Karnataka High Court
Smt. Lathamma Alias vs Sri. Mohammed Saleem on 26 March, 2021
Bench: Alok Aradhe, M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
M.F.A. NO.118 OF 2018 (MV-D)
BETWEEN:
1. SMT LATHAMMA ALIAS
LATHA W/O LATE
MANJUNATH REDDY K.R.,
AGED ABOUT 43 YEARS.
2. SMT. ASHA D/O LATE
MANJUNATH REDDY K.R.,
AGED ABOUT 24 YEARS.
3. SMT. USHA D/O LATE
MANJUNATHA REDDY K.R.,
AGED ABOUT 22 YEARS
4. HANUMANTHA REDDY
S/O LATE MANJUNATH REDDY K.R.,
AGED ABOUT 25 YEARS.
ALL ARE RESIDING AT NO.174
DIDDASUDDAVANAHALLI
(ASLIGRAMA), CHITRADURGA TALUK
CHITRADURGA DIST - 577 524. ...APPELLANTS
(BY SRI. NARASI REDDY G., FOR ADVOCATE)
2
AND:
1. SRI. MOHAMMED SALEEM
S/O MOHAMMED ABID
MERCHANT TRANSPORT
KOBRIPET
HOSDURGA(T)
CHITRADURG DISTRICT - 577 526
KARNATAKA.
(OWNER OF THE VEHICLE
BEARING NO.KA-16-A-4686)
2. RELIANCE GENERAL INSURANCE
COMPANY LTD.,
1ST FLOOR, MAGANUR
COMMERCIAL COMPLEX
NEAR BY K.S.R.T.C. BUS
STAND, B.D. ROAD
CHITRADURGA - 577 501.
HAVING IT'S REGISTRERED OFFICE AT
RELIANCE CENTER
NO.19, WALCHAND HIRACHAND
MARG, BALLARD ESTATE
MUMBAI - 400 001.
....RESPONDENTS
(BY SRI. ASHOK N. PATIL, FOR R-2
R-1 NOTICE DISPENSED WITH V/O DATED: 23/01/2021)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:16.04.2016 PASSED IN MVC NO.2360/2014 ON
THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE
AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY,
M.G.S.KAMAL, J., 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 seeking enhancement of the amount of compensation against the judgment dated 16.04.2016 passed by the Motor Accident Claims Tribunal (hereafter referred to as 'the Tribunal' for short).
2. Facts giving rise to the filing of the appeal briefly stated are that on 04.01.2013 at about 3.30 a.m., deceased Manjunath Reddy.K.R and Mallikarjuna, the pedestrians were standing on the footpath at 'U' turn of Marappanna Palya, Tumkur to Bengaluru Road for crossing the road, at that time, a private bus bearing No.KA- 16-A-4868 driven by its driver in a high speed and rash and negligent manner, dashed against the deceased Manjunath Reddy and Mallikarjuna. Due to the impact of the accident, Mallikarjuna died on the spot and Manjunath 4 Reddy sustained grievous injuries and succumbed to the same.
3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 50 years at the time of accident and that the deceased was engaged in Flower Business and was also an Agriculturist. He was getting monthly income of Rs.25,000/-. It was further pleaded that the accident took place solely on account of rash and negligent driving of the private bus. The claimants claimed compensation to the tune of Rs.27,00,000/- along with interest.
4. On service of summons, Respondent No.1 did not appear and was placed exparte. Respondent No.2- Insurance Company appeared through its counsel and filed written statement in which the mode and manner of the accident was denied. However, it was admitted that the policy was issued in favour of Respondent No.1 in respect of the offending vehicle and that its liability was subject to 5 terms and conditions of the policy. It was further contended that the first respondent had entrusted the vehicle to the person who was not holding valid and effective driving licence. Therefore, there was contravention of terms and conditions of the policy and that the claimants have falsely implicated the vehicle in order to get the compensation. The age, avocation and income of the deceased was also denied.
5. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1 and another witness Mr.M.D.Rangappa Reddy was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P9. The respondent neither adduced any oral evidence nor documentary evidence. 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 6 the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.9,13,804/- along with interest at the rate of 8% p.a. from the date of the claim petition till its realization. Being aggrieved, this appeal has been filed seeking enhancement of the amount.
6. The learned counsel for the claimants has raised the following contentions:
Firstly, that the Tribunal erred in determining the monthly income of the deceased at Rs.7,000/- though there was sufficient evidence regarding the income of deceased to be assessed at Rs.25,000/- p.m. Secondly, that the Tribunal grossly erred in deducting 50% from the income of the deceased on the ground that except the claimant No.1, the other claimants were not financially depending on the deceased.
Thirdly, that the compensation under the conventional heads of loss of consortium and funeral expenses was on the lower side.7
7. On the other hand, the learned counsel for the Insurance Company submitted that no documentary evidence has been adduced by the claimants to prove the income of the deceased. It was also submitted that the amount of compensation awarded by the Tribunal is just and proper and does not call for any interference.
8. We have considered the submissions made by the learned counsels for the parties and perused the records. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. The Supreme Court in NATIONAL INSURANCE COMPANY LIMITED vs. BIRENDER (2020 SCC ONLINE SC 28), has held that the legal representatives of the deceased are entitled to make an application for compensation in view of Section 166(1)(c) of the Act. It has further been held that even the major married and earning sons of the deceased being the legal representatives have the right to apply for compensation and it would be the bounden duty of the Tribunal to 8 consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased or not and not to limit the claim towards conventional heads only. In the instant case, the Tribunal has held that the Claimant Nos.2 to 4 are not financially dependent on the deceased and that Claimant No.1 alone was financially dependant on the deceased. The aforesaid finding of the Tribunal cannot be sustained in view of the law laid down by the Supreme Court in NATIONAL INSURANCE COMPANY LIMITED supra. Therefore, the Claimant Nos.2 to 4 are also considered to be dependant on the income of the deceased.
9. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. It is also not in dispute that at the time of the accident, the age of the deceased was 50 years. Therefore, the income of the deceased is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2013, notional income comes to 9 Rs.8,000/- p.m. To the aforesaid amount, 25% has to be added on account of future prospects in view of the law laid down by the Constitutional 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.10,000/-. Since the number of dependants is four, 1/4th amount has to be deducted towards the personal expenses and therefore, the monthly income comes to Rs.7,500/-. Taking into consideration the age of deceased which was 50 years at the time of accident, multiplier of '13' has to be adopted. Thus, the loss of dependency comes to Rs.11,70,000/- (Rs.7,500/- x 12 x 13).
10. 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, Claimant No.1 being the wife is entitled to Rs.40,000/- under the head 'spousal consortium' and Claimant Nos.2 to 4 being children are entitled to Rs.40,000/- each on 10 account of 'loss of consortium and loss of love and affection'. Thus the claimants are held to be entitled to a sum of Rs.1,60,000/-. In addition, claimants are entitled to Rs.30,000/- on account of 'loss of estate' and 'funeral expenses'.
11. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 11,70,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of love and affection 1,20,000
Total 13,60,000
The claimants are thus, in all, held to be entitled to a total compensation of Rs.13,60,000/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. The Insurance Company is directed to deposit the compensation amount along with interest 11 within a period of four weeks from the date of receipt of copy of this judgment.
12. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
13. Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE Sd/-
JUDGE bnv