Karnataka High Court
Sri Shashiraj K S vs Sri Raju @ Raju Golla on 3 December, 2021
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1017 OF 2019(MV)
BETWEEN:
1. SRI SHASHIRAJ K S
S/O SHANKAR SHEREGAR
AGED ABOUT 42 YEARS.
2. MINOR SKANDA
S/O SHASHIRAJ K S
MINOR
3. MINOR PRAJWAL
S/O SHASHIRAJ K S
MINOR
R2 & R3 REP BY GUARDIAN
CUM FATHER 1ST APPELLANT
SRI SHASHIRAJ K S
KUNDAPURA-576201.
4. SMT LAXMI
W/O LATE BALAYYA SHERIGAR
MOTHER OF LATE SHYAMALA K
RESIDING AT
KEMPAYYAMANE
NEAR MYLARESHWARA TEMPLE
CHIKKENSAL ROAD
KUNDAPURA-576201.
...APPELLANTS
2
(BY SRI.NAGARAJA HEGDE, ADV.)
AND
1. SRI RAJU @ RAJU GOLLA
S/O KOOSA GOLLA
AGED ABOUT 41 YEARS
R/O MARKODU
KOTESHWARA VILLAGE
KUNDAPURA TALUK.
2. M/S NEW INDIA ASSURANCE CO LTD.,
BRANCH OFFICE
1ST FLOOR, PUSHPA BUILDING
MAIN ROAD, KUNDAPURA-576201
REP BY ITS
BRANCH MANAGER
...RESPONDENTS
(BY SRI.A.RAVISHANKAR, ADV. FOR R2:
R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:13.06.2018 PASSED
IN MVC NO.65/2017 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI,
(SITTING AT KUNDAPURA), KUNDAPURA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
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 dated 13.06.2018 passed by the Motor Accident Claims Tribunal, Kundapura in MVC No.65/2017.
2. Facts giving rise to the filing of the appeal briefly stated are that on 05.02.2014 at about 03.20 P.M. when the deceased was standing on the western side of the road near Sri Manjunatha Hospital, Kundapura, a Motorcycle bearing registration No.KA- 20-Y-6128 belongs and driven by 1st respondent at a very high speed, rash and negligent manner came from Kundapura Shastri Circle side towards Kundapura New Bus Stand side on the main road went to the extreme side of road and caused accident to deceased. As a result of the aforesaid accident, the 4 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. On service of summons, the respondent No.2 being insurer has appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by its rider. The rider of the offending vehicle did not possess valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, occupation and income of the deceased are denied. It was further 5 pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.
The respondent No.1 did not appear before the Tribunal inspite of service of notice and hence 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 their case, examined claimant No.1 as PW-1 and other four witnesses were examined as PW-2 to PW-5 and got exhibited documents namely Ex.P.1 to Ex.P.15. On behalf of respondents, no witness was examined but exhibited a document namely Ex.R.1- Insurance Policy. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, 6 the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.13,74,810/- 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:
Firstly, the claimants claim that the deceased was aged about 35 years at the time of the accident and she was a LIC Agent and RD Collector and was earning Rs.35,000/- per month. To prove the same, the claimants have examined Chartered Accountant as PW-3. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.9,000/-.7
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 for the compensation towards 'future prospects'. The same may be considered.
Thirdly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'.
Lastly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter-contentions:
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Firstly, even though the claimants claim that the deceased was earning Rs.35,000/- per month and they have examined Chartered Accountant as PW-3, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.
Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'.
Lastly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award.
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9. It is not in dispute that deceased died in the road traffic accident occurred due to rash and negligent riding of the offending vehicle by its rider.
Even though the claimants claim that the deceased was earning Rs.35,000/- per month as a LIC Agent and examined Chartered Accountant as PW-3, but they have not examined any documents to show that the deceased was earning Rs.35,000/- per month. Therefore, the Tribunal has rightly assessed the monthly income of the deceased as Rs.9,000/-.
The judgment of the Hon'ble Apex Court in the case of HEM RAJ VS. ORIENTAL INSURANCE COPANY reported in 2018 15 SCC 654 has held in para-7 as follows;
"7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guess work in the facts and circumstances of a case. Both the 10 situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50% while the High Court has deleted the same."
It is very clear from the above judgment that even for assessing the notional income by guess work, the claimants are entitled for the compensation towards 'future prospects'. As per Ex.P.10-Post Mortem Report, the deceased was aged 43 years. Therefore, in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra), 25% has to be added on account of future prospects where the deceased was aged 40-50 years. Thus, the monthly income comes to Rs.11,250/-. Since there are four dependents, the Tribunal has rightly deducted 1/4th of the income of the deceased towards personal expenses. 11 Thus, the monthly income comes to Rs.8,438/-.
The deceased was aged about 43 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.14,17,584/- (Rs.8,438*12*14) on account of 'loss of dependency'.
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
In view of the law laid down by the Supreme Court in the case of 'MAGMA GENERAL INSURANCE' (supra), claimant No.1, husband of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium', 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, 12 mother of the deceased is entitled for compensation of Rs.40,000/- under the head 'loss of filial consortium' .
The compensation of Rs.1,70,808/- awarded by the Tribunal towards 'Medical Expenses' is just and reasonable.
10. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 14,17,584
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Loss of Filial consortium 40,000
Medical Expenses 1,70,808
Total 17,78,392
11. In the result, the appeal is allowed in part. The judgment of the Claims Tribunal is modified. 13
The claimants are entitled to a total compensation of Rs.17,78,392/-.
The Insurance Company is directed to deposit the compensation amount along with interest 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 copy of this judgment. The enhanced compensation shall carry interest at 6% per annum.
In view of the disposal of the appeal, I.A.No.1/2021 does not survive for consideration. The same is disposed of.
Sd/-
JUDGE HA/-