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K.S. Mallesh & Others v/s The New India Assurance Co. Ltd., Represented by it's Manager, Mysuru & Another

    M.F.A. No. 2999 of 2019 (MV-D)

    Decided On, 01 June 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ALOK ARADHE & THE HONOURABLE MR. JUSTICE HEMANT CHANDANGOUDAR

    For the Appellants: P. Nataraju, Advocate. For the Respondents: R1, A.R. Lakshi Narayana, Advocate.



Judgment Text

(Prayer: This M.F.A. is filed Under Section 173(1) of MV Act against the judgment and award dated 26.06.2018, passed in MVC No.531/2016, on the file of the VIII Additional Small Causes Judge & XXXIII ACMM, Member, MACT, Bengaluru (SCCH-5), partly allowing the claim petition for compensation and seeking enhancement of compensation.)

Alok Aradhe, J.

1. 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 against the judgment dated 22.06.2018 passed by the Motor Accident Claims Tribunal, seeking enhancement of compensation.

2. Facts giving rise to the filing of the appeal briefly stated are that on 25.11.2015 deceased K.M.Abhishek was riding his motor cycle bearing registration No.KA-04 HX-1081 with one pillion rider namely Praveen from Bengaluru to his native village. At about 10.45 p.m., when they reached Tubinakere Industrial Area on Bengaluru-Mysore Road, at that time, a TATA tanker goods heavy vehicle bearing registration No.KA-09 B-7265 which was being driven by its driver in a rash and negligent manner, took L turn without giving any signal, as a result of which, the motor cycle hit the tanker. The deceased sustained grievous injuries and eventually succumbed to the same.

3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the accident took place solely on account of rash and negligent driving of the driver of the offending tanker goods heavy vehicle. It was further pleaded that the deceased was aged about 20 years at the time of accident and was employed as a driver and was engaged in agricultural operations as well. It was also pleaded that he used to earn Rs.35,000/- p.m. Accordingly, compensation of Rs.40,00,000/- along with interest was claimed.

4. Respondent No.2 did not appear before the Tribunal and was proceeded exparte. Respondent No.1 filed written statement in which inter alia the issuance of the policy was admitted. It was further pleaded that the liability of Insurance Company, if any, is subject to the terms and conditions of the policy. It was also pleaded that the driver of the aforesaid tanker was not holding any valid and effective driving licence to drive the heavy vehicle. It was also pleaded that the amount of compensation claimed by the claimants is excessive and exorbitant.

5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined himself as PW-1 and one Sudeesh H.S. as PW-2 and got exhibited documents namely Ex.P1 to Ex.P14. The respondents examined one Kumar M. as RW-1 and got marked documents Ex.R1 and Ex.R2. 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 tanker by its driver. It was further held, that the claimants are entitled to compensation to the tune of Rs.10,12,500/- along with interest at the rate of 6% p.a. from the date of petition till the date of realisation. In the aforesaid factual background, this appeal has been filed.

6. Learned counsel for the claimants submitted that the Tribunal grossly erred in assessing the monthly income of the deceased at Rs.6,000/- p.m. It is also urged that the amount awarded on the other heads is on the lower side. On the other hand, learned counsel for the Insurance Company submitted that the amount of compensation awarded by the Claims Tribunal is just and proper and does not call for any interference in this appeal.

7. We have considered the submissions made by learned counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. The deceased, at the time of accident, was aged about 20 years and was a bachelor. The claimants have not adduced any evidence with regard to his income. Therefore, his income has to be assessed on the basis of chart prepared by the Karnataka State Legal Services Authority on notional basis. Taking into account the year of accident which is 2015, monthly income of the deceased is assessed notionally at Rs.9,000/-. To the aforesaid amount, in view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects. Thus, the income comes to Rs.12,600/-. Out of the aforesaid amount, 50% has to be deducted towards personal expenses as the deceased was a bachelor and therefore, the monthly dependency comes to Rs.6,300/-. Taking into account the age of the deceased which was 20 years at the time of accident, the multiplier of '18' has to be adopted. Therefore, the claimants are held entitled to Rs.13,60,800/- (Rs.6300 x 12 x 18) on account of loss of dependency.

8. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' AIR 2020 SC 3076 each of the claimants are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss of love and affection. Thus, t

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he claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.15,10,800/-. The enhanced compensation shall carry interest at the rate of 6% from the date of filing of the petition till the realization of the amount of compensation, excluding the period of delay caused in filing the appeal. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified. Accordingly, the appeal is partly allowed.
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