Smt Shakuntala vs C Nagesh
2021 Latest Caselaw 2566 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 2ND DAY OF JULY 2021

                            PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

               M.F.A. NO.3661 OF 2019 (MV-D)
BETWEEN:

1.    SMT. SHAKUNTALA
      W/O LATE JAGADISH D
      AGED ABOUT 59 YEARS.

2.    SMT. VINDYA J
      W/O RAVIKUMAR K S
      D/O LATE JAGADISH D
      AGED ABOUT 38 YEARS
      R/AT # 645, 2ND CROSS
      B G DASEGOWDA ROAD
      SWARNASANDRA, MANDYA
      MANDYA TALUK & DIST-571 401.

3.    VINAY J
      S/O LATE JAGADISH D
      AGED ABOUT 36 YEARS
      R/AT # 16/990, 2ND PAHSE
      GIRINAGAR, HOSAKEREHALLI
      BENGALURU SOUTH-85.

4.    VIVEK J
      S/O LATE JAGADISH D
      AGED ABOUT 34 YEARS

      APPELLANT 1 & 4 ARE R/AT
      # KL-37, KANCHANA GANGA
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     PES LAW COLLEGE ROAD
     V V NAGAR, MANDYA
     MANDYA-571 401.

                                                ... APPELLANTS
(BY SRI. RAJA L, ADV.,)

AND:

1.   C. NAGESH
     S/O CHOWDAIAH
     AGED ABOUT 42 YEARS
     R/O KADALURU
     ATHGUR HOBLI
     MADDUR TALUK
     MANDYA DIST:571 401.

2.   THE BRANCH MANAGER
     UNITED INDIA INSURANCE CO. LTD.,
     NO.1119/B, KAMBLI BUILDING
     M C ROAD, ASHOKA NAGARA
     MANDYA -571 401.
                                        ... RESPONDENTS
(BY SMT. GEETHA RAJ, ADV., FOR R2
         R1 - C NAGESH SERVED)
                            ---
      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.01.2018 PASSED
IN MVC NO.1622/2017 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND MACT, MANDYA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                          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 seeking enhancement of the

amount of compensation against the judgment dated

29.01.2018 passed by the Motor Accident Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short) in MVC

No.162/2017.

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

stated are that on 13.09.2017, the deceased Jagadish D was

proceeding on a moped bearing Registration No.KA-11-EA-

5237 near Kallahalli Bus stop, Mandya. At that time, a lorry

bearing Registration No.KA-52-1568, which was being driven

by its driver in a rash and negligent manner, came from the

hind side and dashed against the moped which the deceased

was riding. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed to the

same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 64 years at the time of

accident and was engaged in real estate business and was

earning a sum of Rs.30,000/- per month. It was further

pleaded that accident took place solely on account of rash

and negligent driving of the lorry by its driver. The claimants

claimed compensation to the tune of Rs.60,00,000/- along

with interest.

4. The insurance company filed written statement,

in which the mode and manner of the accident was denied. It

was also pleaded that the driver of the lorry did not hold a

valid and effective driving license at the time of accident and

that the liability of the insurance company, if any, would be

subject to the terms and conditions of the insurance policy.

The age, avocation and income of the deceased was also

denied and it was pleaded that the claim of the claimants is

exorbitant and excessive.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined herself as PW-1,

Mahesha (PW2), GT Narayanaswami (PW3) and got exhibited

documents namely Ex.P1 to Ex.P10. The respondents did not

examine any witness of their behalf, however, the copy of

the insurance policy was marked as 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 lorry by its driver. It was further held, that as a result

of aforesaid accident, the deceased sustained injuries and

succumbed to the same. The Tribunal further held that the

claimants are entitled to a compensation of Rs.8,28,000/-

along with interest at the rate of 6% per annum. Being

aggrieved, this appeal has been filed seeking enhancement of

the amount of compensation.

6. Learned counsel for the claimant submitted that

the Tribunal has erred in deducting half instead of 1/3rd of

the income of deceased towards personal expenses while

computing the compensation under the head 'Loss of

dependency'. It is further submitted that the Tribunal erred

in considering the claimants No.2 to 4 to be not dependent

on the income of the deceased. It is also submitted that the

sums awarded under the heads 'loss of consortium' and

'funeral expenses' are on the lower side and deserves to be

enhanced suitably. On the other hand, learned counsel for

the insurance company submitted the amount of

compensation awarded by the Tribunal is just and proper and

does not call for any interference.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is not in dispute that the deceased succumbed to the

injuries sustained by him in the accident which occurred on

account of the rash and negligent driving of the offending

lorry by its driver. The only question which arises for our

consideration in this appeal is with regard to the quantum of

compensation. The Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED VS. BIRENDER', 2020

SCC ONLINE SC 28 it has been held that the legal

representatives of the deceased are entitled to make an

application for compensation in view of Section 166(1)(c) of

the Act. It has further been held that even the major married

and earning sons of the deceased being the legal

representatives have the right to apply for compensation and

it would be the bounden duty of the Tribunal to consider the

application irrespective of the fact whether the concerned

legal representative was fully dependant on the deceased

and not to limit the claim towards conventional heads only.

In the instant case, undoubtedly claimant No.1 is dependent

on the income of the deceased. However, claimant no.2 to 4

are the married and major sons and daughter of the

deceased. No evidence has been adduced by claimants No.2

to 4 to show that the claimant No.2 to 4 were financially

dependant on the deceased. Therefore, in the absence of

evidence, the Tribunal is justified in holding the claimants

No.2 to 4 to be non-dependants.

8. The deduction of half of the income of the deceased

towards personal expenses by the Tribunal cannot be faulted

with as the claimant No.1 is the only dependant in view of

the decision of the Supreme Court in SARALA VERMA VS.

DELHI TRANSPORT CORPORATION AIR 2009 SCC 3104.

Therefore, Rs.7,56,000/- awarded under the head 'Loss of

Dependency' is maintained.

9. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

AIR 2020 SC 3076 each of the claimant's are entitled to a

sum of Rs.40,000/- on account of loss of consortium and loss

love and affection. Thus, the claimants are held entitled to

Rs.1,60,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.9,46,000/-. Needless to state that

the enhanced amount of compensation shall carry interest at

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

petition till the payment is made. To the aforesaid extent, the

judgment passed by the Claims Tribunal is modified.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE ss