Karnataka High Court

Smt Guljar Bhanu @ Gul Char Bhanu vs The National Insurance Co Ltd on 21 December, 2021

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 21ST DAY OF DECEMBER 2021

                    BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

         MFA No.6515 OF 2017(MV)


BETWEEN:

1 . SMT GULJAR BHANU @
    GUL CHAR BHANU
    W/O LATE K.M.IQBAL
    AGED ABOUT 47 YEARS.

2 . MASTER K.M.IRFAZ @
    IRFAZ AHAMMAD @
    IRFAN MOHAMMAD
    S/O LATE K.M.IQBAL
    AGED 13 YEARS
    MINOR, REPRESENTED BY
    HIS NATURAL GUARDIAN
    MOTHER-SMT.GULJAR BHANU

   BOTH ARE PERMANENT
   RESIDENT OF D.NO.2-41/3
   A.N.M.QUARTERS
   BARKE HOUSE
   SAJIPAMOODA POST AND VILLAGE
   BANTWAL TALUK
   PRESENTLY RESIDING AT
   GULZAR MANZIL, ULLALA
                         2




     MANGALURU TALUK.
                                   ...APPELLANTS
(BY SRI.GURUPRASAD B. R., ADV.)

AND

1.    THE NATIONAL INSURANCE CO LTD
      BHARATH BUILDING, 3RD FLOOR
      P.M.RAO ROAD
      HAMPANKATTA
      MANGALURU-575001.
      REPRESENTED BY ITS MANAGER.

2.    MR D BHASKARA POOJARY
      S/O VENKAPPA POOJARY
      AGED 54 YEARS
      R/AT D.NO.2-112
      DERAJE GUTTU HOUSE
      SAJIPANADU POST
      BANTWAL TALUK-574321.
                                  ...RESPONDENTS

(BY SRI.A.N. KRISHNA SWAMY., ADV. FOR R1:
NOTICE TO R2 IS D/W V/O DATED: 26.04.2018)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE     JUDGMENT     AND    AWARD
DATED:01.09.2016 PASSED IN MVC NO.287/2015 ON
THE FILE OF THE PRINCIPAL DISTRICT JUDGE, MACT,
D.K., MANGALURU, ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

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

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 1.9.2016 passed by

the Principal District Judge, Motor Accident Claims

Tribunal, DK, Mangaluru in MVC 287/2015.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 13.12.2014 the deceased K.M.Iqbal

was proceeding on motorcycle bearing registration

No.KA-19-EG-7336 from Panemangalore towards

B.C.Road, near Netravathi Old Bridge, Bantwal, at that

time, a car bearing registration No.KA-19-MD-6304

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 seeking compensation for the death of the

deceased 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.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence 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 PW-1

and two other witnesses as PWs-2 and 3 and got

exhibited documents namely Ex.P1 to Ex.P13. On

behalf of respondents, one witness was examined as

RW-1 and got exhibited documents 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.40,00,000/- along with interest at

the rate of 6% 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, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled

for compensation of Rs.40,000/- under the head of

consortium, but the Tribunal is not justified in

awarding Rs.20,000/- under the said head, which is

on the lower side.

Secondly, the claimants claim that they have

spent Rs.182,380/- towards medical expenses and

they have produced Ex.P-10 medical bill issued by the

hospital authority. But the Tribunal has failed to grant

any compensation under the head of 'medical

expenses'. Hence, he prays for allowing the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

Firstly, as per the law laid down by the Hon'ble

Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], the claimants are

entitled to compensation of Rs.15,000/- on account of

'loss of estate' and compensation of Rs.15,000/- on

account of 'funeral expenses'. But the Tribunal

contrary to the said decision of the Apex Court has

awarded compensation of Rs.20,000/- and

Rs.25,000/- respectively under these heads.

Secondly, even though the claimants claim that

they have spent Rs.182,380/- towards 'medical

expenses' and produced Ex.P-10 medical bill issued by

the hospital authority, they have not examined the

author of the said document. Therefore, the Tribunal

is justified in not granting any compensation under

the head of 'medical expenses'.

Thirdly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he 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 K.M.Iqbal died

in the road traffic accident occurred due to rash and

negligent driving of the offending vehicle by its driver.

There is no dispute regarding compensation of

Rs.39,76,752/- awarded by the Tribunal under the

head of 'loss of dependency'.

In view of the law laid down by the Constitution

Bench of the Supreme Court in 'PRANAY SETHI'

(supra), the claimants are entitled to compensation of

Rs.15,000/- on account of 'loss of estate' and

compensation of Rs.15,000/- on account of 'funeral

expenses' as against Rs.20,000/- and Rs.25,000/-

awarded by the Tribunal.

Further, in view of the law laid down by the

Supreme Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant No.1, wife of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium' and

claimant No.2, son of the deceased is entitled for

compensation of Rs.40,000/- under the head of 'loss

of parental consortium' as against Rs.20,000/-

awarded by the Tribunal under the head of 'loss of

consortium'..

Thus, the claimants are entitled to the following

compensation:

        Compensation under              Amount in
           different Heads                (Rs.)
       Loss of dependency                39,76,752
       Funeral expenses                     15,000
       Loss of estate                       15,000
       Loss of spousal                      40,000
       consortium
       Loss of Parental                      40,000
       consortium
                      Total              40,86,752

The compensation amount shall carry interest at

6% p.a. from the date of filing of the claim petition till

the date of realization.

10. However, in respect of awarding compensation

under the head of 'medical expenses' is concerned,

the claimants claim that they have spent Rs.182,380/-

towards 'medical expenses' and produced Ex.P-10

medical bill issued by the hospital authority. But they

have not examined the author of the said document.

Under the circumstances and in the interest of justice,

the matter is required to be remanded to the Tribunal

only in respect of assessment of compensation under