Basamma And Ors vs Shivaputrappa And Anr
2022 Latest Caselaw 2942 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 22ND 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.201345/2019 (MV)

BETWEEN:

1.     Basamma W/o Ramanagouda Patil,
       Age: 36 years, Occ: Household,

2.     Bhagyashree D/o. Ramanagouda Patil,
       Age: 17 years, Occ: Education,

3.     Laxmi D/o. Ramanagouda Patil,
       Aged: 16 years, Occ: Education,

4.     Shakambari D/o Ramanagouda Patil,
       Aged: 14 years, Occ: Education,

5.     Vishal S/o. Ramanagouda Patil,
       Aged: 12 years, Occ: Education,

6.     Siddanagouda S/o Ramanagouda Patil,
       Age: 10 years, Occ: Education,

       Appellant No.2 to 6 are minor U/G
       Appellant No.1.
                               2


7.     Bhalamma W/o Bhimanagouda Patil,
       Aged: 69 years, Occ: Household,

8.     Bhimanagouda S/o Dandappagouda Patil,
       Aged: 79 years, Occ: Agriculture,

       All are R/o: Cheeraladdinni,
       Tal: Basavana Bagewadi,
       Dist: vijayapura-586101.
                                               ... Appellants
(By Sri Gopalkrishna B. Yadav, Advocate)

AND:

1.     Shivaputrappa
       S/o Basavantappa Narasareddi,
       Age: 49 years,
       Occ:Business @ Vehicle owner,
       R/o Unnibhavi, Tq: Basavana-Bagewadi,
       Dist: Vijayapura-586 101.

2.     The Branch Manager,
       United Insurance Company Limited,
       R/o P.B.No.60 Sangam Building,
       Near SS Road, Vijayapura-586 101.
                                            ... Respondents
(Sri. Sudarshan M., Advocate for R2;
 R1 - served)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, 1988, praying to allow
the appeal and modify the judgment and award dated
05.11.2018 in MVC No.1367/2015 passed by learned
Senior Civil Judge & MACT-IX, Basavana-Bagewadi by
enhancing the compensation as claimed in the claim
petition.

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

The claimants have preferred this appeal, seeking

enhancement of compensation by assailing the judgment

and award dated 05.11.2018 passed in MVC No.1367/2015

by the Senior Civil Judge and MACT-IX, Basavana-

Bagewadi (hereinafter referred to as 'the Tribunal' for

short).

2. The claimants filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 before the

Tribunal, claiming compensation of Rs.54,00,000/- on

account of death of one Ramanagouda S/o Bhimanagouda

Patil, who succumbed to the injuries sustained by him in a

road traffic accident, contending that on 08.07.2015 at

about 11.00 p.m. when the deceased along with one Ramu

@ Ramesh was proceeding on a motorcycle bearing

Reg.No.KA-28/S-1649 towards Muttagi cross and when

they were near Malaji land, a Tipper bearing Reg.

No.KA-28/A-1371 came from opposite direction in a rash

and negligent manner and dashed against the motorcycle,

due to which the deceased succumbed to the injuries. The

deceased was age about 38 years and was earning

Rs.25,000/- per month from agriculture work and

claimants being the parents, wife and children of the

deceased were solely depending upon the income of the

deceased.

3. On issuance of notice by the Tribunal,

respondent Nos.1 and 2 appeared and filed their written

statements.

4. Respondent No.1, the owner of the Tipper

vehicle contended that the driver of the vehicle was

holding valid and effective driving licence and the vehicle

was insured with the respondent No.2.

5. Respondent No.2 - insurance company

contended that there is no contributory negligence on the

part of the driver of the insured vehicle and the accident

occurred due to the sole negligence on the part of the

deceased, who was riding the motorcycle bearing

Reg.No.KA-28/S-1649 and also contended that the driver

of the Tipper vehicle was not holding valid and effective

driving licence as on the date of the accident. On these

grounds, sought to absolve the liability.

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

the Tribunal framed the following:

ISSUES

1. Whether the petitioners prove that, on 09.07.2015 at about 11.00 p.m. when deceased Ramanagouda Bhimanagouda Patil and his relative Ramesh Biradar were going to Kamankeri on motorcycle to meet his daughter, at that time one Tipper bearing No.KA-29/A-1371 came from NTPC towards Muttagi side in a very high speed, rash and negligent manner and dashed to the motorcycle of deceased causing accident due to which deceased Ramanagouda Patil has sustained grievous injury and died on the spot?

2. Whether respondent No.1 proves that, he has insured his vehicle with respondent No.2 and is not liable to pay the compensation to the petitioners?

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

4. What order award?

ADDL. ISSUES

1. Whether petition is bad for non joinder of necessary parties?

2. Whether respondent No.2 proves that the driver of offending insured vehicle and so also the deceased i.e. rider of motorcycle bearing Reg.No.KA-28/S-1649 were not possessing valid and effective Driving License at the time of alleged accident, hence respondent No.2 is not liable to pay compensation?

7. In order to substantiate their case, claimant

No.6-the wife of deceased Ramanagouda examined herself

as PW.1 and examined two witnesses as PWs. 2 and 3 and

got marked the documents as Exs.P1 to Ex.P13. On the

other hand, the respondents did not lead any evidence.

However, got marked the insurance policy as 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 Tipper

bearing Reg.No.KA-28/A-1371 and awarded a

compensation of Rs.9,34,000/- along with interest at the

rate of 9% per annum from the date of petition till

realization.

9. Being not satisfied with the quantum of

compensation awarded by the Tribunal, the claimants have

preferred the present appeal.

10. Heard the learned counsel for the appellants

and learned counsel for respondent No.2-insurance

company and perused the material on record.

11. Sri Gopalkrishna B. Yadav, learned counsel for

the appellants would contend that the deceased was hale

and healthy, aged about 38 years at the time of accident

and was doing agriculture work and earning around

Rs.25,000/- per month and that the notional income at

Rs.6,000/- per month taken by the Tribunal is much on the

lower side and thus, the loss of dependency arrived at by

the Tribunal is also on the lower side. It is specifically

contended that the compensation awarded under the

conventional heads is very much meager and needs to be

enhanced.

12. Per contra, Sri Sudarshan M., 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 Ramanagouda succumbed to the

injuries sustained by him in the accident that occurred on

08.07.2015 due to the rash and negligent driving of the

driver of the Tipper bearing Reg.No.KA-28/A-1371 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 2015

and the deceased was an agriculturist and was earning

Rs.25,000/- per month as per the contention of the

claimants. The Tribunal was not justified in taking the

notional income of the deceased only at Rs.6,000/- per

month. Even assuming that the claimants have 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 2015 is to be taken at

Rs.8,000/- per month. Hence, considering the income of

the deceased at Rs.8,000/- per month, adding 40% of it

i.e., Rs.3,200/- 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, totaling to

Rs.11,200/-, deducting 1/5th of it towards personal

expenses of the deceased, as the dependents are eight in

number and applying the multiplier of 15 since the

deceased was aged 38 years, the total compensation

payable towards loss of dependency would come to

Rs.16,12,800/- (Rs.11,200 x 12 x 15 x 4/5).

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 appellants,

who are eight in number i.e., the parents, wife and

children of the deceased would be entitled to Rs.40,000/-

each towards loss of filial, spousal and parental consortium

respectively amounting to Rs.3,20,000/-. Further, the

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

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

obsequies ceremony.

17. Thereby the appellants are entitled for total

compensation under various heads as under:

1. Towards loss of dependency Rs.16,12,800/-

2. Towards loss of filial, spousal Rs.3,20,000/-

and parental consortium

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

4. Towards funeral and obsequies Rs.15,000/-

ceremony Total Rs.19,62,800/-

18. The Tribunal has already awarded

compensation of Rs.9,34,000/-. Hence, after deducting the

same, the appellants are entitled for enhanced

compensation of Rs.10,28,800/- (Rs.19,62,800/- less

Rs.9,34,000/-). The Tribunal has awarded interest at the

rate of 9% p.a. However, this Court as well as the Tribunal

would regularly award the interest at 6% p.a. Hence, we

deem it just and appropriate to award the interest at 6%

p.a. on the enhanced compensation.

19. In view of the same, the point raised for

consideration is answered in the affirmative.

20. In the result, we pass the following

ORDER

i) The appeal is allowed in part.

ii) The judgment and award dated 05.11.2018 passed by the Tribunal in MVC No.1367/2015 is hereby modified.

iii) The appellants/claimants are entitled for enhanced compensation of Rs.10,28,800/- 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 shall deposit the compensation amount 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