The Oriental Insurance Co.Ltd vs C K Jayamma
2022 Latest Caselaw 10714 Kant

                         1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU


       DATED THIS THE 13TH DAY OF JULY, 2022

                       BEFORE

  THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

             M.F.A.No.4521/2020 (MV)

BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
DAB II JAYANAGARA,
SHRI.CHAMUNDESHWARI COMPLEX,
NEXT TO KAMAKYA THEATRE,
OPP. 13TH BMTC BUS DEPOT,
JAYANAGAR,
BANGALORE -560 085

DULY REPRESENTED BY
REGIONAL MANAGER
REGIONAL OFFICE,
NO.44/45, 4TH FLOOR,
LEO SHOPPING COMPLEX
RESIDENCY ROAD CROSS,
M.G.ROAD,
BENGALURU-560 001                  ..APPELLANT

(BY      SMT.A.LOKESHWARI,      ADVOCATE         FOR
SRI.A.RAVISHANKAR, ADVOCATE)

AND:
1. C.K.JAYAMMA
W/O LATE KEMPAIAH SS
AGED ABOUT 60 YEARS
                          2


2. RAJEEV KUMAR
S/O LATE KEMPAIAH SS
AGED ABOUT 41 YEARS

3. SANJEEV KUMAR
S/O LATE KEMPAIAH SS
AGED ABOUT 39 YEARS,

4. RANI
D/O LATE S.S.KEMPAIAH
AGED ABOUT 37 YEARS,

RESPONDENT Nos.1 TO 4
ALL ARE RESIDING AT
SOBHAGANAHALLI
KOTHAGERE HOBLI,
KUNIGAL TALUK
HASSAN DISTRICT
HASSAN -572130

5. M/s.SHASHI DISTILLERIES PVT. LTD.,
No.501/A/4, 9TH MILE STONE,
BANNERGHATTA ROAD,
HULIMAVU
BANGALORE -560 076                    ..RESPONDENTS

(NOTICE SERVED -UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
03.07.2020 PASSED IN MVC NO.861/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MACT, XV KUNIGAL,
AWARDING COMPENSATION OF Rs.6,19,616/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
                              3


     THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the insurance company

being aggrieved by the judgment dated 03.07.2020

passed by the Motor Accident Claims Tribunal,

Kunigal, in MVC No.861/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.01.2013 around 5.30

P.M. when the deceased S.S.Kempaiah and others

were walking towards Agalakote Hand Post on the left

side of Huliyurdurga to Magadi Road, while so walking

near Alasabele village, at that time one Innova Car

bearing registration No.KA-51-N-6372 came from

Magadi side driven by its driver in a very high speed

with rash and negligent manner and dashed against

the motorbike bearing registration No.KA-02-EJ-6822

and then pedestrian S.S.Kempaiah. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

No.2 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. It was pleaded that the petition

itself is not maintainable either in law or facts and

denied the age, occupation, income and health of the

deceased earlier to the accident. It was further

pleaded that respondent No.1 had no valid and

effective D.L. and also permit. It was further pleaded

that the deceased Kempaiah came from Agalakote

hand post bus stop for crossing the road from left side

to right side without observing the traffic rules and

dashed against the oncoming offending Innova car

and caused the accident. It was further pleaded that

the quantum of compensation claimed by the

claimants is exorbitant. Hence, sought for dismissal

of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.3-Sanjeev

Kumar as PW-1 and another witness Ramachandrappa

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P17. On behalf of respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R9. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

was caused due to negligence of the driver of the

offending car. The Tribunal further held that the

claimants are entitled to a compensation of

Rs.6,19,616/- along with interest at the rate of 6%

p.a. and directed the respondent No.2 to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed by the insurer.

6. Smt.Lokeshwari, learned counsel on behalf

of Sri.A.Ravishankar for the insurer has raised the

following contentions:

Even though the claimants have claimed that

deceased-Kempaiah was an agriculturist and earning

Rs.1,50,000/- p.a. and Rs.5,000/- p.m. from cattle

business but they have not produced any documents

to establish the same. In that circumstance, the

monthly income assessed by the Tribunal at

Rs.5,000/- is on the higher side.

She further contended that claimants are wife

and major children of the deceased. The Tribunal has

awarded compensation of Rs.1,60,000/- for `loss of

consortium' which is on the higher side. Therefore,

she sought for reduction of compensation.

7. Respondents are served and unrepresented.

8. It is not in dispute Kempaiah died in a road

traffic accident on 26.01.2013 due to rash and

negligent driving of car bearing registration No.KA-51-

N-6372. Even though the claimants have claimed that

deceased was earning Rs.1,50,000/- p.a. they have

not produced any documents to establish the same.

Even the notional income has to be assessed as per

the guidelines issued by the Karnataka State Legal

Services Authority and that the accident occurred in

the year 2013, the notional income is to be assessed

at Rs.8,000/-. However, considering the age and

avocation of the deceased, the Tribunal is justified in

assessing monthly income of the deceased at

Rs.5,000/-. Hence, compensation awarded by the

Tribunal is just and reasonable.

In respect of `loss of consortium', first claimant

is the wife, claimants 2 to 4 are children of the

deceased. Considering that claimants are wife and

children of the deceased, Tribunal is justified in

awarding compensation of Rs.1,60,000/- under the

head of `loss of consortium'.

In view of the above, I decline to interfere with

the Judgment and award passed by the Tribunal.

Hence, appeal is dismissed.

Amount in deposit be transferred to the

Tribunal.

Sd/-

JUDGE

SBN