Disposed

Pradeep Acharya K v. Pooja K

Karnataka HC30 Aug 2024MFA/4876/2020

Case brief

AI extract

What is this about?

Cross appeals in a fatal motor vehicle accident claim. The court assessed the deceased's income at Rs.16,000 per month, applied Pranay Sethi future prospects and multiplier 9, awarded parental consortium per Magma, fixing total compensation at Rs.13,77,272 with interest reduced to 6% per annum.

What did the court decide?

Compensation modified to Rs.13,77,272 with interest at 6% p.a.; insurer directed to deposit within six weeks; no interest on enhanced compensation for 124-day delay.

Pradeep Acharya K Vs Pooja K — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 4876 OF 2020 (MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 3087 OF 2020(MV)

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IN MFA 4876/2020

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BETWEEN:

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PRADEEP ACHARYA K S/O LATE SHRINIVASA @ SHEENAPPA ACHARYA AGED 18 YEARS

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PRASAD ACHARYA K

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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LATE SHRINIVASA @ SHEENAPPA ACHARYA AGED 20 YEARS, BOTH ARE R/AT H NO.1-259 KOLLATHADKA HOUSE VOLAMOGARU VILLAGE KUMBARA POST PUTTUR TALUK, D K DISTRICT …APPELLANTS (BY SRI. RAJARAMA S.,ADVOCATE)

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AND:

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POOJA K AGED MAJOR D/O GANGADHARA JOGI R/O NO.2-59 D G KATTE BANTWAL TALUK, D K DISTRICT.

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IFFCO-TOKIO GENERAL

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NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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INSURANCE COMPANY LTD., BRANCH OFFICE 3RD FLOOR LALBAGH TOWER, BALLALBHAGH M G ROAD MANGALORE, D K DISTRICT-575 003 …RESPONDENTS

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(BY SRI.B.PRADEEP., ADVOCATE FOR R2: NOTICE TO R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.08.2019 PASSED IN MVC NO.2030/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL M.A.C.T., DAKSHINA KANNADA, MANGALURU, SITTING AT PUTTUR, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 3087/2020 BETWEEN:

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THE BRANCH MANAGER IFFCO-TOKIO GIC LTD., 3^RD FLOOR, LALBAGH TOWER BALLALBHAGH M G ROAD MANGALORE, D K DISTRICT-575 003 NOW REP BY ITS, LEGAL OFFICER IFFCO TOKIO GIC LTD CUSTOMER SERVICE CENTER SRI SHANTHI TOWERES, 5^TH FLOOR NGEF LAYOUT, KASTURBANAGAR BANGALORE-560 043. ....APPELLANT

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(BY SRI.PRADEEP B, ADVOCATE)

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AND:

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1. PRASAD ACHARYA K

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LATE SHRINIVASA @ SHEENAPPA ACHARYA AGED ABOUT 22 YEARS.

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3 - NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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PRADEEP ACHARYA K S/O LATE SHRINIVASA @ SHEENAPPA ACHARYA AGED ABOUT 20 YEARS BOTH ARE R/AT H NO.1-259 KOLLATHADKA HOUSE VOLAMOGARU VILLAGE, KUMBARA POST PUTTUR TALUK, D K DISTRICT.

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POOJA K AGED MAJOR D/O GANGADHARA JOGI R/O NO.2-59 D G KATTE BANTWAL TALUK, D K DISTRICT. ...RESPONDENTS

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(BY SRI. RAJARAMA S., ADVOCATE FOR R1 & R2: NOTICE TO R3 IS DISPENSED WITH V/O DATED: 13.3.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.08.2019 PASSED IN MVC NO.2030/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL M.A.C.T., DAKSHINA KANNADA, MANGALURU, SITTING AT PUTTUR, D.K., AWARDING COMPENSATION OF RS.14,27,000/- WITH INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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MFA No.4876/2020 is filed by the claimants and MFA

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No.3087/2020 is filed by the Insurance Company under

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Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated

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4 - NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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20.08.2019 passed by the V Additional District and Sessions Judge & Member, MACT, D.K., Mangaluru sitting at Puttur, D.K. (for short ‘the Tribunal’), challenging the judgment and award passed in MVC No.2030/2017. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeals briefly stated are that on 17.10.2017 at about 6.50 p.m., when the deceased Shrinivasa was proceeding on a motorcycle bearing registration No.KA-21/Q-7456 from Uppinangady towards Guruvayanakere side, at that time, a private bus bearing registration No.KA-19/C-7733, which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to

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the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimants, in order to prove the case, examined claimant Nos.1 and 2 as PW-1 and PW-2 and other two witnesses as PW-3 and PW-4, and got exhibited documents namely Ex.P1 to Ex.P21. On behalf of respondents, no witness was examined but got exhibited document namely Ex.R1. 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

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6 - NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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deceased sustained injuries and succumbed to the injuries.

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The Tribunal further held that the claimants are entitled to

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a compensation of Rs.14,27,000/- along with interest at the rate of 7% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

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The learned counsel for the Insurance Company has raised the following contentions:

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i) Firstly, since the Insurance Company has satisfied the award in the connected matter, the challenge of the Insurance Company is restricted to quantum of compensation awarded by the Tribunal.

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ii) Secondly, although the claimants claim that the deceased was earning Rs.25,000/- per month, they have examined his employer as PW-4, the employer has not produced the salary register maintained by him to prove that he was paying Rs.25,000/- to the deceased.

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iii) Thirdly, the monthly turnover of PW4 itself is Rs.2,25,000/- and he has employed five persons. It cannot be believed that he was paying monthly income of Rs.25,000 to each of the employees and hence, the monthly income assessed by the Tribunal is on the higher side.

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iii) Fourthly, in light of the Division Bench decision of this Court in the case of MS.JOYEETA BOSE AND OTHERS –V- VENKATESHAN.V AND OTHERS (MFA

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5896/2018 AND CONNECTED MATTERS DISPOSED OF ON 24.8.2020), the rate of interest awarded by the Tribunal at 7% p.a. on the compensation amount is on the higher side.

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With the above submissions, learned counsel for the Insurance Company sought to allow the appeal filed by the Insurance Company and to dismiss the appeal filed by the claimants.

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On the other hand, the learned counsel for the claimants raised the following contentions:

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8 - NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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i) Firstly, the claimants assert that at the time of the accident the deceased was earning a monthly income of Rs.25,000/- as a Carpenter. In this regard, the claimants have produced salary certificate of the deceased as Ex.P14 and also examined the employer of the deceased as PW-4. However, the assessment of income of the deceased at Rs.16,500/- by the Tribunal is unjustified and erroneous.

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ii) Secondly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL

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INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] , each of the claimants is entitled to compensation of Rs.40,000/- under the head of ‘loss of love and affection and consortium’.

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With the above submissions, learned counsel for the claimants sought to allow the appeal filed by the claimants and to dismiss the appeal filed by the Insurance Company.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal and the original records.

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9 - NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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It is not in dispute that Shrinivasa died in the road traffic accident occurred on 17.10.2017 due to rash and negligent driving of the offending vehicle by its driver.

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The claimants claim that deceased was earning Rs.25,000/- per month and examined the employer as PW-4, but they have not produced the salary register before the Tribunal. Except stating that he was paying the salary of Rs.25,000/- to the deceased as salary, no other document has been produced. It is not in dispute that the deceased was a carpenter. Considering his age and avocation, I am of the opinion that the income of the deceased can be assessed at Rs.16,000/- per month. To the aforesaid income, the Tribunal has rightly added 10% on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI

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AND OTHERS [AIR 2017 SC 5157]. Thus, the monthly income comes to Rs.17,600/-. The Tribunal rightly deducted 1/3^rd of the income of the deceased towards

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personal expenses and remaining amount, i.e., Rs.11,734/- has to be taken as his contribution to the family. The deceased was aged about 56 years at the time of the accident and multiplier applicable to his age group is ‘9’. Thus, the claimants are entitled to compensation of Rs.12,67,272/- (Rs.11,734129) on account of ‘loss of dependency’.

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In addition, the claimants are entitled to compensation of Rs.15,000/- on account of ‘loss of estate’ and compensation of Rs.15,000/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE’ (supra), claimant Nos.1 and 2, children of the deceased are entitled for compensation of Rs.40,000/- each under the head of ‘loss of parental consortium’.

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Thus, the claimants are entitled to the following compensation:

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11 -

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NC: 2024:KHC:35118 MFA No. 4876 of 2020 C/W MFA No. 3087 of 2020

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Compensation under	Amount in
different Heads	(Rs.)
Loss of dependency	1267,272
Funeral expenses	15,000
Loss of estate	15,000
Loss of Parental consortium	80,000
Total	1,377,272

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In the result, the following order is passed:

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ORDER

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(i) The appeals are disposed of.

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(ii) The judgment of the Claims Tribunal is modified.

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(iii) The claimants are entitled to a total

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compensation of Rs.13,77,272/- as against Rs.14,27,000/awarded by the Tribunal.

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(iv) Following the judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra), the rate of interest awarded By the Tribunal at 7% p.a. is scalled down to 6% p.a.

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(v) The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from

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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.

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(vi) The apportionment, deposit and release of amount shall be made in accordance with the terms of the award of the Tribunal.

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(vii) In view of the order dated 25.09.2021 passed by this Court, the claimants are not entitled for interest on the enhanced compensation for the delayed period of 124 days in filing the appeal.

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(viii) The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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CM List No.: 1 Sl No.: 13

Pradeep Acharya K v. Pooja K

Case brief

What is this about?

What did the court decide?

Pradeep Acharya K v. Pooja K

Case brief

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