Karnataka High Court

Smt Gangamma vs Thirupathaiah on 14 December, 2021

Bench: P.S.Dinesh Kumar, P.Krishna Bhat

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF DECEMBER, 2021

                       PRESENT

       THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                         AND

        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL NO.4141/2017(MV-D)


BETWEEN:


1.     SMT GANGAMMA
       W/O LATE RUDRESHAIAH
       AGED ABOUT 54 YEARS,


2.     H.R. SHADAKSHARI
       S/O LATE RUDRESHAIAH,
       AGED ABOUT 38 YEARS
       BOTH ARE R/AT
       HARALUR VILLAGE,
       GULUR HOBLI,
       TUMKUR TALUK -572101

                                        ... APPELLANTS

(BY SRI. SHANTHARAJ K, ADVOCATE)


AND:


1.     THIRUPATHAIAH
       S/O THIMMAIAH
       AGE: MAJOR
                                2




      R/AT MAIDALA VILLAGE,
      URDIGERE HOBLI,
      TUMKUR TALUK -572101


2.    THE NEW INDIA ASSURANCE COMPANY LIMITED,
      REPRESENTED BY ITS MANAGER,
      BRANCH OFFICE,
      TUMKUR SHOPPING COMPLEX,
      B.H. ROAD,
      TUMKUR TOWN -572101

                                           ... RESPONDENTS

(BY SRI. O.MAHESH, ADVOCATE FOR R2;
     VIDE ORDER DATED 10.03.2021 NOTICE TO R1 D/W)


      THIS MISCELLANEOUS FIRST APPEAL               IS FILED
UNDER    SECTION   173(1)   OF     MV   ACT    AGAINST   THE
JUDGMENT AND AWARD DATED 24.08.2013 PASSED IN
MVC NO.310/2009 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND CJM AND MACT, TUMAKURU,
PARTLY    ALLOWING       THE       CLAIM      PETITION   FOR
COMPENSATION       AND    SEEKING       ENHANCEMENT       OF
COMPENSATION.


      THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD     THROUGH    VIDEO         CONFERENCING/PHYSICAL
HEARING AND RESERVED ON 01.12.2021, COMING ON
THROUGH VIDEO CONFERENCING/PHYSICAL HEARING FOR
PRONOUNCEMENT OF JUDGMENT            THIS DAY,     KRISHNA
BHAT J., PRONOUNCED THE FOLLOWING:
                               3




                           JUDGMENT

Questioning the inadequacy of the compensation

granted in MVC No.310/2009 by the judgment and award

dated 24.08.2013 passed by the learned Addl. Senior Civil

Judge & MACT, Tumkur, the present appeal is preferred on

behalf of the claimants.

2. The allegation is that on 22.02.2009 at about

2.30 p.m. when Rudreshaiah was proceeding in his bicycle

towards Arehalli Village on the extreme left side of the road,

the driver of the auto rickshaw bearing registration No. KA-

06 B-227 owned by respondent No.1 - Thirupathaiah and

insured with New India Insurance Company Limited, drove

the same in a rash and negligent manner and dashed against

the bicycle resulting in death of Rudreshaiah.

3. Learned counsel for the claimants contended

before us that learned Tribunal has awarded compensation in

a conservative manner by taking a lower monthly income

and therefore miscarriage of justice has occasioned and the

compensation is required to be enhanced. In this behalf, he

submitted that even as per the chart prepared by the

Karnataka State Legal Services Authority for a death taking

place in the year 2009, the notional income of Rs.5,000/- per

month is required to be taken and the learned Tribunal has

taken the same only at Rs.4,500/- per month. Further it is

submitted that learned Tribunal has not taken into

consideration the fact that claimant was owning about 2

acres of land as established by 2 RTCs - Exs.P-12 and P-13

and he was also vending milk as could be seen from the milk

supply card-Ex.P-11 and therefore submitted that the appeal

is liable to be allowed by enhancing the compensation.

4. Learned counsel appearing for the insurance

company, per contra, contended that Ex.P-11 does not bear

the seal of the milk society and it is a created document and

therefore, Exs.P-9, P-10 and P-11 cannot be accepted. He

further submitted that learned Tribunal has taken the income

of the deceased in a reasonable manner and therefore no

enhancement of the compensation awarded is called for and

the appeal is liable to be dismissed.

5. We have heard learned counsel on both sides on

I.A.No.1/2017 filed for condonation of delay. The question

for consideration is whether the appellants had sufficient

cause for not preferring the appeal within the time prescribed

by law. It is by now fairly well settled that following

guidelines should be borne in mind while determining

whether sufficient cause exists.

    1)    Litigant does not stand benefited.

    2)    Refusal   to  condone     may    result     in
          meritorious matter being thrown out.

    3)    Every day's delay-Pedantic approach should
          be avoided.

    4)    Substantial justice is to be preferred against
          technical flaws.

    5)    There is no presumption that delay is
          always deliberate

    6)    Injustice is to be removed.

6. After perusal of the affidavit and the better

affidavit filed on behalf of appellants and considering the

materials placed before the learned Tribunal, it is evident

that claimants are rustic villagers and there is no reason to

believe that they had delayed filing the appeal wantonly or

due to negligence. As could be seen presently, non-

condoning the delay will result in depriving the appellants of

just compensation they are entitled to for the death of the

bread winner of the family. Hence, justice would be better

served by condoning the delay and denying the interest for

the period of delay i.e., 1254 days and in terms of the same,

we allow I.A.No.1/2017 by condoning the delay.

7. The insurance company has not filed appeal

questioning the finding regarding the liability under the policy

of insurance issued by it. The accident and the resultant

death of the deceased had taken place on 22.02.2009. As

per the chart prepared by the Karnataka State Legal Services

Authority, the notional income will have to be taken at

Rs.5,000/- per month. Learned Tribunal has recorded a

finding that deceased was aged 55 years at the time of his

death and therefore, the appropriate multiplier applicable is

11. He has left behind his wife and a son and therefore, 1/3

of his income is required to be deducted towards his personal

expenses and 10% of the established income is required to

be added towards loss of future prospects.

8. The question which arises now is whether any

enhancement in the compensation awarded is called for on

account of the claim of the claimants that deceased was an

agriculturist owning lands and he was also a milk vendor and

on account of his death, they had suffered 'loss of

dependency' to the said extent also. It cannot be disputed

that deceased was owning about 2 acres 13 guntas of land in

which he was raising ragi, jowar and mango (Ex.P12 and

Ex.P13). Naturally he would have been earning some income

due to his personal exertion as a peasant. Even though

there are no seals of the society on Ex.P-11, in view of the

presence of seal on milk card bearing photograph of the

deceased on Ex.P-9 and also the certificate Ex.P-10 bearing

the seal, it is unreasonable to doubt the authenticity of the

same. Moreover, when these documents were proved

through the witness, the only suggestion put to the witness

is that Ex.P-11 did not bear the seal of the society.

9. On a careful perusal of RTCs and 3 documents

produced from the milk society, we are inclined to accept the

same and by taking a reasonable view of the matter, we hold

that a sum of Rs.500/- is required to be added to the

notional income already taken namely, Rs.5,000/- as an

income derived by deceased from his exertion as a peasant

and the milk vendor. This takes the monthly income of the

deceased to Rs.5,500/-. 10% of his income is required to be

added towards 'loss of future prospects'. Therefore, 'loss of

dependency' is required to be recomputed as follows:

Rs.5,500+10% (i.e., Rs.5,500+Rs.550) = Rs.6,050/-

Less:- Rs.6,050/- - Rs.2017 (i.e.Rs.6,050x1/3)= Rs.4,033/-

Rs.4,033/-x 12 x 11 = Rs.5,32,356/-

10. Since he has left behind his wife and a son,

Rs.80,000/- is required to be awarded towards 'loss of

consortium' (Rs.40,000/- x 2). Another sum of Rs.30,000/-

is required to be added towards conventional heads like

'funeral expenses' and 'loss of estate'.

11. Thus, the total compensation works out as

follows:

                    Heads                 Amount in Rs.
       Loss of dependency                     5,32,356/-
       Loss of consortium
       (Rs.40,000x2)                              80,000/-
       Loss of estate                             15,000/-
       Funeral expenses                           15,000/-
                    TOTAL                      6,42,356/-

12. Learned Tribunal has already awarded a sum of

Rs.4,31,000/-. Therefore, enhanced compensation works

out to Rs.2,11,356/-. On the enhanced compensation,

interest @ 6% p.a. is liable to be paid by the insurance

company to the claimants from the date of the petition till

the date of payment.

13. In view of the above, the MFA No.4141/2017 is

allowed in part. The award passed by the learned Tribunal

in MVC No.310/2009 dated 24.08.2013 is modified by

awarding an enhanced compensation of Rs.2,11,356/- with

interest thereon @ 6% p.a. from the date of petition till the

date of payment excluding the delayed period namely, 1254