Partly allowed

Smt.Manjamma @ Manjula v. Honnurswamy S/O Basavarajappa

Karnataka HC26 Aug 2019MFA/100921/2016

Case brief

AI extract

What is this about?

In this appeal under Section 166 of the Motor Vehicles Act, 1988, the High Court enhanced compensation from Rs. 6,08,600 to Rs. 12,98,800 for death in a road accident. The Court adopted a notional income of Rs. 5,500/month and applied 40% for future prospects, calculating loss of dependency, consortium, and expenses.

What did the court decide?

Enhanced compensation of Rs. 12,98,800 granted with interest at 6% per annum; respondent insurer directed to deposit the amount.

Smt.Manjamma @ Manjula Vs Honnurswamy S/O… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 26^th DAY OF AUGUST 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MISCELLANEOUS FIRST APPEAL NO.100921 of 2016 (MV)

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BETWEEN:

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SMT.MANJAMMA @ MANJULA W/O LATE NAGARAJ, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: TUMATI, TQ: SONDUR, NOW RESIDING AT DASANAL, TQ: GANGAVATHI, DIST: KOPPAL. 583 229

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PAVANKUMAR S/O LATE NAGARAJ, AGE: 13 YEARS,

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BHUMIKA D/O LATE NAGARAJ, AGE: 10 YEARS,

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Appellant 2 and 3 are MINOR, U/G OF THEIR NATURAL MOTHER APPELLANT NO.1.

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IRANNA S/O TIPPANNA, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: TUMATI, NOW AT DASANAL, TQ: GANGAVATHI, DIST: KOPPAL. 583 229

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YALLAMMA W/O IRANNA, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: TUMATI, NOW AT DASANAL, TQ: GANGAVATHI, DIST: KOPPAL. 583 229 ... APPELLANTS

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(By Sri. M.AMARE GOUDA, ADVOCATE)

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AND:

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HONNURSWAMY S/O BASAVARAJAPPA, AGE: 35 YEARS, OCC: DRIVER OF THE LORRY BEARING NO.KA-35/8837, R/O: KMDS, HOSAPETE, MSPL MINES, HOSAPETE, TQ: HOSAPETE, DIST: BALLARI. 583 101. 2. MANNANKHAN S/O ABDUL REHAMAN, AGE: 33 YEARS, OCC: OWNER OF THE LORRY BEARING NO.KA-35/8837, R/O: WARD NO.11, MURUGERI, OPP: KSRTC BUS DEPOT, HOSAPETE, DIST: BALLARI. 583 101 3. SRIRAM GENERAL INS., LTD., (A JOINT VENTURE WITH SANLOM S. AFRICA), CORPORATION OFFICE, E-B, IPIP, RIICO, SITAPUR, JAIPUR-302022 (RAJASTAN) REP. BY BRANCH MANAGER

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... RESPONDENTS

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(By Sri. NAGARAJ C.KOLLOORI, ADVOCATE FOR R3. NOTICE TO RESPONDENT Nos.1 AND 2 DISPENSED WITH VIDE ORDER DATED 27.09.2018)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 17.05.2012 PASSED IN MVC NO.64 OF 2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL AT GANGAVATHI PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal came up for admission, with

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consent of the learned counsel on both sides, it is heard finally.

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This appeal is filed by the claimants seeking enhancement of compensation assailing the judgment and award dated 17.05.2012 passed by the Senior Civil Judge and MACT, Gangavathi, in MVC No.64 of 2011.

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Heard the arguments of the learned counsel appearing for the appellants as well as the counsel appearing for the respondent No.3.

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The rank of the parties before the Tribunal is

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retained for convenience.

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The claimants have filed a petition under

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Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’ for short) claiming compensation of Rs.16,10,000/- inter alia contending that on 16.06.2010 Nagaraj was proceeding on his motorcycle bearing registration No.KA-34/W-2068 from Tumati to Bellary and when he came near Hospet-Bangalore new bypass road, near Belagal village cross, at that time, respondent No.1, being the driver of lorry bearing registration No.KA-35/8837 drove the lorry in a rash and negligent manner with high speed so as to endanger the human life dashed to Nagaraj due to which he sustained grievous injuries and died. The claimants have lost the earning member. Hence, claimed compensation on various heads.

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In response to the notice issued by the Tribunal, respondent Nos.1 and 2 though appeared through counsel, have not filed any statement of objections. However, 3^rd respondent-insurer filed statement of objections resisting the claim of the

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petitioners as false. The insurer also disputed rash and negligent driving by the driver of the vehicle and further the age, occupation and income of the deceased was also disputed and contended that liability, if any, is subject to the terms and conditions of the policy, as respondent No.1 was not holding any valid lience to drive the offending vehicle and thereby there is violation of conditions of the policy. Hence, not liable to pay any compensation and prayed for dismissal of the claim petition.

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7. Based on the rival pleadings, the Tribunal

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framed the following issues:

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1. Whether the petitioners prove that on 16.06.2010 at about 10.30 am on HospetBangalore new bypass road, near Belagal village cross, Nagaraj s/o Iranna died in a motor vehicle accident i.e. on account of rash and negligent driving of lorry bearing No.KA35/8837 by the respondent No.1?

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2. Whether the petitioners prove that they are entitled for the compensation?

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3. what order?

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To substantiate the claim, the first petitioner

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examined herself as PW-1 and also examined another witness as PW-2 and got marked 11 documents as per Exs.P-1 to P-11. On behalf of the respondents, respondents have not lead any evidence except marking insurance policy as Ex.R-1.

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After considering the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and allowed the petition in part by awarding compensation of Rs.6,08,600/- together with interest at 6% per annum on the following heads as under:

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Rs.

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1	Loss ofdependency	5,61,600/-
2	Loss ofestate	20,000/-
3	Loss ofconsortium	10,000/-
4	Loss of loveandaffection	12,000/-
5	Transportationandfuneralexpenses	5,000/-
	Total	6,08,600/-

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10. Assailing the judgment and award passed by

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the Tribunal, the claimants have filed this appeal for enhancement of compensation.

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Sri. Amare Gouda, learned counsel

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appearing for the appellants, argued that though the claimants have produced the salary certificate as per Ex.P-3 which show that he was earning Rs.4,840/- as

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salary from his employment as a Security in Z-group Security and Personal Arrangement Agency, Bellary, and he was also earning Rs.10,000/- per month from agriculture, the Tribunal has committed an error in considering a sum of Rs.3,900/- per month only as earnings which is against both oral and documentary evidence. The Tribunal has also not considered the future prospects as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company

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Limited v. Pranay Sethi reported in AIR 2017 SUPREME COURT 5157 and has also not awarded proper amount towards loss of consortium, conveyance, transportation

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and funeral expenses, which is very meager, and prayed for enhancement of compensation.

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Per contra, Sri. Nagaraj C. Kolloori, learned counsel for respondent No.3-insurer supported the judgment and award passed by the Tribunal. However, it was contended that when the claimants themselves have produced Ex.P-3 showing earning as Rs.4,840/per month, now they cannot claim that the deceased was earning more than what the deceased had received from his salary certificate and cannot say that the document is not correct. Therefore, learned counsel prayed for dismissing the appeal.

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Upon hearing the arguments of the learned counsel appearing for both the parties and on perusal of the documents, the points that arise for consideration are:

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(i) Whether the Tribunal is not justified in awarding Rs.6,08,600/- as compensation which is meager which requires enhancement?

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(ii) What order?

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The claimant has established the factum of

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accident that occurred on 16.06.2010 when Nagaraj was riding the motorcycle and respondent No.1 caused the accident due to which the said Nagaraj died. PW-2, who is an eyewitness to the accident, has also lead evidence regarding the occurrence of the accident before the Tribunal. Hence, there is no dispute in respect of fastening the liability and also the factum of accident in question. Therefore, the only controversy is with regard to the quantum of compensation awarded by the Tribunal.

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15. PW-1, who is the wife of the deceased, in her

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evidence has stated that the deceased was working as a security in Z-Group Security and Personal Arrangement Agency, Ballari, as well as working as a driver and he was an agriculturist and had produced Ex.P-3 salary certificate and Ex.P-10 notarized copy of DL of the deceased to show that he was authorized to drive HMV

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vehicle and in all he was earning Rs.10,000/- per month but the Tribunal has considered only Rs.3,900/per month which is meager. On perusal of the evidence on record, no doubt Ex.P-3 is the certificate produced by the claimants but have not examined the author of Ex.P-3. The claimants have not stepped the employer into the box for proving the document. In the absence of examination of the employer of the deceased, Ex.P-3 cannot be considered as an admissible evidence. Though the claimants have stated that the deceased was earning Rs.10,000/- per month as income, no documents are produced by the claimants to prove the same. Therefore, in the absence proof of income, there is no option for this Court but to consider the notional income. For the accident of the year 2010, this court used to consider Rs.5,500/- per month as notional income. Therefore, I propose to consider Rs.5,500/- per month as income of the deceased. As per the judgment of the Hon’ble Apex Court in Pranay Sethi ’s case, 40% of the income should be considered towards future

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prospects which come to Rs.2,200/- (40% of 5500) and income of the deceased per month would come to Rs.7,700/-(Rs.5,500+Rs.2,200). The claimants, who are dependants, are 5 in numbers. Therefore, 1/4^th of the income shall have be deducted towards personal expenses of the deceased (1/4 of 7,700=1925/-) and after deducting from Rs.7,700/- it comes to Rs.5,775/-. If income of Rs.5,775/- is multiplied by 12 and multiplied by 16 (for the age group 31 to 35 years), it comes to Rs.11,08,800/-. This would be the loss of dependency. As per the judgment of the Hon’ble Apex Court in Pranay Sethi (supra), as well as Magma

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General Insurance Co. Ltd. v. Nanu Ram and others

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reported in 2018 ACJ 2782, the first claimant being the widow is entitled for a sum of Rs.40,000/- towards loss of spousal consortium, petitioners 2 and 3 being the children of the deceased are entitled to a sum of Rs.30,000/- each towards loss of parental consortium. Claimants 4 and 5, who are the parents of the deceased, are entitled for a sum of Rs.30,000/- each towards loss

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of filial consortium. Apart from that they are also entitled to a sum of Rs.15,000/- each towards loss of estate and towards transportation, funeral and other incidental expenses. In all, the claimants are entitled to re-assessed compensation as under:

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Rs.

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1	Loss ofdependency	11,08,800/-
2	Loss ofspousalconsortium	40,000/-
3	Loss of filialconsortium	60,000/-
4	Loss ofparentalconsortium	60,000/-
5	Transportationandfuneralexpenses	15,000/-
6	Loss ofestate	15,000/-
	Total	12,98,800/-

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Consequently, the appeal filed by the

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claimants is allowed in part. The claimants are entitled to reassessed compensation of Rs.12,98,800/- as against Rs.6,08,800/- awarded by the Tribunal together with interest at the rate of 6% per annum from the date of petition till realization. Respondent No.3-insurer is

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directed to deposit the reassessed compensation

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together with interest at the rate of 6% per annum within four weeks from the date of receipt of a certified copy of this judgment.

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Apportionment, deposit and release of the amount made by the Tribunal is hereby confirmed.

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Sd/JUDGE

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kmv