IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.123/2019 (MV)
BETWEEN :
1. G.D.BHOOMIKA
D/O KOMALA,
AGED ABOUT 17 YEARS
2. G.D.KAVANA
D/O KOMALA,
AGED ABOUT 10 YEARS
BOTH ARE R/O GIRIYAPURA VILLAGE,
KADUR TALUK,
CHIKKAMAGALURU-577548.
APPELLANTS ARE MINORS AND
REP BY THEIR GRANDMOTHER
BASAMMA W/O SHEKARAPPA,
AGED ABOUT 70 YEARS,
R/O GIRIYAPURA VILLAGE,
KADUR TALUK,
CHIKKAMAGALURU-577548. ...APPELLANTS
(BY SRI P.N.HARISH, ADV.)
AND :
1. G.S.DEVARAJA
S/O SHEKARAPPA,
AGED ABOUT 48 YEARS,
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R/O GIRIYAPURA VILLAGE,
KADUR TALUK,
CHIKAMAGALURU DISTRICT-577548
2. RAGHU B.S.,
S/O SOMAIAH, MAJOR IN AGE,
R/O NO.11, 4TH CROSS,
JAVARAIAH GARDEN EXTENSION,
GANGAMMA TEMPLE STREET,
R.T.NAGAR, BENGALURU-560032
3. ICICI LOMBARD MOTORS
INS. CO. LTD., C-22,
MAXIMUS COMMERCIAL COMPLEX,
LHH ROAD, HAMPANAKATTE,
MANGALURU-575001 ...RESPONDENTS
(BY SRI A.M.VENKATESH, ADV. FOR R-3;
R-1 SERVED; R-2 NOTICE DISPENSED WITH.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
03.08.2018 PASSED IN MVC No.24/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MMACT, KADUR, CHIKKAMAGALUR
DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 03.08.2018 passed in MVC No.24/2013 on the file of the Senior Civil Judge and MACT at Kadur, Chikkamagalur District ('Tribunal' for short). -3-
2. The claimants being the minor children of the deceased represented by their grandmother - Smt. Basamma instituted the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Smt. Komala in the road traffic accident.
3. The claimants averred in the petition that on 25.07.2011 at about 6.30 a.m. when the deceased - Komala was riding on the motorcycle bearing registration No.KA-05-HL-1332 (offending vehicle) as a pillion rider, she met with the road traffic accident owing to the rash and negligent riding of the rider of the said motor cycle. Due to the said impact, she fell down and sustained grievous injuries. Immediately, she was shifted to Government Hospital, Kadur and thereafter to Nanjappa Hospital, Shivamogga and further to M.C. Gann Hospital, Shivamogga. On the advice of the doctors, again she was shifted to Kasturba Hospital, Manipal. Despite the best treatment given, the deceased -4- was not able to gain her consciousness which was lost immediately after the accident. Again on the advice of the doctors, she was taken to her native place where she succumbed to the injuries on 16.10.2011. It was contended that the claimants have spent more than Rs.5,00,000/- towards the medical expenses, funeral expenses and other incidental charges.
4. It was averred that the deceased was earning Rs.9,000/- per month from tailoring work. The untimely death of the deceased has caused huge hardship to the minor children who were entirely dependant on their mother. On these set of facts and grounds, the claimants sought for the compensation.
5. On issuance of summons, the respondent No.1 has failed to appear and was placed ex-parte. The respondent Nos.2 and 3 caused appearance and filed statement of objections denying the petition averments. The main defence set up was that there was no -5- negligence on the part of the respondent No.1 in causing the accident, but the accident happened due to the negligence of the deceased herself as she was not properly sitting in the motorcycle as pillion. It was contended by the respondent No.3 - insurer that the driver of the offending vehicle did not possess valid and effective driving licence to ride the motorcycle as on the date of the accident; the compensation amount claimed in the petition is exorbitant. On these grounds, the respondents sought for dismissal of the claim petition.
6. On the basis of the pleadings, the issues were framed and answered as per the reasons recorded in the impugned judgment allowing the petition in part awarding total compensation of Rs.8,99,312/- with interest at the rate of 7% per annum from the date of the petition till its realisation.
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7. Being dissatisfied, the claimants have preferred the present appeal seeking for enhancement of compensation.
8. Learned counsel for the claimants submitted that the claimants being the minor children of the deceased - Komala were entirely depending on her income. The untimely death of the deceased has caused loss of dependency as well as loss of love and affection for which they have to be compensated in a just and proper manner. The compensation awarded by the Tribunal is abysmally low and the same requires to be enhanced substantially.
9. Learned counsel for the insurer submitted that the compensation awarded by the Tribunal being just and proper, the same deserves to be confirmed. There is no scope for further enhancement and accordingly sought for the dismissal of the claim petition.
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10. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the materials on record.
11. The factum of accident and the death of the deceased - Komala in the said accident are not in dispute. The deceased was aged about 32 years at the time of the accident and the minor children were dependants on the deceased as could be borne out from the records. In the absence of cogent material evidence available on record to establish the factum of income of the deceased, referring to the chart of the Karnataka State Legal Services Authority, the income of the deceased can be re-determined notionally at Rs.6,500/- per month. Adding 40% towards further prospects, the total income would be Rs.9,100/- per month. Applying the multiplier of '16' and deducting 1/3rd of the income towards personal and living expenses of the deceased, the total loss of dependency would work out to Rs.11,64,800/- (9,100 x 12 x 16 x 2/3). The medical -8- expenses of Rs.4,70,312/- awarded by the Tribunal remains intact.
12. In terms of the dictum of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017)16 SCC 680 and New India Assurance Company Limited v/s. Somwati and others reported in 2020 SCC ONLINE SC 720, the claimants are entitled to Rs.80,000/- towards loss of parental consortium (Rs.40,000/- to each minor child); Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
13. For the reasons aforesaid, the total compensation awarded by the Tribunal is re-assessed as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 11,64,800/-
2. Towards Medical Expenses 4,70,312/-
Loss of parental
3. consortium (Rs.40,000/- 80,000/-
to each minor child)
4. Loss of estate 15,000/-
5. Towards funeral expenses 15,000/-
Total 17,45,112/-
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Thus, the claimants shall be entitled to total
compensation of Rs.17,45,112/- with interest at the rate of 6% per annum on the enhanced compensation amount from the date of the claim petition till the date of realization.
14. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.17,45,112/- (Rupees Seventeen Lakhs Forty Five Thousand One Hundred and Twelve only) as against Rs.8,99,312/- with interest at the rate of 6% per annum on the enhanced compensation amount from the date of the claim petition till its realization.
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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
vi) Draw modified award accordingly.
vii) All pending I.As. stand disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE PMR