Karnataka High Court

Padmavathi vs Shivalingaiah on 6 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH 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.2169/2019 (MV)

BETWEEN :

1.     PADMAVATHI
       W/O LATE THIMMAIAH,
       AGED ABOUT 31 YEARS

2.     YOGESH
       S/O LATE THIMMAIAH,
       AGED ABOUT 17 YEARS

3.     PRIYANKA
       D/O LATE THIMMAIAH,
       AGED ABOUT 14 YEARS

       APPELLANT No.2 & 3 ARE MINORS
       REP BY APPELLANT NO.1 MOTHER.

4.     JAYAMMA
       W/O LATE GANGASWAMY
       @ GANGASWAMAIAH,
       AGED ABOUT 63 YEARS
       R/AT GOKULA VILLAGE,
       KASABA HOBLI, KUNIGAL TALUK,
       TUMKUR DISTRICT

       NOW R/AT NO.56,
       HANUMARAIAH HOUSE,
       MARAGONDANAHALLI,
       SULIKERE POST,
                          -2-

        KENGERI HOBLI,
        BANGALORE SOUTH TALUK-560060          ...APPELLANTS

               (BY SRI MUSHTAQ AHMED, ADV.)

AND :

1.      SHIVALINGAIAH
        S/O RAMAIAH J.C.,
        AGED ABOUT 53 YEARS,
        R/AT GOTTIGERE VILLAGE,
        HUTHRIDURGA HOBLI,
        KUNIGAL TALUK,
        TUMKUR DISTRICT.

2.      IFFCO TOKIO GENERAL
        INSURANCE CO. LTD.,
        NO.1586, OPP. BEO OFFICE,
        1ST FLOOR, K.R.ROAD,
        VIDYANAGAR, MANDYA-571400
        REP BY ITS MANAGER,
        T.P.SECTION,
        IFFCO TOKIO GENERAL
        INSURANCE CO. LTD.,
        NO.8, K.S.M.F.BUILDING,
        3RD BLOCK, CUNNINGHAM ROAD,
        BANGALORE-560052                  ...RESPONDENTS

         (BY SRI S.V.HEGDE MULKHAND, ADV. FOR R-2;
               NOTICE TO R-1 DISPENSED WITH.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
28.09.2018 PASSED IN MVC No.6591/2016 ON THE FILE OF
THE I ADDITIONAL SMALL CAUSES JUDGE & MACT,
BENGALURU (SCCH-11) 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:
                         -3-


                    JUDGMENT

This appeal is directed against the judgment and

award dated 28.9.2018 passed in MVC No.6591/2016

on the file of the I Additional Small Causes Judge &

MACT, Bangalore (SCCH-11) [Tribunal for short].

2. The claimants instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 seeking

compensation for the death of Thimmaiah in the road

traffic accident.

3. It was averred by the claimants that on

6.3.2016 at about 10.45 p.m. while the deceased

Thimmaiah and his brother were travelling towards

Kunigal side in Autorickshaw bearing Reg. No.KA-06-D-

417 (offending vehicle), near tank bund of Bidanagere

village, the driver of the offending vehicle drove the

vehicle in a high speed in a rash and negligent manner

due to which the said auto toppled on the left side of the

road, as a result the deceased Thimmaiah and his

brother Somashekar sustained injuries. Thimmaiah

succumbed to the fatal injuries at the spot.

4. It was contended that Thimmaiah was aged

about 32 years and was an employee of Winner Burge

Factory at Anchepalya, Kunigal Taluk. He was earning

monthly salary of Rs.25,000/- and Rs.6,000/- as O.T.

charges. He was owning the agricultural land of 5 acres

having 1000 coconut trees and 1000 arecanut trees.

His annual income was more than Rs.8,00,000/-. The

deceased was contributing the income to the

maintenance of his family. Due to the untimely death of

the deceased, the claimants/dependents have suffered

financially and mentally.

5. On these set of facts and grounds, the

claimants have sought for compensation.

6. In pursuance to the notice issued by the

Tribunal, the respondent Nos.1 and 2 appeared

through their counsel and filed their separate objection

statement denying the petition averments. The main

defence set up by the insurer was that the 1st

respondent knowingly well that the driver of the auto

had no valid and effective driving licence, had entrusted

the vehicle.

7. On the basis of the pleadings issues were

framed and answered in the affirmative allowing the

petition in part awarding total compensation of

Rs.16,82,800/- with interest @ 9% p.a. from the date of

petition till its realization.

8. Being dissatisfied with the quantum of

compensation awarded by the Tribunal, the claimants

have preferred this appeal.

9. Learned counsel for the

claimants/appellants submitted that the Tribunal has

determined the monthly income at Rs.8,000/- per

month notionally despite cogent evidence placed on

record to establish the factum of income of the

deceased. It was argued that the compensation

awarded under the conventional heads is abysmally low.

10. Learned counsel for the insurer made an

endeavour to justify the impugned judgment and award.

It was contended, the Tribunal on appreciation of the

oral and documentary evidence has awarded just

compensation and the same does not call for any

further enhancement and accordingly prayed for

dismissal of the appeal.

11. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the original records.

12. It is borne out from the PM report, Ex.P7

that the deceased was aged about 32 years at the time

of the accident. Though the claimants contended that

the deceased was drawing monthly salary of

Rs.25,000/- and OT charges of Rs.6,000/-, no

substantial evidence was placed to prove the same. In

the absence of the cogent evidence, this Court finds it

safe to refer to the chart prepared by the Karnataka

State Legal Services Authority to re-determine the

monthly income of the deceased notionally which would

be Rs.9,500/-. Adding 40% of the same towards future

prospects, applying the multiplier of 16 taking the age of

the deceased as 32 years, deducting 1/4th of the

income towards personal and living expenses of the

deceased, the loss of dependency would be

Rs.19,15,200/- (Rs.9500 + 3800 x 12 x 16 x 3/4).

13. In terms of the ruling of the Hon'ble Apex

Court in National Insurance Company Limited Vs.

Pranay Sethi and others ((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 compensation of

Rs.1,90,000/- under conventional heads.


Sl.No.                   Particulars           Amount [in Rs.]
  1.                 Loss of dependency          19,15,200
  2.             Loss of spousal Consortium         40,000
  3.               Loss of filial consortium        40,000
  4.                    Loss of Estate              15,000
                 Loss of parental consortium
      5.                                            80,000
                   (Rs.40000 to each child)
      6.              Funeral expenses               15,000
                        Total                     21,05,200

Thus, the claimants are entitled to total compensation

of Rs.21,05,200/-.

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.21,05,200/-

(Rupees Twenty One Lakhs Five Thousand Two

Hundred Only) as against Rs.16,82,800/- with

interest at the rate of 6% per annum on the

enhanced compensation from the date of the claim

petition till its realization.