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MFA No. 440 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF APRIL, 2023 BEFORE THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY MISCELLANEOUS FIRST APPEAL NO. 440 OF 2017 (MV-D) BETWEEN:
SMT. MEENAKSHI, W/O LATE JAYA SHETTY @ JAYANNA SHETTY, AGED 58 YEARS,
SUNITHA, D/O LATE JAYA SHETTY @ JAYANNA SHETTY, AGED 28 YEARS,
BOTH ARE RESIDING AT BAILANGADI HOUSE, NEAR MADYA TEMPLE MADYA VILLAGE AND POST, MANGALURU TALUK …APPELLANTS (BY SRI. GURUPRASAD B. R. AND SMT. SANDYA RAO P., ADVOCATES)
AND:
TATA AIG GENERAL INSURANCE CO. LTD., PENINSULA CORPORATE PARK, NICHOLAS PIRAMAL TOWER, 9TH FLOOR, GANAPATHI KADAM MARGA, LOWER PAREL, MUMBAI - 13 REPRESENTED BY ITS MANAGER
MR. BHARATHA KUMAR, S/O JANARDHANA,
Digitally signed by VEENA KUMARI B Location: High Court of Karnataka
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MFA No. 440 of 2017
2(a) AGED 21 YEARS, (SINCE DEAD)
O. JANARDHANA, FATHERS NAME NOT KNOWN, AGED ABOUT 62 YEARS,
2(b) SMT. SUSHEELA P, W/O O. JANARDHANA, AGED ABOUT 57 YEARS,
2(c) THEJASWINI T., D/O O. JANARDHANA, AGED ABOUT 18 YEARS,
ALL ARE RESIDING NEAR KADGESHWARA- KADGESHWARI TEMPLE, MADYA POST & VILLAGE, VIA KATIPALLA, MANGALORE - 575030 …RESPONDENTS (BY SRI. PRADEEP, ADVOCATE FOR R1; NOTICE TO R2 (A TO C) DISPENSED WITH V/O DT. 20.09.2017)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.07.2016 PASSED IN MVC NO.852/2013 ON THE FILE OF THE MEMBER-MACT AND II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 440 of 2017
JUDGMENT The present appeal is filed by the claimants under Section 173 (1) of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as ‘Act’), seeking enhancement of the compensation awarded by the learned II Additional Senior Civil Judge and Member, MACT, Mangaluru D.K. (hereinafter for brevity referred to as ‘the Tribunal’), in its judgment and award dated 15.07.2016, in M.V.C.No. 852/2013.
The summary of the case of the claimants before the Tribunal was that on the date 08.04.2013 one Mr. Dinesh who is said to be the son of claimant no.1 and younger brother of claimant no.2 while going as a pillion rider on a motorcycle bearing registration No.KA-19-EG-7640 towards a place called Madya. Due to rash and negligent driving of the motorcycle by its rider at high speed and in a rash and negligent manner, while the motorcyclist came near Munchooru Madya road, Surathkal, Mangaluru at about 2:30 p.m., the rider of the said motorcycle lost control and dashed to the electric pole. Due to
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MFA No. 440 of 2017
the said road traffic accident, the rider as well as the pillion rider - Dinesh fell down and sustained injuries. The pillion rider Dinesh was shifted to Srinivasa Hospital at Mukka. After first aid treatment he was shifted to KMC Hospital, Mangaluru, however inspite of the best treatment by the Doctor, at about 10.15 p.m. the injured succumbed to injuries. Claimants contend that deceased was working as Supervisor and was earning a sum of `8,500/- and also a sum of `50/- as batta and they were the dependents upon the deceased claimants have claimed compensation of a sum of `20 lakhs from respondents no.1 and 2 arraigning them as owner and insurer of the alleged offending motorcycle respectively.
Respondents no.2(a) 2(b) and 2(c) are shown as legal representatives of deceased respondent no.2. In response to the notices served upon them, it is only respondent no.1 appeared through its counsel and filed its statement of objections, wherein, it denied the occurrence of the road traffic accident on the date, time and manner as contended by the claimants. It also denied the age and
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MFA No. 440 of 2017
avocation of the deceased Dinesh and its liability to pay any compensation to the claimants, much less, as claimed by the claimants in their claim petition.
The claimants got examined two witnesses as PW-1 and PW-2 and documents at Exs.P.1 to P.16 were got marked. On behalf of the respondents only three documents as exhibits from Exs.R.1 to R.3 were marked.
After analysing the evidence and the materials placed before it, the Tribunal awarded the compensation under the following heads with the sum shown against them: Compensation heads Compensation amount in ` Medical expenses 30,600.00 Love and affection 1,50,000.00 Funeral expenses and other incidental charges 25,000.00 Loss of dependency 6,48,000.00 Total 8,53,600.00
The Tribunal awarded compensation of a sum of `8,53,600/- with interest at 9% per annum, thereupon, holding respondents No.1 and 2 jointly and severally liable to
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MFA No. 440 of 2017
pay the said compensation and directed the Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimants have filed this appeal seeking enhancement of compensation.
The respondent No.1 herein (Insurance Company) is represented by its counsel. Notice to respondents No.2(a) to 2(c) was dispensed with vide Court order dated 20.09.2017.
Though this matter is listed for admission, however, at the request of learned counsel from both the parties, the matter was taken up for its final disposal. Learned counsel for appellants has placed the copies of pleadings, depositions and exhibits before the Court for its perusal and return.
Heard the arguments from learned counsel from both the parties. Perused materials placed before this Court.
Since, it is the claimants’ appeal seeking enhancement of compensation and according to the appellants, respondents have not preferred any appeal against
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MFA No. 440 of 2017
the impugned judgment. The finding of the Tribunal about the occurrence of the road traffic accident on the date, time and place as contended by the claimants in their claim petition and also rash and negligent driving on the part of the rider of the alleged offending motorcycle, has remained un-denied and undisputed.
Furthermore, the claimant No.2 – Sunita got herself examined as PW-1. In her examination-in-chief, in the form of affidavit, she has reiterated the contention taken up by her in her claim petition. In support of her contention, she got produced and marked documents from Exs.P.1 to P.16, which interalia, includes the copies of the complaint, scene of offence panchanama, postmortem report, motor vehicle inspector’s report and the charge sheet. The evidence of PW-1 and PW-2 that the accident in question has occurred solely on rash and negligent driving of the rider of the alleged offending motorcycle, is corroborated by the charge sheet at Ex.P.5, according to which, the police have investigated into the matter being filed charge sheet against the rider of the
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MFA No. 440 of 2017
motorcycle for the offences punishable under Sections 279, 337 of Indian Penal Code. It is not in dispute that respondent No.1 is the insurer of the said motorcycle. The evidence of PW- 1 that deceased Dinesh sustained injuries in the road traffic accident and succumbed to the same is not seriously disputed.
Further the exhibits at Ex.P.1 to P.16 corroborate the evidence of PW-1 and go to establish that the accident in question had occurred on the date, time and place alleged in the claim petition and also that the said accident has occurred only due to the rash and negligent riding on the part of the rider of the motorcycle, bearing registration KA-19-EG-7640, as such, respondent No.1 being the insurer of the vehicle, Tribunal has rightly held that respondent No.1 is liable to pay compensation to the claimants, who were dependents upon the income of the deceased. As such, the point that remains for consideration is the correctness of quantification of the compensation.
Learned counsel for the appellants in his argument submitted that the deceased was working as Supervisor and
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was getting a salary of `8,500/- per month. The same is substantiated by the evidence of his employer who was examined as PW-2. The same is evidenced by the salary certificate issued by him at Ex.P.9, however the tribunal has taken the income of the deceased only at `6,000/- per month as such the income is required to be taken as `8,500/- per month. He further submitted that the compensation awarded under other heads also warrants a revisit.
Per contra learned counsel for respondent no.1 - Insurance Company in his argument submitted that the tribunal has taken a reasonable amount of `6,000/- as the income of the deceased. Merely because the PW-2 has stated that he was giving a salary of `8,500/- per month, in the absence of any believable documents to take the income of the deceased to that extent, the tribunal has rightly taken the income of the deceased at `6,000/- per month. He further submitted that the quantum of compensation awarded under other heads is on the higher side. He further submitted that the interest ordered at 9% is also on higher side.
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MFA No. 440 of 2017
The death of Dinesh in the road traffic accident is not in dispute. The inquest panchanama at Ex.P.4 and charge sheet at Ex.P.5 corroborates evidence of PW-1 that deceased Dinesh sustained grievous injuries in the road traffic accident and succumbed to it. Both the claimants contend that they are the dependents on the income of the deceased. However, admittedly, claimant no.2 is the elder sister of the deceased.
The claimants have contended that the deceased was working as a Supervisor in M/s. Jyoti Traders and was getting a salary of `8,500/- per month. In that regard they got examined one Sri. Ramachandra Kamath, who is said to be the owner of the said business establishment. The said witness in the evidence has stated that he joined by his wife is running the business of M/s. Jyoti Traders as partners. He and his wife as partners running M/s. Jyoti Traders and Hardware business establishment. He has stated that deceased was working in their establishment as a Supervisor since from 4 months prior to date of death and was drawing salary of `8,500/-p.m. and daily
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MFA No. 440 of 2017
batta of `50/-. In that regard, the witness has identified salary certificate at Ex.P.9 stating that the same has been issued by him. He has produced the copies of Income Tax Returns from Exs.P.12 to P.15 and receipt of the licence of the business at Ex.P.16.
The said evidence of PW-2 supported by the documents though go to prove that he is running a business of hardware but merely because he has issued a salary certificate in his letterhead at Ex.P.9, the same cannot be considered as a document proving to the income of the deceased and is believable. Had really PW-2 was giving such a salary of `8,500/- he should have produced the registers maintained by him during the course of the business which could have depicted the exact amount of the salary that was being given to the deceased prior to his death. In the absence of the same, the tribunal has rightly decided to take the notional income of the deceased as his income. However, in the said process it has taken the income of the deceased only at `6,000/- per month, when in fact a large number of Motor Accident Claims
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Tribunals in the State were taking the notional income of a person for the relevant year 2013 as `8,000/- per month, As such, in the case on hand also the income of the deceased – Dinesh is required to be taken at `8,000/- per month.
Admittedly, the deceased was a bachelor as such, the tribunal has rightly deducted 50% of his income towards his personal expenses. As such, his contribution to the family was `4,000/- per month. The postmortem report and SSLC marks cards copies at Exs.P.4 and P.10 shows the age of the deceased at 21 years as at the time of accident, as such, the standard multiplier applicable is ‘18’. As per the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd., Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 since the deceased was working in a private establishment and was below the age of 40 years, 40% income has to be considered towards future prospects. Thus, a sum of `1,600/- (40% of `4,000/-) is required to be added to the contribution by the deceased towards his family. Thus his monthly income would be `4,000/- + `1,600/- = `5600/-. The
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quantum of compensation towards loss of dependency would be thus `5,600/- x 12 x 18 = `12,09,600/-
As per Pranay Sethi’s case (supra) towards loss of estate, funeral expenses and loss of consortium, claimant no.1 is entitled to a sum of `15,000/- + `15,000/- + `40,000/- = `70,000/-. The claimant no.2 being the elder sister of the deceased, towards loss of love and affection she is also entitled for a compensation of a sum of `40,000/-. However, the Tribunal has awarded a sum of `1,50,000/- towards love and affection and `25,000/- towards funeral expenses and other incidental expenses. As such, the above calculated compensation is substituted respectively in their places. Medical expenses of `Rs.30,600/- which was awarded by the tribunal being based upon the medical bills produced at Ex.P.11 and on actuals, same warrants no interference.
Barring the above, the claimants/appellants are not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus,
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in total the appellants/claimants are entitled for the modified compensation as below: Compensation heads Compensation amount in ` Medical expenses 30,600.00 Conventional heads 70,000.00 Loss of love and affection
40,000.00 Loss of dependency 12,09,600.00 Total 13,50,200.00
Since the Tribunal has awarded a sum of `8,53,600/- only the claimants are entitled for an enhancement of a sum of `4,96,600/-, in addition to what was awarded by the Tribunal. It is only to that extent, the impugned judgment warrants interference and modification.
Accordingly, I proceed to pass the following: ORDER (i) The Appeal is allowed in part. (ii) The judgment and award dated 15.07.2016, passed by the learned Member, MACT & II Additional Senior Civil Judge, Mangaluru, D.K. in MVC.No.852/2013, is modified to the extent that the compensation awarded at `8,53,600/-
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is enhanced by a sum of `4,96,600/-, thus fixing the total compensation at `13,50,200/- (Rupees Thirteen Lakhs Fifty Thousands Two Hundred only). (iii) The rest of the order of the Tribunal with respect to fixing the liability upon the respondent No.2 to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered. (iv) However, as per the order dated 20.09.2017 the appellants/claimants are not entitled
for interest for the delayed period of 65 days in filing the present appeal.
Draw modified award accordingly.
The Registry to transmit a copy of this judgment to the Tribunal without delay.
Sd/- JUDGE
BVK List No.: 1 Sl No.: 42