Karnataka High Court

Dhanalaxmi And Ors vs Chatrappa And Ors on 16 December, 2021

Bench: M.G.S.Kamal

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

  DATED THIS THE 16TH DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                MFA.No.201908/2019
                        c/w
              MFA.No.200363/2021 (MV)

IN MFA.No.201908/2019

BETWEEN:

THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
RAICHUR, THROUGH ITS
DIVISIONAL MANAGER,
                                      ... APPELLANT

(BY SRI. MANVENDRA REDDY, ADVOCATE)

AND:

01.    DHANALAXMI W/O SATYANARAYANA
       AGE: 43 YEAS OCC: HOUSEHOLD
       R/O: GUNJAHALLI CAMP
       TQ: SINDHANUR DIST:RAICHUR - 584 101.

02.    PHANEENDRA S/O SATYANARAYANA
       AGE: 25 YEARS
       R/O: GUNJAHALLI CAMP
       TQ: SINDHANUR DIST: RAICHUR-584101.
                           2




03.   SRIRAMMURTHY S/O SATYANARAYANA
      AGE: 23 YEARS OCC: PRIVATE DRIVER
      R/O: GUNJAHALLI CAMP,
      TQ: SINDHANUR DIST: RAICHUR-584 101.

04.   KOTESHWARI W/O EGAYYA
      AGE: 21 YEARS OCC: HOUSEHOLD
      R/O: GUNJAHALLI CAMP
      TQ: SINDHANUR DIST: RAICHUR
      NOW RESIDING AT BALGANUR ROAD,
      MASKI, TQ: MASKI DIST: RAICHUR-584 101.

05.   CHATRAPPA S/O SHAMANNA
      AGE: 43 YEARS OCC: DRIVER
      R/O; VEERAPUR POST: UMALOOTI
      TQ: SINDHANUR DIST: RAICHUR-584 101.

06.   YAMANOORAPPA S/O DURGAPPA
      AGE: 41 YEARS OCC: AGRICULTURE
      R/O: 252, ARALAHALLI VILLAGE
      TQ: SINDHANUR DIST: RAICHUR - 584 101.

                                   ... RESPONDENTS

(BY SRI. BASAVARAJ R. MATH, ADV., FOR R1 TO R4
SRI.SHARANABASAPPA K. BABSHETTY, ADV., FOR R5
R6 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT PRAYING TO
CALL FOR THE RECORDS AND SET-ASIDE THE JUDGMENT
AND AWARD DATED 01.04.2019 PASSED BY THE MACT
LINGASUGUR IN MVC.NO.223/2018 BY ALLOWING THE
APPEAL.
                           3




IN MFA.NO.200363/2021

BETWEEN:

01.    DHANALAXMI W/O SATYANARAYANA
       AGE: 45 YEAS OCC: HOUSEHOLD

02.    PHANEENDRA S/O SATYANARAYANA
       AGE: 27 YEARS OCC: NIL

03.    SRIRAMMURTHY S/O SATYANARAYANA
       AGE: 25 YEARS OCC: PRIVATE DRIVER

04.    KOTESHWARI W/O EGAYYA
       AGE: 23 YEARS OCC: HOUSEHOLD

       ALL ARE R/O: GUNJAHALLI CAMP
       TQ: SINDHANUR DIST: RAICHUR
       NOW RESIDING AT BALGANUR ROAD,
       MASKI, TQ: MASKI DIST: RAICHUR-584 101.
                                       ... APPELLANT

(BY SRI. BASAVARAJ R. MATH, ADVOCATE)

AND:

01.    CHATRAPPA S/O SHAMANNA
       AGE: 45 YEARS OCC: DRIVER
       R/O: VEERAPUR POST: UMALOOTI
       TQ: SINDHANUR DIST: RAICHUR-584 128.

02.    YAMANOORAPPA S/O DURGAPPA
       AGE: 43 YEARS OCC: AGRICULTURE
       R/O: 252 ARALAHALLI VILLAGE
       TQ: SINDHANUR DIST: RAICHUR - 584 128.
                                4




03.   THE BRANCH MANAGER
      UNITED INDIA INSURANCE CO. LTD.,
      RAICHUR - 584 101.
                                   ... RESPONDENTS

(BY SRI. MANVENDRA REDDY, ADVOCATE FOR R3
NOTICE TO R1 AND R2 ARE DISPENSED WITH)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE M.V. ACT PRAYING TO
CALL FOR THE RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 01.04.2019 PASSED BY
THE SENIOR CIVIL JUDGE AND JMFC AND MACT,
LINGASUGUR IN MVC.NO.223/2018.

     THESE APPEALS COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

MFA.No.201908/2019 is filed by the appellant -

insurance company while MFA.No.200363/2021 is filed by

the claimants aggrieved by the judgment and order dated

01.04.2019 passed in MVC.No.223/2018 by the MACT-

Lingasgur.

02. The brief facts leading upto filing of the present

appeals are that on 18.03.2017 the deceased -

Satyanarayana was proceedings towards his house from

Gunjahalli cross at 07.30 p.m. on Sindhanur - Kushtagi

road, nearby Pannur Siddalingappa House, the respondent

No.1 came on his motorcycle bearing Reg.No.KA-36-EJ-

7032 in a rash and negligent manner and dashed against

the deceased - Satyanarayana. Due to this impact the

deceased - Satyanarayana succumbed to the grievous

injuries. A case was registered before the Turvihal police

against the respondent No.1.

03. Thereupon, the legal representatives of the

deceased filed a claim petition under Section 173 (1) of

the M.V. Act claiming compensation of `.20,80,000/- on

the premise that the deceased was hale and healthy and

earning `.12,000/- per month from working as a Barber

and also carrying out the seasonal coolie work and

contributing the same to the family welfare. Due to

untimely death of deceased, the claimants suffered mental

and financial distress. The accident in question had

occurred on account of rash and negligent riding of the

motorcycle by the Respondent No.1. The motorcycle

belonged to Respondent No.2 which was insured with

respondent No.3. The respondents No.2 and 3 are

therefore jointly and severally liable to pay the

compensation to the claimants.

04. Upon service of notice, the respondents

appeared through their counsel. The respondent No.3 has

filed the written statement denying the allegation that the

accident had occurred due to rash and negligent riding of

the motorcycle by its rider. The age, income and

occupation of the deceased was also denied. It was

contended that the compensation claimed is on higher

side. Hence, sought for dismissal of the claim petition.

05. On the above said pleadings, the Tribunal has

framed the issues and recorded the evidence. The claimant

No.2 the son of the deceased has been examined himself

as PW.1 and one witness has been examined as PW.2 and

got exhibited 16 documents as Exs.P.1 to Ex.P.16. No oral

or documentary evidence produced by the respondents.

06. The Tribunal based on the material evidence

held that the accident in question had occurred on account

of rash and negligent riding by the rider of the motorcycle

causing accident resulted in death of the deceased -

Satyanarayana. Consequently, held that the claimants

were entitled for compensation of `.14,02,112/- along with

interest at the rate of 9% from the date of petition till the

payment.

07. Aggrieved by the same, the Insurance

Company is before this Court in MFA.No.201908/2019 for

setting aside the judgment and order passed by the

Tribunal, while claimants are before this Court in

MFA.200363/2021 for enhancement of the compensation.

08. The learned counsel for the insurance company

reiterating the grounds urged in the appeal memo

submitted that the Tribunal erred in taking the age of the

deceased at 45 years as on the date of accident, even

when a specific admission is made by PW.1 in the cross-

examination to the effect that the date of birth of deceased

was 1955 in the voter list. He submits that if the said year

of birth of the deceased is taken into consideration, the

age of the claimant would be in excess of 62 years. He

submits that the income taken by the Tribunal at

`.11,000/- is on higher side. He further submits that the

claimants being children of the deceased having their

independent income and cannot be considered to be his

dependents. Therefore, he submits that the Tribunal has

erred in not appreciating the aforesaid aspect of the

matter, while granting the compensation. He also

contended that the Tribunal has erred in assessing the

interest at the rate of 9% instead of 6%. Hence, sought for

allowing the appeal.

09. The learned counsel for the appellants -

claimants reiterating the grounds urged in the appeal

memo stated that the Tribunal though assessed the

income of the deceased at `.11,000/- per month, but has

not awarded compensation towards future prospects. He

submits that the P.M. report produced at Ex.P.13, is the

undisputed document and the age mentioned therein is 45

years has also remained unchallenged. He submits that the

claimants being the children of deceased are dependents in

view of the law laid down by the Hon'ble Supreme Court in

the case of National Insurance Company Limited vs.

Birender and others, reported in AIR 2020 SC 434.

Hence, sought for allowing the appeal.

10. Heard the learned counsel for the parties and

perused the records.

11. The points that would arose for consideration

are that:-

I. Whether the appellant - insurance company has made out a case for interference in the judgment and order passed by the Tribunal?

II. Whether the claimants has made out a case for enhancement of compensation?

12. The accident in question that occurred on

18.03.2017 resulting the death of the deceased -

Satyanarayana is not in dispute. The claimants being wife

and children of the deceased is also not in dispute. As

referred above the contention of the insurance company

with regard to age of the deceased, except answer given

by PW.1 during the cross-examination to the effect that

the date of birth of the deceased is 1955 as per voter list,

no other evidence is produced. Further, the FIR, Complaint

Charge Sheet, Inquest Panchanama and P.M. report

produced at Exs.P.1 to 3, 12 and 13 have remained

unchallenged. With availability of the P.M. report at

Ex.P.13 the contents of the same is to be accepted. Hence,

the age of the deceased considered at 45 years as on the

date of the accident.

13. With regard to submission that claimants not

being dependents of the deceased, the said issue is

covered by the judgment of the Hon'ble Supreme Court in

the case of National Insurance Company Limited vs.

Birender and others, reported in AIR 2020 SC 434, at

Para No.15 which reads as under:-

"15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."

14. Adverting to the issue with regard to income of

the deceased no material evidence is produced by the

claimants to justify the claim of the claimants that the

deceased was earning `.12,000/- per month. However, the

Tribunal has assessed the income of the deceased at

`.11,000/- per month. This Court, in the absence of any

material with regard to income of the victims of road traffic

takes into consideration the chart prepared by Karnataka

State Legal Services Authority. According to which the

notional income of the victim of road traffic accident

occurred in the year 2017 is fixed at `.10,250/- per month.

In the instant case the accident was occurred on

18.03.2017. Therefore, the notional income of the

deceased has to be taken at `.10,250/- per month.

15. The Tribunal has not awarded any

compensation towards loss of future prospects. In terms of

law laid down by the Hon'ble Supreme Court in the case of

National Insurance Company Limited vs. Pranay

Sethi, (2017) 16 SCC 680, the deceased being 45 years

of age, the claimants are entitled for an addition of 25% of

the income towards future prospects. The multiplier at 14

is applicable.

16. Calculated as above, the claimants are held

entitled for the compensation towards loss of dependency

at the rate of `.16,14,312/- (`.10,250/- + 25% (`.2,562/-)

= `.12,812/- minus 1/4th personal expenses (`.3,203/-) =

`.9,609 x 12 x 14).

17. In terms of law laid down by the Hon'ble

Supreme Court in the case of Magma General Insurance

Company Limited vs Nanu Ram Alias Chuhru Ram

and others reported in (2018) 18 SCC 130 and in the

case of United India Insurance Company Limited vs.

Satinder Kaur @ Satwinder Kaur and others reported

in 2020 SCC Online SC 410, the claimants are entitled

for `.40,000/- each towards loss of spousal and filial

consortium i.e., `.40,000 x 4 = `.1,60,000/-. In addition

the claimants are also entitled for `.15,000/- towards

funeral expenses and Rs.15,000/- towards loss of estate.

As rightly contended by the learned counsel for the

insurance company the interest at the rate of 9% p.a. is

required to be reduced and same is reduced to 6% p.a.

Therefore, the compensation awarded by the Tribunal

deserves to be re-determined and re-calculated as

follows:-

      Sl.                                 Awarded by the       Enhanced by this
                         Heads
      No.                                       Tribunal            Court
      01.   Loss of Dependency                 `.12,32,112/-       `.16,14,312/-
      02.   Towards loss of Estate             `.00,40,000/-          `15,000/-
      03.   Loss of consortium                 `.00,15,000/-         `1,60,000/-
      04.   Towards Funeral expenses           `.00,15,000/-          `15,000/-
      05.   Towards love and affection         `.01,00,000/-                -
            Total                             `.14,02,112/-      `.18,04,312/-

18. Hence, the point No.2 raised for consideration

is answered accordingly.

19. In the result, the following;

ORDER

(i) The MFA.No.201908/2019 filed by the appellant -

insurance company, is partly allowed

(ii) The MFA.No.200363/2021 filed by the appellants -

claimants is partly allowed.

(iii) The judgment and award dated 01.04.2019 passed

in MVC.No.223/2018 by the MACT-Lingasgur, is

modified.

(iv) The claimants are held entitled for a total