Bhagyamma vs S. L. Vinay Kumar
2021 Latest Caselaw 5221 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 1ST DAY OF DECEMBER, 2021

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             M.F.A.NO.6389 OF 2016 (MV-D)

BETWEEN:

1. BHAGYAMMA
W/O. LATE NARASIMHA MURTHY,
AGED ABOUT 33 YEARS

2. NIKHIL KUMAR
S/O. LATE NARASIMHA MURTHY,
AGED ABOUT 11 YEARS

3. AKHIL KUMAR
S/O. LATE NARASIMHA MURTHY,
AGED ABOUT 8 YEARS

SINCE APPELLANT 2 AND 3 ARE MINORS,
REPTD. BY THEIR NATURAL GUARDIAN
AND MOTHER BHAGYAMMA,

4. VANAJAKSHAMMA
W/O. LATE NARASIMHAIAH,
AGED ABOUT 78 YEARS

ALL ARE RESIDING AT KYALANURU VILLAGE,
VEMAGAL HOBLI, KOLAR TALUK.
                                            ...APPELLANTS
(BY SRI.NAZEEF.M.MULLA, ADVOCATE FOR
SRI.PAVANA CHANDRA SHETTY, ADVOCATE)
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AND:

1. S.L. VINAY KUMAR
S/O. V. SHEKAR,
AGED ABOUT 25 YEARS,
R/O. NO.F8, IVY SERVICES,
PR ACCOMMODATION,
THIMMAREDDY COMPOUND,
SRINIVASA BUILDING, ITPL MAIN ROAD,
HOODI, K.R. PURAM,
BENGALURU-560 048.

2. M/S. BHARATI AXA GENERAL INSURANCE CO. LTD.,
1ST FLOOR, FERNSLOON,
SY. NO.28, DODDA NAKKUNDI VILLAGE,
K.R PURAM HOBLI,
BENGALURU-560 037.

                                              ...RESPONDENTS

(BY SRI H.N.KESHAV PRASHANTH, ADVOCATE FOR R2)


       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 23.8.2016 PASSED IN MVC
NO.478/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE
&   MEMBER,   MACT,   KOLAR,   PARTLY   ALLOWING   THE   CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                JUDGMENT

The captioned appeal is filed by the claimants against the

judgment and award dated 23.08.2016 passed in

MVC.No.478/2013 seeking enhancement of compensation.

2. The appellants/claimants filed a petition under

Section 163(A) of the Motor Vehicles Act, 1988, seeking

compensation of Rs.15,00,000/- by contending that on

10.04.2013, one Narasimha Murthy, who is the husband of

appellant No.1 was traveling on a motorbike and on the way

near Colemn India Factory on Kolar-Bengaluru NH-4 Road, the

rider of the TVS Apache Motorbike bearing Reg.No.KA-53

Y-2792 came from Bengaluru side at a high speed in a rash

and negligent manner and dashed against the motorbike on

which Narasimha Murthy was proceeding. On account of the

collision and impact, Narasimha Murthy sustained grievous

multiple injuries and he was immediately shifted to

R.L.Jalappa Hospital, where he was given first aid treatment

and thereafter he was referred to Nimhans Hospital,

Bengaluru. It is further stated that inspite of treatment, he

succumbed to injuries on 27.04.2013. Hence, filed the claim

petition.

3. In the claim petition, it was specifically averred that

deceased was earning Rs.3,000/- per month. However, during

trial, the appellants tried to improve their version by asserting

that deceased was earning Rs.4,000/-. The Tribunal having

assessed the oral and documentary evidence, however,

declined to accept the contention of the appellants in regard to

income of the deceased. In terms of the pleadings in regard

to income, the Tribunal assessed the income of the deceased

at Rs.3,000/- and by deducting 1/4th towards personal

expenses has awarded a sum of Rs.4,32,000/-. Under

conventional heads, a sum of Rs.9,500/- is awarded. The

Tribunal, in all, has awarded total compensation of

Rs.4,41,500/-.

4. Heard learned counsel for the appellants and

learned counsel for the respondent No.2/Insurance Company.

Perused the records.

5. If the claim petition was filed by specifically

contending that deceased was earning a sum of Rs.3,000/-,

the contention of the appellants that income has to be

assessed at Rs.4,000/- cannot be acceded to. Even otherwise,

on meticulous examination of the findings of the Tribunal in

assessing the compensation under the head 'loss of

dependency', this Court would find that the Tribunal has in

fact deducted 1/4th towards personal expenses which runs

contrary to schedule II of Section 163(A) of the Motor Vehicles

Act. As per the said Schedule, 1/3rd has to be deducted

towards personal expenses. Therefore, on examination of the

findings of the Tribunal while determining compensation under

the head 'loss of dependency', this Court would find that 1/4th

is deducted and in fact higher compensation is awarded to the

appellants herein.

6. Therefore, I do not find any ground to interfere and

on re-appreciation of the oral and documentary evidence, this

Court is of the view that there is no scope for further

enhancement.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

CA