Karnataka High Court
Anita And Ors vs Mahesh And Anr on 29 June, 2021
Author: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200236/2018 (MV)
BETWEEN:
1. ANITA
W/O LATE VAIJANATH SANNUR
AGE: 36 YEARS
OCC: ANGANWADI TEACHER
2. BHAVANESHWARI
D/O LATE VAIJANATH
AGE: 15 YEARS, OCC: STUDENT
3. SHIVANI D/O LATE VAIJANATH
AGE: 13 YEARS, OCC: STUDENT
4. AMULYA D/O LATE VAIJANATH
AGE: 11 YEARS, OCC: STUDENT
5. JEEVA @ JEEVAN
S/O LATE VAIJANATH
AGE: 4 YEARS
APPELLANT NOS.2 & 5 ARE MINORS
U/G OF APPELLANT NO.1
ALL ARE R/O VILLAGE HULAGERA
TQ. CHITTAPUR, DIST. KALABURAGI
... APPELLANTS
(BY SRI SANJEEV PATIL, ADVOCATE)
2
AND:
1. MAHESH S/O GUNDAPPA
AGE: MAJOR, OCC: BUSINESS &
OWNER OF TOYOTA INNOVA
BEARING NO.KA.17/M-9972
R/O H.NO.2-161, KURIKOTA
TQ. & DIST. KALABURAGI-585108
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO., LTD.,
JAWALI COMPLEX, SUPER MARKET
KALABURAGI-585102
... RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH
V/O DATED 19.03.2018)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 05.08.2017, PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND MACT AT KALABURAGI,
IN M.V.C.NO.869/2014 BY ENHANCING THE COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the claimants under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the judgment and award dated 05.08.2017
passed by the Principal Senior Civil Judge and Motor
Accident Claims Tribunal, Kalaburagi (for short
hereinafter referred to as 'the Tribunal') in MVC
No.869/2014 on the ground of quantum of
compensation.
2. Parties are referred to as per their ranking
before the Tribunal.
3. Facts giving rise to filing of this appeal are
that on 07.07.2014 at about 2.30 p.m., on N.H.218 near
Saradagi, Parsi Khani, the deceased-Vaijanath and his
friend Mahesh were returning from Jewargi towards
Gulbarga in Toyota Innova car bearing registration
No.KA.17/M-9972 which was driven by one Anand and
the said car was driven by its driver in a high speed and
in a rash and negligent manner and dashed to a Neem
tree, due to which, the car capsized and the said
Vaijanath sustained grievous injuries and died on the
spot. The criminal case was registered against the
driver of the car in Crime No.100/2014. The claimants
being the legal representatives of the deceased-
Vaijanath filed claim petition under Section 166 of the
Act seeking compensation of Rs.17,50,000/- for the
death of Vaijanath in the road traffic accident.
4. The first respondent inspite of service of
notice, remained absent and placed exparte by the
Tribunal.
5. The second respondent/Insurance company
filed written statement denying the averments made in
the claim petition and it was contended that the
offending vehicle was not insured with it and the driver
of the offending vehicle was not holding valid and
effective driving licence as on the date of the accident to
drive a particular class of vehicle. It was contended that
the first respondent has violated terms and conditions of
the insurance policy and permit. Hence, the second
respondent/Insurance company is not liable to pay
compensation to the claimants and prayed to dismiss
the claim petition.
6. The Tribunal on the basis of the pleadings of
the parties framed the following issues:
i. "Whether the petitioners prove that on 7-
7-2014 at about 2.30 pm., on NH.218
road, near Saradgi Parsi Khani, the
deceased Vaijanath
S/o Mallappa Sannur met with an
accident and died due to the rash and
negligent driving of the driver of the
Innova Car bearing Reg.No.KA.17/M-
9972?
ii. Whether respondent No.2 proves that
the driver of the Innova Car bearing
Reg.No.KA.17/M-9972 had no valid and
effective DL at the time of accident?
iii. Whether the petitioners prove that they
are entitled for the compensation? If so,
how much and from whom?
iv. What order or award?"
7. The claimants examined claimant No.1 as
PW.1 and got marked the documents as Exs.P1 to P8.
The second respondent/insurance company examined its
Administrative Officer as RW.1 and got marked the
documents as Exs.D1 and D2.
8. The Tribunal after recording the evidence
and after considering the material on record has
recorded a finding that the claimants have proved that
the deceased-Vaijanath died in the accident, which
occurred on 07.07.2014, due to the rash and negligent
driving of the driver of the offending vehicle i.e., Innova
Car and held that the second respondent/Insurance
company has failed to prove that the driver of the
Innova car had no valid and effective driving licence at
the time of accident and further held that the claimants
are entitled to compensation and awarded compensation
of Rs.9,55,000/- along with interest at the rate of 6%
per annum from the date of claim petition till the date of
realization and further held that the respondents are
jointly and severally liable to pay compensation.
9. Being dissatisfied with the compensation
awarded by the Tribunal, the claimants/appellants have
filed this appeal seeking enhancement of compensation.
10. Heard the learned counsel for the claimants
and the learned counsel for the second
respondent/Insurance company.
11. The learned counsel for the claimants
submits that the Tribunal has taken the income of the
deceased at Rs.6,000/- per month which is on the lower
side and he further submits that as per the chart
provided by the Karnataka State Legal Services
Authority, the Tribunal could have taken the notional
income at Rs.7,500/- per month and the Tribunal has
committed an error in not awarding future prospects and
on these grounds, he prays to allow the appeal.
12. Per contra, the learned counsel appearing for
the second respondent/Insurance company supports the
impugned judgment and award passed by the Tribunal
and submits that the compensation awarded by the
Tribunal is just and proper and does not call for
interference and prays to dismiss the appeal.
13. I have perused the records and considered
the submissions made by the learned counsel for the
parties. The point that arises for consideration is with
regard to quantum of compensation.
14. The occurrence of the accident, involvement
of the offending vehicle in the accident and death of the
deceased-Vaijanath in the accident are not in dispute. A
criminal case was registered against the driver of the
offending vehicle in Crime No.100/2014. In order to
prove that the accident has occurred due to the rash and
negligent driving of the driver of the offending vehicle,
the claimants have produced copy of the FIR, statement,
charge sheet, crime details form, IMV report, PM report
and inquest panchanama which are marked as Exs.P1 to
P7. From perusal of the said records, it is clear that the
accident has occurred due to rash and negligent driving
of the driver of the offending vehicle.
15. Perusal of the impugned judgment would
indicate that the claimants/appellants did not tender any
evidence with regard to the income of the deceased
before the Tribunal. In the absence of proof of income,
the notional income of the deceased will have to be
taken as per the as per the chart provided by the
Karnataka State Legal Services Authority. In terms of
the chart, for the accident of the year 2014, the notional
income of the deceased will have to be taken at
Rs.7,500/- as against Rs.6,000/- per month taken by
the Tribunal. To the aforesaid amount, as the deceased
was aged 40 years, 25% of the said amount has to be
added on account of future prospects in view of the law
laid down by the Constitution Bench of the Supreme
Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others reported in AIR
2017 SC 5157. Thus, the monthly income comes to
Rs.9,375/-. Out of which, considering that there are five
dependents, I deem it appropriate to deduct 1/4th of the
said income towards personal expenses of the deceased
and therefore, the monthly income of the deceased
comes to Rs.7,031/-. Taking into account the age of the
deceased which was 40 years at the time of accident,
multiplier of 15 has to be adopted. Therefore, the
claimants are entitled to a sum of Rs.12,65,580/- (7,031
x 12 x 15) on account of loss of dependency as against
Rs.8,10,000/- awarded by the Tribunal.
16. Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC
130, which has been subsequently clarified by the
Hon'ble Supreme Court in the case of United India
Insurance Co. Ltd. Vs. Satinder Kaur alias
Satwinder Kaur and Others reported in AIR 2020 SC
3076, each of the claimants is entitled to a sum of
Rs.40,000/- towards loss of consortium. There are five
claimants. Claimant No.1/wife is entitled to a sum of
Rs.40,000/- towards loss of consortium (spouse).
Claimants Nos.2 to 5 are children of the deceased and
they are entitled to a sum of Rs.1,60,000/- (40,000 x 4)
towards loss of parental consortium. Thus, in all the
claimants are entitled to a sum of Rs.2,00,000/- towards
loss of consortium. In addition, the claimants/appellants
are entitled a sum of Rs.15,000/- towards funeral
expenses and Rs.15,000/- under the head of loss of
estate. Thus, the claimants are entitled to a sum of
Rs.2,30,000/- under conventional heads.
17. Thus, in all, the claimants are entitled to a
sum of Rs.14,95,580/- as against Rs.9,55,000/-
awarded by the Tribunal.
18. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The claimants are entitled to an
enhanced compensation of
Rs.5,40,580/- with interest at the rate
of 6% per annum from the date of
petition till the date of realization.
iv. The second respondent/insurance
company is directed to deposit the
compensation amount before the
Tribunal within a period of eight weeks
from date of the receipt of certified
copy of this judgment.
Sd/-
JUDGE
NB*
