Kamalabai And Ors vs Santosh And Anr
2022 Latest Caselaw 3192 Kant

                               1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 24TH 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.200605/2021 (MV)

BETWEEN:
1.    Kamalabai W/o Sadappa Omkarshetti,
      Age: 75 years, Occ: Household work,

2.    Danamma @ Danammadevi,
      W/o Shivayogeppa Omkarshetti,
      Age: 45 years, Occ: Household work,

3.    Sadashiv S/o Shivayogeppa Omkarshetti,
      Age: 23 years, Occ: Nil,

4.    Pooja D/o Shivayogeppa Omkarshetti,
      Age: 19 years,

5.    Prithveeraj S/o Shivayogeppa Omkarshetti,
      Age: 17 years,
      Minor Guardian by appellant No.2,

      All are resident of Karjol,
      Tal. & Dist. Vijayapura.
                                             ... Appellants
(By Sri. Sanganagouda V.Biradar, Advocate)
                              2



AND:

1.     Santosh S/o Shubhashgouda Patil,
       Age: 45 years, Occ: Business,
       R/o Ballolli, Taluk: Indi,
       District: Vijayapura-586101.

2.     The Branch Manager,
       Bharati AXA General Insurance Company Limited,
       1st Floor, Central Building,
       Opp: Vidya Nagar Police Station,
       Vidyanagar, Hubballi-580 009.
                                         ... Respondents

(Sri. Subhash Mallapur, Advocate for R2;
Notice to R1 is dispensed with)

       This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the
appeal and enhance the compensation as claimed in the
claim petition by modifying the judgment and award dated
11.06.2020 passed by the Court of III Additional Senior
Civil Judge and Member, MACT-XII at Vijayapura, in MVC
No.558/2014.

      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. The claimants have preferred this appeal

assailing the judgment and award dated 11.06.2020

passed in MVC.No.558/2014 by the III Additional

Senior Civil Judge & MACT-XII, Vijayapura (hereinafter

referred to as "the Tribunal" for short), seeking

enhancement of compensation.

3. The claimants preferred a claim petition

under Section 166 of the Motor Vehicles Act, 1988

before the Tribunal, seeking compensation of

Rs.50,00,000/- on account of death of one

Shivayogeppa S/o Sadappa Omkarshetti, who died in

fatal road traffic accident, contending that on

08.12.2013 at about 8.30 p.m., while the deceased

was proceeding on his motorcycle bearing Reg.No.KA-

28/L-9943 towards Horti side from Vijayapur, at that

time, a 407 Goods vehicle bearing Reg.No.KA-28/A-

3497 came from the hind side in a rash and negligent

manner and dashed against the motorcycle causing

the accident. Due to the impact of the accident, the

deceased succumbed to the injuries during treatment.

4. The claimants are the wife, children and

mother of the deceased. The deceased was hale and

healthy, aged about 45 years and was running a

Kirana Shop and also doing agriculture and earning

Rs.15,000/- per month and he was the sole bread

winner of the family.

5. In pursuance of the notice issued by the

Tribunal, respondents appeared and filed their written

statements.

6. Respondent No.2/insurance company

contended that the accident occurred due to the rash

and negligent riding of the deceased and not due to

the rash and negligent driving of the driver of the 407

Goods vehicle bearing Reg.No.KA-28/A-3497. It is

contended that the contributory negligence also can

be attributed on the part of the deceased. On these

grounds, sought to dismiss the claim petition.

7. The Tribunal, on the basis of the pleadings,

framed the following:

ISSUES

1. Whether petitioners prove that, the deceased was driving the motorcycle bearing Reg.No.KA-28/L-9943 going towards Horti-side from Bijapur side, at that time a 407 Goods vehicle bearing it Reg.No.KA-28/A-3497 came from hind side in high speed and in rash and negligent manner, the driver being unable to control it and dashed to the said motorcycle resulting the accident, the deceased sustained serious injuries and died?

2. Whether the petition suffers from non- joinder of necessary parties?

3. Whether the respondent No.2 proves that, due to violation of policy conditions, they are not liable to pay the compensation?

4. Whether the petitioner is entitled for compensation? If so, how much and from whom?

5. What order or award?

8. In order to substantiate their claim,

claimant No.2, the wife of the deceased examined

herself as PW.1, the eye witness as PW.2 and one

witness as PW.3 and got marked documents at Exs.P-

1 to P-20. On the other hand, respondents examined

two witnesses as RWs1 and 2 and got marked five

documents as Exs.R-1 to R-5.

9. The Tribunal, on the basis of the pleadings,

evidence and the material on record held that the

accident occurred due to the negligence on the part of

the driver of the 407 Goods vehicle bearing

Reg.No.KA-28/A-3497 and awarded a compensation of

Rs.23,61,000/- with interest at the rate of 6% per

annum from the date of petition till realization under

the following heads:

Loss of income due to dependency Rs.7,56,000/- Towards love and affection Rs.30,000/- Towards loss of estate Rs.30,000/- Towards loss of consortium Rs.30,000/- Towards medical and funeral expenses Rs.15,15,000/-

Total Rs.23,61,000/-

10. Not being satisfied with the quantum of

compensation awarded by the Tribunal, the claimants

are in appeal before this Court.

11. The date, time and occurrence of the

accident on 08.12.2013 and the fact that the

deceased Shivayogeppa succumbed to the injuries in

the accident, which occurred due to the rash and

negligent driving of the driver of 407 Goods vehicle

bearing Reg.No.KA-28/A-3497 are not in dispute. The

dispute is only with regard to quantum of

compensation awarded by the Tribunal.

12. Heard the learned counsel for the

appellants and respondent No.2/ insurance company.

13. Sri. Sanganagouda V. Biradar, learned

counsel for the appellants would contend that the

Tribunal has wrongly assessed the income of the

deceased at Rs.6,000/- per month without considering

the facts that the deceased was running Kirana Shop

and doing agriculture and earning about Rs.15,000/-

per month 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 hence contended that the quantum of

compensation awarded needs to be reassessed.

14. Per contra, Sri Subhash Mallapur, learned

counsel appearing for respondent No.2/insurance

company would contend that the compensation

awarded by the Tribunal is just and proper and it does

not call for any interference at the hands of this Court.

15. Having heard the learned counsel for the

parties and considering the rival contentions of the

parties and having perused the material on record, the

only point that arises for our consideration is:

Whether the judgment and award passed by the Tribunal warrants any interference insofar as quantum is concerned?

16. The Tribunal has assessed the income of

the deceased at Rs.6,000/- per month. Even assuming

that the claimants have not produced any document

to show the actual income of the deceased, as per the

guidelines of Karnataka State Legal Services

Authority, for the accidents occurred in the year 2013,

the notional income is to be taken at Rs.7,000/- per

month. Hence, considering the income of the

deceased at Rs.7,000/- per month and adding 25%

i.e., Rs.1,750/- towards future prospects as per the

dictum of the Hon'ble Apex Court in the case of

National Insurance Company Limited vs.

Pranay Sethi [(2017) 16 SCC 680], the notional

income of the deceased would be Rs.8,750/- per

month and deducting 1/4th of it towards personal

expenses of the deceased and applying the multiplier

of 14 considering the age of the deceased as 45 years,

the compensation to be awarded under the head 'loss

of dependency' would come to Rs.11,02,500/-

(Rs.8,750 x 12 x 14 x ¾).

17. Insofar as the compensation awarded

under the head 'medical expenses' is concerned, it is

as per the bills produced before the Tribunal. Thus,

the compensation awarded by the Tribunal under the

head 'medical expenses' to the extent of

Rs.15,15,000/- is undisturbed.

18. In view of the dictum of Hon'ble Apex Court

in United India Insurance Company Limited

vs. Satinder Kaur and others [(2020) ACJ 3076]

and Magma General Insurance Company Limited

vs. Nanu Ram [(2018) 18 SCC 130], the

appellants, who are five in number are entitled to

Rs.40,000/- each under the head 'loss of filial, spousal

and parental consortium' respectively amounting to

Rs.2,00,000/-. Further, the appellants are entitled to

Rs.15,000/- under the head 'loss of estate' and

Rs.15,000/- towards funeral expenses. Thereby, the

appellants are entitled for total compensation under

the various heads as under:

Loss of dependency Rs. 11,02,500/- Medical expenses Rs. 15,15,000/-

Loss of consortium Rs. 2,00,000/-

 Loss of estate                     Rs.      15,000/-
 Funeral expenses                   Rs.      15,000/-
                            Total Rs.28,47,500/-

     19.   Since    the     Tribunal        has    awarded

compensation of Rs.23,61,000/-, after deducting the

same, the appellants are entitled for enhanced

compensation of Rs.4,86,500/- (Rs.28,47,500/- less

Rs.23,61,000/-) with interest at the rate of 6% per

annum from the date of petition till realization.

Accordingly, 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 11.06.2020

       passed     by     the    Tribunal        in   MVC

       No.558/2014 is hereby modified.

iii) The appellants/claimants are entitled for

the enhanced compensation of

Rs.4,86,500/- 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 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 send back the Trial

Court Records forthwith.

Sd/-

JUDGE

Sd/-

JUDGE SMP