Gyanappa And Ors vs Sannaneelappa And Anr
2022 Latest Caselaw 2821 Kant

                             1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST 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.200996/2021 (MV)
BETWEEN:
1.     Gyanappa S/o Sharanappa Gurikar,
       Age: 33 years, Occ: Coolie,

2.     Shivappa S/o Sharanappa Gurikar,
       Age: 31 years, Occ: Coolie,

3.     Basappa S/o Sharanappa Gurikar,
       Age: 29 years, Occ: Coolie,

4.     Malawwa W/o Shivappa Gurikar,
       Age: 68 years, Occ: H.H.Work,

       All are R/o: Chalager, Tq. Kustagi,
       Dist: Koppal, Now residing a Venkatesh Nagar,
       Vijayapur-586101.
                                              ... Appellants

(By Sri. Sanganabasva B. Patil Advocate)

AND:

1.     Sannaneelappa S/o Hemalappa Lamani,
       Age: Major, Occ: Business,
                              2


      R/o: Here Kodagali, Tq. Hunagund,
      Dist: Bagalkot-587 101.
      (Owner of Tractor No.KA-29/TA-5781 and
      Trailer No.KA-29/T-5782)

2.    The Divisional Manager,
      United India Insurance Company Limited,
      S.S.Front Road, Sangam Building,
      Vijayapur-586 101.
                                         ... Respondents

(Smt. Anuradha M. Desai, Advocate for R2;
V/O dated. 03.02.2022, notice to R1 dispensed with)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award passed by the court of             the IV
Additional District & Sessions Judge and Member of Motor
Accident Claims Tribunal No.XIII, Vijayapur at Vijayapur in
MVC No.1056/2017 dated 10.07.2019 and allow the claim
petition by granting the relief as prayed for by the
appellants herein.

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

                        JUDGMENT

This appeal is preferred by the claimants, assailing

the impugned judgment and award dated 10.07.2019

passed in MVC.No.1056/2017 by the Motor Accidents

Claims Tribunal No.XIII, Vijayapur ("the Tribunal" for

short), seeking enhancement of compensation.

2. The claimants filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 (for short

'M.V. Act') before the Tribunal claiming compensation of

Rs.35,00,000/- on account of death of one Sharanappa

Gurikar, who was the pillion rider, who succumbed to the

injuries in a road traffic accident, contending that on

31.01.2015 at about 16.30 hours, when the deceased was

proceeding on a Moped TVS XL Super bearing Chassis

No.MD621BD16E1F12766 as a pillion rider along with one

Dyamanna and were returning from Nandwadgi to

Chalager and when they reached the junction at

Hirekodagalli on NH-50, the Tractor bearing Reg.

No.KA-29/TA-5781 and Trailer No.KA-29/TA-5782 came

from Kustagi side which was visible only within 4-5 yards,

due to which the rider of the Moped TVS XL dashed the

Tractor, resulting in the death of said Sharanappa Gurikar.

The claimants are the children and mother of the deceased

and the deceased was hale and healthy prior to the

accident. The claimants were depending upon the income

of the deceased, as the deceased was sole breadwinner of

the family.

3. On issuance of notice by the Tribunal,

respondent No.1 though appeared, did not file any written

statement.

4. Respondent No.2-insurance company appeared

and filed written statement contending that the rider of the

Moped TVS XL was not possessing valid driving licence to

drive the said vehicle and contended that the driver-cum-

owner of the insured tractor was not rash and negligent in

driving the vehicle and sought to absolve the liability of the

insurance company.

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

the Tribunal framed the following:

ISSUES

1. Whether the petitioners prove that the deceased Sharanappa died in a road accident, which occurred on 30.01.2015 involving Tractor bearing Reg.No.KA-29/TA- 5781 and Trailer KA No.29/TA-5782?

2. Whether the petitioners prove that, Sharanappa died was due to rash and negligent act of the driver of Tractor bearing No.KA-29/TA-5781 and its Trailer No.KA-29/TA-5782?

3. Whether the petitioners prove that, they are the dependents on the income of deceased Sharanappa?

4. Whether the respondent No.1 proves that, there is a contributed negligence on the part of Dyamanna and deceased Sharanappa?

5. Whether the respondent No.2 proves that, the petition is bad for non-joinder of necessary party?

6. Whether the respondent No.2 proves that, without registration from the concerned RTO, either temporary or full registration, which is compulsory, without registration, the said Motorcycle played on road, hence, the respondent No.2 is not liable to pay the compensation?

7. Whether the petitioners proves that, they are entitled for compensation? and if so, what is the quantum?

8. What order?

6. In order to substantiate their case, claimant

No.2 in MVC No.1056/2017, the son of deceased

Sharanappa Gurikar was examined as PW.1 and the rider

of the Moped TVS XL was examined as PW.2 and got

marked 12 documents as Exs.P1 to P12. On the other

hand, respondent No.2-Insruance Company examined its

authorized officer as RW.1 and got marked 3 documents as

Exs.R1 to R3.

7. On the basis of the pleading, evidence and

material on record, the Tribunal held that the accident

occurred due to the rash and negligent driving on the part

of the driver of the Tractor bearing Reg.No.KA-29/TA-5781

and Trailer No.KA.No.29/TA-5782 and awarded

compensation of Rs.8,65,000/- with interest at 9% p.a.

from the date of petition till its realization under the

following heads:

1. Loss of paternal consortium Rs.60,000/-

      2.        Funeral expenses                  Rs.25,000/-
      3.        Loss of dependability           Rs.7,80,000/-
                Total                          Rs.8,65,000/-

8. The claimants, not being satisfied with the

quantum of compensation awarded by the Tribunal have

preferred the present appeal.

9. Heard the learned counsel for the

appellants/claimants and learned counsel for respondent

No.2-Insurance Company and perused the material on

record.

10. Sri Sanganabasava B. Patil, learned counsel for

the appellants would contend that the Tribunal was not

right in assessing the income of the deceased at

Rs.7,500/- per month, as the deceased was doing

agriculture coolie work and earning Rs.20,000/- per month

and thus, contended that the income assessed by the

Tribunal is on the lower side and also contended that the

quantum of compensation awarded under the head 'loss of

dependency' is on the lower side. It is further contended

that the compensation awarded under the conventional

heads is also on the lower side and requires to be

enhanced.

11. Per contra, Smt. Anuradha M. Desai, 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 compensation would not call for any

interference.

12. Having heard the learned counsel for the

parties, the only point that arises for consideration in this

appeal is,

Whether the judgment and award passed by the Tribunal requires interference insofar as quantum of compensation is concerned?

13. The fact that Sri. Sharanappa Gurikar

succumbed to the injuries sustained by him in the road

traffic accident that occurred on 30.01.2015 due to the

rash and negligent driving of the driver of the Tractor

bearing Reg.No.KA-29/TA-5781 and Trailer No.KA-29/TA-

5782 is not in dispute. However, the controversy is with

regard to the quantum of compensation awarded by the

Tribunal.

14. The accident has occurred in the year 2015.

The Tribunal has taken the income of the deceased at

Rs.7,500/- per month. Even assuming that the claimants

have not produced any evidence to show the income of the

deceased, as per the Lok-Adalat guidelines, for the

accidents that occurred in the year 2015, the notional

income of the deceased is to be taken at Rs.8,000/- per

month. Hence, considering the income of the deceased at

Rs.8,000/- per month and adding 10% i.e., Rs.800/-

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.8,800/- per month. After deducting 1/4th of it

towards personal expenses of the deceased and applying

the multiplier of 13 bearing in mind the age of the

deceased as 50 years, the total compensation payable

towards loss of dependency would come to Rs.10,29,600/-

(Rs.8,800 x 12 x 13 x ¾)

15. 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 in Magma General Insurance Company

Limited vs. Nanu Ram Alias Chuhru Ram and others

reported in (2018) 18 SCC 130, the appellants, who are

the children and mother of the deceased would be entitled

to Rs.40,000/- each i.e., Rs.1,60,000/- (Rs.40,000 x 4)

towards loss of filial and parental consortium. Further, the

appellants are entitled to Rs.15,000/- towards loss of

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

body and funeral expenses.

16. Thus, the total compensation payable to the

appellants is reassessed as under:

1. Towards loss of dependency Rs.10,29,600/-

2. Towards loss of filial and Rs.1,60,000/-

parental consortium

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

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

          dead    body     and    funeral
          expenses
          Total                             Rs.12,19,600/-

17. The Tribunal has already awarded a sum of

Rs.8,65,000/-. Hence, after deducting the same, the

appellants would be entitled for enhanced compensation of

Rs.3,54,600/- (Rs.12,19,600/- less Rs.8,65,000/-). The

Tribunal has awarded interest at the rate of 9% p.a.

However, the Tribunal as well as this Court would regularly

award the interest at 6% p.a. Hence, we deem it just and

proper to award the interest at 6% p.a. on the enhanced

compensation. Accordingly, the point raised for

consideration is answered in the affirmative.

18. In the result, we pass the following

ORDER

i) The appeal is allowed in part.

ii) The impugned judgment and award dated

10.07.2019 passed by the Tribunal in MVC

No.1056/2017 is hereby modified.

iii) The appellants/claimants are entitled for the

enhanced compensation of Rs.3,54,600/- with

interest at 6% p.a. from the date of petition till

realization.

iv) The apportionment, deposit and release of the

enhanced compensation would be as per the

award of the Tribunal.

v) Respondent No.2-Insurance Company is

directed to deposit the enhanced compensation

with updated interest within a period of eight

weeks from the date of receipt of a

certified copy of this judgment.

vi) Parties to bear their respective costs.

vii) Registry is directed to transmit the Trial Court

Records forthwith.

Sd/-

JUDGE

Sd/-

JUDGE SMP/LG