Karnataka High Court

Smt N Girija vs Sri Pruthviraj on 4 July, 2022

Bench: B.Veerappa, K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 04TH DAY OF JULY, 2022

                         PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

        THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA



 MISCELLANEOUS FIRST APPEAL No.1027/2019 (MV-D)


BETWEEN:

1.     SMT. N. GIRIJA
       W/O LATE K.R. RAGHAVAN,
       AGED ABOUT 62 YEARS.

2.     SRI RANJITH RAGHAVAN,
       S/O LATE K.R. RAGHAVAN,
       AGED ABOUT 41 YEARS.

3.     SMT. RANJITHA,
       W/O MANOJ,
       D/O LATE K.R. RAGHAVAN,
       AGED ABOUT 39 YEARS,

       ALL ARE R/AT DEVIRAMMANAHALLI
       VILLAGE, NANJAGUD TALUK,
       MYSURU DISTRICT ,
       MYSURU - 571 118.
                                         ...APPELLANTS
(BY SRI BHANU PRAKASH H.V., ADVOCATE)

AND:

1.     SRI PRUTHVIRAJ,
       S/O V. SWAMY,
       AGED BY MAJOR,
                                -2-


      R/AT MADALLI VILLAGE,
      GUNDLUPET TALUK,
      CHAMARAJANAGAR DISTRICT - 571 111.

2.    MADEVAPPA,
      S/O MADAPPA,
      AGED BY MAJOR,
      R/AT MADALLI VAILLAGE,
      GUNDLUPET TALUK,
      CHAMARAJANAGAR DISTRICT - 571 111.

3.    THE DIVISIONAL MANAGER,
      THE NEW INDIA ASSURANCE CO. LTD.,
      NO.2951, 2ND FLOOR,
      JLB ROAD, CHAMUNDIPURAM CIRLCE,
      MYSORE - 570 004.

                                         ...RESPONDENTS
(BY SRI B.C. SHIVANNE GOWDA, ADOVATE FOR
    SRI JANARDHAN REDDY, ADOVATE FOR R3; V/O
    DATED 04/07/2022, NOTICE TO R1 AND R2 D/W)
                          ***


      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 06.09.2018, PASSED IN MVC NO.1092/2016, ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MOTOR
ACCIDENT CLAIMS TRIBUNAL, NANJANGUD, PARTLY ALLOWING
THE   CLAIM   PETITION   FOR    COMPENSTION   AND   SEEKING
ENHNCEMENT OF COMPENSATION.


      THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ORDERS THIS DAY, K.S. HEMALEKHA J., DELIVERED THE
FOLLOWING:
                              -3-


                       JUDGMENT

This appeal is preferred by the claimants, who

are the wife and children of the deceased

K.R.Raghavan assailing the judgment and award

dated 06/09/2018, passed in MVC.No.1092/2016 on

the file of the Senior Civil Judge & JMFC & Motor

Accident Claims Tribunal, Nanjanagud (hereinafter

referred to as "the Tribunal" for short) seeking

enhancement of compensation, whereby the Tribunal

has awarded total compensation of Rs.2,90,395/- with

interest at the rate of 6% p.a. from the date of

petition till the date of realisation.

2. The claimants filed the claim petition

MVC.No.1092/2016 seeking compensation of

Rs.20,00,000/- on account of death of one

K.R.Raghavan, who died in a road traffic accident that

occurred on 25/07/2014 at 6.15 p.m., when the

deceased was proceeding on his scooter bearing

registration No.KA-09/EU-3604 as a rider, from

Nanjangud Town to Devinagar Extension. At that time,

the rider of another unnumbered motorcycle Royal

Enfield Bullet, which was subsequently numbered as

KA-10/V-7555, came in a rash and negligent manner

and dashed against the deceased's scooter, due to the

impact of the accident, the deceased K.R.Raghavan

was immediately shifted to JSS Hospital, Mysuru,

wherein he succumbed to the injuries after two days.

3. It is the contention of the claimants that

the deceased was hale and healthy at the time of

accident and was aged about 70 years, he was a

retired employee of Nestley Company and was

drawing pension of Rs.14,000/- per month and the

claimants were depending upon the earning of the

deceased. Hence, sought for enhancement

compensation.

4. In pursuance of the notice issued by the

Tribunal, respondent Nos.1 and 2 remained ex parte,

respondent No.3/insurance company appeared and

filed objections contending that the accident occurred

due to rash and negligent riding of the deceased

himself and the deceased was not wearing head gear.

It is also contended that the rider of the motorcycle

did not possess valid and effective driving licence as

on the date of the accident and the offending Enfield

Bullet was not registered and hence, has violated the

terms and conditions of the policy and thus, sought to

absolve the liability.

5. The Tribunal on the basis of the pleadings

framed the following issues:

(i) Whether petitioners prove the alleged accident and the death of K.R.Raghavan

- husband of petitioner No.1 and father of petitioner Nos.2 and 3, as mentioned in the petition?

(ii) Whether the petitioners are entitled for compensation? If so, how much and from whom?

6. In order to substantiate the contention of

the claimants, the son of the deceased examined

himself as PW.1 and got marked documents as Exs.P-

1 to P-13. On the other hand, respondent No.3

examined the administrative officer as RW.1 and got

marked Exs.R-1 to R-7.

7. The Tribunal on consideration of the oral

and documentary evidence on record held that the

accident occurred due to the rash and negligent riding

of the Royal Enfield Bullet bearing registration No.KA-

10/V-7555 by its rider and also held that the

claimants are the legal heirs of the deceased

K.R.Raghavan and fastened the liability on the

insurance company awarding compensation of

Rs.2,90,395/- with interest at the rate of 6% per

annum from the date of petition till the date of

realization .

8. Being unsatisfied with the award of

compensation by the Tribunal, the present appeal is

preferred by the claimants. No appeal is preferred by

the insurance company.

9. Heard learned counsel for the parties to the

lis and perused the material on record carefully.

10. Learned counsel for the appellants, Sri

Bhanu Prakash H.V., would contend that the

compensation arrived by the Tribunal is without

considering the material evidence on record and thus,

the award of compensation is on the lower side. It is

contended that the Tribunal has failed to consider

Ex.P-9 to show that the deceased was aged about 70

years, who was retired employee of Nestley Company

and drawing pension of Rs.14,000/- per month. It is

also contended that the Tribunal taking the income of

the deceased at Rs.5,444/- is without considering

Ex.P-9/bank passbook. It is further contended that

the deduction by the Tribunal to the extent of 1/3rd

towards personal expenses and taking the multiplier

as 4 is not in consonance with the judgment of the

Apex Court in the case of Sarla Verma vs. Delhi

Transport Corporation [(2009)6 SCC 121] (Sarla

Verma) and National Insurance Company Limited

Vs. Pranay Sethi and others [2017 ACJ 2700]

(Pranay Sethi). It is also contended that the award

of compensation under the conventional heads is

much on the lower side and sought to allow the appeal

by enhancing the compensation.

11. Per contra, learned counsel for the

insurance company, Sri B.C.Shivanne Gowda

appearing for Sri Janardhan Reddy, learned counsel

for respondent No.3 would contend that the Tribunal

has rightly taken the income of the deceased at

Rs.5,444/- under the head loss of dependency as the

wife of the deceased is getting a family pension of

Rs.7,581/- and thus, would contend that the Tribunal

was justified in taking the loss of income of the

deceased at Rs.5,444/- per month as against the

pension of Rs.14,000/- drawn by the deceased. It is

further contended that the deduction by the Tribunal

towards personal expenses to the extent of 1/3rd is

just and proper as the dependents are three in

number and would contend that the award of

compensation by the Tribunal is just and proper and

does not call for any interference.

12. Having heard learned counsel for the

parties, the only point that arises for consideration in

this appeal is,

- 10 -

"Whether the appellants/claimants have made out any case for enhancement in the facts and circumstances of the present case?"

13. The date, time and occurrence of accident

is not in dispute. It is also not in dispute that the

accident occurred due to the rash and negligent riding

of the offending vehicle bearing registration No.KA-

10/V-7555 as is evident from Ex.P-2 the FIR and

EX.P-8 Charge sheet. The only dispute is with regard

to the quantum of compensation awarded by the

Tribunal.

14. Ex.P-9 is the bank passbook of the

deceased which shows that the deceased Raghavan

was drawing pension of Rs.13,025/- per month. The

wife of the deceased is getting a family pension of

Rs.7,581/- per month which is categorically admitted

by PW.1 in his cross-examination. In light of the

- 11 -

family pension to the extent of Rs.7,581/- received by

the claimants, the claimants would not be entitled for

loss of income to the entire extent of Rs.13,025/- as

per Ex.P-9, as the loss of income of the deceased

would be Rs.5,444/- per month [13,025/- - 7,581/-

(family pension)]. Thus, the Tribunal has rightly

taken the loss of income of the deceased at

Rs.5,444/-. Taking into consideration the income of

the deceased at Rs.5,444/-, deducting 1/3rd towards

personal expenses as the dependents are three in

number, in light of the dictum of the Apex Court in

Sarla Verma stated supra and applying the multiplier

05 as the deceased was aged about 70 years, the

amount of compensation under the head loss of

dependency would be Rs.2,17,759/- (Rs.5,444/- x 2/3

x 5 x 12).

15. In view of the dictum of the Apex Court

United India Insurance Company Limited vs.

- 12 -

Satinder Kaur @ Satwinder Kaur and others [AIR

2020 SC 3076] (Satinder Kaur) and Magma

General Insurance Company Ltd. Vs. Nanu Ram

& Others [2018 ACJ 2782] (Magma General

Insurance Company Ltd.), as the

claimants/dependents are three in number, they are

entitled for 40,000/- each which amounts to

Rs.1,20,000/-, under the head loss of estate and

towards conveyance and funeral expenses

Rs.15,000/- each is to be awarded. The award of

compensation under the head medical expenses to the

extent of Rs.46,187/- is against the bills and the same

remains undisturbed. Accordingly, the point framed

for consideration is answered partly in the affirmative.

16. On re-assessing the oral and documentary

evidence on record, the claimants are entitled for just

and proper compensation as under:

- 13 -

Loss of dependency : Rs.2,17,759/-

      Medical expenses        :    Rs.            46,187/-
      (As awarded by the Tribunal)

      Loss of spousal and filial

      consortium                   :       Rs. 1,20,000/-
      (40,000 x 3)

      Loss of estate                 :      Rs.   15,000/-

      Transportation and funeral
      Expenses                :             Rs. 15,000/-
                                            ----------------
                       TOTAL           :    Rs.4,13,946/-
                                            =========

The claimants are entitled for total compensation

of Rs.4,13,946/- as against Rs.2,90,395/- awarded by

the Tribunal. The claimants are entitled for an

enhanced compensation of Rs.1,23,551/- with interest

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

till the date of realization.