Karnataka High Court
Kariyappa vs Prasanna Kumar G on 10 June, 2022
Bench: B.Veerappa, K S Hemalekha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH 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.1529/2019 (MV-D)
BETWEEN:
1. KARIYAPPA,
S/O DASAPPA,
AGED ABOUT 57 YEARS.
2. MANJUNATHA,
S/O KARIYAPPA,
AGED ABOUT 27 YEARS.
BOTH ARE RESIDING AT,
AMMANAHATTY VILLAGE,
MATHODU HOBLI,
HOSADURGA TALUK - 577 527.
...APPELLANTS
(BY SRI JAGADEESH D.C., ADVOCATE)
AND:
1. PRASANNA KUMAR G.,
S/O GURUMURTHAPPA,
AGED ABOUT 47 YEARS,
R/AT DODDABYALADAKERE VILLAGE,
-2-
MATHODU HOBLI,
HOSADURGA TALUK - 577 527.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE,
MMK COMPLEX,
2ND FLOOR,
AKKAMAHADEVI ROAD,
P.J. EXTENSION,
DAVANGERE - 577 001.
...RESPONDENTS
(BY SMT. GEETHA RAJ, ADVOCATE FOR R2;
R1 IS SERVED BUT UNREPRESENTED)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 27.11.2018, PASSED IN
MVC NO.644/16, ON THE FILE OF THE SENIOR CIVIL
JUDGE & MAFC., AND MACT, HOSADURGA, PARTLY
ALLOWING THE CLAIM PETITION FOR CONPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR HEARING, THIS DAY, K.S.HEMALEKHA J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
The present appeal is preferred by the claimants
assailing the judgment and award dated 27.11.2018 in
MVC No.644/2016 on the file of the Senior Civil Judge and
MACT, Hosadurga (hereinafter referred to as 'the Tribunal'
for short) seeking enhancement of compensation, whereby
the Tribunal has awarded total compensation of
Rs.3,42,000/- with interest at the rate of 6% p.a. from the
date of petition till the date of deposit.
2. The claimants are the husband and son of the
deceased Gowramma, who succumbed to the injuries
sustained in a fatal road traffic accident that occurred on
02.06.2015, when the deceased Gowramma was
proceeding in the motor cycle bearing registration No.KA-
16-EB-8464 as a pillion and the rider of the motor cycle
rode the same in a rash and negligent manner and due to
negligence on the part of the rider of the motor cycle, the
said Gowramma fell down and sustained grievous injuries
and on 14.06.2015, she succumbed to the injuries in the
hospital. It is the contention of the claimants that she was
hale and healthy at the time of the accident and she was
the sole bread winner member of the family and sought for
compensation of Rs.41,30,000/- under Section 166 of the
Motor Vehicles Act with interest at the rate of 18% p.a.
from the date of petition till the date of realization.
3. In pursuance to the notice issued by the
Tribunal, respondent Nos.1 and 2 appeared and filed their
objections.
4. Respondent No.1 denied the accident however,
admitted that he is the owner of the Motor Cycle bearing
registration No.KA-16-EB-8464 and also contended that
the said motor cycle was insured with respondent No.2 and
policy was in force and that the rider of the motor cycle
was in possession of valid and effective driving licence as
on the date of the accident and sought to dismiss the claim
petition.
5. Respondent No.2-Insurnace Company denied
the accident, age, occupation and income of the deceased
and sought to dismiss the claim petition. It is contended
that the rider of the motor cycle did not possess valid and
effective driving licence as on the date of the accident and
contended that the owner of the motor cycle violated the
terms and conditions of the policy and thus, sought to
absolve the liability fastened upon the insurance company.
6. The Tribunal on the basis of the pleadings
framed the following issues:
"1. Whether petitioners prove that, deceased
Gowramma died due to injuries in RTA that
occurred on 2/6/2015 at 2-30 P.M. near
Kalingappanavara Manjanna's House in
Doddabyaladakere village, while she was
proceeding on motor cycle bearing No.KA-16-EB-
8464, due to rash and negligent driving of driver of
the said motor cycle?
2. Whether petitioners prove that they are the
legal heirs of deceased?
3. Whether petitioners are entitled for the
compensation? If so, what extent and from whom?
4. What order or award?"
7. Claimants in order to substantiate their case,
examined claimant No.2 as PW.1 and got marked
documents at Exs.P.1 to P.25. On the other hand, the
driver of the motor cycle and the Senior Divisional
Manager of respondent No.2 were examined as RW.2 and
RW.3 respectively and got marked document at Ex.R1 -
Insurance Policy. Respondent No.1 did not choose to lead
any evidence.
8. The Tribunal, on the basis of the pleadings,
evidence and the oral and documentary evidence on record
held that the accident occurred due to rash and negligent
riding of the rider of the motor cycle bearing registration
No. KA-16-EB-8464 and due to the impact of the accident,
deceased Gowramma succumbed to the injuries and
fastened the liability upon the insurance company with a
direction to recover the same from respondent No.1-
owner of the motor cycle in light of the judgment of the
Hon'ble Apex Court in the case of National Insurance
Co. Ltd. VS. Swaran Singh and Others reported in
2004 (3) SCC 297 [Swaran Singh] and awarded
compensation of Rs.3,42,000/- with interest @ 6% p.a.
from the date of petition till the date of realization.
9. Being unsatisfied with the quantum of
compensation awarded by the Tribunal being on the lower
side, the claimants filed the present appeal.
10. Admittedly, respondent No.2-insurance
company and respondent No.1-owner of the offending
vehicle have not preferred any appeal against the
judgment and award passed by the Tribunal.
11. Heard the learned counsel for the
appellants/claimants and learned counsel for respondent
No.2/insurance company.
12. Learned counsel Sri. Jagadeesh D.C for the
appellants/claimants would contend that the award of
compensation by the Tribunal to the extent of
Rs.3,42,000/- is much on the lower side and needs to be
enhanced in view of death of deceased Gowramma, who
succumbed to the injuries sustained in a road traffic
accident occurred on 02.06.2015. It is also contended that
the Tribunal has not taken into consideration the fact that
the deceased was an agriculturist and home maker and
was earning Rs.3,00,000/- per annum and would contend
that the Tribunal is erred in taking the income of the
deceased at Rs.3,000/- per month and deducting 50% of
the income towards personal expenses, is contrary to the
judgment of the Hon'ble Apex Court and sought to
enhance the compensation under the head loss of
dependency. It is further contended that the award of
compensation under the various heads is much on the
lower side and needs to be enhanced. Therefore, sought
for enhancement of compensation by allowing the appeal.
13. Per contra, learned counsel Smt. Geetharaj for
the insurance company would contend that personnel
expenses deducted by Tribunal to extent of 50% is just
and proper as the claimant being major son cannot be
treated as dependant and would justify the judgment and
award passed by the Tribunal and contend that the award
of compensation by the Tribunal is just and fair and does
not call for interference in the hands of this Court and
sought to dismiss the petition.
14. Having heard the learned counsel for the
parties, the only point that would arise for consideration in
the present appeal is:
"whether the appellants/claimants have made
out a case for enhancement of compensation in
the facts and circumstances of the present
case?"
15. The date, time, occurrence of the accident and
that the deceased Gowramma succumbed to the injuries in
a road traffic accident that occurred on 02.06.2015 are not
in dispute. The documents at Ex.P.1 - FIR, Ex.P.2 -
Complaint and Ex.P.10 - Charge Sheet clearly depict that
the accident occurred due to rash and negligent riding of
the rider of the motor cycle bearing registration No.KA-16-
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EB-8464. It is relevant to note that the rider of the motor
cycle did not possess valid and effective driving licence as
on the date of the accident and accordingly, the Tribunal
has fastened the liability upon the insurance company to
pay the compensation amount to the claimants at the first
instance and to recover the same from respondent No.1 -
owner of the vehicle in view of the dictum of the Hon'ble
Apex Court in the case of Swaran Singh stated supra.
16. In light of the admitted fact, the only dispute is
in regard to the quantum of compensation awarded by the
Tribunal.
17. It is relevant to note that in the absence of any
document to show the actual income of the deceased, as
per the guidelines issued by the Karnataka Legal Services
Authority for the accident that occurred in the year 2015,
the notional income to be taken is Rs.9,000/- per month.
Considering the age of the deceased, 25% needs to be
added as Future Prospects (in view of the dictum of the
Hon'ble Apex Court in the case of National Insurance
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Company Limited Vs. Pranay Sethi and others [2017
ACJ 2700] amounting to Rs.2,250 totaling Rs.11,250/-)
and as the dependents are two in number 1/3rd of the
income needs to be deducted towards personal expenses
as per the dictum of the Hon'ble Supreme Court in the
case of Sarla Verma vs. Delhi Transport Corporation
[(2009)6 SCC 121] and in view of the dictum of the
Hon'ble Apex Court in the case of National Insurance
Company Limited vs. Birender & others [(2020)11
SCC 356] (Birender), wherein the Hon'ble Apex Court held
that where the married son if dependant upon the
deceased, is also entitled for the compensation. Thus the
contention of the learned counsel for the insurance
company that claimant No.1 being major son cannot be
termed as dependable is not sustainable in light of the
judgment of the Hon'ble Apex Court in (Birendar's) case.
Considering the age of the deceased as 50 years, the
applicable multiplier applicable is 13. Thus, a sum of
Rs.11,70,000/- is arrived at towards loss of dependency
(7500 x 13 x 12 = 11,70,000/-).
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18. A perusal of the judgment and award would
depicts that the award of compensation under the head
loss of love and affection, loss of estate and loss of
consortium and other heads is much on the lower side and
not as per the dictum of the Hon'ble Apex Court.
19. The claimants are the husband and son of the
deceased. In light of the judgment 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.,) the
claimants are entitled for a sum of Rs.40,000/- each under
the head loss of consortium. Thus, the claimants are
entitled for a sum of Rs.80,000/- (40000 x 2) under the
head loss of consortium.
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20. On reassessing the entire oral and
documentary evidence on record, this Court is of the
considered opinion that the appellants/claimants are
entitled for just compensation under different heads as
under:
Head of Compensation Amount in Rs.
Sl.
No.
1. Loss of dependency 11,70,000.00
2. Loss of consortium 40,000.00
3. Loss of love and affection 40,000.00
4. Funeral expenses and 15,000.00
transportation of dead body
5. Loss of estate 15,000.00
Total 12,80,000.00
21. The Tribunal has already awarded a sum of
Rs.3,42,000/- and deducting the same out of
Rs.12,80,000/-, the claimants are entitled to enhanced
compensation of Rs.9,38,000/- with interest @ 6% p.a.
from the date of petition till the date of realization.
Accordingly, we answer the point framed for consideration
partly in affirmative in favour of the claimants.
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22. In the result, we pass the following:
ORDER
i. The appeal filed by the claimants is allowed in part.
ii. The impugned judgment and award dated 27.11.2018
passed by the Senior Civil Judge and MACT,
Hosadurga in MVC No.644/2016 is hereby modified.
iii. The claimants are entitled for total compensation of
Rs.12,80,000/- as against Rs.3,42,000/- awarded by
the Tribunal.
iv. The claimants are entitled for enhanced
compensation of Rs.9,38,000/- with interest @ 6%
p.a. from the date of petition till the date of
realization.
v. Insurance company shall deposit the enhanced
compensation amount within a period of six weeks
from the date of receipt of a copy of this order with
proportionate interest.
vi. Liberty is reserved in favour of the insurance
company to pay the said amount at the first instance
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and recover the same from respondent No.1-owner
of the offending vehicle bearing registration No.KA-
16-EB-8464.
vii. The apportionment, deposit and release of
compensation amount as per the order of the
Tribunal stands unaltered.
viii. Office is directed to transmit the Trial Court Records
forthwith.
ix. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBM
