Smt Thippamma vs The Proprietor
2021 Latest Caselaw 672 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH 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.3699/2018 (MV)

BETWEEN :

1.      SMT.THIPPAMMA
        W/O LATE ERAKYATHAIAH
        AGED ABOUT 41 YEARS.

2.      SMT.MAHALAKSHMI
        D/O LATE ERAKYATHAIAH
        AGED ABOUT 23 YEARS.

3.      SRI UMESHA
        S/O LATE ERAKYATHAIAH
        AGED ABOUT 21 YEARS.

        ALL ARE R/AT KURUBARAHALLI VILLAGE
        DEBBEGATTA POST, DODDERI HOBLI,
        MADHUGIRI TALUK
        TUMAKURU DISTRICT-572112           ...APPELLANTS

            (BY SRI VIVEK B.R., AGRAA LEGAL, ADV.)

AND :

1.      THE PROPRIETOR
        M/s SHRIRAM TRANSPORT
        NO.8, 1ST FLOOR,
        DDUTTL INDUSTRIAL SUBURB,
        OPPOSITE TO KANTEERVA STUDIO
        YESHWANTHAPURA, BANGALORE-560022
                           -2-



2.    ICICI GENERAL INSURANCE COMPANY LTD.,
      ICICI LOMBARD HOUSE 414,
      VEER SAVARKAR MARG,
      NEAR SODDHO VINAYAKA TEMPLE
      PRABHADEVI, MUMBAI-400025        ...RESPONDENTS

           (BY SRI A.M.VENKATESH, ADV. FOR R-2;
     VIDE COURT ORDER DATED 12.01.2021 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
12.02.2018 PASSED IN MVC No.869/2015 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND MACT, MADHUGIRI,
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 12.02.2018 passed in MVC No.869/2015

on the file of the Prl. Senior Civil Judge & MACT,

Madhugiri, [Tribunal for short].

2. The claimants being the widow and children

of the deceased, instituted the petition under Section

166 of the Motor Vehicles Act, 1988 claiming

compensation for the death of Erakyathaiah in the road

traffic accident.

3. It was contended that on 13.8.2014 when

the deceased was travelling on Hero Honda Splendor

Motor Cycle bearing Reg.No.KA-06-EC-2980 as a pillion

rider, near Shanmugam temple, Nice road, a Goods

Cantor (Tata) vehicle bearing Reg.No.KA-06-C-7602

came from behind in a rash and negligent manner and

dashed to the said motor cycle. Due to the said impact,

the deceased sustained grievous injures and succumbed

to the injuries on the spot.

4. It was contended that the deceased was

working as a bar bender and used to earn Rs.700/- per

day as daily wage and Rs.300/- towards overtime work.

The deceased was the sole earning member of the

family. Due to the untimely death of the deceased, the

claimants have suffered mental agony, loss of

dependency, loss of affection etc.,

5. On issuance of notice, respondent No.1

failed to appear before the Tribunal. Hence, he was

placed ex parte. Respondent No.2-insurer appeared

through its learned counsel and contested the claim by

filing the written statement denying the petition

averments inter alia taking a defence that the

compensation claimed is exorbitant and baseless.

6. It was contended that the driver of the

offending vehicle had no valid and effective driving

licence as on the date of the accident. The offending

vehicle was implanted in collusion with the police and

respondent No.1. Hence, prayed for dismissal of the

claim petition.

7. On the basis of the pleadings, issues were

framed and answered as per the reasons recorded in the

impugned judgment and award allowing the petition in

part awarding compensation of Rs.7,47,000/- with

future interest @ 9% p.a. from the date of petition till

realization.

8. Being dissatisfied with the quantum of

compensation, the claimants have preferred the present

appeal.

9. Learned counsel for the appellants

submitted that the Tribunal has awarded meager

compensation under different heads. The compensation

awarded is not in conformity with the settled principles

of law vis-a-vis the material evidence placed on record.

The monthly income determined by the Tribunal at

Rs.6,000/- is on the lower side. Compensation towards

future prospects has not been awarded. Accordingly, he

sought for enhancement of compensation.

10. Learned counsel for the insurer justifying

the impugned judgment and award submitted that the

Tribunal on appreciation of the oral and documentary

evidence has awarded reasonable compensation and the

same deserves to be confirmed by this Court,

accordingly seeks 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. The factum of accident and the death of the

victim in the road traffic accident are not in dispute.

The Tribunal in the absence of material evidence on

record to establish the factum of income, has

determined the monthly income notionally at

Rs.6,000/-. In our considered view, the same requires

to be re-determined having regard to the chart prepared

by the Karnataka State Legal Services Authority which

is regularly referred to by this court in determining the

monthly income in the absence of proof of income of

the victim in the road traffic accident. Accordingly, the

monthly income is re-determined at Rs.8,500/-.

Considering the age of the deceased as 42 years, 25%

of the income is added towards future prospects. Thus

the total monthly income would be Rs.10,625/-.

Applying the multiplier of 14, deducting 1/3rd of the

income towards personal and living expenses of the

deceased, the loss of dependency would be

Rs.11,90,000/-.

13. In terms of the ruling 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 Vs.

Somawati and others reported in (2020) 9 SCC 644,

the claimants are entitled to compensation of

Rs.1,50,000/- under the conventional heads. Thus, the

total compensation awarded by the Tribunal is modified

as under which shall carry interest @ 6% p.a. from the

date of petition till its realization.

Sl.No. Particulars Amount [in Rs.] 1. Loss of dependency 11,90,000 Loss of spousal 2. 40,000 Consortium Loss of parental 3. 80,000 consortium 3. Loss of Estate 15,000 4. Funeral expenses 15,000 Total 13,40,000

The claimants are entitled to total compensation of

Rs.13,40,000/- with interest @ 6% p.a. from the date of

petition till its realization.

Hence, the following:

ORDER

i] Appeal is allowed in part.

ii] The total compensation awarded by the Tribunal

is modified and enhanced to Rs.13,40,000/- as

against Rs.7,47,000/- which shall carry interest

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

claim petition till its realization.

iii] The insurance company shall deposit the re-

assessed total compensation determined as

aforesaid before the Tribunal within 90 days from

the date of receipt of the certified copy of the

judgment and order.

iv] The portion of the order of the Tribunal inasmuch

as liability, apportionment and disbursement

remains intact.

v] The modified compensation shall be disbursed in

terms of the order of the Tribunal.

vi] Draw modified award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

Dvr: