Karnataka High Court

Smt. Jayamala @ Jayamalini vs Smt. Bhagyamma 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.4806/2020 (MV-D)


BETWEEN:

1.     SMT. JAYAMALA @ JAYAMALINI,
       W/O LATE MANJANNA M.S.,
       AGED ABOUT 39 YEARS.

2.     KUMARI. PRIYANKA M.,
       D/O LATE MANJANNA M.S.,
       AGED ABOUT 18 YEARS.

3.     MASTER. ABISHEK M.,
       S/O LATE MANJANNA M.S.,
       AGED ABOUT 17 YEARS.

4.     SRI SIDDAIAH,
       S/O LATE SIDDAPPA,
       AGED ABOUT 70 YEARS.

5.     SMT. NAGARATHNAMMA,
       W/O SIDDAIAH,
       AGED ABOUT 65 YEARS.

       ALL ARE R/AT NO.280, 2ND MAIN ROAD,
       13TH CROSS, RAVINANDAN SCHOOL RAOD,
       KAVERIPURA, KAMAKSHIPALYA,
       BANGALORE - 560 079.
                              -2-


       PRESENTLY AT, C/O RAJANNA,
       BIDADI-NALLIGUDDE ROAD,
       BIDADI HOBLI, RAMANAGARA TALUK,
       RAMANAGARA DISTRICT.

       THE APPELLANT NOS. & 3,
       ARE MINORS REPRESENTED BY
       NATURAL GUARDIAN THEIR MOTHER
       SMT. JAYAMALA @ JAYAMALINI,
       THE APPELLANT NO.1 HEREIN.
                                         ...APPELLANTS
(BY SRI RAJU S., ADVOCATE)

AND:

1.     SMT. BHAGYAMMA,
       W/O RANGASWAMIAH,
       NO.27/1, KURUDAPALYA,
       KOTTIGE HOBLI, KUNIGAL TALUK,
       TUMKUR DISTRICT - 572 131.

2.     THE UNITED INIDA INSURANCE
       COMPANY LTD.,
       1ST FLOOR, RVR COMPLEX,
       LIC OFFICE OPPOSITE,
       BEHIND KSRTC BUS STAND,
       IJOOR, RAMANAGARA - 562 159.
       REP. BY ITS BRANCH MANAGER.
                                         ...RESPONDENTS
(BY SRI M.U. POONACHA, ADOVATE FOR R2; V/O DATED
0//12/2020, NOTICE TO R1 DISPENSED WITH)
                           ***
      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 15.05.2019, PASSED IN MVC NO.626/2015, ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE AND MACT, RAMANAGARAM, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSTION AND
SEEKING ENHNCEMENT OF COMPENSATION.
                            -3-


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


                       JUDGMENT

This appeal is preferred by the claimants, who

are the wife, children and parents of the deceased

M.S.Manjanna assailing the judgment and award

dated 15/05/2019, passed in MVC.No.626/2015 on

the file of the Principal Senior Civil Judge & CJM &

Motor Accident Claims Tribunal, Ramanagaram ("the

Tribunal" for short) seeking enhancement of

compensation, whereby the Tribunal has awarded

total compensation of Rs.38,82,864/- 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.626/2015 seeking compensation of Rs.5.00

crore with interest on account of death of one

M.S.Manjanna, who died in a road traffic accident that

occurred on 22/11/2015 at about 10.45 p.m., when

the deceased was proceeding in the motorcycle

bearing registration No.KA-02/HP-6906 as a rider,

when he reached near Thagachaguppe Ruppis

Dhabha, at that time, a car bearing Registration

No.KA-06/N-8063 Came in a rash and negligent

manner driven by its driver and dashed against the

deceased's motorcycle, due to the impact of the

accident, the deceased M.S.Manjanna fell down and

sustained grievous injuries and he succumbed to the

injuries on the spot.

3. It is the contention of the claimants that

the deceased was hale and healthy and was working

in Corporation Bank as an attender in Bengaluru and

was driving auto rickshaw during his free time and

was earning Rs.1,50,000/- per month. It is the

contention of the claimants that the deceased was the

sole bread winner of the family and the claimants

were dependent upon the income of the deceased and

hence, sought for compensation.

4. In pursuance of the notice issued by the

Tribunal, respondents appeared through their counsel

and filed their statement of objections.

5. Respondent No.1/owner of the vehicle

contended that the petition is not maintainable in law

or on facts and thus, sought for dismissal of the

petition. However, it is contended that the car was

registered and it was insured with respondent No.2/

insurance company and had a valid policy.

6. Respondent No.2/insurahce company

admitted the issuance of the policy for the offending

vehicle. However, denied the contents of the petition

and contended that the driver of the car was not

holding valid and effective driving licence as on the

date of the accident and sought to sought to absolve

the liability.

7. The Tribunal on the basis of the pleadings

framed the following issues:

"(i) Whether the petitioners prove that on 22/11/2015 at about 10.45 p.m. when the deceased Manjanna was riding in his motorcycle bearing Registration No.KA-

             02/HP-6906     near     right     side   of   the
             Bengaluru-Magadi            Main           Road,
             Tagachaguppe,         Ramanagara         District,
             then   the   driver    of   the    car   bearing

registration No.KA-06/N-8063 came from Bengaluru side in a very high speed, in a rash and negligent manner and dashed against petitioner's vehicle, as a result of which the deceased died on the spot?

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

ADDITIONAL ISSUES

(i) Whether the 2nd respondent proves that the petition is bad for Non-joinder of necessary parties?

(ii) Whether the 2nd respondent proves that the driver of the car had no valid driving licence as on the date of the accident?

8. In order to substantiate the contention of

the claimants, claimant No.1/wife of the deceased

examined herself as PW.1 and got marked documents

as Exs.P-1 to P-13. On the other hand, no evidence

was let-in on behalf of the respondents.

9. The Tribunal on consideration of the oral

and documentary evidence on record held that the

accident occurred due to the rash and negligent

driving of the driver of the car bearing registration

No.KA-06/N-8063 and fastened the liability on the

insurance company awarding compensation of

Rs.38,82,864/- with interest at the rate of 6% per

annum from petition till the date of realisation.

10. 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.

11. Heard learned counsel for the appellant and

learned counsel for respondent No.2/insurance

company and perused the material on record

carefully.

12. Learned counsel for the appellant, Sri Raju

S., would contend that the award of compensation by

the Tribunal is on the lower side and the same needs

to be enhanced. It is the contention of the appellant

that the deceased was earning Rs.1,50,000/- per

month and the Tribunal, without considering the said

aspect, has fell in error to take the income of the

deceased at Rs.19,850/- per month without

considering the fact that the deceased was working as

an Attender in Corporation Bank and had a fixed

salary and apart from that, he was also an auto-

rickshaw driver and used to drive auto-rickshaw

during his free time. It is further contended that the

Tribunal has erroneously deducted 1/3rd towards

personal expenses of the deceased without

considering that the dependents are five in number

and the proper deduction is 1/4th is contrary to the

dictum of the Apex Court in the case of Sarla Verma

vs. Delhi Transport Corporation [(2009)6 SCC

121] (Sarla Verma). 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.

13. Per contra, learned counsel for the

insurance company, Sri M.U.Pooncha, would contend

- 10 -

that the Tribunal was justified in taking the gross

salary of the deceased at Rs.19,850.22 as per Ex.P-

10, the pay slip and also sought to contend that

adding of future prospects to the extent of 50% and

deducting 1/3rd towards personal expenses of the

deceased is proper and would contend that the award

of compensation by the Tribunal is just and proper

and does not call for any interference.

14. Having heard learned counsel for the

parties, the only point that arises for consideration in

this appeal is,

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

15. The date, time and occurrence of accident

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

accident occurred due to the rash and negligent

- 11 -

driving of the offending vehicle bearing registration

No.KA-06/N-8063 as is evident from Ex.P-1, the FIR

and Ex.P-4, Charge sheet. The only dispute is with

regard to the quantum of compensation awarded by

the Tribunal.

16. It is not in dispute that the deceased was

working as an Attendar in Corporation Bank and was

earning gross salary of Rs.19,850.22 as per Ex.P-10

the salary slip. Though it is contended by the learned

counsel for the appellant that the deceased was

earning Rs.1,50,000/- per month by driving auto

rickshaw during his free time. However, in order to

substantiate the contention that the deceased was

earning Rs.1,50,000/-, no documentary evidence was

placed on record. In the absence of any material on

record to show the actual income of the deceased as

Rs.1,50,000/-, apart from the gross salary of

Rs.19,859.22, it is justified that only the gross salary

- 12 -

can be taken into consideration. The Tribunal has

rightly taken the gross salary and added 50% as per

the dictum of National Insurance Company

Limited vs. Pranay Sethi and others [2017 ACJ

2700] (Pranay Sethi) towards future prospects

amounting to Rs.9,929/- and has taken the actual

income of the deceased at Rs.29,788/- (19,859+50%

= 29,788) per month, which in our view is just and

proper.

17. The Tribunal, however, while calculating

the compensation under the head loss of dependency

has deducted 1/3rd towards the personal expenses of

the deceased contrary to the decision of the Apex

Court in the case of Sarla Verma stated supra

wherein it is held that when the dependents are five in

number, the deduction towards personal expenses

would be 1/4th. Accordingly, the claimants are entitled

for Rs.42,89,472/- under the head loss of dependency

- 13 -

(29,788 deducting 1/4th towards personal expenses

income arrived is Rs.22,341/-, taking the income at

Rs.22,341/- applying the multiplier 16 x 12).

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

Court in the case of United India Insurance

Company Limited vs. 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 five in number, they are

entitled for Rs.40,000/- each amounting to

Rs.2,00,000/-, under the head loss of estate and

towards conveyance and funeral expenses

Rs.15,000/- each. Accordingly, the point framed for

consideration is answered partly in the affirmative.

- 14 -

19. After re-assessing both oral and

documentary evidence, the claimants are entitled for

just and proper compensation as under:

Loss of dependency : Rs.42,89,472/-

Loss of parental, spousal and filial consortium : Rs. 2,00,000/-

     (40,000 x 5)

     Loss of estate                    :    Rs.     15,000/-

     Transportation and funeral
     Expenses                   :           Rs. 15,000/-
                                            ------------------
                   TOTAL:-                  Rs.45,19,472/-
                                            ==========

     20.   The     claimants      are       entitled     to     total

compensation       of      Rs.45,19,472/-           as        against

Rs.38,82,864/-     awarded       by        the    Tribunal.      The

claimants are entitled for an enhanced compensation

of Rs.6,36,608/- with interest at the rate of 6% per

annum from the date of petition till the date of

realization.