Karnataka High Court

Sri Nanjappa vs Sri Ashok Kumar on 27 June, 2022

Bench: B.Veerappa, K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27TH 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.3200/2020 (MV-D)


BETWEEN:

1.     SRI NANJAPPA,
       S/O LATE SIDDAPPA,
       AGED ABOUT 70 YEARS.

2.     SMT. SUMA,
       W/O LATE MURTHY,
       AGED ABOUT 30 YEARS.

3.     KEERTHANA,
       D/O LATE MURTHY,
       AGED ABOUT 11 YEARS.

4.     PREETHAM,
       D/O LATE MURTHY,
       AGED ABOUT 9 YEARS.

       (APPELLANT NOS.3 & 4 BEING MINORS
       REP. BY THEIR NEXT FRIEND/NATURAL
       GUARDIAN MOTHER I.E. APPELLANT NO.2)

       THE APPELLANT NO.1 IS R/AT
       NERALE VILLAGE, NANJANGUD TALUK,
       MYSURU DISTRICT - 571 312.

       APPELLANTS NO.2 TO 4 ARE R/AT
       KANCHAMALLI VILLAGE, H.D. ROAD TALUK,
                            -2-


       MYSURU DISTRICT - 571 125.
                                             ...APPELLANTS
(BY SRI BHANU PRAKASH H.V., ADVOCATE)

AND:

1.     SRI ASHOK KUMAR,
       S/O JAGADEESH,
       AGED ABOUT 38 YEARS,
       R/AT NO.184/1, 1ST FLOOR,
       LAL BAGH ROAD, BENGALURU - 560 027.

2.     SRI PADMANABAN D.,
       S/O DHARAMAN,
       AGED BY MAJOR,
       R/AT VENKATAMPATTI POST,
       ANNASAGARAM VILLAGE,
       DHARMAPURUI DISTRICT,
       TAMIL NADU - 636 705.

3.     NATIONAL INSURANCE COMPANY,
       WAZIRPUR BRANCH, 26-A, 1ST FLOOR,
       MOHAN TOWER COMMERCIAL COMPLEX,
       RING ROAD, WAZIRPUR,
       DELHI - 110 052.

4.     M/S DINESH TRANSPORT SERVICE,
       SECTOR 17/18, DIVIDER ROAD,
       IN FRONT OF NGF TOYOTA,
       GURGAON, FARIDABAD DISTRICT,
       HARYANA - 122 001.
                                        ...RESPONDENTS
(BY SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R3; NOTICE TO
R1,R2 AND R4 IS DISPENSED WITH)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 19.03.2019 PASSED IN MVC NO.430/2015 ON
THE FILE OF THE MEMBER, MACT, JUDGE, ADDITIONAL SMALL
CAUSES AND SENIOR CIVIL JDUGE, MYSURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
                             -3-


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


                       JUDGMENT

This appeal is preferred by the claimants, who

are the wife, children and father of the deceased

Murthy S/o Nanjappa assailing the judgment and

award dated 19.03.2019, passed in MVC.No.430/2015

on the file of the Motor Accident Claims Tribunal

Additional Small Causes and Senior Civil Judge,

Mysuru (hereinafter referred to as "the Tribunal" for

short) seeking enhancement of compensation,

whereby the Tribunal has awarded total compensation

of Rs.16,22,000/- with interest at the rate of 6% p.a.

from the date of petition till the date of deposit.

2. The claimants filed the claim petition

seeking compensation of Rs.48,50,000/- on account of

death of one Murthy S/o Nanjappa, who died in a road

traffic accident that occurred on 14.11.2014 at 3.00

p.m., while the deceased was riding the motor cycle

bearing registration No.KA-09-ER-9519 on Mysurur-

Nanjangud Road, when he was near Ennehole Bridge

at Kadakola Village, at that time, a lorry bearing

registration No.HR-55-F-9033 came in a rash and

negligent manner and dashed against the motor cycle

and due to the impact of the accident, the deceased

suffered grievous injuries and died on the spot. The

claimants contended that the deceased was hale and

healthy and was working as a Building Labour

Contractor and was earning Rs.30,000/- per month

and due to the accident, they lost the sole earning

member of the family and hence, sought for

compensation.

3. In pursuance of the notice issued by the

Tribunal, respondent No.4 remained absent and was

placed exparte before the Tribunal.

4. Respondent No.3 - insurance company

filed objections contending that the deceased who was

riding the motor cycle did not possess valid and

effective driving licence as on the date of the accident

and there was contributory negligence on the part of

the deceased and hence, sought to absolve the

liability and reject the petition filed by the claimants.

5. The Tribunal on the basis of the pleadings

framed the following issues:

"1. Whether the petitioners prove that they are the dependents of deceased Murthy who died in a road traffic accident arising out of use of vehicle bearing Regn.No.HR-55 F-9033 occurred on 14.11.2014 at about 3.00 p.m. due to the rash and negligent driving of its driver?

2. Whether the petition is bad for non- joinder of necessary parties?

3. Whether there is a contributory negligence on the part of deceased?

4. Whether the petitioners are entitled for any compensation? If so, at what extent and from whom?

5. What order or relief?"

6. In order to substantiate the contention of

the claimants, claimant No.2, the wife of the deceased

examined herself as PW.1 and one witness

Nanjunadappa was examined as PW.2 and got marked

19 documents as Exs.P-1 to P-19. On the other hand,

respondent No.3-insurance company got marked the

document Insurance Policy at Ex.R.1.

7. The Tribunal on consideration of the oral

and documentary evidence on record held that the

accident occurred due to the rash and negligent

driving of the offending vehicle bearing registration

No.HR-55-F-9033 by its driver and held that there is

no contributory negligence on the part of the

deceased for the accident that occurred on

14.11.2014 and fastened the liability on the insurance

company awarding compensation of Rs.16,22,000/-

with interest at the rate of 6% per annum from

petition till the date of deposit.

8. Being unsatisfied with the award of

compensation by the Tribunal, the present appeal is

preferred by the claimants. No appeal is preferred by

the insurance company.

9. Heard learned counsel for the appellants

and learned counsel for respondent No.3/insurance

company and perused the material on record

carefully.

10. Learned counsel for the appellants, Sri

Bhanuprakash H.V. would contend that the Tribunal

has not taken into consideration that the deceased

was working as a Building Labour Contractor and

earning around Rs.30,000/- per month and thus, the

notional income taken by the Tribunal at Rs.7,500/- is

much on the lower side. It is further contended that

the award of compensation under the conventional

heads is much on the lower side and not in

consonance of the dictum of the 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.) and sought to allow the

appeal by enhancing the compensation.

11. Per contra, learned counsel for the

insurance company, Sri A.N. Krishna Swamy, would

justify the judgment and award of the Tribunal and

contended that the award of the compensation is just

and proper in the light of the judgment of the Apex

Court and same does not call for any interference and

sought to dismiss the appeal.

12. Having heard learned counsel for the

parties, the only point that arises for consideration in

this appeal is,

"Whether the appellants/claimants have made out any case for enhancement in the facts and circumstances of the present case?"

13. The date, time and occurrence of accident

are not in dispute. It is also not in dispute that the

accident occurred due to the rash and negligent

driving of offending vehicle bearing registration

No.HR-55-F-9033 as is evident from Ex.P-1 - copy of

the FIR, EX.P-2 - copy of the Complaint and Ex.P-8

the copy of the Charge sheet. The only dispute is with

regard to the quantum of compensation awarded by

the Tribunal.

- 10 -

14. The Tribunal has taken the notional income

of the deceased at Rs.7,500/- as the claimants have

failed to produce the material documents to show that

the deceased was earning Rs.30,000/- per month. In

the absence of the material document to evidence the

actual income of the deceased, the guidelines issued

by the Karnataka State Legal Services Authority,

Bengaluru needs to be considered. As per the

guidelines for the accident that occurred in the year

2014 the notional income to be taken is at Rs.8,500/-

and adding 40% (Rs.8,500 + 40% future prospects

amounting to Rs.3,400/- as per the dictum of the

Apex Court in the case of National Insurance

Company Limited Vs. Pranay Sethi and others

[2017 ACJ 2700] (Pranay Sethi). Thus, the income

of the deceased that would be arrived at is

Rs.11,900/- and deducting 1/4th towards personal

expenses as the dependents are four in number in

- 11 -

light of the dictum of the Apex Court in the case of

Sarla Verma vs. Delhi Transport Corporation

[(2009)6 SCC 121] (Sarla Verma), the notional

income would be Rs.8,925/-. Considering the age of

the deceased as 34 years, the multiplier applicable is

16. Thus, the claimants are entitled for

Rs.17,13,600/- under the head loss of dependency.

(8,925 x 12 x 16 = 17,13,600/-)

15. In view of the dictum of the Apex Court in

Satinder Kaur and Magma General Insurance

Company Ltd., stated supra, as the

claimants/dependents are four in number, they are

entitled for Rs.40,000/- each amounting to

Rs.1,60,000/- and under the head loss of estate and

towards conveyance and funeral expenses

Rs.15,000/- each. Accordingly, the point framed for

consideration is answered partly in the affirmative and

- 12 -

the claimants are entitled for just and proper

compensation as under:

Loss of dependency Rs.17,13,600/-

      Loss towards parental,
      spousal and filial
      consortium                         Rs. 1,60,000/-
      (40,000 x 4)

      Loss of estate                         Rs.     15,000/-

      Transportation and funeral
      Expenses                               Rs. 15,000/-
                                             ----------------
                                             Rs.19,03,600/-
                                             =========

      16.   The   claimants        are       entitled      to     total

compensation      of    Rs.      19,03,600/-          as        against

Rs.16,22,000/-    awarded        by    the     Tribunal.           The

claimants are entitled for an enhanced compensation

of Rs.2,81,600/- with interest at the rate of 6% per

annum from the date of petition till the date of

realization.