimants regarding the occurrence of road traffic accident
and the manner of occurrence of road traffic accident. The
police documents, more particularly, the complaint at
Ex.P-1 shows that the allegation is made against the driver
of the motorcar. After investigation, the Davanagere
Traffic Police have filed a charge sheet in their Station
Crime No.29/2014 against one Arjun G., showing him to
be the alleged driver of the offending Toyota Innova Car
bearing registration No.KA-53-N-7776 for the offences
punishable under Sections 279, 304-A, 337, 338 of Indian
Penal Code, 1860 (hereinafter for brevity referred to as
`IPC').
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17. The inquest panchanama at Ex.P-5 also shows
that the panchas have opined that the deceased
Shashidhar sustained fatal injuries in the alleged road
traffic accident and succumbed to the same. The post
mortem report at Ex.P-6, after enlisting the injuries found
on the deceased has opined that the death of deceased
H.Shashidhar was due to rupture of heart following blunt
force trauma to the chest. Thus, the medical evidence
corroborates the evidence of PW-2, the alleged eye
witness that the deceased Shashidhar suffered fatal
injuries in the road traffic accident. The Motor Vehicle
Inspector's report at Ex.P-7 also shows that the road
traffic accident was not due to any mechanical defect with
either of the vehicles. As such, the occurrence of the road
traffic accident on the date, time and place as contended
by the claimants in their claim petition stands proved by
the evidence of PW-1 and PW-2 and Exs.P-1 to P-7.
18. Admittedly, the respondent No.2 is the insurer of
the alleged offending vehicle Toyota Innova Car bearing
registration No.KA-53-N-7776. The driver of the offending
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vehicle has been charged with the offences punishable
under Sections 279, 304-A, 337, 338 of IPC. As such,
it stands established that in the road traffic accident
occurred on the date, time and place as contended by the
claimants, the deceased Shashidhar sustained grievous
injuries and succumbed to it. The said road traffic
accident was due to the rash and negligent driving of the
Toyota Innova Car bearing registration No.KA-53-N-7776.
As such, the respondent No.1 being the owner of the
vehicle and respondent No.2 being the insurer of the
vehicle are jointly and severally liable to pay the
compensation to the claimants whose parenthood upon
the deceased Shashidhara is not in dispute. Thus, the only
question that remains to be considered is about the
quantification of the compensation, which according to the
claimants/appellants is inadequate.
19. In order to show the age of the deceased
Shashidhar, the claimants have produced the deceased's
SSLC Marks Card in its original and got it marked at
Ex.P-8. The same shows the date of birth of deceased as
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19.08.1994. As per the said educational document, the
age of the deceased as on the date of the accident in
question comes to 20 years. The post mortem report at
Ex.P-6 has also shown the age of the deceased as at
20 years only. Therefore, the age of the deceased is
established as 20 years as on the date of the accident.
20. The claimants claim themselves to be the parents
of the deceased and they stated that due to the death of
the deceased, they had suffered huge financial loss, apart
from loss of love and affection. Though the claimants
contend that the deceased apart from pursuing his studies
as student in Engineering, was also doing a part-time job
in M/s.Olympic Sports and getting a salary of a sum
`30,000/- per month. However, to support the said
contention of the alleged part-time job of the deceased
and his income from his alleged part-time job, except oral
statement, there is nothing on record to believe the same.
The respondent-Insurance Company has vehemently
denied the income of the deceased from his alleged
part-time job. Thus, it is only the notional income
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prevailing for the relevant period is required to be
considered.
21. The Tribunal though has considered these
aspects and proceeded to take the notional income of the
deceased as his income, but, it has taken the income at
`6,000/- per month. According to the learned counsel for
the appellants, the notional income prevailing for the
relevant period and as has been considered and accepted
by the majority of the Tribunals in the State is `8,500/-
per month for the relevant year 2014. The learned
counsel for respondent No.2 who initially opposed for
taking the said notional income, however, fairly concedes
that the State Legal Services Authority has recommended
the notional income for the relevant year 2014 at `8,500/-
per month. Under the said circumstances, we are of the
view that the income of the deceased is required to be
taken at `8,500/- per month.
22. As per the judgment of the Hon'ble Apex Court in
the case of National Insurance Company Limited -vs-
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Pranay Sethi and Others reported in (2017) 16 SCC 680,
the income of the deceased has to be computed adding
the future prospects at 40% to the same. Accordingly,
when the income of the deceased is taken at `8,500/- per
month, when 40% is added towards future prospects,
which is `3,400/-, which comes to `11,900/- per month.
23. Admittedly, the deceased was a Bachelor and the
claimants are his parents. Except them, there are no
other dependents on the deceased. As rightly considered
by the Tribunal, 50% of the alleged income is to be
deducted towards personal expenses of the deceased.
Thus, the balance of 50% would comes to `5,950/- per
month. The multiplier applicable for the age of the
deceased is '18'. Thus, towards `loss of dependency', the
quantum of compensation to which the claimants are
entitled is to a sum of `5,950/- x 12 x 18=`12,85,200/-.
However, the Tribunal apart from taking the income of the
deceased at a lower rate, has also miscalculated the
multiplier by taking the age of one of the parents. As
such, the compensation awarded by the Tribunal under the
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head `loss of dependency' amounting to a sum of
`7,56,000/-, deserves to be enhanced.
24. The claimants having lost their young and
growing-up son are entitled for compensation towards love
and affection. The Tribunal after considering the same,
since has awarded a reasonable compensation of a sum of
`50,000/- towards the same, we do not find any reason to
modify the same.
25. Similarly, the claimants are also entitled for
compensation towards transportation of dead body and
funeral expenses. The Tribunal has awarded a sum of
`25,000/- towards the same, we do not find any reason to
modify the same.
26. Thus, in total, the claimants are entitled for a
compensation of a sum of `13,60,200/-. Since the
Tribunal has awarded compensation of a sum of
`8,31,000/- only, the claimants/appellants are entitled for
a differential amount of `5,29,200/- as enhancement.
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27. Thus the claimants would be entitled to the total
compensation as tabulated below:
Sl.
Particulars Amount in `
No.
1 Loss of dependency 12,85,200/-
2 Love and affection 50,000/-
3 Towards transportation of dead 25,000/-
body and funeral expenses
Total 13,60,200/-
28. Barring the above, the claimants are not entitled
for compensation under any other heads or enhancement
or modification of compensation under the existing heads.
29. Thus, from out of the total compensation of a
sum of `13,60,200/-, after deducting the compensation
awarded by Tribunal, which is at `8,31,000/-, the
enhancement to which the claimants/appellants are
entitled to would be a sum of `5,29,200/-. It is only to
this extent, the impugned judgment and award deserves
interference and modification at the hands of this Court.
30. Accordingly, we proceed to pass the following :
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ORDER
[i] The Appeal filed by the claimants
stands allowed in part;
[ii] The impugned judgment and award
dated 06.04.2015, passed by the learned
XVI Addl.Judge, Court of Small Causes and Motor
Accident Claims Tribunal, Bengaluru City
(SCCH-14), in M.V.C.No.3335/2014, awarding a
total compensation of `8,31,000/- to the
appellants herein is modified and enhanced by a
sum of `5,29,200/-, thus, bringing the total
entitlement of compensation by the
appellants/claimants at a sum of `13,60,200/-.
[iii] The rest of the order of the Tribunal
with respect to fixing the liability upon the
respondents and directing the respondent No.2 -
Insurance Company to deposit the awarded
amount, awarding the interest, its rate,
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apportionment, terms regarding release of the
amount awarded etc., shall remain unaltered.
[iv] However, as per the order dated
01.08.2022, the appellants/claimants are not
entitled for interest for the delayed period of
520 days in filing the present appeal.
Draw the modified award accordingly.
Registry to transmit a copy of this judgment along
with records to the concerned Tribunal without delay.
Sd/-
JUDGE
Sd/-
JUDGE
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