Karnataka High Court

Smt. Nagarathnamma vs Kariyappa on 8 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH 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.3227/2018 (MV)

BETWEEN :

1.      SMT.NAGARATHNAMMA
        W/O LATE GOVINDEGOWDA,
        HINDU, AGED ABOUT 36 YEARS

2.      KUM. LAVANYA
        D/O LATE GOVINDEGOWDA,
        HINDU, AGED ABOUT 5 YEARS

        APPELLANT No.2 IS MINOR
        REP. BY MOTHER/APPELLANT No.1
        AS NATURAL GUARDIAN.

3.      SMT.MAGADAMMA
        W/O LATE RAMA DASE GOWDA,
        AGED ABOUT 61 YEARS

        ALL ARE R/O NARASIPURA AT POST,
        SOMPURA HOBLI, NELAMANGALA TALUK,
        BENGLAURU RURAL DISTRICT          ...APPELLANTS

               (BY SRI T.C.SATISHKUMAR, ADV.)

AND :

1.      KARIYAPPA
        S/O LATE HANUMAIAH,
        HINDU, MAJOR,
                           -2-

     R/O NAGAIHANAPALYA,
     URDIGERE HOBLI,
     TUMKUR TALUK & DISTRICT

2.   THE BRANCH MANAGER
     UNITED INDIA INSURANCE CO. LTD.,
     JAYADEVA COMPLEX,
     B.H.ROAD, TUMKUR-572 101.
     MAY BE SERVED TO REGIONAL MANAGER,
     T.P.HUB, (THIRD PARTY CLAIMS HUB)
     VI FLOOR, KRUSHI BHAVANA,
     HUDSON CIRCLE,
     NEAR CORPORATION CIRCLE,
     BENGALURU-560002                  ...RESPONDENTS

 (BY SRI C.SHANKARA REDDY, ADV. FOR R-2; R-1 IS SERVED.)

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT   AGAINST   THE   JUDGMENT   AND   AWARD    DATED
30.01.2018 PASSED IN MVC No.1650/2017 ON THE FILE OF
THE XXI ADDITIONAL SCJ AND XIX ACMM, MEMBER MACT,
BENGALURU    (SCCH-23)    PARTLY   ALLOWING   THE   CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:


                    JUDGMENT

This appeal is directed against the judgment and

award dated 30.01.2018 passed in MVC No.1650/2017

on the file of the XXI Additional Small Causes Judge

and Motor Accident Claims Tribunal at Bengaluru

(SCCH-23) ('Tribunal' for short).

2. The claimants instituted petition under

Section 166 of the Motor Vehicles Act, 1988 claiming

compensation for the death of Govinde Gowda in the

road traffic accident.

3. It was averred in the petition that on

26.02.2017 at about 6.30 p.m., when the deceased -

Govinde Gowda was waiting for the bus, standing on the

footpath, in front of Milk Diary of Narasipura Sompura

Hobli, Nelamangala Taluk, the rider of the two wheeler

bearing registration No.KA-06-EQ-7409 (offending

vehicle) has ridden the vehicle in a rash and negligent

manner and dashed to the deceased, due to which the

deceased fell down and sustained multiple injuries.

Immediately, he was shifted to Dobbaspet Government

Hospital and then to Columbia Asia Hospital,

Yeshwanthpur, Bengaluru. But he succumbed to the

accidental injuries on 27.02.2017 while taking

treatment in the hospital.

4. The claimants - widow, minor child and

mother of the deceased contended that the deceased

was earning Rs.20,000/- per month from his contract

work and claimants were depending on the earnings of

the deceased. The untimely death of the deceased has

caused mental agony, loss of dependency, loss of love

and affection to the claimants. On these set of facts and

grounds, the claimants sought for compensation.

5. In response to the notice issued, the

respondents appeared through their respective counsel.

No statement of objection was filed by the respondent

No.1. Respondent No.2 - insurer contested the matter

denying the petition averments. The specific defence

taken was that the two wheeler was plying on the road

without permit and FC; the rider of the two wheeler did

not possess valid and effective driving licence; the

deceased was standing on the road and contributed for

the accident. The insurer denied the manner of the

accident, age, income, dependency. The compensation

sought by the claimants is exorbitant and prayed for

dismissal of the petition.

6. Based on the pleadings, issues were framed

and answered as per the reasons recorded in the

impugned judgment allowing the petition in part

awarding total compensation of Rs.5,89,000/- with

interest at the rate of 6% per annum from the date of

petition till its realisation.

7. Being dissatisfied, the claimants are before

this Court.

8. Learned counsel for the

appellants/claimants submitted that the deceased was

aged about 50 years as per the post mortem report -

Ex.P7, but the Tribunal has wrongly taken the age of

the deceased as 62 and applied the multiplier of '7' to

compute the loss of dependency. The income of the

deceased determined by the Tribunal is also not in

accordance with law. It was further submitted that the

compensation awarded under the conventional heads is

meager. Accordingly, he sought for enhancement of

compensation.

9. Learned counsel for the insurer submitted

that the Tribunal on analysis of ocular and

documentary evidence has rightly determined the age of

the deceased as 62 years and the loss of dependency

determined by applying the multiplier of '7' with

monthly income of the deceased at Rs.9,000/- is also

just and proper. Therefore, no further interference is

warranted by this Court. On these grounds, he sought

for dismissal of the appeal.

10. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the original records.

11. The fulcrum of dispute relates to the

determination of the age of the deceased. The Tribunal

relying on Ex.P10 - Ration Card produced by the

claimants has determined the age of the deceased at 62

years. Challenging the same, learned counsel for the

appellants/claimants filed I.A.No.1/2020 for producing

the additional document namely, School Certificate said

to have been issued by the Headmaster, Government

Primary School, Narasipura, Nelamangala Taluk,

Bengaluru Rural District. This document is dated

04.01.2018, the impugned judgment and order was

passed 30.01.2018. In the said document, the date of

birth of the deceased is shown as 01.06.1963. As per

the Ration Card - Ex.P10, the age of the deceased is

shown as 61 years. As could be seen from the cause-

title, the age of the mother of the deceased is shown as

60 years and the age of the daughter of the deceased is

shown as 4 years. As per the post mortem report at

Ex.P7, age of the deceased is shown as 50 years. It is

apparent that there is no consistency in the age found

in different documents. Hence, we deem it appropriate

to adopt the age reflected in the post mortem report

rather than the age shown in the ration card or the

School Certificate proposed to be filed on record which

is issued on 04.01.2018. No satisfactory explanation

has been offered by the claimants to establish that by

due diligence the said document was not placed on

record before the Tribunal. Hence, we are not inclined

to accept the same.

12. Considering the post mortem report, the age

of the deceased is determined at 50 years. Referring to

the chart prepared by the Karnataka State Legal

Services Authority, in the absence of proof of income, we

deem it appropriate to re-determine the monthly income

of the deceased at Rs.11,000/-. Adding 25% towards

future prospects, the total income would be Rs.13,750/-

per month. Applying the multiplier of '13', deducting

1/3rd of the income towards personal and living

expenses, the loss of dependency would work out to

Rs.14,30,000/- (13,750 x 12 x 13 x 2/3).

13. 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) 9 SCC 644,

the claimants are entitled to Rs.40,000/- towards loss

of spousal consortium; Rs.40,000/- towards loss of

parental consortium; Rs.40,000/- towards loss of filial

consortium; Rs.15,000/- towards loss of estate and

Rs.15,000/- towards funeral expenses.

- 10 -

14. 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 14,30,000/-

                  Loss        of     spousal
    2.                                                    40,000/-
                  consortium
                       Loss of parental
    3.                                                     40,000/-
                         consortium
    4.            Loss of filial consortium                40,000/-
    5.                  Loss of estate                     15,000/-
                      Towards funeral
    6.                                                     15,000/-
                           expenses
                     Total                             15,80,000/-

Thus,       the     claimants     shall   be   entitled    to   total

compensation of Rs.15,80,000/- with interest at the

rate of 6% per annum from the date of the claim petition

till the date of realization.

15. Hence, the following:

ORDER

i) The appeal is allowed in part.

ii) The total compensation awarded by the

Tribunal is modified and enhanced to

- 11 -

Rs.15,80,000/- (Rupees Fifteen Lakhs

Eighty Thousand only) as against

Rs.5,89,000/- with interest at the rate of