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2021 DIGILAW 62 (KAR)

Santhosh v. Byregowda

2021-01-07

H.T.NARENDRA PRASAD

body2021
JUDGMENT : H.T. NARENDRA PRASAD, J. 1. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 2.2.2013 passed by the Motor Accident Claims Tribunal. 2. Facts giving rise to the filing of the appeal briefly stated are that on 31.8.2011 the deceased Durgaram was proceeding on his TVS moped bearing No. KA-52-H-2574 in NH4 and when he reached near Goraguntepalya junction, at that time, a lorry bearing registration No. KA-02-D-3369 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. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 37 years at the time of accident and was employed as salesman and was earning Rs. 8,000/- p.m. The claimants claimed compensation along with interest. 4. On service of summons, the respondent No. 2 appeared through Counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that driver of the lorry was not having valid licence as on the date of the accident. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition. The respondent No. 1 did not appear inspite of service of notice and was placed ex-parte. 5. 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 their case, examined claimant No. 1 as P.W. 1 and another witness as P.W. 2 and got exhibited documents namely Ex. P1 to Ex. P19. 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 deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs. 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 deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs. 10,84,600/- along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed. 6. The learned Counsel for the claimants has raised the following contentions: Firstly, the claimants claim that the deceased was earning Rs. 8,000/- per month by working as salesman. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs. 5,500/-. Secondly, as per the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and Others [ AIR 2017 SC 5157 ], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards 'future prospects' should be the warrant where the deceased was below the age of 40 years. Thirdly, as per the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram reported in 2018 ACJ 2782 , each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'. Fourthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, the learned Counsel appearing for the claimants prays for allowing the appeal. 7. On the other hand, the learned Counsel for the Insurance Company has raised the following counter-contentions: Firstly, even though the claimants claim that the deceased was earning Rs. 8,000/- per month by working as salesman, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally. Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'. Thirdly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Hence, the learned Counsel for the Insurance Company prays for dismissal of the appeal. 8. Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'. Thirdly, on appreciation of oral and documentary evidence, the Tribunal has awarded just and reasonable compensation. Hence, the learned Counsel for the Insurance Company prays for dismissal of the appeal. 8. Heard the learned Counsel for the parties and perused the records. 9. It is not in dispute that deceased died in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver. As per Ex. P-11, salary certificate produced by the claimant, the income of the deceased is shown as Rs. 6,000/-. Therefore, considering the same, the income has to be taken at Rs. 6,000/- p.m. To the aforesaid amount, 40% 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 comes to Rs. 8,400/-. Out of which, it is appropriate to deduct 1/5th towards personal expenses since there are seven dependents and therefore, the monthly income comes to Rs. 6,720/-. The deceased was aged about 37 years at the time of the accident and multiplier applicable to his age group is 15'. Thus, the claimants are entitled to compensation of Rs. 12,09,600/- (Rs. 6720 x 15 x 12) on account of 'loss of dependency'. In view of the law laid down by the Supreme Court in 'Magma General Insurance', claimant No. 1, wife of the deceased is entitled for compensation of Rs. 40,000/- under the head of 'loss of spousal consortium', claimant Nos. 2 and 5, children are entitled for compensation of Rs. 40,000/- each under the head of 'loss of parental consortium' and claimant Nos. 6 and 7, parents of the deceased are entitled for compensation of Rs. 40,000/- each under the head 'loss of filial consortium'. In addition, the claimants are entitled to Rs. 15,000/- on account of 'loss of estate' and Rs. 15,000/- on account of 'funeral expenses'. 10. Thus, the claimants are entitled to the following compensation: Compensation under different Heads Amount in (Rs.) Loss of dependency 12,09,600 Funeral expences 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Loss of Parental consortium 160,000 Loss of Filial consortium 80,000 Total 15,19,600 The claimants are entitled to a total compensation of Rs. 15,19,600/-. 10. Thus, the claimants are entitled to the following compensation: Compensation under different Heads Amount in (Rs.) Loss of dependency 12,09,600 Funeral expences 15,000 Loss of estate 15,000 Loss of spousal consortium 40,000 Loss of Parental consortium 160,000 Loss of Filial consortium 80,000 Total 15,19,600 The claimants are entitled to a total compensation of Rs. 15,19,600/-. The Insurance Company is directed to deposit the compensation amount along with interest at 8% p.a. within a period of four weeks from the date of receipt of copy of this judgment. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is allowed-in-part. In view of disposal of the appeal, I.A. 2/2013 does not survive for consideration and accordingly the same is dismissed.