Karnataka High Court

Parameshwara vs Mr. Nithin Shetty on 10 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                  -1-
                                                             NC: 2024:KHC:36953
                                                            MFA No. 321 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                       MISCELLANEOUS FIRST APPEAL NO. 321 OF 2020 (MV)
                      BETWEEN:

                      1.    PARAMESHWARA
                            S/O GOVINDA NAIR
                            AGED ABOUT 55 YEARS

                      2.    KUM. AISHWARYA P
                            D/O PARAMESHWARA
                            AGED ABOUT 23 YEARS

                      3.    KUM. SOWNDARYA P
                            D/O PARAMESHWARA
                            AGED ABOUT 16 YEARS
                            MINOR REP BY HER
                            NEXT FRIEND GUARDIAN FATHER
                            PARAMESHWARA
                            ALL ARE R/AT DOOR NO.1-142/34
                            KALYANI NILAYA, ANGARA MAJAL
Digitally signed by         NEHARU ROAD, GORIGUDDA KANKANADY
HEMALATHA A                 MANGALORE 575 002.
Location: HIGH                                                    ...APPELLANTS
COURT OF
KARNATAKA             (BY SRI. JEEVAN K.,ADVOCATE)

                      AND:

                      1.    MR. NITHIN SHETTY
                            S/O K. JAYARAMA SHETTY
                            ADULT, M/S NITHIN ENTERPRISES
                            AIRPORT ROAD, KENJAR, BAJPE
                            MANGALURU TALUK.

                      2.    BRANCH MANAGER
                            ORIENTAL INSURANCE CO. LTD.,
                              -2-
                                          NC: 2024:KHC:36953
                                        MFA No. 321 of 2020




    SATISH COMPLEX, GROUND FLOOR
    OPP: GOVINDADASA COLLEGE
    SURTHKAL, MANGALURU-575001.
                                        ...RESPONDENTS
(BY SRI.RAJENDRA HEGDE., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH V/O DATED:16.11.2023)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 28.03.2019
PASSED IN MVC NO. 1857/2017 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND MACT, MANGALURU D.K, 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

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 being aggrieved by

the judgment and award dated 28.03.2019 passed by the

Motor Accident Claims Tribunal and Principal Senior Civil

Judge, Mangaluru, D.K., (hereinafter referred to as 'the

Tribunal') in MVC No.1857/2017.

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

stated are that on 1.05.2017 at about 7.45 p.m., when the

NC: 2024:KHC:36953

deceased Sheeba was walking near Gorigudde in

Pumpwell-Thokottu road, at that time, a Tata Mobile

pickup van bearing registration No.KA-19/MA-7753 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 No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent No.1, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

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.2 as PW-1, and other three

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witnesses as PW-2 to PW-4, and got exhibited documents

namely Ex.P1 to Ex.P33. On behalf of respondents, no

witness was examined but got exhibited 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.13,92,845/- 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 raised the

following contentions:

i) Firstly, the claimants assert that the deceased was

approximately aged about 43 years at the time of the

accident and had a monthly income of Rs.15,000/- as a

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tailor. However, the assessment of income of the deceased

at Rs.7,500/- by the Tribunal is unjustified and erroneous.

ii) 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], the claimants are entitled to addition of future

prospects.

iii) 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'. Hence, he sought to allow the appeal.

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

Insurance Company submits as follows:

i) Firstly, although the claimants claim that the

deceased was earning Rs.15,000/- per month, they failed

to substantiate their claim with supporting documents.

NC: 2024:KHC:36953

Consequently, the Tribunal has correctly assessed the

income of the deceased notionally.

ii) Secondly, since the claimants have not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

iii) 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. Hence, he sought to

dismiss the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal and the

original records.

9. It is not in dispute that Sheeba died in the road

traffic accident occurred on 11.05.2017 due to rash and

negligent driving of the offending vehicle by its driver.

10. The claimants claim that deceased was earning

Rs.15,000/- per month, but failed to produce supporting

NC: 2024:KHC:36953

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

2017, the notional income of the deceased shall be taken

at Rs.11,000/- p.m. To the aforesaid 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 'PRANAY SETHI' (supra). Thus, the monthly income

comes to Rs.13,750/-. Since there are 3 dependents, it is

appropriate to deduct 1/3rd of the income of the deceased

towards personal expenses and remaining amount, i.e.,

Rs.9,167/- has to be taken as her contribution to the

family. The deceased was aged about 43 years at the

time of the accident and multiplier applicable to her age

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

compensation of Rs.15,40,056/- (Rs.9,667*12*14) on

account of 'loss of dependency'.

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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 and 3, children of the deceased

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

the head of 'loss of parental consortium'.

13. The compensation of Rs.4,82,845/- awarded by

the Tribunal under the head of 'medical expenses' is based

on the medical bills produced by the claimants and is

deemed just and reasonable.

14. Thus, the claimants are entitled to the following

compensation:

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Compensation under Amount in different Heads (Rs.)

Loss of dependency 15,40,056

Funeral expenses 15,000

Loss of estate 15,000

Loss of spousal consortium 40,000

Loss of Parental consortium 80,000

Medical expenses 4,82,845

Total 21,72,901

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