Sridevi And Anr vs Sarikonda Srinivasa Raju And Anr
2022 Latest Caselaw 606 Kant

                             1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 13TH DAY OF JANUARY 2022

                         PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                           AND
      THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

             MFA NO.202388/2019 (MV)

BETWEEN:
1.     Sridevi W/o Late Raghunath,
       Age: 51 years, Occ: Service,

2.     Chetan Bhandare
       S/o Late Raghunath Bhandare,
       Age: 25 years, Occ: Student,

       Both are R/o H.No.182369/1,
       Opp: Kendriya Vidhyalaya, Ram Nagar,
       Chidri Road, Bidar.
                                              ... Appellants

(By Sri Sandeep Vijaykumar, Advocate)

AND:

1.     Sarikonda Srinivasa Raju S/o Rama Raju,
       Age: 43 years, Occ: Business,
       R/o H.No.21-23-33, Rajula Colony,
       Kothapet Ramalingheswara Peta,
       Tenali, Guntur District (AP) - 522 201
       (Owner of Vehicle)
                              2



2.   The Divisional Manager,
     The New India Assurance Company Limited,
     Morrispet Tenali AP, Through its
     Divisional Manager, Division Office,
     Kalaburagi, Represented by its
     Branch Manager,
     The New India Insurance Company Limited,
     IDBI Bank Complex, Udgir Road,
     Bidar - 585 401.
                                          ... Respondents

(Sri Rahul R. Asture, 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 modify the
judgment and award dated 05.03.2019 passed in MVC
No.764/2016 before the Court of the Principal District &
Sessions Judge and Principal MACT, Bidar and allow the
appeal by enhancing the compensation amount from
Rs.28,94,300/- to Rs.55,89,000/- only as claimed by the
appellants before the Tribunal and etc.

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

                        JUDGMENT

The present appeal is filed by the claimants, assailing

the judgment and award dated 05.03.2019 passed in MVC

No.764/2016 by the Principal District & Sessions Judge and

Principal MACT, Bidar (for short 'the Tribunal'), seeking

enhancement of compensation.

2. The appellants/claimants filed a petition under

Section 166 of the Motor Vehicles Act, 1988, seeking

compensation on account of the death of Raghunath S/o

Ramchander Bhandare in a road traffic accident that

occurred on 20.07.2012. Claimant No.1 is the wife and

claimant No.2 is the son of the deceased.

3. According to the claimants, on the fatal day

that is on 20.07.2012 at about 5.00 pm, in front of

Mamineni Hospital, Hyderabad when the deceased was

returning home on his Honda Active motorcycle bearing

Reg. No.AP-10/AU-5019 in a moderate speed and with due

care and caution, the TATA lorry bearing Reg. No.AP-02/V-

5024 driven by its driver came in a rash and negligent

manner from back and dashed against the motorcycle, due

to which the deceased fell on the road and sustained head

injury. Though the deceased was immediately shifted to

the hospital, he succumbed to the injuries on the very day

itself. It is the claim of the claimants that they have spent

more than Rs.1,50,000/- towards the treatment and that

the accident occurred due to the rash and negligent driving

of the offending vehicle. It is further contended that the

deceased was hale and healthy at the time of accident and

was working as Upper Division Clerk and earning monthly

salary of Rs.36,281/- and the family was dependent upon

him. It is further contended that there are no other

earning members in the family and thus, sought for

compensation of Rs.50,89,000/- under different heads with

interest at 18% per annum.

4. On service of notice by the Tribunal, the

respondents appeared and filed their objections denying

the age, income and occupation, cause of accident and the

expenses incurred by the deceased. It is further contended

that the driver of the offending vehicle is not responsible

for the accident and the accident has occurred due to the

rash and negligent riding of the deceased. Respondent

No.1 did not dispute about the driving licence held by the

driver of the offending vehicle, but contended that the

accident occurred due to the rash and negligent riding of

the deceased and sought to fasten to liability on

respondent No.2-insurance company.

5. Respondent No.2 - insurance company

contended that the accident occurred due to the

negligence of the deceased and contended that the driver

of the offending vehicle had no valid and effective driving

licence and there was breach of the policy conditions and

thus, sought to dismiss the claim petition.

6. On the basis of the rival contentions of the

parties, the Tribunal framed the following:

ISSUES

1. Whether the petitioners prove that, on 20.07.2012, at about 5 pm, infront of Kamenini Hospital, Hyderabad, the accident was taken place due to rash and negligent driving of TATA Lorry bearing Reg.No.AP 02 / 5024 by its driver, due to which he lost control over the vehicle and dashed against the deceased Raghunath and deceased succumbed to the grievous injuries?

2. Whether 2nd respondent proves that, the respondent No.1 has violated terms and conditions of the policy?

3. Whether petitioners are entitled for compensation, if so, to what sum and from whom?

4. To what relief the parties are entitled?

7. In order to substantiate their case, claimant

No.1 examined herself as PW.1 and examined one witness

as PW.2 and got marked Exs.P1 to P10. On the contrary,

the respondents did not tender any evidence, nor any

documentary evidence was marked on their behalf.

8. Having heard the learned counsel for the

parties, perusing the evidence and material on record and

considering the documentary evidence at Exs.P1 to P10,

the Tribunal has awarded a compensation of

Rs.28,94,300/- along with interest at the rate of 6% p.a.

from the date of petition till the date of realization under

the following heads:

1. Loss of dependency Rs.27,94,308/-

2.    Medical expenses                                   Rs.30,000/-
3.    Loss of estate, transportation of                  Rs.70,000/-
      expenses, love and affection,
      funeral expenses and obsequies
                                 Total           Rs.28,94,308/-


     9.    Being    dissatisfied    with        the     quantum    of

compensation       awarded     by         the     Tribunal,       the

appellants/claimants   have    preferred         this    appeal   for

enhancement of compensation.

10. Heard the learned counsel for the appellants

and the learned counsel for respondent No.2-insurance

company and perused the material on record.

11. Sri. Sandeep Vijaykumar, learned counsel for

the appellants would contend that the compensation of

Rs.28,94,304/- awarded by the Tribunal is without

appreciating the documentary evidence produced by the

claimants and without considering that the deceased was

earning Rs.36,281/- per month and he was working as

Upper Division Clerk in Kendriya Vidhyalaya, Secundrabad

and he would further contend that the 'future prospects',

as per the decision of the Hon'ble Apex Court in National

Insurance Company Limited vs. Pranay Sethi and

others reported in (2017) 16 SCC 680 is not properly

considered by the Tribunal and awarding of interest only at

6% is on the lower side. He would further contend that the

Tribunal has not awarded just and proper compensation as

required under the head 'love and affection' and thus,

sought for enhancement of compensation.

12. Per contra, Sri Rahul R. Asture, 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 it has been

assessed would not call for interference by this Court.

13. Having heard the learned counsel for the

parties, the following point would arise for consideration in

this appeal:

Whether the appellants are entitled for enhanced compensation?

14. The date, time and occurrence of the accident,

so also the involvement of the vehicle in the accident is not

in dispute between the parties. Exs.P1 to P10 produced by

the claimants in support of their case clearly depict that

the accident occurred and the deceased died due to the

accidental injuries. The Tribunal has held that the accident

occurred due to the rash and negligent driving of the

offending vehicle.

15. The spot mahazar-Ex.P5 and the MVI report -

Ex.P7 would clearly show that the accident occurred due to

the rash and negligent driving of the offending vehicle and

the driver of the offending vehicle has been charge

sheeted for causing the death of Raghunath.

16. It is also been admitted that the deceased was

working as Upper Division Clerk in Kendriya Vidhyalaya,

Secundrabad on a monthly salary of Rs.36,281/- as per

Ex.P9 - salary certificate and the net amount arrived at by

the Tribunal is Rs.24,980/-. PW.2, the principal of the

Educational Institution has issued a payment slip. Thus,

considering all these aspects, the Tribunal held that the

deceased was drawing a salary of Rs.35,281/- after

deducting the income tax and professional tax. Thus,

deducting 40% towards personal expenses of the deceased

out of the income of Rs.35,281/- the Tribunal held that the

monthly loss of dependency would be Rs.21,169/- and the

yearly loss works out to Rs.2,54,028/- (Rs.21,169/- x 12)

and adopting the multiplier of '11' considering the age of

the deceased between the age group of 51-55 years,

arrived at a total sum of Rs.27,94,308/- under the head

'loss of dependency'.

17. The Tribunal, considering the judgment of the

Hon'ble Apex Court in the case of National Insurance

Company Limited vs. Pranay Sethi and others

reported in (2017) 16 SCC 680, granted a global

compensation of Rs.70,000/- under the head of loss of

estate, transportation expenses, love and affection, funeral

expenses and obsequies.

18. Thus, assessing the evidence of P.Ws.1 and 2

and considering Exs.P1 to P10, the Tribunal held that the

claimants have proved that the deceased succumbed to

the injuries sustained due to the accident. The Tribunal,

taking the salary as per the salary certificate of the

deceased has awarded a sum of Rs.27,94,308/- under the

head 'loss of dependency' and also granted compensation

of Rs.70,000/- under the conventional heads and a sum of

Rs.30,000/- towards medical expenses. Therefore, we are

of the considered opinion that the judgment and award

passed by the Tribunal is just and proper.

19. The Tribunal, looking into the evidence and

material on record has rightly awarded the compensation.

In the circumstances, the compensation of Rs.28,94,308/-

with interest at the rate of 6% p.a. awarded by the

Tribunal, in the facts and circumstances of the present

case does not call for any interference by this court. In

view of the above, the point raised for consideration is

answered in the negative.

20. In the result, we pass the following:

ORDER

i) The appeal is hereby dismissed.

ii) The judgment and award dated 05.03.2019 passed by the Tribunal in MVC No.764/2016 is hereby confirmed.

iii) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

SMP/LG