Basanna @ Basavanthrao Jadhav And ... vs Ramesh S/O Gangadhar Vadlakonda ...
2022 Latest Caselaw 6276 Kant

                            1




        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 07TH DAY OF APRIL, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

          MFA No.201544/2021 (MV/D/SJ)

Between:
1.  Basanna @ Basavanthrao
    Jadhav, Age: 67 years, Occ: Nil

2.   Babu S/o Basanna @ Basavanthrao
     Jadhav, Age: 37 years, Occ: Coolie

     Both R/o Kodalhangarga, Tq. Aland,
     Dist. Kalaburagi, Now residing near
     Yallaling Math, Kotnoor (D)
     Tq. And Dist. Kalaburagi.
                                       ... Appellants

(By Sri Nagaraj Patil, Advocate)

And:
1.   Ramesh S/o Gangadhar Vadlakonda,
     Age: Major, Occ: Owner of Ajax Flori
     No.Ka-01/TY-014678/2017-18
     R/o H.NO.303, Thane,
     Maharashtra State-421305.

3.   The Manager,
     Bajaj Allianz Gen, Insurance Co. Ltd.
     1st Floor, Kalaburagi Noolbi Majestic,
     Building, New Cotton Market,
     Hubli-580029.                   ... Respondents

(By Sri. C.S. Kalaburgi, Advocate for R2)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, 1988 praying to modify the
Judgment and award dated 09.03.2020 passed in MVC
No.643/2018 on the file of I Addl. Senior Civil Judge and
MACT Kalaburagi, and allow this appeal by enhancing the
compensation amount of Rs.08,63,600/- only as claimed
by the appellant before this Hon'ble Court and etc.

      This appeal coming on for Admission, this day, the
Court 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 being

aggrieved by the judgment and award dated 9.3.2020

passed by the I Additional Senior Civil Judge & MACT,

Kalaburagi (hereinafter referred to as 'the Tribunal' for

brevity) .

2. Parties in this appeal are referred to as they

are arrayed before the Tribunal. The appellants

herein are the petitioners/claimants, respondents No.1

and 2 herein, being the owner and insurer

respectively, are the respondents before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 7.5.2018 the deceased

Sangamma had been to the Warehouse for work and

during lunch break at about 1.45 p.m., the deceased

and other coolie workers were having lunch near the

door of the said warehouse. At that time, the driver

of the vehicle - Nex Ajaz Flori Kankar Machine Vehicle

bearing temporary Regn. No.KA.01/TY014678/2017-

18 came in a negligent manner with high speed and

suddenly took reverse of the said vehicle and dashed

to the deceased Sangamma. Due to which she fell

down, sustained injuries and succumbed to the

injuries on the spot. The claimants/petitioners being

the legal heirs i.e. the husband and son of the

deceased Sangamma filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased in the road traffic accident.

4. On service of summons, respondent No.2-

Insurance Company appeared through counsel and

filed written statement in which the averments made

in the petition i.e. the age, income and occupation of

the deceased and the relationship of the petitioners

were denied. Further contended that the driver of the

offending vehicle did not possess valid and effective

driving licence as on the date of the accident. Hence,

he sought for dismissal of the petition.

The respondent No.1-owner did not appear

before the Tribunal inspite of service of notice and

hence was placed ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The petitioners/claimants, in

order to prove their case, examined petitioner No.1,

husband of the deceased, as PW-1 and got exhibited

documents namely Ex.P1 to Ex.P6.

On behalf of respondent No.2-insurer has

examined two witnesses as RWs 1 and 2 and got

exhibited documents namely Ex.R1 to Ex.R4.

The Claims Tribunal after recording the evidence

and considering the material on record allowed the

claim petition in part and awarded compensation of

Rs.7,73,400/- with interest at 6% p.a. from the date

of petition till the date of realisation and further held

that respondents No.1 and 2 are jointly and severally

liable to pay compensation to the

petitioners/claimants. Being aggrieved, this appeal

has been filed by the petitioners.

6. Heard the learned counsel for the petitioners

and learned counsel for respondent No.2-insurer.

7. Learned counsel for the petitioners submits

that the Tribunal has awarded lesser compensation

and prayed to allow the appeal.

8. Per contra, learned counsel for respondent

No.2 submits that the compensation awarded by the

Tribunal is just and proper and does not call for

interference.

9. Having heard the learned counsel for the

parties and perusing the material on record, the point

that arise for consideration is with regard to the

quantum.

10. There is no dispute with regard to the

accident and death of the deceased Sangamma in the

road traffic accident due to the rash and negligent

driving of the driver of the offending vehicle. In order

to prove the same, the petitioners have produced

copy of the charge sheet marked as Ex.P3. Ex.P3

discloses that the accident has occurred due to the

rash and negligent driving of the driver of the

offending vehicle.

Insofar as the quantum of compensation is

concerned, the deceased was aged 55 years as on the

date of accident. It is the case of the petitioners that

the deceased was working as a coolie. In order to

substantiate their contention, the petitioners have not

produced any records in regard to the proof of

income. In the absence of proof, as per the

guidelines/chart issued by the KSLSA, as the accident

was of the year 2018, the notional income of the

deceased has to be assessed at Rs.11,750/-p.m.

Hence, this Court reassess the income of the deceased

at Rs.11,750/- p.m. In addition to it, as per the law

laid down by the Hon'ble Supreme Court in the case of

NATIONAL INSURANCE CO. LTD. -v- PRANAY

SETHI AND OTHERS [AIR 2017 SC 5157, as the

deceased was aged 55 years, 10% (10% of 11750

=1175) has to be added towards 'future prospects;

which comes to Rs.12,925/- p.m. (11750+1175).

Hence, the income of the deceased is taken at

Rs.12,925/-. Petitioner No.2 is the major son of the

deceased. In view of the law laid down by the Hon'ble

Division Bench of this Court in MFA No.7318/2016

dated 23.10.2020, 50% out of the notional income of

the deceased has to be deducted which comes to

Rs.6,462/- (50% of 12,925). Thus the monthly

income of the deceased is taken at Rs.6,462/-. As the

deceased was aged 55 years as on the date of

accident, multiplier of 11 is applicable. Thus, loss of

dependency works out to Rs.8,52,984/- (6462x 12 x

11).

Further, in view of the law 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 claimants are entitled for

compensation of Rs.40,000/- under the head of 'loss

of consortium'. As the claimants are two in number,

they are entitled to Rs.80,000/- under the aforesaid

head. In addition, the claimants are entitled to

Rs.15,000/- on account of 'loss of estate' and

Rs.15,000/- on account of 'funeral expenses'.

The claimants are entitled to a total

compensation of Rs.9,62,984/- as against

Rs.7,73,400/- awarded by the Tribunal. Thus, the

appellants are entitled to an enhanced compensation

of Rs.1,89,584/-.

In view of the above discussion, the following

order is passed :

ORDER

1. The appeal is allowed in part;

2. The judgment and award dated 9.3.2020 passed by the Motor Accident Claims Tribunal, Kalaburagi is modified.

                3. The appellants are entitled to
        an      enhanced        compensation                  of





     Rs.1,89,584/-    in        addition    to   the
     compensation      awarded             by    the

Tribunal. The appellants are entitled to interest at the rate of 6% p.a. from the date of petition till the date of realisation.

4. The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of eight weeks from the date of receipt of copy of this judgment.

Sd/-

JUDGE

rs