Scribd Logo
Upload

Welcome to Scribd!

  • 5 views

    Download

    Uploaded by

    Deepak Ninge Gowda

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd

    Download

    Uploaded by

    Deepak Ninge Gowda
    5 views9 pages

    Original Title

    Download (3)

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    5 views9 pages

    Download

    Uploaded by

    Deepak Ninge Gowda

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 9

    1

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 4TH DAY OF JUNE 2021

    PRESENT

    THE HON’BLE MR. JUSTICE ALOK ARADHE

    AND

    THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

    M.F.A. NO.4233 OF 2018 (MV-D)


    BETWEEN:

    1. Smt.Masthamma Eshwara Naik


    Aged about 51 years
    w/o Eshwara Jattappa Naik.

    2. Sri Eshwara Jattappa Naik


    Aged about 55 years
    s/o late Jatta Naik.

    3. Sri Mahadeva Naik


    Aged about 28 years
    s/o Eshwara Jattappa Naik.
    4. Kumari Madevi
    aged about 26 years
    d/o Eshwara Jattappa Naik.
    5. Smt.Sharada
    Aged about 31 years
    d/o Eshwara Jattappa Naik.
    All are r/a Alivegadde
    Shirur Post and village
    Kundapura Taluk
    Udupi District - 576 228. ... Appellants

    (By Sri Nagaraja Hegde, Advocate)


    2

    AND:

    1. Sri Dhinda Magdoom Hammed


    Aged Major, s/o Hammed
    r/a Gulnaz Baugh, Daragh Road
    Murdeshwara, Bhatkal Taluk
    Uttara Kannada District - 581350.

    2. The United India Insurance Co. Ltd.,


    Kundapura Branch, S L N Complex
    NH-66, Voderhobli, Kundapura -
    576 201, Reptd., by its Divisional
    Manager. ... Respondents

    (By Sri P B Raju, Advocate for R2)

    This M.F.A. is filed under Section 173(1) of MV Act


    against the judgment and award dated 28.09.2017 passed in
    MVC No.998/2015, on the file of the Senior Civil Judge and
    Member, Additional MACT, Kundapura, partly allowing the
    claim petition for compensation and seeking enhancement of
    compensation.

    This M.F.A. coming on for orders, this day,


    HEMANT CHANDANGOUDAR J., delivered the following:

    JUDGMENT

    This appeal under Section 173(1) of the Motor Vehicles

    Act, 1988 (hereinafter referred to as ‘the Act’, for short) is

    filed by the claimants seeking enhancement of the amount of

    compensation against the judgment dated 28.09.2017 in

    MVC No.998/2015 passed by the Senior Civil Judge and

    Member, Additional MACT, Kundapura.


    3

    2. Facts giving rise to the filing of the appeal briefly

    stated are that on 10.10.2015, the deceased Nagesh

    Eshwara Naik was riding his motor cycle bearing Regn.

    No.KA-47-L-6703 from Sarpanakatte side towards Bhatkal.

    When he reached near Sarpanakatte, Police Check Post,

    Bhatkal Taluk, a Swift Car bearing Regn. No.KA-20-Z-491

    came from Bhatkal towards Kundapura being driven by its

    driver in a high speed and in rash and negligent manner

    dashed against Nagesh Eshwara Naik, as a result, Nagesh

    Eshwara Naik sustained grievous injuries and succumbed to

    the same.

    3. The claimants thereupon filed a petition under

    Section 166 of the Act claiming compensation on the ground

    that the deceased was aged about 22 years at the time of

    accident and was working as Red Stone Cutting Machine

    Operator and earning Rs.18,000/- per month. It was further

    pleaded that the accident took place solely on account of

    rash and negligent driving of the offending vehicle by its

    driver. The claimants claimed compensation to the tune of

    Rs.26,60,000/- along with interest.


    4

    4. The 1st respondent - owner of the offending

    vehicle filed written statement contending that the driver of

    the car was holding valid and effective driving license to drive

    the car. The vehicle was insured with the 2nd respondent -

    Insurance Company, which is valid from 13.8.2015 to

    12.8.2016. He prays for dismissal of the claim petition.

    5. The 2nd respondent - Insurance Company filed

    written statement, in which the mode and manner of the

    accident was denied. It was also pleaded that the driver of

    the car did not hold a valid and effective driving license at

    the time of accident and that the liability of the insurance

    company, if any, would be subject to the terms and

    conditions of the insurance policy. The age, avocation and

    income of the deceased was also denied and it was pleaded

    that the claim of the claimants is exorbitant and excessive.

    6. On the basis of the pleadings of the parties, the

    Claims Tribunal framed the issues and thereafter recorded

    the evidence. The claimants examined three witnesses as

    PWs.1 to 3 and got exhibited documents namely Ex.P1 to

    Ex.P12. The respondents neither examined any witnesses but


    5

    got exhibited the Insurance Policy at 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. It was further held, that

    as a result of the aforesaid accident, the deceased sustained

    injuries and succumbed to the same. The Tribunal further

    held that the claimants are entitled to a compensation of

    Rs.8,28,000/- along with interest at the rate of 6% per

    annum. Being aggrieved, this appeal has been filed seeking

    enhancement of the amount of compensation.

    7. Learned counsel for the claimants submitted that

    the Tribunal has grossly erred in assessing the income of the

    deceased at Rs.7,000/- per month instead of Rs.18,000/-

    per month having regard to the fact that the deceased was

    working as Red Stone Cutting Machine Operator. He further

    submitted that the Tribunal has deducted 50% of the income

    towards personal expenses instead of 1/4th since there were

    five dependents, though the deceased was a bachelor. In

    support of his submission, he has placed a reliance on the

    decision of the Apex Court in the case of NATIONAL


    6

    INSURANCE CO. LTD., -VS- BIRENDER AND OTHERS

    reported in ACJ 2020 759.

    8. On the other hand, learned counsel for the

    Insurance Company submitted that no evidence has been

    adduced by the claimants to prove the income of the

    deceased before the Tribunal and that the Tribunal has

    rightly taken the income of the deceased notionally at

    Rs.7,000/- per month. It is further submitted that the

    amount of compensation awarded by the Tribunal is just and

    proper and does not call for any interference.

    9. We have considered the submissions made by

    learned counsel for the parties and have perused the record.

    10. The only question which arises for our

    consideration in this appeal is with regard to the quantum of

    compensation.

    11. Admittedly, the claimants have not produced any

    evidence with regard to the income of the deceased. It is

    also not in dispute that deceased at the time of accident was

    aged about 22 years and was working as Red Stone Cutting


    7

    Machine Operator. Therefore, if notional income of the

    deceased is assessed as per the guidelines issued by the

    Karnataka Legal Services Authority, notional income comes

    to Rs.9,000/- per month.

    12. The Tribunal has deducted 50% of the income of

    the deceased towards personal expenses on the ground that

    he was a bachelor. The Apex Court in the case of NATIONAL

    INSURANCE CO. LTD., -VS- BIRENDER AND OTHERS

    (supra) has held that legal representatives have right to

    apply for compensation and it would be bounden duty of the

    Tribunal to consider the application irrespective of the fact

    whether the concerned legal representative was fully

    dependent on the deceased and not to limit the claim

    towards conventional heads only. In view of the decision of

    the Apex Court, 1/4th of the income of the deceased should

    be deducted towards personal expenses since there are five

    dependants including the brother, who was a major as on the

    date of accident, and was also dependant on the income of

    the deceased.
    8

    13. Taking into account the age of the deceased who

    was 22 years at the time of accident, the multiplier of ‘18’

    has to be adopted and 40% of the assessed income is to be

    added to the income of the deceased towards 'future

    prospectus'. Hence, the claimants are held entitled to

    (Rs.9,000/- + 40% = 12,600/- divided by 4 = 9,450/-x 12 x

    18) i.e., Rs.20,41,200/- on account of `loss of dependency'.

    14. In view of law laid down by the Supreme Court in

    ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

    & ORS.’ (2018) 18 SCC 130, which has been subsequently

    clarified by the Supreme Court in ‘UNITED INDIA

    INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’

    IN CIVIL APPEAL NO.2705/2020 DECIDED ON

    30.06.2020 each of the claimant’s are entitled to a sum of

    Rs.40,000/- on account of loss of consortium and loss of love

    and affection, which comes to Rs.2,00,000/-. The

    compensation amount of Rs.30,000/- towards loss of estate

    and funeral expenses is maintained. Thus, in all, the

    claimants are held entitled to a total compensation of

    Rs.22,71,200/- which carries interest at the rate of 6% p.a.


    9

    from the date of petition till the realisation. To the aforesaid

    extent, the judgment passed by the Claims Tribunal is

    modified.

    Accordingly, the appeal is disposed of.

    Sd/-
    JUDGE

    Sd/-
    JUDGE

    bkm

    You might also like