Karnataka High Court
Smt Lakshmamma vs Kgid on 1 June, 2022
Bench: B.Veerappa, K S Hemalekha
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MFA No. 4872 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO. 4872 OF 2020 (MV)
BETWEEN:
1. SMT. LAKSHMAMMA,
W/O MOHAN KUMAR,
NOW AGED ABOUT 58 YEARS,
2. SMT. SUBBAMMA,
W/O LATE VENKATA RAO,
NOW AGED ABOUT 71 YEARS,
RESIDING AT E/148, 7TH MAIN,
ABBIGERE MAIN ROAD,
NEAR GOVT. SCHOOL,
K. G. HALLI, BANGALORE 560015.
...APPELLANTS
(BY SRI. RANGEGOWDA N R., ADVOCATE)
AND:
1. KGID,
DR. AMBEDKAR VEEDHI,
NEXT TO HIGH COURT,
Digitally signed by BANGALORE 560011.
GAVRIBIDANUR
SUBRAMANYA GUPTA
SREENATH
Location: High Court of 2. ASSISTANT COMMISSIONER (AC),
Karnataka DODDABALLAPURA,
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI T.P. SRINIVAS, PRINCIPAL GOVERNMENT ADVOCATE
FOR R1 AND R2)
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MFA No. 4872 of 2020
THIS MISCELLAENOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.03.2020 PASSED IN MVC
NO.634/2019 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE AND MACT, SCCH-11, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLAENOUS FIRST APPEAL COMING ON FOR
ORDERS THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants/claimants, who are the wife and mother
of the deceased Mohankumar, have filed the claim petition
under the provisions of Section 166 of the Motor Vehicles Act,
claiming compensation of Rs.60,00,000/- on account of death
of the deceased that occurred on 10.12.2018.
2. It is the case of the claimants that the deceased
Mohankumar was a pedestrian and while he was pushing his
bicycle cautiously on the left side of the road near MES Gate
(IAF), Bangalore Bellary Main Road, at that time a Mahindra
TUN300 car bearing Registration No.KA-43-G-6777, which
belonged to Respondent No.2 was driven by its driver in a rash
and negligent manner in a high speed and dashed against the
bicycle of the deceased. Due to the impact of the accident, he
MFA No. 4872 of 2020
fell down and sustained severe head injury and injuries all over
the body. Immediately after the accident, he was taken to
Government Hospital at Devenahalli, from where while shifting
him to Victoria hospital, on the way, he succumbed to the
injuries. It is further case of the claimants that at the time of
accident, the deceased was hale and healthy and was working
as Mason in Military Engineering Service (MES), Yelahanka and
drawing a salary of Rs.55,262/- per month and he was the
only bread winner of the family. Due to the untimely death,
entire family of the deceased is put to great financial loss and
mental agony. The accident in question was solely due to the
rash and negligent driving of the offending vehicle by its driver.
The jurisdictional Police registered the case against driver of
the offending vehicle under the provisions of Sections 279 and
304A of IPC. The 1st respondent being the insurer and the 2nd
respondent being the owner of the offending vehicle are jointly
and severally liable to pay compensation to the claimants.
3. Inspite of service of notice, the Respondent No.2 did
not appear and he was placed exparte. The 1st respondent
appeared and filed the written statement denying the manner
of the accident, age of the deceased and quantum of
MFA No. 4872 of 2020
compensation claimed under different heads and contended
that the accident occurred not due to the negligent act of the
offending vehicle, but due to the sole negligent act of the
deceased and sought to dismiss the claim petition.
4. Based on the aforesaid pleadings, the Tribunal
framed following two issues for consideration:
1. Whether petitioners prove that, the husband of
1st petitioner & son of petitioner No.2 namely
Mohan Kumar Rao succumbed to the injuries
sustained in the accident that took place on
10.12.2018 at about 6.30 p.m. Opp.MES Gate
near IAF, BB Road, Bangalore, when he was a
pedestrian, due to the rash and negligent
driving of the Mahindra TUV 300 car bearing
Reg.No.KA-43-G-6777 by its driver ?
2. Whether the petitioners are entitled for
compensation? If so, how much and from
whom?
MFA No. 4872 of 2020
5. In order to prove their case, the claimant No.1
examined herself as PW.1 and examined one Mr. Chethan .A
as PW.2 (evidence discarded) and Mr. Gautam Kumar as PW.3
and got marked 20 documents as per Ex.P1 to Ex.P20. The
respondents have not examined any witness nor got marked
any documents on their behalf.
6. Considering both the oral and documentary
evidence on record, the Tribunal recorded a finding that the
claimants proved that the husband of 1st claimant and son of
claimant No.2 viz., Mohankumar succumbed to the injuries in
the accident that took place on 10.12.2008 when he was a
pedestrian, due to the rash and negligent driving of the
Mahindra TUV 300 car bearing Registration No.KA-43-G-6777
by its driver. Accordingly, the Tribunal proceeded to award
compensation of Rs.32,66,152/- with interest at the rate of 9%
per annum. Hence, the present appeal is filed for enhancement
of compensation.
7. The Insurance Company has not filed any appeal
against the impugned Judgment & Award passed by the
Tribunal.
MFA No. 4872 of 2020
8. We have heard the learned counsel for the parties to
the lis.
9. Sri Rangegowda, learned counsel for the
appellants/claimants contended that the impugned judgment &
award passed by the Tribunal awarding total compensation of
Rs.32,66,152/- with interest at the rate of 9% per annum from
the date of petition till the date of realization, is on the lower
side and requires further enhancement. He further contended
that the deceased was drawing gross salary of Rs.55,262/- as
per the salary certificate - Ex.P18 and out of the gross income,
professional tax and income tax has to be deducted and
remaining amount has to be taken to calculate 'loss of
dependency' and therefore, the Tribunal erred in taking
Rs.38,600/- as the income while calculating the loss of
dependency. He further contended that the Tribunal erred in
awarding meagre compensation of Rs.70,000/- under the
conventional heads and the same has to be enhanced. The
Tribunal has also erred in granting interest at the rate of 9%
instead of 12%. Therefore, he sought for enhancement of
compensation.
MFA No. 4872 of 2020
10. Per contra, Sri T.P. Srinivas, learned Principal
Government Advocate for Respondent Nos.1 and 2 contended
that the Tribunal considering the material on record and that
the deceased was permanent employee of the Government and
taking into consideration the deductions, has taken the income
of the deceased at Rs.38,600/- and added 15% towards future
prospects, in terms of the judgment in the case of National
Insurance Company Limited -vs- Pranay Sethi and others
reported in (2017)16 SCC 680 and deducted one-third and
rightly awarded compensation of Rs.31,96,152/- towards 'loss
of dependency'. He also contended that the compensation
awarded under the conventional heads is also just and proper.
Therefore, he sought to dismiss the appeal filed by the
claimants.
11. In view of the aforesaid rival contentions urged by
the learned counsel for the parties, the only point that would
arise for our consideration is:
"Whether the appellants/claimants have
made out a case for enhancement of
compensation in the facts and circumstances of
the case ?"
MFA No. 4872 of 2020
12. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties
including the original records carefully.
13. It is an undisputed fact that the deceased
Mohankumar, who was working as Mason in Military
Engineering Service (MES), Yelahanka, died in a road accident
that occurred on 10.2.2018 due to the rash and negligent
driving of driver of TUV300 car bearing Registration No.KA-43-
G-6777. The same is evidenced by the material documents
FIR/Ex.P1 and the charge sheet/Ex.P2. The claimant No.1
(mother of the deceased), who is examined as PW.1 has stated
on oath that her son was working as Mason in Military
Engineering Service and drawing a salary of Rs.55,262/- per
month. The jurisdictional Police registered a criminal case
against the driver of the offending vehicle under the provisions
of Sections 279 and 304A of the IPC. The Tribunal while
considering the income of the deceased has come to the
conclusion that the deceased was earning Rs.38,600/- per
month and added 15% towards future prospects, thereby
arrived at the total income of Rs.44,390/-. The claimants 1
and 2 are the dependents of the deceased and hence deducted
MFA No. 4872 of 2020
one-third towards personal and living expenses and arrived at
Rs.29,594/- as actual income. Since the deceased was 59
years, taken the multiplier as 9 and proceeded to award
compensation of Rs.31,96,152/- (Rs.29,594 x 12 x 9) under
the head of 'loss of dependency'.
14. The fact remains that admittedly Ex.P18, the salary
certificate issued by the competent authority clearly depicts
that the deceased was drawing gross salary of Rs.55,262/-.
After deducting Rs.4,400/- towards Professional Tax, Income
Tax and Traveling Allowance, the actual income would be
Rs.50,862/-. If we add 15% towards future prospects in terms
of the judgment of the Hon'ble Supreme Court in the case of
Pranay Sethi, the total income would be Rs.58,491/-
(Rs.50,862/- plus Rs.7629/-). Since there are two dependents,
one-third has to be deducted towards personal expenses as
held by the Hon'ble Supreme Court in the case of Sarla Verma
-vs- Delhi Transport Corporatin reported in (2009)6 SCC
121. After deducting one-third, the actual income would be
Rs.38,994/-. Considering the age of the deceased, the
appropriate multiplier is '9'. Therefore, the
appellants/claimants are entitled for compensation of
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MFA No. 4872 of 2020
Rs.42,11,352/- (Rs.38,994/- x 12 x 9) under the head of 'loss
of dependency'.
15. The Hon'ble Supreme Court time and again including
in the case of Pranay Sethi and subsequent judgments held
that under the head of 'consortium', each of the claimant is
entitled to Rs.40,000/-. In the present case, there are two
claimants and therefore, they are entitled to Rs.80,000/- in
total (i.e., Rs.40,000/- each).
16. The Tribunal based on the oral and documentary
evidence on record, has rightly awarded just and proper
compensation under the other heads and the same is left
undisturbed.
17. In all, the appellants/claimants are entitled to total
compensation of Rs.43,21,352/-.
18. For the reasons stated above, we answer the point
raised in the present appeal in the affirmative holding that the
appellants/claimants have made out a case for enhancement of
compensation, in the facts and circumstances of the case.
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MFA No. 4872 of 2020
19. On re-assessment of the entire oral and
documentary evidence on record, we are of the considered
opinion that the appellants/claimants are entitled for
compensation under different heads as under:
Sl. Compensation Head Amount of
compensation
No.
awarded
1 Loss of Dependency Rs.42,11,352 =00
2 Loss of consortium Rs. 80,000=00
4 Loss of estate Rs. 15,000=00
5 Funeral expenses Rs. 15,000=00
Total Rs.43,21,352=00
20. In all, the appellants/claimants are entitled to total
compensation of Rs.43,21,352/- as against Rs.32,66,152/-
awarded by the Tribunal. Thus, the appellants/claimants are
entitled to enhanced compensation of Rs.10,55,200/- (Rupees
ten lakhs fifty-five thousand two hundred only).
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MFA No. 4872 of 2020
21. For the reasons stated above, we pass the following:
ORDER
i) The Miscellaneous First Appeal is allowed in
part.
ii) The impugned Judgment & Award passed by
the Tribunal is hereby modified. The
appellants/claimants are entitled to total
compensation of Rs.43,21,352/- as against
Rs.32,66,152/- awarded by the Tribunal.
iii) The enhanced compensation of
Rs.10,55,200/- (Rupees ten lakhs fifty-five
thousand two hundred only) shall carry
interest at the rate of 6% per annum from
the date of petition till the date of realization.
iv) The apportionment, release of compensation
amount shall be as per the impugned
judgment & Award of the Tribunal.
v) The Respondent No.2/Insurance company
shall deposit the enhanced compensation
within a period of eight weeks with
proportionate interest.
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MFA No. 4872 of 2020
vi) On such deposit, the disbursement of the
enhanced compensation shall be in terms of
the award of the MACT.
vii) The Registry is directed to return the trial
Court Records forthwith.
Office is directed to draw the Award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
GSS
