Prajwal Vs Nagaraj @ Nagaraj Shaukar and Ors.

AGE: 14 YEARS OCC: STUDENT APPELLANT NO.5 IS MINOR UNDER CARE AND CUSTODY OF HER NATURAL MOTHER, NEXT FRIEND APPELLANT NO.1 ALL ARE R/O SOMALAPUR TQ: SINDHANUR DIST: RAICHUR – 584 128.

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…APPELLANTS

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(BY SMT. PATIL SHANTABAI SUBHASH, ADVOCATE)

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AND:

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NAGARAJ @ NAGARAJ SHAUKAR S/O SIDDANGOUDA AGE: 33 YEARS OCC: DRIVER OF MOTOR CYCLE NO.KA-34/U-0827, R/O: GUDIHAL VILLAGE, TQ: MASKI, DIST: RAICHUR – 584 124.

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A. VEERBHADRAPPA S/O A.NAGAPPA, AGE: MAJOR, OCC: OWNER OF MOTORCYCLE, NO.KA-34/U0827, R/O: M/S SHARANA CONTRUCTIONS PVT. LTD., D NO. 16 & 17 1^ST CROSS, GHANDHINAGAR, BELLARI, DIST: BALLARI – 583 101.

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THE NATIONAL INSURANCE CO.LTD., THROUGH IT’S MANAGER, NEAR SURKSHA HOSPITAL, RAICHUR – 584 101.

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…RESPONDENTS

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(BY SRI. MOHD. ABDUL QUAYUM, ADV. FOR R3; V/O DATED:17.02.2025 NOTICE TO R1 & R2 DISPENSED WITH)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICHLE ACT 1988, PRAYING TO CALL FOR TRIAL COURT RECORDS AND PLEASED TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 05.12.2023, PASSED BY THE SENIOR CIVIL JUDGE, MEMBER, MACT AT LINGASUGUR, IN MVC NO.82/2022 AND PLEASED TO ENHANCE COMPENSATION, IN THE INTEREST OF JUSTICE.

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IN MISCL. FIRST APPEAL NO.203042 OF 2024

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BETWEEN:

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PRAJWAL S/O PAMPANNA, AGE: 24 YEARS, OCC: STUDENT, R/O: SOMALAPUR, TQ:SINDHANUR, DIST:RAICHUR – 584 128. NEAR RESIDING AT NEAR TAHASIL OFFICE, LINGASUGUR, DIST: RAICHUR – 584 122.

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…APPELLANT

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(BY SMT. PATIL SHANTABAI SUBHASH, ADVOCATE)

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AND:

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NAGARAJ @ NAGARAJ SHAUKAR S/O SIDDANGOUDA AGE: 33 YEARS OCC: DRIVER OF MOTORCYCLE, NO.KA-34/U-0827 R/O: GUDIHAL VILLAGE TQ: MASKI, DIST: RAICHUR – 584 124

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A. VEERBHADRAPPA S/O A.NAGAPPA AGE: MAJOR, OCC: OWNER OF MOTORCYCLE,

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HC-KAR

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NO.KA-34/U0827, R/O M/S SHARANA CONTRUCTIONS PVT LTD., D NO.16 & 17, 1^ST CROSS, GHANDHINAGAR, BELLARI, DIST: BALLARI – 583 101.

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THE NATIONAL INSURANCE CO.LTD., RAICHUR – 584 101.

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…RESPONDENTS

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(BY SRI MOHD. ABDUL QUAYUM, ADV. FOR R3; V/O DATED 13.02.2025 NOTICE TO R1 & R2 DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICHLE ACT 1988, PRAYING TO ALLOW THE APPEAL BY MODIFYING THE JUDGMENT AND AWARD DATED 05.12.2023, PASSED THE SENIOR CIVIL JUDGE, MEMBER, MACT AT LINGASUGUR, IN MVC NO.79/2022 AND PLEASED TO ENHANCE THE COMPENSATION, IN THE INTEREST OF JUSTICE.

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

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ AND

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HON'BLE MRS. JUSTICE K S HEMALEKHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

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These two appeals arise out of the judgment and award

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dated 05.12.2023 passed by the Court of Motor Accident Claims Tribunal at Lingasugur in MVC Nos.79/2022 and 82/2022.

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HC-KAR

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The accident which occurred on 21.11.2021

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involving motorcycles bearing registration No.KA-36/ES-4014 and KA-34/U-0827 resulting in the death of one Pampanna, the rider of motorcycle bearing registration No.KA-36/ES-4014 and injuries to the pillion rider by name Prajwal is not in dispute.

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The claimants in MVC No.82/2022 are the wife and children of deceased-Pampanna and the claimant in MVC No.79/2022 is the injured, son of Pampanna.

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The Tribunal clubbed MVC Nos.79/2022 and 82/2022 along with MVC No.83/2022 filed by the injured pillion rider of the offending motorcycle bearing registration No.KA34/U-0827 and passed a common judgment.

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In MVC No.79/2022, the claimant/injured was

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awarded a compensation of Rs.4,97,000/- and the claimants No.1, 4 and 5 in MVC No.82/2022 were awarded a total compensation of Rs.57,26,300/-, with interest at 6% per annum from the date of petition till date of realization.

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HC-KAR

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IN MFA No.202673/2024 (MVC No.82/2022):

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The contention of the learned counsel for the appellant is that the Tribunal was not proper in deducting 1/3^rd of the income of the deceased instead of 1/4^th , in view of five dependents and the Tribunal’s finding that claimants No.2 and 3 are not the dependents of the deceased is erroneous.

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The learned counsel appearing for respondent No.3 contended that claimants No.2 and 3 are the major sons of the deceased and therefore, they were not financially dependent on the deceased, hence, they are not entitled to compensation towards loss of dependency. He further contended that the Tribunal has rightly observed that they have not produced any documents to show that they are students. He therefore contented that the Tribunal has rightly deducted 1/3^rd of the income of the deceased while considering the loss of dependency.

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In National Insurance Co. Ltd. Vs. Birender

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and Others reported in (2020) 11 SCC 356, the Hon’ble Apex Court has held that:

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HC-KAR

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“14. ….the legal representatives of the deceased have a right to apply for compensation, which should necessarily follow that even the major, married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether they are fully dependant on the deceased and not to limit the claim towards conventional heads only.”

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In the case on hand, there is nothing on record to show that claimants No.2 and 3 who are admittedly the sons of deceased, were not dependents and there is no material to show that they are either employed anywhere or they are having income from any source.

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In view of the judgment referred above, the Tribunal was not proper in denying compensation to the said claimants and deducting 1/3^rd of the income of deceased while awarding compensation under the head ‘loss of dependency’.

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The income of the deceased after deducting the income tax has been arrived at Rs.55,716/-. He was aged about 51 years and therefore, the Tribunal has rightly added

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HC-KAR

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15% of the income towards future prospects and took the income at Rs.64,073/-, which is not disputed by the learned counsel appearing for the appellants as well as respondent No.3. The Tribunal ought to have deducted 1/4^th of the income while calculating the loss of dependency. Hence, the appellants/claimants are entitled for compensation of Rs.63,43,227/- (Rs.64,073 x 11 x 12 x ¾) towards loss of dependency.

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The Tribunal has awarded only a sum of Rs.40,000/- towards loss of consortium. It is relevant to extract paragraph Nos.21, 23 and 24 of the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. vs Nanu Ram Alias Chuhru Ram and others reported in 2018 (18) SCC 130, which are extracted as under,

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“21. A Constitution Bench of this Court in Pranay Sethi [(2017) 16 SCC 680] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium

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HC-KAR

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would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.

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21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband- wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation”.

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21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”.

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21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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HC-KAR

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The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

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The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under “loss of consortium” as laid down in. Pranay Sethi. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.”

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In the facts and circumstances, claimants being the

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wife and children of the deceased are entitled to sum of Rs.40,000/each towards loss of consortium. Further, considering the date of accident, the amount awarded towards

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HC-KAR

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loss of consortium is required to be enhanced at the rate of 10%. Hence, the total amount which the claimants are entitled towards loss of consortium shall be Rs.2,20,000/-.

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Sum of Rs.15,000/- awarded for loss of estate, Rs.15,000/towards funeral expenses and a sum of Rs.17,800/- awarded towards medical bills are not disturbed. Further, the claimants are entitled for a sum of Rs.3,000/towards loss of amenities. The claimants in MVC No.82/2022 are therefore entitled for a total compensation of Rs.66,14,027/- as against Rs.57,26,300/-, awarded by the Tribunal under the following heads:

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Sl. No.	Heads	Amount
1	Loss of income	Rs.63,43,227/-
2	Medical bills	Rs.17,800/-
3	Loss of consortium	Rs.2,20,000/-
4	Loss of estate	Rs.15,000/-
5	Funeral expenses	Rs.15,000/-
6	Loss of amenities	Rs.3,000/-
	Total	Rs.66,14,027/-

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IN MFA No.203042/2024 (MVC No.79/2012):

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According to the appellant, he sustained injuries in the accident. The doctor was examined as P.W.5. He has

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HC-KAR

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deposed about the injuries sustained by the appellant, as

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under:

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1. Right ulna and radius, dislocation of right forearm. 2) Fracture of left cervical.

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Considering the injuries sustained, the doctor has

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opined that the appellant has permanent disability to an extent of 26% to the whole body and 38% to the upper limb. The Tribunal has taken the disability at 13% to the whole body. The same is just and proper.

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The Tribunal has awarded a total sum of Rs.4,97,000/- under the following heads:

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1.	Expenditure of medical expenses	Rs.56,900.00
2.	Loss of income during the laid up period	Rs.10,000.00
3.	Expenditure of attending charges	Rs.5,000.00
4.	Loss of Amenities	Rs.5,000.00
5.	Loss of future earning on account of permanent disability	Rs.4,00,100.00
6.	Pain and suffering	Rs.10,000.00
7.	Future Medical Expenses	Rs.10,000.00
	Total	Rs.4,97,000/-

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HC-KAR

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The appellant was aged about 22 years at the time of accident. Considering the year of accident and as there was no material placed to prove the income claimed, relying on the Chart prepared by the Karnataka State Legal Services Authority, the Tribunal took notional income of the appellant as Rs.14,250/- per month. Applying ‘18’ as the multiplier, a sum of Rs.4,01,000/- was awarded towards loss of future earning on account of permanent disability, which is just and proper.

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The Tribunal has awarded a sum of Rs.10,000/towards loss of income during laid up period. Considering the nature of injuries, disability suffered and the income of the appellant, the amount awarded for loss of income during laid up period is enhanced from Rs.10,000/- to Rs.42,750/-.

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The sum awarded towards attendant charges is enhanced from Rs.5,000/- to Rs.15,000/- and the sum awarded towards loss of amenities is enhanced from Rs.5,000/- to 30,000/-. Again, considering that the appellant has suffered two fractures, the sum awarded towards pain and suffering is enhanced from Rs.10,000/- to Rs.50,000/-. The sum awarded towards medical expenses and future medical expenses are not

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HC-KAR

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disturbed. Hence, the appellant is entitled for a total compensation of Rs.6,04,750/- as against Rs.4,97,000/-

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awarded by the Tribunal, as under:

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1.	Expenditure of medical expenses	Rs.56,900.00
2.	Loss of income during the laid up period	Rs.42,750.00
3.	Expenditure of attending charges	Rs.15,000.00
4.	Loss of Amenities	Rs.30,000.00
5.	Loss of future earning on account of permanent disability	Rs.4,00,100.00
6.	Pain and suffering	Rs.50,000.00
7.	Future Medical Expenses	Rs.10,000.00
	Total	Rs.6,04,750/-

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Accordingly, we pass the following:

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ORDER

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i) The appeals are allowed in part.

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ii) The appellants in MFA No.202673/2024 (MVC No.82/2022) are entitled for a total compensation of Rs.66,14,027/along with

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HC-KAR

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interest at 6% per annum from the date of petition till realization.

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iii) The appellant in MFA No.203042/2024 (MVC No.79/2022) is entitled for a total compensation of Rs.6,04,750/along with interest at 6% per annum from the date of petition till realization.

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iv) The judgment and award dated 05.12.2023 passed by the Court of Senior Civil Judge, Member, Motor Accident Claims Tribunal at Lingasugur in MVC No.79/2022 and MVC No.82/2022 are modified accordingly.

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v) In MFA No.202673/2024, appellants/claimants are entitled for compensation awarded in the ratio of 40:15:15:15:15. 50% of the compensation amount shall be invested in the form of fixed deposit in the name of claimants No.1 to 4 in any nationalized bank for a period of five years, the remaining amount and interest shall be released to the said claimants. The share of claimant No.5 shall be deposited in any nationalized bank till attaining the age of majority, as ordered by the Tribunal.

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HC-KAR

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vi) In MFA No.203042/2024, out of the compensation amount, 50% shall be invested in the form of fixed deposit in the name of the appellant/claimant for a period of five years in any nationalized bank, and remaining amount with interest shall be released in his favour.

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vii) The respondent No.3 – Insurance Company shall deposit the amount before the Tribunal within a period of six weeks.

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viii) Rest of the order passed by the Tribunal shall be intact.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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Sd/(K S HEMALEKHA) JUDGE

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TMP,BL List No.: 1 Sl No.: 21 CT:NI

Prajwal v. Nagaraj @ Nagaraj Shaukar and Ors.

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Prajwal v. Nagaraj @ Nagaraj Shaukar and Ors.

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