Smt. Manjula vs National Insurance Company ...
2021 Latest Caselaw 4885 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 26TH DAY OF NOVEMBER, 2021

                     BEFORE

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

MISCELLANEOUS FIRST APPEAL NO.1512 OF 2015 (MV)


BETWEEN:

  1. SMT. MANJULA,
     W/O LATE VENKATACHALAPATHI,
     AGED ABOUT 35 YEARS.

  2. KUM. ARSHIHTA,
     D/O LATE VENKATACHALAPATHI,
     AGED ABOUT 17 YEARS.

  3. MASTER MANI,
     S/O LATE VENKATACHALAPATHI,
     AGED ABOUT 15 YEARS.

  4. SMT. RATHNAMMA,
     W/O LATE VENKATACHALAPATHI,
     AGED ABOUT 30 YEARS.

  5. KUM. AMITHA @ VARALAKSHMI
     D/O LATE VENKATACHALAPATHI,
     AGED ABOUT 8 YEARS.

  6. SMT. SEETHAMMA,
     W/O SRI. VENKATARAMAPPA,
     AGED ABOUT 55 YEARS.

    APPELLANTS NO.2 AND 3 ARE MINORS
    REP. BY THEIR GURARDIAN APPELLANT NO.1;
    APPELLANT NO.5 IS MINOR
    REP. BY HER GUARDIAN APPELLANT No.4.
                           2



       ALL ARE RESIDING AT
       NO.28, NAGASHETTIHALLI,
       BENGALURU.

                                        ... APPELLANTS
(BY SRI. S. NAVEEN KUMAR, ADVOCATE)

AND:

  1. NATIONAL INSURANCE COMPANY LIMITED,
     SHABHARAM COMPLEX,
     M.G. ROAD,
     BENGALURU.

  2. SRI. K.R. NAGARAJU,
     S/O SRI. RAMAPPA,
     RESIDENT OF KORENAHALLI VILLAGE,
     CHIKKABALLAPUR TALUK,
     CHIKKABALLAPUR DISTRICT.

                                      ... RESPONDENTS
(BY SRI. SUSHANTH, ADVOCATE FOR
 SRI. C.M. POONACHA, ADVOCATE FOR R1;
 VIDE ORDER DATED 29.05.2018 NOTICE TO
 R2 IS DISPENSED WITH)


      THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 17TH
JANUARY, 2011 PASSED IN MVC NO.877 OF 2009 ON THE
FILE OF THE X ADDITIONAL JUDGE AND MEMBER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS M.F.A COMING ON FOR ORDERS THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
                                 3




                         JUDGMENT

This appeal is preferred by the claimants challenging

the judgment and award dated 17th January, 2011 passed

in MVC No. 877 of 2009 on the file of the Motor Accident

Claims Tribunal, Bengaluru (SCCH-16) (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. It is the case of the claimants that, on 21st

December, 2008, the husband of the claimant No.1-

Venkatachalapathi was a pedestrian on the left side of the

NH-7, near Narepalli Manjuntha Daba, Bagepalli Taluk,

Chikkaballapur District. At that time, the Motorcycle

bearing registration No.KA-40/K-1189 dashed to the

husband of the claimant No.1 and due to the said impact,

the husband of the claimant No.1 suffered grievous injuries.

Immediately, he was rushed to Bagepalli General Hospital,

where he succumbed to the injuries. It is the case of the

claimants that, the deceased was aged about 32 years and

was the earning member in the family and in view of his

death, they have become destitute and as such, preferred

the claim petition before the Tribunal, seeking

compensation.

4. On service of notice, respondents entered

appearance. The first respondent-Insurance Company filed

detailed written statement denying the averments made in

the claim petition. Based on the pleadings on record, the

Tribunal has framed issues for its consideration. In order to

prove the case, the claimant No.1 examined as PW1 and

examined another witness as PW2 and produced 8

documents and same were got marked as Exhibits P1 to P8.

On the other hand, no oral or documentary evidence was

produced by the respondents. The Tribunal, after

considering the material on record, by its judgment and

award dated 17th January, 2011, allowed the claim petition

in part and awarded compensation of Rs.5,05,800/- with

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

petition till payment. Being not satisfied with quantum of

compensation awarded by the Tribunal, claimants have

presented this appeal, seeking enhancement of

compensation.

5. I have heard Sri. S. Naveen Kumar, learned

counsel appearing for the appellants-claimants and Sri.

Sushanth for Sri. C.M. Poonacha, learned counsel for

respondent-Insurance Company.

6. Sri. S. Naveen Kumar, learned counsel appearing

for the claimants vehemently contended that, the award

made by the Tribunal is on lower side without considering

the fact that the deceased died at the age of 32 years and

therefore, he sought for enhancement of compensation.

7. Per contra, Sri. Sushanth for Sri. C.M. Poonacha,

learned counsel for respondent-Insurance Company sought

to justify the judgment and award made by the Tribunal

and further contended that, the claimant No.4 is not

entitled for compensation since, she claims to be second

wife of the deceased.

8. Having heard the learned counsel appearing for

the parties, perusal of finding recorded by the Tribunal

would clearly establish the fact that, the husband of the

claimant No.1-Venkatachalapathi died in a Road Traffic

accident occurred on 21st December, 2008. The Tribunal,

after considering the monthly income of the deceased at

Rs.2,400/- awarded compensation towards loss of

dependency. However, the claimants have not proved the

actual monthly income of the deceased. Therefore, taking

into consideration Lok Adalat chart, the notional income

with relevance to the accident of the year 2008 is

Rs.4,500/- per month, and the same is taken in this appeal.

The deceased was aged about 32 years as on the date of

accident and in terms of law declared by Hon'ble Supreme

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 16 and

considering the number of dependants, the deduction would

be one-fourth for the personal expenses of the deceased.

In terms of law declared by Hon'ble Supreme Court in the

case of NATIONAL INSURANCE COMPANY LIMITED Vs.

PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700,

40% is to be added towards future prospects and

accordingly, the income of the deceased would be

Rs.6,300/- per month. Hence, the claimants are entitled

for compensation of Rs.9,07,200/- (Rs.6,300/- x 12 x 16 x

¾) under the head loss of dependency. I find force in the

submission made by the learned counsel for the

respondent-Insurance Company that the claimant No.4

claims to be the second wife of the deceased, and law does

not permit to have second wife during the subsistence of

living spouse under Section 5 of the Hindu Marriage Act.

The learned counsel also submitted that, the claimant

No.6-Mother of the deceased is no more. In view of the

same, the claimants are four in number and are entitled for

loss of consortium to extent of Rs.1,60,000/-(Rs.40,000/-

each) and Rs.30,000/-(Rs.15,000/- x 2) towards loss of

estate and funeral expenses. Accordingly, claimants are

entitled for total compensation of Rs.10,97,200/- as against

Rs.5,05,800/- awarded by the Tribunal with interest at the

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

realisation. It is also clear that, the claimants are not

entitled for interest for the delayed period of 1404 days in

filing the appeal.

Accordingly, appeal is disposed of.

Sd/-

JUDGE

ARK