THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT AND AWARD DATED 3^RD DAY OF JUNE 2024 PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, COURT OF SMALL CAUSES AT BENGALURU (SCCH-25), XXIII ADDITIONAL SMALL CAUSES, MEMBER MACT, BENGALURU IN MVC NO.5337/2022 AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2024:KHC:45215-DB MFA No.6000/2024

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ORAL JUDGMENT

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( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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Though the matter is coming on for admission, with the

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consent of both parties the same is taken for final disposal.

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Whether the compensation awarded under the impugned award in MVC No.5337/2022 on the file of XXIII Additional Small Causes Judge and MACT, Bengaluru, is just is the question involved in the case.

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The appellant is respondent No.2, respondent Nos.1 to 5 were claimant Nos.1 to 5 and respondent No.6 was respondent No.1 in MVC No.5337/2022. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Claimant Nos.1 & 2 are the parents, claimant No.3 is the younger sister, claimant Nos.4 & 5 are the grand parents of deceased Darshan. On 23.09.2022 at 05.45p.m. when Darshan and one Suresh were standing along with motorcycle bearing Reg.No.KA-44-V-3802 at Lenkanahalli gate on Yediyur to Kallur cross road, Mayasandra Hobli, Turvekere Taluk, Tumkur District, one Tata Ace vehicle bearing Reg.No.KA-44-

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6841 driven by its driver in rash and negligent manner, hit them and caused them injuries. Due to the injuries suffered in the accident, Darshan lost his life. At the relevant time, respondent Nos.1 & 2 were the owner and insurer of Tata Ace No.KA-44-6841.

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The claimants filed MVC No.5337/2022 before the Tribunal claiming that deceased was studying Journalism degree course in final year, had he survived he had the potentiality of earning more than Rs.50,000/- p.m. by his profession of Journalism. They claimed that due to his death they have suffered damages to the tune of Rs.1,00,00,000/and respondents are liable to pay the same.

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Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying the occurrence of the accident, actionable negligence on the part of the driver of Tata Ace No.KA-44-6841. It was contended that deceased himself was riding the motorcycle without wearing the helmet and in negligent manner which led to accident and his death. It was further contended that driver of insured vehicle was not holding driving licence and the vehicle had no valid fitness

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certificate, therefore, the insurer is not liable to pay compensation. The insurer denied the age, occupation and income of the deceased and the medical expenses allegedly incurred by the claimants and sought dismissal of the claim petition against it.

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Before the Tribunal in support of the case of the claimants, claimant No.2 was examined as PW-1, other two witnesses were examined as PWs-2 & 3 and exhibits P-1 to P- 29 were marked. The respondents did not lead any evidence. The Tribunal on hearing the parties, by the impugned award held that the accident occurred due to the actionable negligence on the part of the driver of Tata Ace No.KA-446841. The Tribunal relying on Ex.P-19 Aadhaar Card, considered the age of the deceased as 20 years. Relying on the judgment of the Hon'ble Supreme Court in Kandasami and Ors. Vs. Linda Briyal and anr .¹ the Tribunal considered the income of the deceased as Rs.20,000/- p.m., added 40% to the same by way of future prospects, deducted 1/3^rd of the same for the personal expenses of the deceased, applied 18

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1 2023 ACJ 1653

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6 - NC: 2024:KHC:45215-DB MFA No.6000/2024

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multiplier and awarded compensation of Rs.40,32,072/- on the head of loss of dependency. The Tribunal in all awarded

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compensation of Rs.41,60,100/- on different heads as follows:

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1	Loss of Dependency	Rs.40,32,072/-
2	Loss of consortium	Rs.88,000/-
3	Funeral expenses	Rs.20,000/-
4	Loss of estate	Rs.20,000/-
	Total	Rs.41,60,072
	Rounded off	to Rs.41,60,100/-

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The insurer has challenged the said award on the ground that the compensation awarded is on the higher side.

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Sri.B.Pradeep, learned counsel for the appellantinsurer submits that there was no proof of actual income of the deceased. The deceased was still studying in final year Journalism course. He further submitted that in Kandasami's judgment referred to supra Hon'ble Supreme Court has dealt with the case of B.Tech., graduate, therefore, notional income considered by the Tribunal is on the higher side. He submits that compensation on other heads is also on higher side.

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Sri.P.S.Kailas Shankar, learned counsel for the respondents justifying the impugned award submits that having

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regard to the material on record, the compensation awarded is just and proper. So far as negligence in occurrence of the accident involving Tata Ace No.KA-44-6841 was not disputed. After investigation, the charge sheet Ex.P-10 was filed against the driver of the said vehicle. Even the eye-witnesses were examined, therefore, the burden was on the insurer to prove that the deceased was riding the vehicle without helmet etc., but no evidence was produced. Therefore, the Tribunal relying on the police records and the evidence of the witness was justified in holding that the accident occurred due to the actionable negligence on the part of the driver of Tata Ace No.KA-44-6841.

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So far as consideration of the age of the deceased at 20 years, the insurer has no grievance. Admittedly, the deceased had not completed his Journalism degree. The copies of academic records like SSLC certificate and statement of marks produced before the Tribunal are made available for our perusal. They show that the deceased had average performance in his academics. As rightly pointed out, Kandasami's case referred to supra related to a victim who was a B.Tech., graduate, therefore, in that case income was

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considered as Rs.25,000/-. There was no evidence on record to show probability of deceased getting employment of income more than Rs.20,000/- soon after completion of his course. Therefore, Rs.20,000/- p.m. considered by the Tribunal is on the higher side, it could have been reasonably considered at Rs.18,000/- p.m.

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The deceased was a bachelor, therefore, as per the judgment of Sarla Verma and others vs. Delhi Transport Corporation and another² , 50% has to be deducted from his income towards his personal expenses. As per the judgment of the Supreme Court in the National Insurance Company Ltd., v. Pranay Sethi³ and having regard to the age and nature of future avocation of the deceased, 40% has to be superadded to the income of the deceased by way of future prospects. The applicable multiplier is 18. Therefore, compensation payable on the head of loss of dependency is:

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Rs.18,000 - 50% + 40 % X 12 X 18 = Rs.27,21,600/-.

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2 (2009) 6 SCC 121

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3 2017 (16) SCC 680

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As per the judgment of the Hon'ble Supreme Court

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in the case of Pranay Sethi referred to supra and Magma

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General Insurance Company Limited Vs. Nanu Ram &

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Ors.⁴ , claimant Nos.1 and 2 being parents are entitled to compensation of Rs.40,000/- each on the head of filial consortium. Since, claimant No.3 is unmarried younger sister of

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deceased, it would be just to award her also Rs.40,000/- on head of loss of love and affection. Similarly, as per the judgment of Pranay Sethi referred to supra, the claimants are entitled to compensation of Rs.15,000/- plus Rs.15,000/- on the head of loss of estate and funeral expenses. Therefore, the just compensation payable is as follows:

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1	Loss of Dependency	Rs.27,21,600/-
2	Loss of consortium	Rs.80,000/-
3	Loss of love and affection towards unmarried sister	Rs.40,000/-
4	Funeral expenses	Rs.15,000/-
5	Loss of estate	Rs.15,000/-
	Total	Rs.28,71,600/-

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4 (2018) 18 SCC 130

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NC: 2024:KHC:45215-DB MFA No.6000/2024

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In the light of the above, appeal deserves to be

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allowed in part. Hence, the following:

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ORDER

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The appeal is partly allowed. The impugned award of the Tribunal is modified as follows:

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i) The claim petition in respect of claimant Nos.4 & 5 is rejected. The claimant Nos.1 to 3 are entitled to compensation of Rs.28,71,600/- with interest thereon at 6% p.a. from the date of petition till its realization.

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ii) The respondent No.2 - the insurer shall deposit the said amount, on adjusting the amount already deposited if any, before the Tribunal within four (04) weeks from the date of receipt of copy of this order.

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iii) On such deposit, the Tribunal shall release Rs.40,000/- to claimant No.3. Out of the balance amount, claimant Nos.1 & 2 are entitled to compensation in the ratio of 50:50. Out of their share, 50% shall be invested in fixed deposit in any Nationalized/Scheduled Bank for a period of three years. The balance amount shall be released to them digitally.

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