Karnataka High Court

Basamma And Ors vs Shrimant And Anr on 21 February, 2022

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

                              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.200745/2021 (MV)

BETWEEN:
1.     Basamma W/o Late Kalyani Dhodamani,
       Age: 46 years, Occ: Household,

2.     Kum. Shweta D/o Late Kalyani Dhodamani,
       Age: 18 yeas, Occ: Student,

3.     Prabhudev S/o Late Kalyani Dhodamani,
       Age: 16 years, Occ: Student,

4.     Mahadevi W/o Ninganappa Dhodamani,
       Age: 74 years, Occ: Nil,

5.     Ninganappa S/o Sidlingappa Dhodamani,
       Age: 79 years, Occ: Nil,

       Appellant No.3 is minor U/g of appellant No.1.

       All are R/o Maindargi (Rural), Tq: Akkalkot,
       Dist: Solapur, Now at Plot No.9,
       Karuneshwar Nagar, Kalaburagi.
                                                ... Appellants

(By Sri. Nagaraj Patil, Advocate)
                                2


AND:

1.     Shrimant S/o Iranna Anjutagi,
       Age: Major, Occ: Business & Owner of JCB,
       R/o. H.No.95, Shirawal,
       Tq: Afzalpur, Dist: Kalaburagi-585302.

2.     Liberty Videocon general Insurance Co. Ltd.
       10th floor, tower A Peninsula Business Park,
       Ganapath Rao Kadam Marg Lower Parel,
       Mumbai-400013 (Maharastra).
       Through its authorized officer,
       Sangameshwar Colony,
       Kalaburagi-585102.
                                             ... Respondents

(Sri. C.S. Kalburgi, Advocate for R2;
 R1 - served)

      This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to modify the
judgment and award dated 07.01.2020 passed in MVC
No.369/2018 by the II Additional Senior Civil Judge and
MACT, Kalaburagi and allow the appeal by enhancing the
compensation amount of Rs.35,55,000/- only as claimed
by the appellant before this Court and order for costs of
this appeal.

      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. This appeal is preferred by the claimants,

assailing the impugned judgment and award dated

07.01.2020 passed in MVC.No.369/2018 by the

II Additional Senior Civil Judge and MACT, Kalaburagi ("the

Tribunal" for short), seeking enhancement of

compensation.

3. The claimants filed a claim petition before the

Tribunal under Section 166 of the Motor Vehicles Act,

1988, claiming compensation of Rs.66,50,000/- on account

of death of one Kalyani in a road traffic accident,

contending that on 01.01.2018 at about 5.30 p.m., when

the deceased was proceeding on a motorcycle bearing

Reg.No.KA-32/TR-9739 near Madabal Thanda Canel, on

Afzalpur-Dhudhani Road, a JCB bearing Temporary

Registration No.KA-32/TQ-030340/2017-18, Chassis

No.HAR3DXSSH02592949 came in a rash and negligent

manner and dashed against the motorcycle of the

deceased, due to which he died on the spot. The claimants

are the wife, children and parents of the deceased. The

deceased was hale and healthy at the time of accident and

earning Rs.40,000/- per month from the Kirana shop.

The claimants were depending upon the income of the

deceased, as the deceased was sole breadwinner of the

family.

4. On issuance of notice by the Tribunal,

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

statement.

5. Respondent No.2-insurance company appeared

and filed the written statement contending that the driver

of the offending vehicle was not having valid and effective

driving licence as on the date of the accident and the

policy conditions have been violated and as such

contended that the insurance company is not liable to pay

the compensation.

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

the Tribunal framed the following:

ISSUES

1. Whether the petitioners prove that on 01.01.2018 at about 5.30 PM, on Afzalpur- Chudhani road, near Madabal Thanda Canel, husband of the petitioner No.1 i.e. Kalyani met with an accident and died due to the rash and negligent driving of the driver of the JCB bearing temporary Reg.No.KA-32/TQ-030340?

2. Whether the respondent No.2 proves that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident?

3. Whether the petitioners are entitled for the compensation? If so, how much and from whom?

4. What order or award?

7. In order to substantiate their case, claimant

No.1-wife of the deceased examined herself as PW.1 and

got marked 18 documents as Exs.P1 to P18. On the other

hand, no evidence was adduced on behalf of the

respondents. However, driving licence was marked at

Ex.R1.

8. On the basis of the pleadings, evidence and

material on record, the Tribunal held that the accident

occurred due to the rash and negligent driving of the driver

of the offending vehicle, due to which the deceased

succumbed to the injuries and thus, awarded a

compensation of Rs.30,95,000/- with interest at 6% p.a.

from the date of petition till its realization under the

following heads:

   Love and affection                             Rs.1,00,000/-
   Loss of consortium                               Rs.40,000/-
   Funeral       expenses              and          Rs.15,000/-
   transportation charges
   Loss of dependency                           Rs.29,25,000/-
   Loss of estate                                  Rs.15,000/-
   Total Compensation                          Rs.30,95,000/-

9. The claimants, not being satisfied with the

quantum of compensation awarded by the Tribunal have

preferred the present appeal.

10. Heard the learned counsel for the

appellants/claimants and learned counsel for respondent

No.2-insurance company and perused the material on

record.

11. Sri Nagaraj Patil, learned counsel for the

appellants would contend that the Tribunal was not right in

assessing the income of the deceased at Rs.3,00,000/- per

annum, as he was an income tax assessee and the income

of the year 2016-17 is Rs.3,84,147/- and contended that

while awarding compensation towards loss of dependency,

the Tribunal has not made provision for future prospects at

25%, as the deceased was aged about 48 years and thus,

awarding of compensation 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.

12. Per contra, Sri C.S. Kalburgi, 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.

13. 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 is concerned?

14. The fact that deceased Kalyani succumbed to

the injuries sustained by him in the accident that occurred

on 01.01.2018 due to the rash and negligent driving of the

driver of the JCB bearing Temporary Reg.No.KA-32/TQ-

030340/2017-18, Chassis No.HAR3DXSSH02592949 is not

in dispute. However, the controversy is with regard to the

quantum of compensation awarded by the Tribunal.

15. The accident has occurred in the year 2018. As

per the Income Tax Returns at Exs.P10 to P13, the income

of the deceased for the year 2016-17 is Rs.3,84,147/-.

The Tribunal has taken the income of the deceased at

Rs.3,00,000/- per annum. Taking into consideration the

income of the deceased for the year 2016-17 as per the

Income Tax Returns, the income of the deceased is taken

at Rs.3,84,147/- per annum and adding 25% i.e.,

Rs.96,036/- 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.4,80,183/-. 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 48 years, the total compensation payable

towards loss of dependency would come to Rs.46,81,794/-

(Rs.4,80,183 - Rs.1,20,045 = Rs.3,60,138 x 13).

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 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 wife, children and parents of the deceased would be

entitled to Rs.40,000/- each i.e., Rs.2,00,000/-

(Rs.40000 x 5) towards loss of spousal, parental and filial

consortium respectively. 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.

17. Thus, the total compensation payable to the

appellants is reassessed as under:

1. Towards loss of dependency Rs.46,81,794/-

2. Towards loss of spousal, filial Rs.2,00,000/-

and parental consortium

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

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

           dead    body    and     funeral
           expenses
           Total                                       Rs.49,11,794/-

18. The Tribunal has already awarded a sum of

Rs.30,95,000/-. Hence, after deducting the same, the

appellants would be entitled for enhanced compensation of

Rs.18,16,794/- (Rs.49,11,794/- less Rs.30,95,000/-) with

interest at 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 impugned judgment and award dated

07.01.2020 passed by the Tribunal in MVC

No.369/2018 is hereby modified.

iii) The appellants/claimants are entitled for the

enhanced compensation of Rs.18,16,794/- 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