Sarijini And Ors vs Sangmesh And Anr
2022 Latest Caselaw 3005 Kant

                               1


          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.201071/2021 (MV)

BETWEEN:
1.     Sarijini W/o Dashrath Balamkar,
       Age: 69 years, Occ: Nil,
2.     Jyoti W/o Mahesh Balamkar,
       Age: 30 years, Occ: House Hold work,
3.     Nikita D/o Mahesh Balamkar,
       Age: 11 years, M/g by appellant No.2,

4.     Rohit S/o Mahesh Balamkar,
       Age: 07 years, M/g by appellant No.2,

       All are resident of Hallad Oni, Indi,
       District Vijayapura.
                                               ... Appellants

(By Sri Sanganagouda V.Biradar, Advocate)

AND:

1.     Sangmesh S/o Chanbasappa Basaragi,
       Age: 44 years, Occ: Business,
                               2


      R/o Jadar Bablad, Taluk: Jath,
      Taluk: Indi, District: Vijayapura-586101.

2.    The Branch Manager,
      Oriental Insurance Company Limited,
      1st Floor, Bidari Complex,
      S.S.Front Road,
      Vijayapura-586101.
                                              ... Respondents
(By Sri. Sudarshan.M, Advocate for R2;
Notice to R1 dispensed with)

       This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act 1988, praying to allow the
appeal and enhance the compensation as claimed in the
claim petition by modifying the judgment and award dated
07.05.2020 passed by the Court of III Additional Senior
Civil Judge and Member, MACT-XII at Vijayapur, in MVC
No.1438/2016.

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

                         JUDGMENT

The claimants have preferred this appeal, seeking

enhancement of compensation by assailing the judgment

and award dated 07.05.2020 passed in MVC No.1438/2016

by the III Addl. Senior Civil Judge & MACT-XII, Vijayapur

(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.50,00,000/- on

account of death of one Mahesh S/o Dasharath Balamkar,

who succumbed to the injuries sustained by him in a road

traffic accident that occurred on 10.04.2016 while he was

riding the motorcycle bearing Reg.No.KA-28/W-8170 along

with pillion rider Amit and was proceeding towards Zalaki,

at that time, the Cruiser Jeep bearing Reg.No.MH-13/AZ-

0915 came from opposite direction in a rash and negligent

manner and dashed against the motorcycle due to which

the deceased succumbed to the grievous injuries. The

deceased was aged about 30 years and was working as a

Typist earning about Rs.12,000/- to Rs.15,000/- per

month. The claimants are the mother, wife and minor

children of the deceased Mahesh. The claimants were

depending upon the income of the deceased and the

deceased was the sole breadwinner of the family.

3. On issuance of notice by the Tribunal,

respondent Nos.1 and 2 appeared. Respondent No.1 did

not choose to file written statement.

4. Respondent No.2-insurance company filed its

written statement contending that the policy issued in the

name of respondent No.1 to the Cruiser Jeep is a private

car policy and the said terms and conditions are applicable.

It is contended that the accident occurred due to the sole

negligence on the part of the rider of the motorcycle and

not on the part of the driver of the said jeep. It is further

contended that the driver of the jeep was not holding valid

and effective driving licence as on the date of the accident

and thus, sought to absolve the liability.

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

the Tribunal framed the following:

ISSUES

1. Whether the petitioners prove that Mahesh S/o Dasharath Balamkar died in the road traffic accident on account of rash and negligent driving of the driver of Cruiser Jeep No.MH-13/AZ-0915 which occurred on 10.04.2016 at about 15.30 hours, near Baradol village on Chadachan-Zalaki road?

2. Whether the petitioners are entitled for the compensation? If so, To what extent and from whom they are entitled?

3. What order or award?

6. In order to substantiate their case, claimant

No.2-the wife of deceased Mahesh examined herself as

PW.1 and also examined CW.1, the doctor and got marked

Exs.P1 to P19 and Exs.C1 to C3. On the other hand, the

respondents did not adduce any evidence, nor got marked

any document.

7. 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 Cruiser Jeep bearing Reg.No.MH-13/AZ-0915 and

awarded a compensation of Rs.11,03,000/- along with

interest at the rate of 6% per annum from the date of

petition till realization.

8. Being not satisfied with the quantum of

compensation awarded by the Tribunal, the claimants have

preferred the present appeal.

9. Heard the learned counsel for the appellants

and learned counsel for respondent No.2-insurance

company and perused the material on record.

10. Sri Sanganagouda V. Biradar, learned counsel

for the appellants would contend that the deceased was

hale and healthy, aged about 34 years at the time of

accident and was working as Typist and earning

Rs.15,000/- per month and that the notional income taken

by the Tribunal at Rs.7,000/- per month and the loss of

dependency arrived at by the Tribunal is much 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.

11. 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.

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 of the Tribunal requires interference insofar as quantum is concerned?

The fact that Mahesh succumbed to the injuries

sustained by him in the accident that occurred on

10.04.2016 due to the rash and negligent driving of the

driver of the Cruiser Jeep bearing Reg.No.MH-13/AZ-0915

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

to the quantum of compensation awarded by the Tribunal.

13. The accident has occurred in the year 2016

and the deceased was working as Typist and was earning

Rs.15,000/- 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.7,000/- 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 2016 is to be taken at

Rs.8,750/- per month. Hence, considering the income of

the deceased at Rs.8,750/- per month, adding 40% of it

i.e., Rs.3,500/- 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.12,250/-, deducting 1/4th of it towards personal

expenses of the deceased and applying the multiplier of 16

since the deceased was aged 34 years, the total

compensation payable towards loss of dependency would

come to Rs.17,64,000/- (Rs.12,250 x 12 x 16 x 3/4).

14. 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 four in number i.e., the mother, wife and two

minor children of the deceased would be entitled to

Rs.40,000/- each towards loss of filial, spousal and

parental consortium amounting to Rs.1,60,000/-. 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.

15. Thereby the appellants are entitled for total

compensation under various heads as under:

1. Towards loss of dependency Rs.17,64,000/-

(Rs.12,250 x 12 x 16 x 3/4)

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

and parental consortium (Rs.40,000 x 4)

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

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

ceremony Total Rs.19,54,000/-

16. Since the Tribunal has awarded compensation

of Rs.11,03,000/-, after deducting the same, the

appellants are entitled for enhanced compensation of

Rs.8,51,000/- (Rs.19,54,000/- less Rs.11,03,000/-) with

interest at 6% per annum from the date of petition till

realization.

17. In view of the same, 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 judgment and award dated 07.05.2020

passed by the Tribunal in MVC No.1438/2016

is hereby modified.

iii) The appellants/claimants are entitled for

enhanced compensation of Rs.8,51,000/- 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