B Rani @ B Lakshmi vs B Sikandar
2022 Latest Caselaw 2734 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 18 T H DAY OF FEBRUARY, 2022

                         BEFORE

      THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

               M.F.A. No.22796/2013 (MV)

BET WEEN

1.     SMT.B.RANI @ B .LAKSHMI,
       W/O LATE B.RAMAKRISHNA,
       AGE: 47 YEARS, OCC: HOU SEWIFE.

2.     SMT.RAJESHWARI,
       W/O NELAKANTESHWAR RAO,
       D/ O LATE B RAMAKRISHNA,
       AGE: 27 YEARS, OCC: HOU SEWIFE,
       R/O: 13 T H WARD, SIRUGUPPA ROAD,
       B ALLARI.

3.     SMT.ARU AN W/O RAMESH,
       D/ O LATE B . RAMAKRISHNA,
       AGE: 24 YEARS, OCC: HOU SEWIFE

       APPELLANTS NO.1 AND 3 ARE
       R/O: B UDIHAL CAMP,
       SINDHANU R-T ALU K,
       RAICHU R-DISTR ICT ,
       PRESENTLY R/O: T ILAK NAGAR,
       B ALLARI .
                                           ...APPELLANTS
(BY SRI MANJU NAT H G.PATIL, ADVOCATE)

AND

1 .    B SIKANDAR
       (SINCE DECEASED, DELET ED).

2 .    THE BRANCH MANAGER,
       M/S BAJAJ ALLIANZ GENERAL
       INSURANCE CO.LTD.,
                              2




      DOUB LE ROAD, B ALLARI.

3 .   G NELAKANTESHWARA RAO,
      S/O SUBB A RAO,
      AGE: MAJOR, OWNER OF T HE MOTOR
      CYCYLE REG.NO.KA:34/K- 1689,
      R/O: RAJOL I CAMP,
      SIRU GU PPA, B ALLARI-DIST .

4 .   SRIDHAR
      S/O LAT E B . RAMAKRISHNA,
      AGE: 25 YEARS,
      R/O: B UDIHAL CAMP,
      SINDHANU R-T ALU K,
      RAICHU R-DISTR ICT .
      PRESENTLY R/O: T ILAK NAGAR,
      B ALLARI.
                                        ...RESPONDENTS
(BY SRI M.K.SOU DAGAR, ADVOCATE FOR R2;
 R1-DELET ED; NOT ICE TO R3 AND R4 DISPENS ED WIT H)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 25.07.2 012 PASS ED IN
MVC No.1192/2011 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS T RIB UNAL-IX , B ALLARI, P ART LY ALLOWING THE
CLAIM   PET IT ION FOR    COMPENSAT ION   AND  S EEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                          JUDGMENT

The claimants have p referred this appeal seeking

enhancement of the compensation award ed by the

M.A.C.T-IX, Ballari (hereinafter referred to as the

'Tribunal', for brevity) in MVC No.1192/2011 vide its

judgment and award dated 25.07.2012.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience.

The undisputed facts of the case are that on

07.12.2010 the deceased B.Ramakrishna along with

his friend Nageshwar was proceeding in a motorcycle

bearing registration No.KA-34/K-1689 from Siruguppa

to Budihal Camp. Deceased Ramakrishna was riding

the motorcycle and Nageshwar was a pillion rider.

The offending lorry bearing registration No.KA-35/

A-2100 was parked near Budhihal Camp in the middle

of the road without any signals. The rider of the

motorcycle deceased B.Ramakrishna dashed against

the parked lorry and caused the accident. In the said

accident, B.Ramakrishna who was riding the

motorcycle had died on the spot and the pillion rider

who was grievously injured was shifted to a hospital

wherein he was treated for his injuries. The claimants

in this case are the wife and children of deceased

B.Ramakrishna who had filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 (for

short, the 'Act') in MVC No.1192/2011 before the

Tribunal. The driver, owner and insurer of the

offending lorry and the owner of the motorcycle were

arrayed as respondents in the claim petition. The

Tribunal had partly allowed the claim petition and

awarded a total compensation of `3,75,500/- with

interest at 6% per annum from the date of petition

till realization. The Tribunal also held that the

accident was as a result of the composite negligence

on the part of the rider of the motorcycle as well as

the driver of the offending lorry which was parked

wrongly and therefore saddled 50% of liability to pay

compensation on the owners of the lorry and

motorcycle respectively. Being aggrieved by the

quantum of compensation awarded, the claimants

have preferred this appeal.

3. Learned counsel for the claimants submits

that the deceased was aged about 53 years at the

time of accident, but the Tribunal had erroneously

taken the age at 65 years. He submits that the

compensation awarded under the conventional heads

is on the lower side and accordingly he prays to

enhance the compensation.

4. Per contra, learned counsel appearing for

the insurer submits that the compensation awarded

by the Tribunal is just and proper and age of the

deceased is taken based on the postmortem report

and therefore there is no error in the judgment

passed by the Tribunal. Accordingly, he prays to

dismiss the appeal.

5. I have carefully considered the arguments

addressed on both sides and also perused the

material available on record.

6. The undisputed facts of the case are that

the accident had taken place on 07.12.2010 in which

the lorry bearing registration No.KA-35/A-2100 and

the motorcycle bearing registration No.KA-34/K-1689

were involved. The deceased Ramakrishna who was

riding the motorcycle was injured and he had

succumbed to the injuries on the spot. The Tribunal

having entertained the claim petition had awarded a

compensation of `3,73,500/- to the claimants and

had held that the claimants are entitled for 50% of

the said compensation amount from the owner and

insurer of the lorry bearing registration No.KA-35/

A-2100 and remaining 50% liability to pay

compensation was saddled on the owner of the

motorcycle bearing registration No.KA-34/K-1689 for

the reason that the accident was caused as a result

of composite negligence of the rider of the

motorcycle as well as the driver of the lorry.

7. The only question that arises for

consideration in this appeal is with regard to the

adequacy of compensation awarded by the Tribunal to

the claimants. The claimants in their petition, as well

as during the course of evidence, contended that the

deceased was aged about 53 years and even in the

charge sheet it has been mentioned that the

deceased was aged about 53 years. The age of the 1 s t

claimant who is the wife of the deceased is

mentioned as 46 years while the age of the children

are mentioned as 26, 24 and 23 years respectively.

The Tribunal had taken into consideration the age of

the deceased at 65 years based on the age

mentioned in the postmortem report. Having regard

to the overall material available on record and also

considering the age of the wife and the children of

the deceased, I am of the considered view that if the

age of the deceased is taken at 60 years at the time

of accident, it would meet the ends of justice having

regard to the fact that there is no substantial

evidence to prove the correct age of the deceased. In

the said event, the proper multiplier applicable would

be '9'. The Tribunal has taken notional income of the

deceased at `6,000/- per month. 1/3 r d of the said

income is required to be deducted towards his

personal expenses. Therefore, towards loss of

dependency, the claimants would be entitled for a

sum of `4,32,000/- as against `3,36,000/- awarded

by the Tribunal. In addition to the same, the

claimants are entitled for `40,000/- each towards

loss of consortium and loss of filial love and affection

and they are also entitled for a further sum of

`30,000/- towards loss of estate and towards funeral

expenses. Therefore under the conventional heads,

the claimants are entitled for a total sum of

`1,90,000/-. In all, the claimants are therefore

entitled for a compensation of `6,22,000/- as against

`3,73,500/- awarded by the Tribunal. The enhanced

amount of compensation shall also carry interest at

6% per annum.

8. The Tribunal had apportioned the liability to

pay the compensation between the owner of the

motorcycle and the owner of the lorry at 50% each.

The said apportionment made by the Tribunal

remains unaltered. The insurer of the offending lorry

bearing registration No.KA-35/A-2100 shall deposit

its liability of 50% of the total compensation amount

before the Tribunal with interest within a period of

six weeks from the date of receipt of certified copy of

this order. The balance 50% is liable to be paid by

the 4th respondent who is the owner of the

motorcycle bearing registration No.KA-34/K-1689.

9. The order passed by the Tribunal insofar as

it relates to apportionment, disbursement and deposit

etc., remains unaltered and would be applicable even

in respect of the enhanced amount of compensation.

The Miscellaneous First Appeal is accordingly partly

allowed.

Sd/-

JUDGE CLK