Karnataka High Court

G D Bhoomika vs G S Devaraja on 5 January, 2021

Author: S.Sujatha And M.I.Arun

     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,
                         -2-

     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).

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

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

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.

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.

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

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/-




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/-