Maremma W/O Saibanna And Ors vs Philips S/O Mallappa Jamkhandi ...
2021 Latest Caselaw 3492 Kant

         IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

     DATED THIS THE 23RD DAY OF OCTOBER, 2021

                            BEFORE

     THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT

                 MFA NO.201627/2016 (MV)
BETWEEN:

1.     Maremma W/o Saibanna,
       Age: 52 years, Occ: Household,
2.     Saibanna S/o Peerappa,
       Age: 67 years, Occ: Nil,
3.     Kasturibai D/o Saibanna,
       Age: 27 years, Occ: Household,
       All are R/o Basava Nagar, Sedam,
       Now R/at Om Nagar, Kalaburagi.
                                                  ... Appellants
(By Sri.Sanjeev Patil, Advocate)

AND:

1.     Philips S/o Mallappa Jamkhandi,
       Age: Major, Occ: Not Known &
       owner of Hero Hondo Motor Cycle
       bearing No.KA-32/K-8698,
       R/o No.71, DAR Head Quarters,
       Kalaburagi-585 103.

2.     The Divisional Manager,
       The Oriental Insurance Co. Ltd.,
       Divisional Office, N.G.Complex,
       Ist Floor, Opp. Mini Vidhana Soudha,
       Kalaburagi-585 102.

                                              ... ... Respondents
                                   2

(By Sri.Mohd. Abdul Quayyum, Advocate for R2;
R1 is dispensed with v/o dated 23.03.2017)

      This Misc. First Appeal is filed under Section 173(1) of
the Motor Vehicles Act, praying to modify the judgment and
award passed by the Prl. Senior Civil Judge & MACT,
Kalaburagi, in file bearing MVC No.378/2014 and allow the
claim petition by enhancing the award from Rs.6,86,776/-,
to Rs.40,00,000/-, as prayed for the interest of justice and
equity.

      This appeal coming on for Admission this day,
KRISHNA S.DIXIT J., delivered the following:


                        JUDGMENT

This appeal by the claimants lays a challenge to

the judgment and award dated 18.07.2016 whereby

their claim in MVC No.378/2014 having been partly

favoured a compensation of Rs.6,86,776/- with interest

at the rate of 6% per annum has been awarded subject

to usual condition of bank deposit and the

apportionment of the amount between the three

claimants in the ratio of 60:20:20. The claimants grieve

that the award is frugal.

2. After service of notice, the respondent-

insurer has entered appearance through its counsel

who makes submission in justification of the impugned

award and the reasons on which it has been structured.

3. Having heard the learned counsel for the

parties and having been perused the trial court records

in original, this court is inclined to grant of

enhancement of compensation as under and for the

following reasons.

a) The finding of the MACT has to the

happening of accident in question on 26.11.2013

because of rash and negligent driving of the offending

motor cycle bearing reg.No.KA-32/EB-4052 and

consequent fatal injury to the victim Mr. Peerappa who

succumbed thereto on 15.12.2013, has attained finality,

there being no challenge to the same by the insurer or

the insured.

b) The MACT has treated the case of the

claimants as the one lacking sufficient evidence for

proving the income of the deceased; that being the

position, the Lok-Adalat Income Chart for the accident

year 2013 which prescribes the guideline value of

Rs.7,000/- would have been taken will little alteration,

as the notional monthly income; there is also force in

the contention of the counsel for the insurer that the

chart cannot be operated as Euclid's Theorum; some

relaxation needs to be made, is true; regarding being

had to on the relevant factor, this court is of a

considered opinion that the notional income should be

taken at Rs.6,000/- as the monthly income of the

deceased.

c) There is also force in the contention of

learned counsel for the claimant that the income of the

deceased needs to be given increment at the rate of 40%

in view of Pranay Setti case reported in 2017 (1) SCC

680; the claimants are also entitled to Rs.70,000/- as

compensation under the conventional head, in terms of

the very same decision.

d) There is also some force in the contention of

the claimants that they have incurred expenses towards

medical treatment of the victim who was alive for 16

days after the accident; though the claim is too much

on the higher side, this court, fixes the same at

Rs,3,00,000/-.

4. With the altered factors the compensation

has been reworked out with a aid of the memo of

calculation submitted at the Bar:

Rs.6000 + 40% = Rs.8,400 - 1/2 because of

personal expenses of unmarried deceased; that comes to

Rs.4,200/-.

4200 X 12 X 17 = Rs.8,56,809/- to this to be

added Rs.3,00,000/- (medical expenses) and

Rs.70,000/- towards conventional compensation;

further Rs.80,000/- needs to be awarded towards loss

of filial consortium.

5. In the above circumstances, this appeal

succeeds; the impugned judgment and award are

modified; the compensation is enhanced to

Rs.13,06,809/- (Rupees Thirteen Lakh Six Thousand

Eight Hundred & Nine) only; the rate of interest shall be

6% per annum; the interest is payable only on

Rs.8,86,809/-; the apportionment ratio is retained

intact.

Costs made easy.

Sd/-

JUDGE

SMP