Karnataka High Court

Kalyani vs Prakash on 7 July, 2022

Bench: J.M.Khazi

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 7TH DAY OF JULY 2022
                          BEFORE
             THE HON'BLE MS.JUSTICE J.M.KHAZI

               M.F.A.NO.9431 OF 2013 (MV)

BETWEEN:

1.     KALYANI
       W/O LATE RAMA MOOLYA,
       AGED ABOUT 74 YEARS,

2.     SADASHIVA
       S/O LATE RAMA MOOLYA,
       AGED ABOUT 49 YEARS

3.     HARISCHANDRA
       S/O LATE RAMA MOOLYA,
       AGED ABOUT 40 YEARS,

       ALL ARE RESIDING AT
       D.NO.4-86/3,
       NITHYANANDA NAGAR,
       BELMA, DERALAKATTE,
       MANGALURU TALUK,
       D.K.DISTRICT
       PIN - 575 018.

                                        ... APPELLANTS
(BY SRI. G.RAVISHANKAR SHASTRY, ADVOCATE)
AND:

1.     PRAKASH
       S/O SUNDAR KULAL,
       AGED ABOUT 24 YEARS,
       BANNANTHILA HOUSE,
                                   2


       KOTEKAR GRAMA,
       NITHYANANDA NAGAR,
       MANGALURU TALUK,
       D.K, PIN - 575 016

2.     M/S. NATIONAL INSURANCE CO. LTD.,
       2ND FLOOR, RASIK CHAMBERS
       OPP: CENTRAL MARKET,
       MANGALURU
       D.K.DISTRICT
       REPRESENTED BY
       ITS BRANCH MANAGER
       PIN - 575 001

                                        ...RESPONDENTS
(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
    R1 SERVED & UNREPRESENTED)
     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
26.08.2013, IN MVC NO.63/2011 PASSED BY THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL & II ADDL. SENIOR CIVIL JUDGE,
MANGALURU, D.K. AND CLAIM PETITION BE ALLOWED AS
PRAYED FOR BY ALLOWING THIS APPEAL IN THE ENDS OF
JUSTICE.
     THIS MFA HAVING BEEN HEARD AND RESERVED ON
17.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Being aggrieved by the dismissal of claim petition against

respondent No.2 insurance company and directing respondent

No.1 alone to pay the compensation and also seeking

enhancement of the compensation, petitioners have come up

this appeal under section 173(1) of MV Act.

2. For the sake of convenience, the parties are

referred to by their rank before the Tribunal.

3. Petitioner filed petition under Section 166 of MV

Act seeking compensation in a sum of Rs.5,00,000/- on account

of death of one Girija in a road traffic accident dated

22.04.2010.

4. FACTS: It is the case of the petitioners that they

are the mother and brothers of deceased Girija. On 22.04.2010

at about 9.45 a.m. In order to go to Seva Sahakari Bank,

deceased Girija was walking on the left side of the footpath of

Thokkottu - Mudipu road towards Deralakatte. In front of Fr.

Muller's Ayurvedic hospital, a motor cycle bearing registration

No.KA-19X-578 (herein after referred to as offending vehicle),

being driven by its rider in a rash and negligent manner came

from Thokkottu side and dashed against the deceased from her

behind. She sustained grievous injuries she was taken to Justice

K.S.Hegde Charitable hospital, Deralakatte, Mangaluru. Inspite

of best efforts she could not be saved. On 23.04.2010 she died.

5. Before the accident deceased was hale and

healthy. She was earning Rs.4,000/- per month as house maid.

Petitioners were dependent on her. As owner and insurer of the

offending vehicle respondents are jointly and severally liable to

pay the compensation.

6. Respondent No.1 appeared through counsel and

filed written statement denying that accident occurred due to the

rash or negligent driving of offending vehicle. He has also

denied the age, occupation, income of the deceased and that

petitioners were dependent on her. In the event of allowing the

petition, as insurer of the offending vehicle respondent No.2 is

liable to pay the compensation and prays to dismiss the petition

against him.

7. Respondent No.2 has filed written statement

admitting the coverage of the offending vehicle, but its liability is

subject to the terms and conditions of the policy. It has denied

that at the time of accident the rider of the offending vehicle was

having the valid and effective driving license and as such it is not

liable to pay the compensation. Respondent No.2 has also

denied age, occupation, income of the deceased and that

petitioners were dependent on her and prays to dismiss the

petition against it.

8. Based on these pleadings the Tribunal has framed

the necessary issues and additional issues.

9. In support of petitioners case, petitions No.3 is

examined as PW-1 and one witness as PW-2. Ex.P1 to 10 are

marked on their behalf.

10. Respondents have not led any oral evidence, but

respondent No.2 has got marked Ex.R1 to 7.

11. The Tribunal has granted compensation in a sum of

Rs.3,30,056/- with interest at 6% per annum as detailed below:

                       Heads                Amount
                                             In Rs.
      Loss of dependency                       2,97,000
      Medical expenses                           18,056
      Loss of consortium                          5,000
      Funeral expenses                           10,000
      TOTAL                                   3,30,556



      12.      During     the   course of the   arguments   learned

counsel representing the petitioners submitted that the Tribunal

has erred in deducting 50% of the income of the deceased

towards her living and personal expenses. Having regard to the

fact that petitioners were dependent on her, it should have been

restricted to 1/3rd. The compensation granted under all the

heads is on the lower side and no compensation is awarded

under the conventional heads.

12.1 Learned counsel for petitioners would further submit

that the Tribunal has erred in holding that the rider of the

offending vehicle was not holding a valid and effective driving

license. Even though respondent No.2 has failed to prove the

said fact and the Tribunal has erred in absolving respondent

No.2 from the liability and prays to allow the appeal.

13. Heard the arguments and perused the records.

14. Thus, petitioners have challenged the impugned

judgment and award on the ground that the Tribunal has erred

in deducting 50% of the income of the deceased towards her

personal and living expenses, not considering petitioner Nos.2

and 3 as dependants on her and also absolving liability of

respondent No.2 on the ground that at the time of accident, the

rider of the offending vehicle was not having a valid driving

license.

15. In the light of the grounds urged, let me examine

whether the impugned judgment and award calls for interference

by this Court.

16. At the outset it is relevant to note that petitioners

are the mother and brothers of the deceased. At the time of

filing petition, petitioner No.1 is aged 74 years, petitioner No.2 -

49 years and petitioner No.3 - 40 years. Deceased was a widow

having no issues. However, as evident from the testimony of

petitioner No.3 Harishchandra who is examined as PW-1, both

petitioner Nos.2 and 3 are married and having their own families

and they are living with their family members. They being major

able bodied brothers of deceased, it cannot be accepted that

they were dependent on deceased. Moreover, during his cross-

examination PW-1 has admitted that petitioner No.1 is getting

old age pension. Having regard to the fact that deceased was a

widow having no issues, her situation is akin to that of a

bachelor. Taking into consideration the over all evidence placed

on record, the Tribunal has correctly held that petitioner Nos.2

and 3 were not dependants on the deceased and only petitioner

No.1 being the aged mother of the deceased would be

considered as her dependant and having regard to the fact that

deceased had no immediate family members to take care of, it

has rightly deducted 50% of her income towards her personal

and living expenses and I find no reason to interfere with the

same.

16.1 Though the petitioners have pleaded that deceased

was working as a house maid and earning Rs.4,000/-p.m. the

Tribunal has taken her income at the rate of Rs.150/- per day

and as such per month she was earning Rs.4,500/-. Since

respondents have not challenged the said findings, it has

attained finality. After deducting 50% towards her personal and

living expenses, the Tribunal has taken the income of the

deceased at Rs.2,250/-p.m. At the time of accident, deceased

was aged 55 years and therefore, multiplier 11 taken by the

Tribunal is correct. As the deceased was aged 55 years, as per

the decision of the Hon'ble Supreme Court in Magma General

Insurance Co.Ltd case, 10% of her income is required to be

added towards future prospects. Therefore, the notional income

of the deceased comes to 4,500 + 450 = 4,950/-. and therefore

the income which is required to be taken into consideration for

calculating the loss of dependency is Rs.4,950/-. With these

components the loss of dependency is 4,950 x 12 x 11 x 50% =

Rs.3,26,700/-. Therefore, under the head loss of dependency

petitioners are entitled for compensation in a sum of

Rs.3,26,700/- as against Rs.2,97,000/- granted by the Tribunal.

17. The Tribunal has granted compensation in a sum of

Rs.5,000/- under the head of loss of affection, Rs.10,000/-

towards funeral and obsequies ceremonies, Rs.18,056/- towards

medical expenses. Based on the medical bills, the Tribunal has

rightly granted compensation in a sum of Rs.18,056/- under the

head medical expenses and there is no scope for interference.

However, as per the decision of the Hon'ble Supreme Court in

Pranay Sethi and Magma General Insurance Co.Ltd. cases,

as mother, petitioner No.1 is entitled for compensation in sum of

Rs.40,000/- under the head loss of parental consortium as

against Rs.5,000/- granted by the Tribunal and therefore, the

same is enhanced to Rs.40,000/-. When the major compensation

is granted under the head loss of dependency, under the

conventional heads i.e., funeral expenses and loss of estate

Rs.15,000/- each is required to be granted as per the above

decisions. Therefore, the compensation granted in a sum of

Rs.10,000/- under the head funeral expenses is enhanced

Rs.15,000/-. Since, the Tribunal has not granted any

compensation under the head loss of estate, a sum of

Rs.15,000/- is granted under the head loss of estate. Thus,

petitioner No.1 is entitled for compensation in a sum of

Rs.4,14,756/- as against Rs.3,30,056/- granted by the Tribunal.

The same is rounded of to Rs.4,15,000/-.

                            Amount granted by      Amount granted by
           Heads              the Tribunal            this Court
                                 In Rs.                 In Rs.
   Loss of dependency                2,97,000               3,26,700
   Medical expenses                       18,056                   18,056
   Loss of consortium                      5,000                   40,000

   Funeral expenses                       10,000                   15,000
   Loss of estate                              -                   15,000

   TOTAL                              3,30,056                4,14,756
                                                   Rounded of to
                                                             4,15,000

18. Of course petitioner No.1 is entitled for interest at

the rate of 6% p.a.

19. Now coming to the findings of the Tribunal that

respondent No.2 is not liable to pay the compensation on the

ground that at the time of accident, the rider of the offending

vehicle was not possessing a driving license. Though petitioners

have disputed that the rider of the offending vehicle was not

possessing the driving license, admittedly with regard to rash or

negligent driving and causing death due to the same, the

concerned police have also filed charge sheet against the rider of

the offending vehicle for not possessing a valid driving license.

This fact is evident from Ex.R1 to 7. However, in view of the

decision of the Hon'ble Supreme Court in National Insurance

Co.Ltd Vs. Swaran Singh and others, it would be appropriate

to direct respondent No.2 to pay the compensation and recover

the same from respondent No.1 being the owner of the offending

vehicle. To this extent appeal filed by the petitioners succeed

and accordingly, I proceed to pass the following:

ORDER

(i) The appeal is allowed in part.

     (ii)    The     compensation         is      enhanced      to

             Rs.4,15,000/-    as        against     Rs.3,30,056/-

             granted by the Tribunal.


     (iii)   Respondent    No.2    is    directed   to   pay   the

             compensation at 6% p.a from the date of