Karnataka High Court

Shalini vs Prashanth Acharya on 13 June, 2022

Bench: B.Veerappa, K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 13TH 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.5337/2020 (MV-D)


BETWEEN:

1.      SHALINI,
        AGED ABOUT 46 YEARS,
        W/O LATE SHEENA POOJARY.

2.      KUMARI SUPRIYA,
        AGED ABOUT 27 YEARS.

3.      KUMARI BHAGYASHREE,
        AGED ABOUT 24 YEARS.

4.      SHASHIKIRAN,
        AGED ABOUT 22 YEARS.

APPELLANT NO.2 TO 4 ARE
CHILDREN OF LATE SHEENA POOJARY,

ALL ARE RESIDING AT,
3-100, GOWRNAMENT PANALU,
NARAVI POST AND VILLAGE,
BELTHANGADY TALUK - 574 241.
                                         ...APPELLANTS
                          -2-



(BY MS. NAZEEFA M MULLA, ADVOCATE FOR
    SRI PAVANA CHANDRA SHETTY H., ADVOCATE)

AND:

1.     PRASHANTH ACHARYA,
       AGED ABOUT 34 YEARS,
       S/O CHANDRAYYA ACHARYA,
       R/AT DARKASU HOUSE,
       KUTHLUR POST AND VILLAGE,
       BELTHANGADY TALUK - 574 241.

2.     THE BRANCH MANAGER,
       IFFCO TOKIO GENERAL INS. CO. LTD.,
       MANGALORE BRANCH,
       3RD FLOOR, LALBHAGH TOWER,
       M.G. ROAD,
       MANGALORE - 575 001.
                                       ...RESPONDENTS

(BY SRI D. VIJAY KUMAR, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)

                        ****

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 27.03.2019, PASSED IN
MVC NO.817/18 ON THE FILE OF THE SENIOR CIVIL
JUDGE & MAFC, KARKALA, PARTLY ALLOWING THE CLAIM
PETITION   FOR   CONPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION, THIS DAY, K.S.HEMALEKHA J.,
DELIVERED THE FOLLOWING:
                                  -3-


                         JUDGMENT

Though this appeal is listed for Admission, with the

consent of learned counsel for the parties, the matter is

taken up for final disposal.

2. The present appeal is preferred by the

claimants assailing the judgment and award dated

27.03.2019, passed in MVC.No.817/2018 on the file of the

Senior Civil Judge and AMACT, Karkala, (hereinafter

referred to as "the Tribunal" for short), seeking

enhancement of compensation.

3. The claimants filed claim petition seeking

compensation of Rs.75,55,356/- on account of death of

one Sheena Poojary, who succumbed to the injuries

sustained in a fatal road traffic accident that occurred on

02.05.2018, the deceased Sheena Poojary was travelling

as a pillion rider in TVS Apache two wheeler bearing

registration No.KA-21-W-3150 and when they reached in

front of Hosmaru Primary School, in order to save the cow,

which suddenly was across the State Highway, the rider

suddenly applied the break, due to which the two wheeler

skid and the rider and pillion rider fell on the road. Due to

the impact, Sheena Poojary sustained grievous injuries and

succumbed to the injuries in the hospital. Claimants are

the wife and children of the deceased, it is the contention

of the claimants that the deceased was running Suvarna

General Stores and was earning Rs.75,000/- per month. It

is the contention of the claimants that they were solely

depending upon the income of the deceased and he was

sole bread winner member of the family and sought for

compensation.

4. In pursuance of the notice issued by the

Tribunal, respondent No.1-owner of the motor cycle

remained absent and hence, was placed ex-parte.

5. Respondent No.2-insurance company filed

written statement denying the petition averments and

contended that the rider of the motor cycle did not posses

valid and effective driving licence as on the date of the

accident and that the rider and the pillion rider of the two

wheeler were not wearing helmet and as such, violated the

terms and conditions of the policy and sought for dismissal

of the petition.

6. The Tribunal on the basis of the pleadings

framed the following issues:

"1. Whether the petitioners prove that Sheena Poojary the husband of petitioner No.1 and father of petitioners No.2 to 4 died in a Motor Vehicle Accident on 02.05.2018 at 11.00 p.m., in front of Hosmaru Primary school, due to rash and negligent driving of TVS Apache two wheeler bearing Reg.No.KA-21-W-3150 by its rider as contended?

2. Whether the respondent No.2 proves that the rider and pillion rider were not wearing helmet at the time of alleged accident and violated the terms and conditions of K.M.V.Rules?

3. Whether the respondent No.2 proves that the rider of TVS Apache two wheeler bearing Reg.No.KA-21-W-3150 was not holding valid and effective driving licence at the relevant time of accident?

4. Whether the petitioners are entitled for the compensation amount, if so what is the amount and from whom it is recoverable?

5. What Order or Award?"

7. Claimants in order to substantiate their case,

examined claimant No.1-wife of the deceased as PW.1 and

got marked documents at Exs.P.1 to P.47 and Exs.C.1 to

C.3. On the other hand, respondent No.2 did not adduce

any evidence and only got marked document at Ex.R.1 -

Insurance Policy.

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-21-W-3150 and fastened the liability upon the

insurance company by awarding compensation of

RS.12,91,980/- with interest @ 8% p.a. from the date of

the 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. Respondent No.2-insurance company has not

preferred any appeal against the judgment and award

passed by the Tribunal.

11. We have heard the learned counsel for the

parties to the lis.

12. Learned counsel Ms. Nazeefa M. Mulla, for

Pavan Chandra Shetty, Advocate for the appellants would

contend that the Tribunal has taken the notional income of

the deceased at Rs.15,000/- per month, without

considering the fact that the deceased was running a

Suvarna General Stores and earning Rs.75,000/- per

month, which is evident from documents at Exs.P.22 to

P.46. Thus, the Tribunal without considering the

documentary evidence, which shows the actual income of

the deceased, taking the income of the deceased at

Rs.15,000/- per month is much on the lower side and due

to which, the award of the compensation under the head

loss of dependency is much on the lower side. It is further

contended that the award of compensation under the

conventional heads is on the meager side and needs to be

enhanced as per 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]. Therefore, sought for enhancement of

compensation by allowing the appeal.

13. Per contra, learned counsel Sri. D. Vijay Kumar

for respondent No.2-insurance company would contend

that the claimants having not examined any witness to

prove that the deceased was earning Rs.75,000/- per

month, the Tribunal was justified in taking the income of

the deceased at Rs.15,000/- per month and contended

that the award of compensation under the various heads is

just and fair compensation and does not call for any

interference in the hands of this Court. It is further

contended that the Tribunal has awarded interest @ 8%

p.a., which is on the higher side. In this context, he would

contend that in the event of this Court enhances the

compensation, the rate of interest to be awarded would be

6% p.a.

14. Having heard the learned counsel for the

parties and on perusal of the material on record, the only

point that arises for our consideration 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 Sheena Poojary succumbed to the

injuries due to the accident that occurred on 02.05.2018

are not in dispute. The only dispute is in regard to the

quantum of compensation awarded by the Tribunal. The

- 10 -

claimants in order to prove that deceased was earning

from the Suvarna General Stores got marked documents

at Ex.P.22 to Ex.P.46. Ex.P.22-Licence of Trade and

Business, Ex.P.24-Certificate of Registration, Ex.P.25-the

letter addressed to the Commissioner of the Commercial

Taxes, Ex.P.27 and P.28-SB Account Pass book of

deceased, Ex.P.29 and P.30- bank account statements,

Ex.P.31 to P.46-are documents pertaining to the business

carried out by the deceased and also paying of Sales Tax

and VAT for the business, as contended by the claimants

and in view of evidence of PW.1. Exs.P.27 to P.30-the

bank account statements, which clearly depict the cash

deposits of the deceased prior to the accident, which

establish the fact that the deceased was running a Suvarna

General Stores and was earning sufficiently at the time of

the accident. This being so, the Tribunal taking the

notional income at Rs.15,000/- per month needs to be

reassessed. In light of the documents at Exs.P.22 to P.46

and corroborative evidence of PW.1, the notional income of

the deceased that could be assessed is at Rs.20,000/- per

- 11 -

month and as the dependents are four in number 1/4th 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]. Considering the age

of the deceased as 62 years, the applicable multiplier

applicable is 7. Thus, a sum of Rs.12,60,000/- is arrived

at towards loss of dependency (15000 x 7 x 12 =

12,60,000/-).

16. The claimants are the wife and children of the

deceased. In light of the judgment of the Hon'ble Apex

Court in the case of Satinder Kaur and Magma General

Insurance Company stated supra, 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.1,60,000/- (40000 x 4) under the head loss of

consortium.

- 12 -

17. 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:

 Sl.         Head of Compensation                       Amount         in
 No.                                                    Rs.
 1.      Loss of dependency                             12,60,000.00
 2.      Loss of consortium                                 1,60,000.00
 3.      Medical expenses                                   2,71,980.00
         (as awarded by the Tribunal)
 4.      Loss of estate                                      15,000.00
 5.      Funeral expense                                     25,000.00
         (as awarded by the Tribunal)
 6.      Conveyance                                          10,000.00
         (as awarded by the Tribunal)
             Total                                      17,41,980.00

18. The Tribunal has already awarded a sum of

Rs.12,91,980/- and deducting the same out of

Rs.17,41,980/-, the claimants are entitled to enhanced

compensation of Rs.4,50,000/- with interest @ 6% p.a.

from the date of petition till the date of realization.

- 13 -

Accordingly, we answer the point framed for consideration

partly in affirmative in favour of the claimants.

19. In the result, we pass the following:

ORDER

i. The appeal filed by the claimants is allowed in

part.