IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.523 OF 2017 (MV) BETWEEN:
1. Mr. Javaranayaka S/o Late. Javaranayaka Age 51 years 2. Mrs. Mahadevamma W/o Javaranayaka Age 41 years 3. Mr. Rangaswamy J S/o Javaranayaka Age 24 years 4. Mrs. Lakshmi D/o Javaranayaka Age 20 years All are residents of Chikkabeedi (Kullahallikeri Beedi) Kalale Village Kasaba Hobli, Nanjanagud Taluk-571301. …. Appellants (By Sri.Nagaraj R.C., Advocate) AND 1. Mr. Rahees Mohammed Chiruthaparamban S/o C.P. Kunni Mohammed Major, Chiruthaparambeen House Vattalur, Malappuram, (Kerala) Driver of the Lorry bearing No.KL-53.C.3033.
2. Ummar.P S/o Kunhimoydeen Haji Pattupara House Kodur PO, Malappuram District (Pin-676504) (owner of the lorry No.KL-53-C-3033) 3. United India Insurance Company Limited Branch Office: Pechi Complex Calicut Road, Perinthalmanna-679 233. Malappuram District (Kerala) Divisional office:
United General Insurance Company Limited Ashoka Ballal Circle, No.1134 Prince of Wales Road Chamarajapuram, Mysore-570 005.
Rep. by its Branch Manager. … Respondents (By Sri.Kumar K.G., Advocate for R1 & R2: Sri. P.B. Raju, Advocate for R3) This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated:19.11.2016 passed in MVC No.166/2016 on the file of the Senior Civil Judge & JMFC, MACT, Nanjangud, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA, coming on for hearing, this day, NARENDRA PRASAD J., delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 19.11.2016 passed in MVC No.166/2016 by the Senior Civil Judge & JMFC and Motor Accident Claims Tribunal, Nanjangud (hereinafter referred to as the ‘Tribunal’ for the sake of brevity).
2. For the sake of convenience, parties shall be referred to in terms of their status before the Tribunal.
3. Appellant-claimants filed claim petition seeking compensation on account of death of Krishna, son of claimant Nos. 1 and 2 and brother of claimant Nos. 3 and 4. According to them, on 17.01.2016 at about 7.30 p.m. deceased Krishna was riding motor cycle bearing registration No.KA-09/HF-7716 along with a pillion rider on Nanjangud-Gundlupet main road. When they were in front of a Rice Mill and Saw Mill, deceased turned his motorcycle towards right side of main road indicating right signal, at that time, driver of lorry bearing registration No.KL-53/C- 3033 came at a high speed in a rash and negligent manner and dashed the motor cycle. Due to the impact, Krishna sustained grievous injuries and died on the spot. Contending that they had lost the sole bread earner of the family, claimants filed the claim petition seeking compensation.
4. The claimants contended that deceased was aged 25 years and he was working as a driver of car and tractor and that he was earning Rs.600/- to Rs.1,000/- per day i.e., Rs.25,000/- per month and that he was utilizing the entire amount for maintenance of his family. Therefore, they sought for compensation on various heads.
5. In response to the notice issued, respondent Nos.1 and 2, driver and owner of the offending vehicle and respondent No.3 Insurance Company appeared and filed statement of objections.
6. The Insurance Company respondent No.3 filed its written statement contending that the driver of the offending vehicle had no valid and effective driving licence to drive the offending vehicle as on the date of accident. The accident occurred not due to the rash and negligent driving of the driver of the offending vehicle but the rider of the motor cycle, i.e., deceased himself. The Insurance Company contended that the claim petition was not maintainable as against the Insurance Company and sought for dismissal of the same.
7. On the basis of the original pleadings, the Tribunal framed the following issues for its consideration:-
“1. Whether petitioners prove that deceased Krishna S/o.Javaranayaka died in a road traffic accident occurred on 17.01.2016 at about 7.30 p.m. in front of Rice Mill and Saw Mill on Nanjangud-Gundlupet Main Road, due to rash and negligent manner of driving lorry bearing Registration No.KL-53/C-3033, by the 1st respondent?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What order or award?
8. In support of their case, claimants examined mother of deceased as PW1 and they produced nine documents as Exs.P-1 to P-9. While respondent-insurer has not examined any witness, but produced five documents as Exs. R1 to R5.
9. On the basis of the said evidence, the Tribunal by judgment and award dated 19.11.2016 awarded compensation of Rs.7,68,000/- with interest at the rate of 6% p.a. Not being satisfied with the quantum of compensation awarded by the Tribunal, claimants have filed this appeal seeking enhancement of compensation.
10. We have heard learned counsel for the appellant claimants and learned counsel for the respondent Insurance Company and perused the materials on record.
11. Sri R.C.Nagaraj, learned counsel for the appellants contended that at the time of the accident deceased was aged about 25 years and was a driver and earning Rs.25,000/- per month. The Tribunal is not justified in taking monthly income of the deceased as Rs.6,000/- per month. Secondly, he contended that the Tribunal has not considered future prospects as per the judgment of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Thirdly, he submitted that the compensation granted under the head ‘loss of love and affection’ is on the lower side. Hence, he sought for enhancement of compensation.
12. Per contra, Sri P.B.Raju, learned counsel for the respondent Insurance Company submitted that even though claimants have pleaded that deceased was earning Rs.25,000/- at the time of the accident by working as a driver, they have not produced any document to prove their claim. Therefore, Tribunal has rightly taken the notional income of the deceased as Rs.6,000/- per month. He further contended that the Tribunal has granted excess compensation in the category of ‘loss of estate’ and ‘funeral expenses’ and the compensation granted by the Tribunal is just and proper. Hence, he sought for dismissal of the appeal.
13. Heard learned counsel for the parties and perused the records.
14. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
i. Whether the appellants have made out a case for enhancement of compensation?
ii. If the answer to point No.1 is in the affirmative, what order?
15. It is not in dispute that Krishna died due to the accident that occurred on 17.01.2016 involving lorry bearing No.KL-53/C-3033. As on the date of the accident he was aged about 25 years and even though claimants have averred that deceased was earning Rs.25,000/-per month, they have not produced any document to prove the same. Under these circumstance, the Tribunal had no other option but to assess the notional income. Accordingly, it has taken the notional income of the deceased at Rs.6,000/- per month, which is on the lower side. In a catena of decisions, this Court, while calculating the notional income, has considered the chart referred to before Lok-Adalat for deciding the cases. As per the chart, for the accident of the year 2016, notional income of Rs.9,500/- per month has to be taken. Accordingly, notional monthly income of the deceased is fixed at Rs.9,500/- per month. The Hon’ble Supreme Court in PRANAY SETHI (supra) has held that if the deceased was self employed or on a fixed salary, then 40% of established income should be added towards future prospects and where the deceased was below the age of 40 years. In the case on hand, the deceased was aged about 25 years. Hence, 40% of the income has to be added for future prospects. Accordingly, loss of
16. Having regard to the latest judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED vs. NANU RAM AND OTHERS, reported in 2018 ACJ 2782, a sum of Rs.40,000/- each would have to be awarded on the head of loss of love and affection to the parents of the deceased. In view of the judgment of Hon’ble Supreme Court in the aforesaid case, parents of the deceased are entitled for Rs.40,000/- each under the head ‘loss of love and affection’, totaling to Rs.80,000/-.
17. In respect of conventional heads, the Tribunal has awarded Rs.50,000/- under the head ‘loss of estate’ and Rs.20,000/- under the head ‘funeral expenses’ which is on the higher side. As per PRANAY SETHI (supra), claimants are entitled for a compensation of Rs.15,000/- under the head ‘loss of estate’ and Rs.15,000/- under the head ‘funeral expenses’.
18. For the reasons stated above, the award, dated 19.11.2016, stands modified as under:
19. Consequently, the re-assessed compensation would be Rs.15,46,400/-. The said compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till realization. Points Nos.1 and 2 are accordingly answered.
20. In view of the above, appeal is allowed in part.
Compensation awarded by the Tribunal is enhanced in this appeal in the aforesaid manner. The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% per annum 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. The amount so deposited by the Insurance Company shall be disbursed to the claimants as per the apportionment made by the Tribunal, after due verification of their identity.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Cm/-