Partly allowed

Smt Bhagirathi v. Sam Tours & Travels

Karnataka HC12 Sept 2024MFA/6951/2018

Case brief

AI extract

What is this about?

Claimants sought enhancement of compensation for the death of a welder killed by a rashly driven tempo traveller. The court applied Pranay Sethi and Magma General Insurance to recompute income with future prospects and consortium heads, enhancing compensation from Rs.11,68,000 to Rs.15,46,328.

What did the court decide?

Compensation enhanced from Rs.11,68,000/- to Rs.15,46,328/- with 6% p.a. interest; insurer directed to deposit within six weeks.

Smt Bhagirathi Vs Sam Tours & Travels — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 6951 OF 2018 (MV)

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BETWEEN:

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SMT BHAGIRATHI W/O LATE SOMASHEKAR AGED ABOUT 37 YEARS

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B S JEEVAN S/O LATE SOMASHEKAR AGED ABOUT 19 YEARS

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B S BHUSHAN AGED ABOUT 17 YEARS MINOR REPRESENTED BY NATURAL GUARDIAN AND MOTHER APPELLANT NO.1 SMT BHAGIRATHI ALL ARE RESIDING AT NO.53 C/O MUNISWAMI, 2ND CROSS 1ST STAGE, BHUVANESHWARINAGAR Digitally signed by JANABHARATHI POST, BENGALURU-560056 …APPELLANTS HEMALATHA A (BY SRI. RAMACHANDRA R NAIK.,ADVOCATE) Location: HIGH COURT OF AND: KARNATAKA

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SAM TOURS & TRAVELS SAM CHAMBERS, NO.4140 11TH CROSS, 2ND MAIN 80FT ROAD, GIRINAGAR 4TH PHASE, NEAR SEETHA CIRCLE BENGALURU 560085.

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HDFC ERGO GENERAL INSURANCE CO LTD NO.25/1, 2ND FLOOR, BUILDING NO.2 SHANKARNARAYANA BUILDING

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NC: 2024:KHC:37507 MFA No. 6951 of 2018

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M G ROAD, BENGALURU-560001 REP BY ITS DIVISIONAL MANAGER.

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SRI GOVINDAIAH S/O LATE ERANNA AGED ABOUT 75 YEARS.

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SMT HUCHALAKKAMMA W/O SRI GOVINDAIAH AGED ABOUT 69 YEARS R3 & R4 ARE RESIDING AT BIDARE VILLAGE GUBBI TALUK, TUMAKURU DISTRICT-572216

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…RESPONDENTS

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(BY SRI. B PRADEEP, ADVCOATE FOR R2: NOTICE TO R1, 3 & 4 ARE DISPENSED WITH V/O DTD 15/02/19)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 12/06/2018, PASSED IN MVC NO.2358/2016, ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM., MEMBER, MACT, (SCCH-23), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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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 MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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This appeal under Section 173(1) of the Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for

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short) has been filed by the claimants being aggrieved by

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the judgment and award dated 12.06.2018 passed by the

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XXI Additional Small Causes Judge and the Motor Accident

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3 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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Claims Tribunal (SCCH-23), Bengaluru (hereinafter

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referred to as ‘the Tribunal’) in MVC No.2358/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 14.09.2015 at about 10.45 p.m., when the deceased Somashekar was proceeding on motorcycle bearing registration No.KA-02/EL-4991 on Kenchanapura cross, Kengeri 80 ft. ring road, Bangalore, at that time, a tempo traveller bearing registration No.KA-51/C-2491 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 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

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NC: 2024:KHC:37507 MFA No. 6951 of 2018

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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 No.1 as PW-1, and got exhibited documents namely Ex.P1 to Ex.P20. On behalf of respondents, neither any witness was examined nor got exhibited documents. 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 deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.11,68,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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NC: 2024:KHC:37507 MFA No. 6951 of 2018

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The learned counsel for the claimants raised the following contentions:

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i) Firstly, the claimants assert that the deceased was approximately aged about 48 years at the time of the accident and had a monthly income of Rs.25,000/- as a Welder. However, the assessment of income of the deceased at Rs.9,000/- by the Tribunal is unjustified and erroneous.

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ii) Secondly, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], the claimants are entitled to addition of future prospects.

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iii) Thirdly, as per the law laid down by the Hon’ble Supreme Court in the case of PRANAY SETHI (supra), the claimants are entitled for Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘funeral expenses’.

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6 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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iv) Fourthly, 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

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and consortium’. Hence, sought to allow the appeal.

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On the other hand, the learned counsel for the Insurance Company submits as follows:

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i) Firstly, although the claimants claim that the deceased was earning Rs.25,000/- per month, they failed to substantiate their claim with supporting documents. Consequently, the Tribunal has correctly assessed the income of the deceased notionally.

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ii) Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards ‘future prospects’.

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iii) Thirdly, on appreciation of oral and documentary evidence and considering the age and avocation of the

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7 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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deceased, the overall compensation awarded by the Tribunal is just and reasonable. Hence, sought to dismiss the appeal.

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

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It is not in dispute that Somashekar died in the road traffic accident occurred on 14.09.2015 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.9,000/- per month, but failed to produce supporting documents to substantiate their claim. In the absence of proof of income, the notional income has to be assessed. Even as per the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2015, the notional income of the deceased shall be taken at Rs.9,000/- p.m. To the aforesaid income, 25% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the monthly income

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8 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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comes to Rs.11,250/-. Since there are 5 dependents, it is appropriate to deduct 1/4^th of the income of the deceased towards personal expenses and remaining amount, i.e., Rs.8,438/- has to be taken as his contribution to the family. The deceased was aged about 48 years at the time of the accident and multiplier applicable to his age

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group is ‘13’. Thus, the claimants are entitled to compensation of Rs.13,16,328/- (Rs.8,4381213) 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’. Claimant No.1, wife of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium'.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE’

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(supra), claimant Nos.2 and 3, children of the deceased are entitled for compensation of Rs.40,000/- each under

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9 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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the head of ‘loss of parental consortium’ and claimant Nos.4 and 5, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head of ‘loss of filial consortium’.

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Thus, the claimants are entitled to the following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	13,16,328
Funeral expenses	15,000
Loss of estate	15,000
Loss of spousal consortium	40,000
Loss of Parental consortium	80,000
Loss of Filial consortium	80,000
Total	15,46,328

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In the result, the following order is passed:

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ORDER

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(i) The appeal is allowed in part.

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10 - NC: 2024:KHC:37507 MFA No. 6951 of 2018

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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.15,46,328/- as against Rs.11,68,000/awarded by the Tribunal.

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(iv) 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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(v) 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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Sd/(H.T. NARENDRA PRASAD) JUDGE

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List No.: 1 Sl No.: 11

Smt Bhagirathi v. Sam Tours & Travels

Case brief

What is this about?

What did the court decide?

Smt Bhagirathi v. Sam Tours & Travels

Case brief

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What did the court decide?

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