Karnataka High Court

Prabhavati W/O Late Amruthrao vs Md.Yousuf And Anr on 8 February, 2022

Bench: S.R.Krishna Kumar, K S Hemalekha

                             1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 8TH DAY OF FEBRUARY 2022

                        PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                           AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

             MFA NO.201014/2019 (MV)

BETWEEN:
Prabhavati W/o Late Amruthrao,
Age: 47 years, Occ: Cook in Hotel,
R/o Sikindrapur,
Tq. & Dist: Bidar-585 402.
                                                ... Appellant

(By Miss. Veerani C. Khemshetty, Advocate for
    Sri Ravi B. Patil)

AND:

1.     Md. Yousuf S/o Md. Sultan,
       Age: Major, Occ: Business,
       R/o H.No.8-5-51,
       Outside Afjalpura,
       Bidar-585 401.
2.     The Manager,
       Shriram General Insurance Company Ltd.,
       No.5/4, 3rd Floor, SV Arcade,
       Belekahalli Main Road,
       Off Bennurughatta Road, II MB Post,
                                 2


      Bengaluru-560 076
      Policy bearing No.10003/31/17/035734.
                                         ... Respondents

(Smt. Sangeeta Bhadrashetty, Advocate for R2;
 Notice to R1 is dispensed with)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 08.02.2019 passed by the Prl.
District and Sessions Judge & Prl. MACT at Bidar and
consequently allow the present appeal thereby enhance
the compensation from Rs.6,18,000/- to Rs.25,00,000/- as
claimed in the present appeal and etc.

      This appeal coming on for admission this day,
K.S. Hemalekha J., delivered the following:

                               JUDGMENT

Though the matter is listed for admission, with the

consent of learned counsel for the parties, the same is

taken up for final disposal.

2. The claimant has preferred this appeal seeking

enhancement of compensation by assailing the judgment

and award dated 08.02.2019 passed in MVC No.284/2017

by the Principal District & Sessions Judge and Principal

MACT, Bidar (hereinafter referred to as 'the Tribunal' for

short).

3. The claimant filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 before the

Tribunal, claiming compensation of Rs.25,00,000/- on

account of death of one Amruthrao, who died in a road

traffic accident, contending that on 23.06.2016 at about

11.30 p.m., near Andoor bridge near Dargha on Andoor-

Bidar road, when the deceased was riding motorcycle

bearing Reg.No.KA-32/U-5960, the offending vehicle i.e.,

Leyland Lorry bearing Reg. No.MH-15/BJ 4741 was parked

in the middle of the road without any indication or the

parking light, thereby the deceased was unable to notice

parking of the lorry in the middle of the road and dashed

to the lorry, due to which he sustained head injury and

succumbed to the said injury in the hospital during

treatment. The claimant is the wife of the deceased. The

deceased was hale and healthy, aged about 54 years at

the time of accident and he was doing hotel business and

was earning Rs.25,000/- per month and he was the only

breadwinner of the family.

4. On issuance of notice by the Tribunal,

respondent No.1 did not appear and was placed ex-parte.

5. Respondent No.2-insurance company appeared

and filed its written statement contending that the accident

occurred due to the rash and negligent riding of the

deceased and the offending vehicle was moving from

Humnabad to Bidar and not stationed in the middle of the

road as contended by the claimant. It is also contended

that the rider of the motorcycle overtook the lorry from the

wrong side and dashed against the lorry. The driver of the

offending vehicle had no valid and effective driving licence

as on the date of the accident. Hence, sought to dismiss

the petition.

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

the Tribunal framed the following:

ISSUES

1. Whether the claimant proves that, Amruthrao S/o Sharnappa (since deceased) died of injuries allegedly sustained in motor vehicle accident that occurred on 23.6.2016, at about 11:30

pm, on Bidar-Humnabad road, near Andoor bridge, within limits of Janwada Police Station, due to rash and negligent driving of lorry bearing Reg.No.MH-15-BJ 4741 by is driver?

2. Whether respondent No.2 proves that, the deceased himself dashed to the backside of the lorry while over taking it from wrong side and accident was due to his sole negligence?

3. Whether 2nd respondent proves that, driver of the lorry did not have any valid and effective driving licence to drive that vehicle and knowing it 1st respondent entrusted it and thereby he has violated terms and conditions of the policy?

4. Whether 2nd respondent proves that, there was no valid permit to ply offending vehicle as stage carriage vehicle and there is breach of policy conditions?

5. Whether the petitioner is entitled for compensation? If so, at what sum and from whom?

6. To what relief the parties are entitled?

7. In order to substantiate her case, the claimant-

wife of the deceased examined herself as PW.1 and one

witnesses as PW.2 and got marked 15 documents at

Exs.P1 to P15. On the other hand, respondent No.2-

insruance company examined its official as RW.1 and got

marked Exs.R1 and R2.

8. On the basis of the pleadings, evidence and

material on record, the Tribunal held that the accident

occurred due to the negligence on the part of the driver of

the lorry, as there is no possibility of noticing the parking

of the lorry in the absence of any indication and thereby,

fastened the liability upon the insurance company and

awarded compensation of Rs.6,18,000/- with interest at

the rate of 6% per annum under the following heads:

1. Loss of dependency Rs.5,28,000/-

2. Medical and incidental Rs.20,000/-

expenses

3. Loss of consortium, estate, Rs.70,000/-

funeral and obsequies Total Rs.6,18,000/-

9. Being dissatisfied with the quantum of

compensation awarded by the Tribunal, the claimant has

preferred the present appeal.

10. Heard the learned counsel for the

appellant/claimant and learned counsel for respondent

No.2-insurance company and perused the material on

record.

11. Miss. Veerani C. Khemshetty, Advocate

appearing for Sri Ravi B. Patil, learned counsel for the

appellant would contend that the Tribunal has erred in

assessing the monthly income of the deceased at

Rs.6,000/- only, without considering the fact that the

deceased was earning Rs.25,000/- per month from his

hotel business. It is further contended that while awarding

compensation towards loss of dependency, the Tribunal

has not made provision for future prospects, as the

deceased was aged about 54 years and thus, awarding of

amount under the head 'loss of dependency' is on the

lower side. It is further contended that the compensation

awarded under the conventional heads viz., loss of

consortium, loss of estate, funeral and obsequies is also on

the lower side and requires to be enhanced.

12. Per contra, Smt. Sangeeta Bhadrashetty,

learned counsel for respondent No.2-insurance company

would contend that the compensation awarded by the

Tribunal is just and proper and the manner in which the

Tribunal has assessed the income of the deceased and the

award of compensation would not call for any interference.

13. Having heard the learned counsel for the

parties, the following point would arise for consideration in

this appeal:

Whether the judgment and award of the Tribunal require any interference insofar as quantum of compensation is concerned?

14. The fact that deceased Amruthrao succumbed

to the injuries sustained by him in a road traffic accident

that occurred on 23.06.2016 due to the rash and negligent

driving of the driver of the Leyland Lorry bearing

Reg.No.MH-15/BJ-4741 is not in dispute. However, the

controversy is with regard to the quantum of compensation

awarded by the Tribunal.

15. It is not in dispute that the deceased was

running the hotel business and PW.1 in her evidence has

categorically stated that the deceased was earning

Rs.25,000/- per month, but however has not produced any

document in respect of exact income of his hotel business,

nor produced any statement maintained during the course

of the business. The Tribunal has taken the monthly

income of the deceased at Rs.6,000/-. Even assuming that

the claimant has not produced any evidence to show the

income of the deceased, as per the guidelines of the

Karnataka State Legal Services Authority, the notional

income for the accidents occurred in the year 2016 is to be

taken at Rs.8,750/- per month. Hence, considering the

income of the deceased at Rs.8,750/- per month and

adding 10% i.e., Rs.875/- towards future prospects as per

the judgment of the Hon'ble Apex Court in National

Insurance Company Limited vs. Pranay Sethi and

others reported in (2017) 16 SCC 680, the total income

of the deceased would be Rs.9,625/- per month. After

deducting 1/3rd of it towards personal expenses of the

deceased and applying the multiplier of 11 since the

deceased was aged 54 years, the total compensation

payable towards loss of dependency would come to

Rs.8,47,000/- (Rs.9,625 x 12 x 11 x 2/3rd).

16. In view of the dictum of the Honble Apex Court

in Satinder Kaur @ Satwinder Kaur & Ors. v. United

India Insurance Co. Ltd. reported in AIR 2020 SC

3076 and Magma General Insurance Co. Ltd. vs.

Nanu Ram reported in 2018 ACJ 2782, the appellant

being the wife of the deceased would be entitled for

Rs.40,000/- towards loss of spousal consortium. Further,

the appellant is entitled for a sum of Rs.15,000/- towards

loss of estate and Rs.15,000/- towards transportation of

dead body, funeral and obsequies ceremony. The Tribunal

has awarded Rs.20,000/- towards medical and incidental

expenses without considering the fact that the claimant

has produced bill to the extent of Rs.46,679/- and

consolidated Pharmacy bill for Rs.4,389/-, totaling to

Rs.51,068/-. Exs.P9 to P12 are the medical bills, which

show that the deceased was inpatient and was under

treatment and has incurred the amount of Rs.51,068/-.

Thus, in our considered view, the claimant is entitled for

Rs.51,068/- towards medical and incidental expenses.

17. Thus, the appellant is entitled for total

compensation under various heads as under:

1. Towards loss of dependency Rs.8,47,000/-

2. Towards loss of consortium Rs.40,000/-

3. Towards loss of estate Rs.15,000/-

4. Towards transportation of Rs.15,000/-

           dead   body,    funeral   and
           obsequies ceremony
    5.     Towards medical expenses                  Rs.51,068/-
                          Total                  Rs.9,68,068/-

18. Since the Tribunal has awarded compensation

of Rs.6,18,000/-, after deducting the same, the appellant

is entitled for enhanced compensation of Rs.3,50,068/-

(Rs.9,68,068/- less Rs.6,18,000/-), which is rounded off to

Rs.3,50,000/- with interest at the rate of 6% per annum

from the date of petition till realization. Accordingly, the

point raised for consideration is answered in the

affirmative.

19. In the result, we pass the following

ORDER

i) The appeal is allowed in part.

ii) The judgment and award dated 08.02.2019

passed by the Tribunal in MVC No.284/2017

is hereby modified.

iii) The appellant/claimant is entitled for the