The Legal Manager vs Smt. Sunanda And Ors
2022 Latest Caselaw 2294 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 14TH DAY OF FEBRUARY 2022

                              PRESENT

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

                                  AND

       THE HON'BLE MR. JUSTICE V SRISHANANDA

                   M.F.A. No.200612/2019 (MV)
                              C/W
                   M.F.A. No.201216/2018 (MV)

In MFA No.200612/2019:

BETWEEN:

1.     Smt. Sunanda @ Bhagamma
       W/o Late Devendra Murde
       Age: 49 years, Occ: Household

2.     Kumari Pooja D/o Late Devendra
       Murde, Age: 20 years, Occ: Household

3.     Smt. Kamalabai W/o Tammanna Murde
       Age: 69 years, Occ: Household

       All are R/o Gudur (SN) Village
       Tq. Jewargi, Dist. Kalaburagi-585310
                                                      ... Appellants

(By Sri Sharanabasappa K. Babshetty, Advocate)

AND:

1.     Sri Shivanagouda S/o Basavantrayagouda
       Malipatil, Age: 44 years, Occ: Agriculture &
       Owner of Tata Indica Car, R/o Kallura (K)
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       Village, Tq. Jewargi, Dist: Kalaburagi-585310

2.     The Legal Manager
       Reliance General Insurance
       Near SVP Circle, Asian Arcade
       Station Road, Kalaburagi-585310
                                                         ... Respondents

(By Sri Subhash Mallapur, Advocate for R2;
 Notice to R1 is dispensed with vide order dated 23.02.2021)

        This Miscellaneous First Appeal is filed under Section 173 (1) of
Motor Vehicles Act, praying to allow this appeal and modify the judgment
and award dated 20.02.2018, passed by the Senior Civil Judge and
Judicial Magistrate of the First Class at Jewargi, in MVC No.548/2015 and
enhance the compensation amount as claimed by the appellants.

In MFA No.201216/2018:

BETWEEN:

The Legal Manager
Reliance General Insurance
Near SVP Circle, Asian Arcade
Station Road, Kalaburagi
                                                               ... Appellant

(By Sri Subhash Mallapur, Advocate)

AND:

1.     Smt. Sunanda @ Bhagamma
       W/o Late Devendra Murde
       Age: 48 years, Occ: Household

2.     Kumari Pooja D/o Late Devendra
       Murde, Age: 19 years, Occ: Student

3.     Smt. Kamalabai W/o Tammanna Murde
       Age: 68 years, Occ: Household

       All R/o Gudur (SN) Village
       Tq. Jewargi, Dist. Kalaburagi-585102

4.     Sri Shivanagouda S/o Basavantrayagouda
                                    3



       Malipatil, Age: 43 years, Occ: Agriculture &
       Owner of Tata Indica Car, R/o Kallura (K)
       Village, Tq. Jewargi, Dist: Kalaburagi-585102

                                                         ... Respondents

(By Sri Sharanabasappa K. Babshetty, Advocate for R1 and R3;
 R2 and R4 are served)

        This Miscellaneous First Appeal is filed under Section 173 (1) of
Motor Vehicles Act, praying to allow the appeal and consequently to set
aside the judgment and award dated 20.02.2018 passed by the Senior
Civil Judge and JMFC, Jewargi in MVC No.548/2015.

       These appeals coming on for               admission    this   day,
S.R.Krishna Kumar J., delivered the following:

                             JUDGMENT

Both these appeals arise out of the impugned judgment

and award dated 20.02.2018 passed in MVC No.548/2015 by

the Senior Civil Judge and JMFC, Jewargi (for short 'the

Tribunal'), whereby the Tribunal awarded compensation in a

sum of Rs.23,45,000/- in favour of the claimants by way of

compensation towards death of one Devendra Murde who

expired in a fatal road traffic accident that occurred on

24.12.2014.

2. MFA No.201216/2018 is preferred by the Insurance

Company, while MFA No.200612/2019 is preferred by the

claimants.

3. Heard learned counsel for the claimants and learned

counsel for the Insurance Company and perused the material

on record.

4. In addition to reiterating the various contentions

urged in the appeal and referring to the material on record,

learned counsel for the Insurance Company submitted that the

Tribunal committed an error in failing to appreciate that the

accident in question had occurred on account of contributory

negligence on the part of the deceased who was riding the

motor cycle which dashed against the offending insured Tata

Indica car resulting in the accident in question. It is also

submitted that apart from the fact that the oral and

documentary evidence on record have not been appreciated

properly by the Tribunal, the quantum of compensation

awarded by the Tribunal is excessive and exorbitant and that

the same deserves to be reduced by this court.

5. Per contra, learned counsel for the claimants, in

addition to supporting the impugned judgment and award in

relation to the rash and negligent driving on the part of the

driver of the offending vehicle - Tata Indica Car, submits that

the quantum of compensation awarded by the Tribunal is

meager and inadequate and that the same deserves to be

enhanced by this court.

6. We have given our anxious consideration to the rival

submissions and perused the material on record.

7. A perusal of the impugned judgment and award

passed by the Tribunal will indicate that the Tribunal has

correctly and properly considered and appreciated the entire

material on record and has taken into account the fact that the

Insurance Company had not adduced any evidence on its

behalf to establish that the deceased was guilty of contributory

negligence resulting in the accident. Upon re-appreciation

and re-evaluation of the entire material on record, we are of

the considered opinion that the finding recorded by the

Tribunal that the driver of the offending vehicle - Tata Indica

car was solely responsible for the accident in question and no

contributory negligence can be attributed to the deceased

does not suffer from any infirmity or illegality warranting

interference by this court in the present appeal.

8. Insofar as the quantum of compensation is

concerned, the compensation awarded by the Tribunal

towards loss of dependency, loss of estate and funeral

expenses is in conformity with the decisions of the Apex Court

in Sarla Verma vs. Delhi Transport Corporation - (2009) 6

SCC 121 and National Insurance Company Limited vs.

Pranay Sethi and Others - (2017) 16 SCC 680 and the said

findings do not warrant interference by us.

9. However, the claimants being the wife, minor

daughter and mother of the deceased, the compensation of

Rs.40,000/- only awarded in favour of all three of them under

the head "loss of consortium" is meager and inadequate being

contrary to the decision of the Apex Court in Magma General

Insurance Company Limited vs. Nanu Ram alias Chuhru

Ram & others - (2018) 18 SCC 130. Under these

circumstances, since all the three claimants are entitled to

Rs.40,000/- each towards loss of consortium, we are of the

view that the claimants are entitled to additional enhanced

compensation of Rs.80,000/- which shall carry interest at 6%

per annum from the date of the claim petition till realization.

10. In the result, we pass the following:

ORDER

(i) MFA No.201216/2018 filed by the Insurance Company is hereby dismissed.

(ii) The amount deposited by the Insurance Company before this Court is directed to be transmitted to the MACT for disbursement.

(iii) MFA No.200612/2019 filed by the claimants is partly allowed and the impugned judgment and award dated 20.02.2018 passed in MVC

No.548/2015 by the Senior Civil Judge and JMFC, Jewargi is hereby modified.

(iv) The claimants are entitled to additional enhanced compensation of Rs.80,000/- together with interest at 6% per annum from the date of the claim petition till realization in addition to the compensation awarded by the Tribunal.

(v) The Registry is directed to transmit the trial court records back to the MACT forthwith.

Sd/-

JUDGE

Sd/-

JUDGE swk