Karnataka High Court
Mahadevan B B vs Smt.R.Suguna on 10 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:20497
MFA No. 5067 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5067 OF 2021 (MV-D)
BETWEEN:
1. MAHADEVAN B.B.
S/O. BASAVARAJU
AGED 63 YEARS,
R/AT. HONNU NILAYA
KUVEMPU ROAD,
AMARAJYOTHI NAGARA,
TUMAKURU,
PIN CODE-572101.
2. HONNAMMA
W/O. MAHADEVAN B.B.
AGED 58 YEARS,
R/AT. HONNU NILAYA
KUVEMPU ROAD,
AMARAJYOTHI NAGARA,
Digitally signed TUMAKURU,
by
MARKONAHALLI PIN CODE - 572101.
RAMU PRIYA
Location: HIGH
COURT OF 3. K.N.NETHRA
KARNATAKA W/O. LATE RAJESH
AGED 34 YEARS,
R/AT. HONNU NILAYA
KUVEMPU ROAD,
AMARAJYOTHI NAGARA,
TUMAKURU,
PIN CODE - 572101.
4. PRADHAANYA
D/O. LATE RAJESH
AGED 7 YEARS,
-2-
NC: 2024:KHC:20497
MFA No. 5067 of 2021
MINOR, REP BY HER NATURAL GUARDIAN MOTHER
APPELLANT NO.3
R/AT. HONNU NILAYA
KUVEMPU ROAD, AMARAJYOTHI NAGARA,
TUMAKURU - 572101.
...APPELLANTS
(BY SRI. MADHUSUDHAN M N.,ADVOCATE)
AND:
1. SMT. R.SUGUNA
W/O. LATE RAVI
AGED 45 YEARS,
R/AT NO.21,
VEERANJANEYA TEMPLE ROAD,
PARAMAHAMSA NAGARA,
UTTARAHALLI, SUBRAMANYAPURA POST,
BANGALORE-560 061.
2. NATIONAL INSURANCE CO. LTD.,
FLAT NO.101-106, BMC HOUSE,
CONNAUGHT PLACE, NEW DELHI
R/BY THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD
SHRUTHI MANSION
BEHIND KRISHNA TALKIES,
TUMKUR-572 101.
...RESPONDENTS
(BY SRI. K.H.HEROOR, ADVOCATE FOR R1)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 07.03.2019
PASSED IN MVC NO.1580/2014 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, MACT, TUMAKURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC:20497
MFA No. 5067 of 2021
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for both the parties, the same
is taken up for final disposal.
2. This appeal is filed by the appellants challenging
the judgment and award dated 07.03.2019 passed in MVC
No.1580/2014 by the III Additional Senior Civil Judge and
the MACT, Tumkuru (for short hereinafter referred to as
'Tribunal') seeking for enhancement of compensation.
3. Heard the arguments of the learned counsel for
the appellants and learned counsel for the respondents.
4. The parties will be referred as per their
respective ranks held before the Tribunal for the sake of
convenience.
5. The case of the appellants is that they have
filed a claim petition under Section 166 of M.V Act
claiming compensation for the death of Rajesh who is the
son of claimant Nos.1 and 2 and husband and father of
NC: 2024:KHC:20497
claimant Nos.3 and 4 respectively and who died in a Road
Traffic Accident on 31.12.2013.
6. The facts of the case in brief are that on
31.12.2013, the deceased Rajesh along with his friends
were planned to visit Mallenahalli for celebrating the year
end and they left Bengaluru in a Maruthi Swift car bearing
registration No.KA-05-AD-9894. They reached Tumakuru
at 6:00 a.m., since they were not interested in
celebration, they were returning back to Bengaluru and
when they were proceeding near Joss Toll, Tumakuru and
one Yogender was driving the car, at that time, while the
car proceeding near Hirehalli gate on NH-4, the said
Yogender drove the said car in a rash and negligent
manner and dashed against the divider, as a result , the
said car toppled on the other side of the road and dashed
against two lorries bearing Reg.No.RJ-19-GC-406 and
Reg.No.JK-01-K-7352 which was coming from Bengaluru
side. Further, due to the accident, the inmates of the car
including the deceased Rajesh sustained injuries and
NC: 2024:KHC:20497
injured were shifted to the District Hospital, Tumakuru and
while on the way to the hospital, the said Rajesh died due
to the injuries. The claimants have stated that prior to the
accident, the deceased was hale and healthy and aged
about 30 years and was working as an Operation Assistant
Manager in Sai Care Sky Wings, J.P.Nagar, Bengaluru and
he was doing transport business and earning a sum of
Rs.20,000/- per month. The claimants being the father,
mother, wife and daughter have lost the earning member
in the family and lost their love and affection. Hence, they
have filed the claim petition claiming compensation of
Rs.25,00,000/- for the death of Rajesh.
7. After issuing notice, the first respondent being
the owner of the vehicle though served with the notice,
remained absent and hence he was placed exparte and not
contested. The respondent No.2/insurer appeared before
the Court and filed statement of objections by taking
various contentions and denying the age, occupation and
income of the deceased and taken a specific contention
NC: 2024:KHC:20497
that the driver of the car who drove the car involved in the
accident, did not possess a valid driving licence for driving
the car as on the date of the accident. He is only holding
the licence to drive a two-wheeler and therefore, no
liability shall be fixed on the insurer and prayed for
dismissal of the claim petition.
8. Based on the pleadings of the parties, the
Tribunal framed the following issues:
"1. Whether claimants prove that they are the legal
heirs of the deceased Rajesh?
2. Whether the claimants prove that, the death of
Rajesh was caused in a accident due to the rash
and negligent driving of the driver of Maruti
Swift Dzire car bearing Reg.No.KA-05-AD-9894
taken place on 31.12.2017 at about 2:00 a.m.
on Bengaluru - Tumakuru road, near Hirehalli
Railway Gate?
3. Whether the 2nd respondent - Insurance
Company proves that driver of the Maruthi
Swift Dzire Car has no valid and effective
driving license to drive the said car as on the
date of accident?
NC: 2024:KHC:20497
4. Whether the 2nd respondent - Insurance
Company further proves that, the petition is
bad for non joinder of necessary parties?
5. Whether the claimants are entitled for the
compensation? If so what is the just and fair
compensation?
6. Who is liable for payment of compensation
amount?
7. What order or award?"
9. On behalf of the claimants, claimant No.2 was
examined as PW.1 and got marked 11 documents and on
behalf of the insurer one Rajkumari was examined as
RW.1 and marked 02 documents Ex.R1/Copy of PM report
and Ex.R2/Copy of DL extract. After hearing the
arguments, the tribunal allowed the petition in-part and
granted compensation of Rs.13,90,200/- along with
interest @ 6% per annum under various heads by fixing
the liability on the respondent No.1 and exonerated the
insurer.
NC: 2024:KHC:20497
10. Being aggrieved by the quantum of
compensation awarded by the tribunal, the claimants are
before this Court.
11. The learned counsel for the claimants
contended that the deceased was earning a sum of
Rs.20,000/- per month, but the tribunal considered only
Rs.6,000/- per month as notional income which is
incorrect. Even in the Lok-adalath, the Courts are
considering Rs.8,500/- per month as income for granting
compensation. He further contended that the
compensation awarded under the conventional heads is
also very meager. The compensation awarded under other
heads is also not just and proper. Hence, the learned
counsel prays for enhancement of compensation.
12. Per contra, the learned counsel for the
respondent No.2 supported the judgment and award
passed by the tribunal. He further contended that the
appellants have only challenged the quantum of
compensation and not challenged fastening the liability on
NC: 2024:KHC:20497
the respondent No.1/owner of the vehicle. Hence, prays to
dismiss the appeal against the respondent No.2/insurance
company.
13. The learned counsel for the respondent No.1
also appeared through video conferencing and objected
the appeal memo and however, he submitted that the
claimants have not filed any appeal challenging the liability
fixed on the owner of the vehicle.
14. Having heard the learned counsel for the parties
and perusing material on records, the points that arise for
consideration of this Court are:
"1. Whether the amount of compensation awarded
by the tribunal is just and proper and liable to
be enhanced?
2. If so, what order?"
15. On perusal of the record, there is no dispute
with regard to occurrence of the accident due to the rash
and negligent driving of driver of the car which belonged
- 10 -
NC: 2024:KHC:20497
to respondent No.1. Admittedly, the accident was occurred
due to the car toppled on the other side of the road and
thereafter, it dashed to two lorries coming from the
opposite direction. The deceased Rajesh who was an
inmate of the car, sustained grievous injuries and died on
the way to the hospital. The police also filed charge sheet
against the driver of the car. From the evidence on record,
as per the evidence of RW.2, the driver of the car did not
possess a valid driving licence at the time of accident to
drive the four wheeler and he is only having the licence to
drive a motorcycle. The first respondent is the owner of
the car and he has not contested the matter and filed any
appeal against fixing liability on him by the tribunal.
Therefore, this Court has left with any other option, except
to verify the quantum of compensation awarded by the
tribunal is meager or just and proper.
16. The tribunal has considered the income of the
deceased at Rs.6,000/- per month. But the claimants are
claiming that the deceased was earning a sum of
- 11 -
NC: 2024:KHC:20497
Rs. 20,000/- per month, as the deceased was said to be
working in Sai Care Sky Wings company as an Operation
Assistant Manager and earning a sum of Rs.20,000/- per
month. Ex.P11 is a salary slip. However, the owner or the
employer of the deceased was not examined to prove the
avocation of the deceased. When such being the case,
question of considering Rs.20,000/- per month as income
of the deceased does not arise. Therefore, this Court
proposed to take income of the deceased at Rs.8,500/- per
month. It is pertinent to note that the accident was
occurred in the year 2013 i.e., at the wee hours on
31.12.2013, then it should be considered as 2014. Hence,
for the year 2014, as per the chart provided by the
Karnataka Legal Services Authority for settlement of cases
in Lok-Adalath, the notional income is considered at
Rs.8,500 to Rs.9,000/- per month. Therefore, it is
appropriate to assess the income of the deceased at
Rs.8,500/- per month instead of Rs.6,000/- per month
considered by the tribunal.
- 12 -
NC: 2024:KHC:20497
17. Now coming to the aspect of deduction towards
personal expenditure, the deceased was a married person
and claimant No.3 is his wife and he is having a minor
daughter aged about 3 years. The claimant No.1 is the
father of the deceased, who has filed the petition stating
that he is also depending on the deceased, however, he
has not lead any evidence, but the 2nd petitioner who is
the mother of the deceased was examined as PW.1.
Though the counsel for the respondents contended that
1/3rd income of the deceased should be deducted towards
his personal expenses, as there is no specific contention
that the first petitioner was dependant of the petitioner.
But on perusal of the record, the evidence and the
grounds made out in the petition, it is clear that the
claimant No.1 is aged about 56 years, he has stated that
the deceased was only the earning member and the
claimant No.1 was not earning anything to support the
family. When such being the case, in the absence of any
evidence, the finding of the tribunal that the claimant no.1
is also the dependant of the deceased is just and proper.
- 13 -
NC: 2024:KHC:20497
Therefore, the dependants of the deceased is to be
considered as four members and as per the judgment of
Hon'ble Apex Court in the case Sarla Verma (Smt.) &
Ors. v. Delhi Transport Corporation & Anr. (2009) 6
SCC 121, if dependants are 4 to 6, 1/4th income of the
deceased should be deducted towards his personal
expenses.
18. The tribunal has awarded the following
compensation:
Sl. Particulars Amount of
No. Compensation
1. Loss of dependency Rs. 12,85,200/-
2. Loss of estate Rs. 15,000/-
3. Loss of Consortium Rs. 40,000/-
4. Loss of Love and affection Rs. 30,000/-
5. Conveyance expenses Rs. 5,000/-
6. Funeral expenses Rs. 15,000/-
Total Rs. 13,90,200/-
19. The compensation awarded by the tribunal is
meager and same is re-determined as follows:
- 14 -
NC: 2024:KHC:20497
Therefore, if the income of the deceased is taken as
Rs.8,500/-, deducting 1/4th towards his personal
expenditure, applying the multiplier of '17' and adding
40% future prospectus towards his income as per the
judgment of the Hon'ble supreme court in the case of
National Insurance Company Limited Vs. Pranay
Sethi and others - AIR 2017 SC 5157, the 'loss of
dependency' works out to Rs.18,20,700/- (Rs.8,500 x
40% = 11,900/-, Rs.11,900/- - ¼ = 8,925/-, Rs.8,925/- x
12 x 17 = 18,20,700/-).
20. The tribunal has awarded a compensation of
Rs.10,000/- towards 'loss of consortium' which is on the
lesser side. 'Magma General Insurance Company
Limited v. Nanu Ram Alias Chuhru Ram & Others'
reported in (2018) 18 SCC 130, each legal heir of the
deceased are entitled for a sum of Rs.40,000/- towards
loss of consortium/filial consortium/parental consortium.
But the tribunal has awarded a sum of Rs.40,000/-
towards loss of consortium to the claimant No.3 only, the
- 15 -
NC: 2024:KHC:20497
parents are also entitled for a sum of Rs.80,000/- under
the head 'loss of consortium'.
21. Thus, the claimants are entitled to the
reassessed compensation as follows:
Sl. Particulars Amount
No. in Rs.
1. Loss of dependency 18,20,700-00
2. Loss of spousal 40,000-00
consortium
3. Loss of parental 80,000-00
consortium
4. Loss of estate 15,000-00
5. Loss of love and affection 30,000-00
6. Conveyance expenses 15,000-00
7. Funeral expenses 15,000-00
Total 20,15,700-00
22. On reassessment of compensation, a sum of
Rs.20,15,700/- has to be awarded to the claimants,
instead of Rs.13,90,200/- awarded by the Tribunal. The
reassessed compensation shall carry interest at the rate of
6% per annum from the date of claim petition till
realization.
- 16 -
NC: 2024:KHC:20497
23. Hence, I proceed to pass the following:-
ORDER
i. The appeal filed by the claimants is allowed-
in-part.
ii. The impugned judgment and award dated
07.03.2019 passed in MVC No.1580/2014 by
the tribunal is modified to the extent that the
claimants are entitled to total compensation of
Rs.20,15,700/- along with interest at the
rate of 6% p.a., from the date of petition till
realization.
iii. The appeal against respondent No.2 is hereby
dismissed.
iv. The respondent No.1/owner is directed to pay
the compensation together with interest and
the amount shall be paid within 06 weeks.
v. The apportionment as made by the tribunal is
hereby confirmed.
Sd/-
JUDGE
HJ
