Karnataka High Court

Shobha And Ors vs Vijay And Anr on 13 January, 2022

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

                             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.200643/2019 (MV)

BETWEEN:

1.     Shobha W/o Ramesh Maharnur,
       Age: 31 years, Occ: Household work,

2.     Snehal D/o Ramesh Maharnur,
       Age: 16 years, Occ: Student,

3.     Gaurav S/o Ramesh Maharnur,
       Age: 13 years, Occ: Student,

       (Petitioner Nos.2 and 3 are minors R/by
       Petitioner No.1 as natural mother)

       All R/o Madasanal,
       Tq: Dist. Vijayapura-586 101.
                                                 ... Appellants

(By Sri Koujalagi Chandrakant, Advocate)
                               2


AND:

1.     Vijay S/o Dnyandev pol,
       Age: 45 years, Occ: Business,
       R/o Lalchakki Vibhag, Station Road,
       Annapurna Egg Centre,
       Ullas Nagar-4 Kalyan,
       Maharashtra-421 004.

2.     The Manager,
       Reliance General Insurance Co. Ltd.,
       C.T.S. No.45, Neel Plaza,
       Club Road, Hubli-29.
                                              ... Respondents

(Smt. Preeti Patil Melkundi, Advocate for R2;
 Smt. Sridevi J. Tuppad, Advocate for R1;
 V/O Dtd. 17.03.2020 notice to R1 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 15.10.2018 passed in MVC
No.1729/2016 on the file of the Court of III Addl. Senior
Civil Judge and Motor Accident Claims Tribunal No.XII,
Vijaypur and allow this appeal to grant the compensation
amount Rs.75,30,000/- only as claimed by the appellants
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:
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                             JUDGMENT

The claimants have preferred this appeal seeking

enhancement of compensation by assailing the judgment

and award dated 15.10.2018 passed in MVC No.1729/2016

by the III Addl. Senior Civil Judge and Motor Accident

Claims Tribunal No.XII, Vijaypur (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 on account of death of one

Ramesh S/o Vithal Maharnur which occurred in a road

traffic accident on 19.10.2016. Claimant No.1 is the wife

and claimant Nos.2 and 3 are minor children of deceased

Ramesh.

3. It is the case of the claimants that, on

19.10.2016 at about 12.30 p.m. after completion of his

personal work at Pandharpur, when the deceased was

proceeding on his motorcycle bearing Reg.No.MH-09/AV-

6365 towards Mangalweda in a moderate speed and was

near Rajadhani Dhaba at Degaon village, at that time, one

Eicher Tempo bearing Reg.No.MH-05/AM-2833 came from

the opposite side in a rash and negligent manner and

dashed to the motorcycle of the deceased, due to which

the deceased suffered head injury and succumbed to the

said injuries. It is the further contention of the claimants

that at the time of the accident, the deceased was hale

and healthy and he was earning Rs.5,00,000/- per annum

from his business under the name and style 'Shree Gaurav

Road Lines, Transport Contractor, Fleet owner and Trailer

Suppliers' at Kamothe, Raighad and he was the only bread

earning member of the family.

4. On issuance of notice by the Tribunal,

respondent Nos.1 and 2 appeared and filed their written

statement.

5. Respondent No.1 contended that the accident

occurred due to the rash and negligent driving of the

deceased and denied that the driver of the Eicher Tempo

has caused the accident. It is further contended that on

the date of the accident, the offending vehicle was insured

with respondent No.2 and the driver of the vehicle was

holding valid licence.

6. Respondent No.2-insurance company filed a

written statement contending that the liability of the

insurance company is subject to the terms and conditions

of the insurance policy. It is further contended that there is

violation of the condition under Sections 134(c), 158 (6)

and 159 of the Motor Vehicles Act and thus, sought for

dismissal of the petition.

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

the Tribunal has framed the following:

ISSUES

1. Whether the petitioners prove that, deceased Ramesh S/o. Vithal Maharnur died due to actionable rash and negligent act of driver of Eicher Tempo bearing Reg.No.MH-05/AM-2833 in the motor vehicle accident on the date, time and the place as being asserted?

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

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

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

5. What order or award?

Addl. Issues:

1. Whether this tribunal has got jurisdiction to try this petition?

8. In order to substantiate the case, claimant

No.1 examined herself as PW.1 and the eye-witnesses as

PW.2 and got marked 11 documents as Exs.P1 to P11. On

the other hand, respondent No.2-Insruance Company

examined its official as RW.1 and got marked Exs.R1 & R2.

9. On the basis of the evidence on record, the

Tribunal held that the accident occurred due to the

negligence on the part of the driver of the Eicher Tempo

and fastened the liability both on respondent Nos.1 and 2

jointly and severally to pay compensation. The Tribunal

has awarded compensation of Rs.15,20,000/- along with

interest at the rate of 9% per annum from the date of

petition till realization of the compensation amount under

the following heads:

1. Loss of dependency Rs.14,40,000/-

      2.     Loss of consortium                       Rs.30,000/-
      3.     Loss of love and affection               Rs.20,000/-
      4.     Transportation of dead body              Rs.10,000/-
      5.     Funeral expenses                         Rs.10,000/-
      6.     Loss of estate                           Rs.10,000/-
                            Total                     Rs.15,20,000/-

10. The claimants, not being satisfied with the

quantum of compensation awarded by the Tribunal have

preferred the present appeal.

11. Heard the learned counsel for the

appellants/claimants, learned counsel for respondent No.1

and learned counsel for respondent No.2-Insurance

Company and perused the material on record.

12. Sri Koujalagi Chandrakant, learned counsel for

the appellants would contend that the Tribunal has erred in

assessing the monthly income of the deceased at

Rs.12,000/- only, without considering the fact that the

deceased was earning Rs.5,00,000/- per annum from his

business. It is further contended that while awarding

compensation towards loss of dependency, the Tribunal

has not made provision for future prospects, as the

deceased was aged about 40 years and thus, awarding of

amount under the head 'loss of dependency' is on the

lower side. It is further contended that the compensation

awarded under the conventional heads viz., loss of

consortium, loss of love and affection, transportation of

dead body, funeral expenses and loss of estate and is also

on the lower side and requires to be enhanced.

13. Per contra, Smt. Preeti Patil Melkundi, 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. She would further contend that awarding of

interest on the said compensation at the rate of 9% per

annum is on the higher side and in the event this Court

enhances the compensation, then the interest at the rate

of 6% per annum on the enhanced compensation is

appropriate.

14. 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?

15. The fact that deceased Ramesh succumbed to

the injuries sustained by him in the road traffic accident

that occurred on 19.10.2016 due to the rash and negligent

driving of the driver of the Eicher Tempo bearing

Reg.No.MH-05/AM-2833 is not in dispute. However, the

controversy is with regard to the quantum of compensation

awarded by the Tribunal.

16. It is not in dispute that the deceased was

running the business under the name and style of Gaurav

Road Lines, Transport Contractor, Fleet owner and Trailer

Suppliers, but has not produced any document in respect

of exact income of his business, nor produced any balance

sheet or audit report. The Tribunal has rightly taken the

monthly income of the deceased at Rs.12,000/-. The

insurance company has not challenged the income

assessed by the Tribunal. In view of the same, we deem it

proper to hold that the deceased was having monthly

income of Rs.12,000/- and on adding 25% i.e., Rs.3,000/-

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.15,000/- per month. After deducting 1/3 rd of

it towards personal expenses of the deceased and applying

the multiplier of 15 as held by the Tribunal, the total

compensation payable towards loss of dependency would

come to Rs.18,00,000/- (Rs.15,000 x 2/3 x 12 x 15).

17. 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 three in numbers i.e., the wife and children of the

deceased would be entitled to Rs.40,000/- each i.e.

Rs.1,20,000/- towards loss of spousal and parental

consortium. Further, the appellants are entitled to

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

towards transportation of dead body, funeral and

obsequies ceremony.

18. Thus, in all, the appellants are entitled for total

compensation of Rs.19,50,000 as under:

1. Towards loss of dependency Rs.18,00,000/-

2. Towards loss of spousal and Rs.1,20,000/-

parental consortium

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

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

          dead   body,    funeral   and
          obsequies ceremony
                         Total                        Rs.19,50,000/
                                                                  -

        19.    The     Tribunal        has       already     awarded        a

compensation of Rs.15,20,000/-. Hence, after deducting

the same, the appellants are entitled for enhanced

compensation of Rs.4,30,000/- (Rs.19,50,000/- less

Rs.15,20,000/-). The Tribunal has awarded interest at the

rate of 9% per annum. However, normally this Court as

well as the Tribunal would award the interest at 6% per

annum. Hence, we think it just and proper to award

interest at 6% per annum on the enhanced compensation

amount. Accordingly, the point raised for consideration is

answered in the affirmative.

20. In the result, we pass the following

ORDER