Smt.Savithramma vs Balaguru
2021 Latest Caselaw 3813 Kant

                           1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE E.S.INDIRESH

            M.F.A. NO.326/2015 (MV)

BETWEEN:

1. SMT.SAVITHRAMMA
   W/O LATE BASAVARAJU,
   AGED ABOUT 40 YEARS,

2. LIKITH KUMAR
   S/O LATE BASAVARAJU,
   AGED ABOUT 20 YEARS,

3. PAWAN KUMAR
   S/O LATE BASAVARAJU,
   AGED ABOUT 17 YEARS,
   PRESENTED BY HIS NATURAL
   GUARDIAN MOTHER
   SMT. SAVITHRAMMA

4. T.R. TAMMAIAH
   SINCE DEAD BY HIS LRS

4(a). DRAKSHYANAMMA
      W/O JAYANNA
      AGED ABOUT 53 YEARS
      R/O SANKIHALLI VILLAGE
      JAVAGAL HOBLI
      ARSIKERE TALUK-573 125.

4(b). AMBIKA
      W/O RAJANNA,
      AGED ABOUT 43 YEARS,
      R/O NAGARALU VILLAGE,
      SAKKARAYAPATNA HOBLI,
                           2


  KADUR TALUK-577 135.

5. SMT. MAHALINGAMMA
   W/O LATE TAMMAIAH,
   AGED ABOUT 68 YEARS,

  APPELLANTS 1 TO 3 AND 5 ARE
  R/O TONDIGANAHALLI VILLAGE,
  BANAWARA HOBLI,
  ARSIKERE TALUK-573 112
                                      ... APPELLANTS

(BY SRI LOKESH KUMAR K S, ADVOCATE)

AND:

1. BALAGURU
   S/O SHIVA PERUMAL
   AGED ABOUT 52 YEARS
   R/O MASJID ROAD
   SORABA
   SHIVAMOGGA DISTRICT-577429.

2. THE UNITED INDIA INSURANCE
   CO LTD., BRANCH OFFICE
   PB NO.21, J P ROAD
   SAGAR
   SHIVAMOGGA DISTRICT-577 401.

3. SRINIVASA
   S/O LATE KENGANNA
   AGED ABOUT 46 YEARS
   R/O BANAVARA KOTE
   ARSIKERE TALUK-573 112.

                                   ... RESPONDENTS
(BY SRI S V HEGDE MULKHAND, ADVOCATE FOR R2;
R1 AND R3 SERVED AND UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLE ACT AGAINST
THE JUDGMENT & AWARD DATED 14.07.2014 PASSED IN
MVC NO.1722/2012 ON THE FILE OF THE SENIOR CIVIL
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JUDGE AND JMFC, ARSIKERE PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is preferred by the claimants assailing

the judgment and award dated 14.07.2014 passed in

MVC No. 1722/2012 on the file of Senior Civil Judge

and Motor Accident Claims Tribunal, Arsikere, (for

short, hereinafter referred to as "Tribunal") seeking

enhancement of compensation.

2. For the sake of convenience, the parties in

this appeal shall be referred to in terms of their status

and ranking before the Tribunal.

3. The facts in brief for the adjudication of this

appeal are that the on 05.02.2011, Basavaraju was

proceeding on a Motorcycle bearing registration No.

KA-13/R-3038, near A.Mallapura road, and at that

time, driver of the Temp Traveler bearing registration

No.KA-13/A-7300 dashed against the Motorcycle, the

impact of which is that, the said, Basavaraju died on

the spot. It is the case of claimants that the claimant

was working as a Watchmen at Sri. Kalabyraweshwara

High School, Shyanegere, and on account of death of

the said Basavaraju, claimants have become destitute

and accordingly, claimants filed claim petition before

the Tribunal, seeking compensation.

4. After service of notice, respondent No.1 was

placed Ex-parte and respondents 2 and 3 entered

appearance and filed detailed written statement

denying the averments made in the claim petition. On

the basis of the rival pleadings, the Tribunal has

formulated issues for its consideration. In order to

establish their case, claimants have examined 5

witnesses as PW1 to PW5 and produced 16 documents

and same were got marked as Exs.P1 to P16. On the

other hand, respondents have examined 2 witnesses

as RW1 and RW2 and produced 3 document and same

were got marked as Exs.R1 to R3.

5. The Tribunal, after considering the material

on record, by its judgment and award dated

14.07.2014, allowed the claim petition in part and

awarded compensation of Rs.13,62,800/- with interest

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

petition till the deposit. Being not satisfied with the

award of compensation made by the Tribunal, the

claimants have presented this appeal, seeking

enhancement of compensation.

6. Sri. Lokesh Kumar K.S. learned counsel for

the appearing for the appellants contended the

Tribunal failed to consider the fact that the deceased

Basavaraju was working as watchman at

Kalabyraveshwara High School, Shyanegere and he

was a permanent employee of the school and

therefore, the claimants are entitled for future

prospects while determining the compensation under

the head loss of dependency. Therefore, he sought for

enhancement of compensation.

7. Per contra, Sri. S.V. Hegde Mulkhand,

learned counsel appearing for the respondents

submitted that, award made by the Tribunal is just and

proper and the same does not call for any interference

in this appeal.

8. Heard the learned counsel appearing for

both the parties and perused the finding recorded by

the Tribunal. It is not in dispute that the husband of

the claimant No.1-Basavraju was working as watchman

at Sri. Kalabyraweshwara High School, Shyanegere

and was drawing monthly salary of Rs.10,500/-. In

order to prove the salary and the avocation, the

claimants have examined the Head Master of the said

school as PW5. It is also forthcoming from the records

that the said Basavaraju died in road traffic accident

occurred on 05.02.2011 leaving behind the claimants.

The finding recorded by Tribunal on issue No.1 would

clearly establish the fact that the said accident

occurred due to the negligence on the part the Driver

of the offending vehicle; therefore, the claimants are

entitled for just compensation under Section 166 of the

Motor Vehicles Act, 1988. As per, Post Mortem report,

the age of the deceased at the time of accident was

45 years and he was drawing a salary of Rs.10,300/-

per month. Perusal of the record would indicate that

the employment of the deceased was permanent.

Therefore, in view of the law declared by the Hon'ble

Apex Court in the case of NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS

reported in 2017 ACJ 2700, considering the age of the

deceased, 30% is to be added to the income towards

future prospectus. Accordingly, the income would be

Rs.13,390/- There are four dependents and hence,

one-fourth is to be deducted towards personal

expenses of the deceased. In terms of the law declared

by the Hon'ble Apex Court in the case of SARLA VERMA

AND OTHERS Vs. DELHI TRANSPORT CORPORATION AND

ANOTHER reported in 2009 ACJ 1298 the appropriate

multiplier would be 14. Accordingly, loss of dependency

would be Rs.16,87,140/- (Rs.13,390/-x12x14x3/4).

There are four dependents and accordingly, the

claimants are entitled for Rs.1,60,000/- (Rs.40,000/-

x4) towards loss of consortium and Rs.30,000/-

(Rs.15,000/-x2) is awarded towards loss of estate and

funeral charges. Accordingly, the claimants are entitled

for total compensation of Rs.18,77,140/- as against

Rs.13,62,800/- awarded by the Tribunal. The enhanced

compensation shall carry interest at the rate of 6%

per annum from the date of the petition till the date of

deposit.

Accordingly, appeal is allowed in part.

Sd/-

JUDGE

SB