Karnataka High Court
Yashodha vs Zareen Taj on 4 September, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:36082
MFA No. 6783 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6783 OF 2019 (MV)
BETWEEN:
1. YASHODHA
W/O LATE SWAMY
AGED ABOUT 38 YEAR
2. ANUSHKUMAR
S/O LATE SWAMY
AGED ABOUT 15 YEARS
3. ANKITHA
D/O LATE SWAMY
AGED ABOUT 10 YEARS
4. SHAMBAIAH
S/O LATE PUTTAIAH
AGED ABOUT 72 YEARS
ALL ARE RESIDING AT NERALE VILLAGE
Digitally signed by NO.2/924, B M ROAD, BEECHANAHALLI POST
HEMALATHA A ANTHARASANTHE HOBLI, H D KOTE TALUK
Location: HIGH
COURT OF MYSURU DISTRICT-571114.
KARNATAKA ...APPELLANTS
(BY SRI. PADMANABHA KEDILAYA V.,ADVOCATE)
AND:
1. ZAREEN TAJ
W/O MOHAMMED HUSSAIN
AGED ABOUT 56 YEARS
R/AT NO.86, EWS, 2ND CROSS
HANUMNATHNAGAR, BANNIMNANTAP
MYSURU 571114
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MFA No. 6783 of 2019
2. THE UNITED INDIA INSURANCE CO LTD.
DIVISIONAL OFFICE II, TP HUB # 2912
SRI VENKATESHWARA PLAZA, 1ST MAIN
SARASWATHIPURAM. MYSURU 570009
...RESPONDENTS
(BY SRI. KRISHNAPPA N R.,ADVOCATE FOR R1:
SRI. S SRISHAILA, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.04.2019
PASSED IN MVC NO. 1094/2017 ON THE FILE OF THE JUDGE,
PRL. COURT OF SMALL CAUSES, MYSURU, AS A PRESIDING
OFFICER, MACT, MYSURU, 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 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 22.04.2019 passed by the
MACT, Mysuru in MVC No.1094/2017.
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2. Facts giving rise to the filing of the appeal briefly
stated are that on 20.06.2017 at about 2.15 p.m., the
deceased Swamy was going on his motorcycle from Hand
Post of H.D.Kote side towards his Village Nerale on the left
side of the road, when reached near Yalamatturu cross,
Ganeshagudi Village, at that time, the driver of the lorry
bearing Registration No.KEZ-3996 drove the same in high
speed and also in a rash and negligent manner and dashed
to 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 Nos.1 and 2
appeared through counsel and filed written statement
denying the averments made in the claim petition.
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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 other two witnesses
as PW-2 and PW-3, and got exhibited documents namely
Ex.P1 to Ex.P12. On behalf of respondents, no witness was
examined but got exhibited a document 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.7,63,000/- 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:
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a) Firstly, the claimants assert that the deceased was
aged about 42 years at the time of the accident and had a
monthly income of Rs.10,000/- as a Security Guard in Red
Earth Resort, H.D.Kote, in addition to his salary, in
addition to his salary, he received tips of Rs.200/- and he
also had agricultural land and earned an additional
Rs.2,00,000/- per year. However, the assessment of
income of the deceased at Rs.7,000/- by the Tribunal is
unjustified and erroneous.
b) Secondly, 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'.
c) 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.
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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.10,000/- per month and also
earning Rs.2,00,000/- per annum from the agriculture,
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
deceased, the overall compensation awarded by the
Tribunal is just and reasonable.
With the above contentions, the learned counsel
sought to dismiss the appeal.
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8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
9. It is not in dispute that Swamy died in the road
traffic accident occurred on 20.06.2017 due to rash and
negligent driving of the offending vehicle by its driver.
The claimants claim that the deceased was earning
Rs.10,000/- per month by working as a Security Guard in
Red Earth Resort, H.D.Kote and also earning
Rs.2,00,000/- per annum from the agriculture and in
addition to his salary, he received tips of Rs.200/-. To
prove the same, the claimants examined PW-3. He has
categorically stated that in addition to his salary, he was
receiving tips of Rs.200/-. However, except for this
information, no other worthwhile details were elicited from
PW-3 by the respondents. Considering the evidence of PW-
1 and PW-3, I am of the opinion that the monthly income
of the deceased is assessed Rs.11,000/-. To the aforesaid
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income, 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 NATIONAL INSURANCE
CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017
SC 5157]. Thus, the monthly income comes to
Rs.13,750/-. Since there are four dependents, in view of
the law laid down by the Constitution Bench of the
Supreme Court in Smt. Sarla Verma & Ors.Vs. Delhi
Transport Corporation & Anr. in Civil Appeal No.3483 of
2008, it is appropriate to deduct 1/4th of the income of the
deceased towards personal expenses and remaining
amount has to be taken as his contribution to the family.
The deceased was aged about 42 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.17,32,500/- (Rs.13,750*12*14*3/4) on account of
'loss of dependency'.
10. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of
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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'.
11. In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
claimant Nos.2 and 3, children of the deceased are entitled
for compensation of Rs.40,000/- each under the head of
'loss of parental consortium' and claimant No.4, father of
the deceased is entitled for compensation of Rs.40,000/-
under the head of 'loss of filial consortium'.
12. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 17,32,500
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal consortium 40,000
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Loss of Parental consortium 80,000
Loss of Filial consortium 40,000
Total 19,22,500
Less 30% of contributory 5,76,750
negligence on the part of
deceased
Total 13,45,750
13. 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.13,45,750/- as against Rs.7,63,000/- 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 a copy of this judgment.
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e) The apportionment, deposit and release of amount
shall be made in accordance with the terms of the award
of the Tribunal.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
HA
