Karnataka High Court

Smt Lakshmidevi vs Mr Sali Mathew V on 7 March, 2022

Bench: J.M.Khazi

                                1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

             THE HON'BLE MS. JUSTICE J.M.KHAZI

                 M.F.A.NO.2451/2019 (MV)
BETWEEN:

1.     SMT. LAKSHMIDEVI
       W/O LATE SRINIVASA V.S
       AGED ABOUT 45 YEARS

2.     MADHUSUDHAN KUMAR V.S.
       S/O LATE SRINIVASA V.S
       AGED ABOUT 24 YEARS

3.     SANDEEP KUMAR V.S
       S/O LATE SRINIVASA V.S
       AGED ABOUT 22 YEARS

       ALL ARE R/O RAYAPURA VILLAGE
       MOLAKALMURU TALUK
       CHITRADURGA DISTRICT-577501
                                           ... APPELLANTS
(BY SRI B.PRAMOD, ADVOCATE)

AND:

1.     MR.SALI MATHEW V
       MAJOR
       RC OWNER OF LORRY
       R/O NIRAPRATH HOUSE
       MOOLANKAVE POST
       SULTHAN BATHERY
       WAYANAD, KERALA STATE-673592
                                2


2.   THE BRANCH MANAGER
     UNITED INDIA INSURANCE CO LTD.,
     BRANCH OFFICE, DRM HOSPITAL COMPLEX
     HOLALKERE ROAD,
     CHITRADURGA TOWN-577501.
                                        ...RESPONDENTS
(BY SRI. B.C.SEETHARAMA RAO, ADVOCATE FOR R2
    R1 IS SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
05.01.2019 PASSED IN MVC.NO.735/2018 BY THE COURT OF I
ADDL. SENIOR SIVIL JUDGE AND ADDL.MACT-IV, CHITRADURGA
AND AWARD JUST AND PROPER COMPENSATION; AND PASS
SUCH OTHER ORDER/S DEEMED JUST AND PROPER IN THE
FACTS AND CIRCUMSTANCES OF THE CASE IN INTEREST OF
JUSTICE AND EQUITY.

     THIS MFA HAVING BEEN HEARD AND RESERVED ON
22.02.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

                       JUDGMENT

Though the matter is posted for admission, with the

consent of learned counsel for the parties, the same is

taken up for final disposal.

2. This appeal is filed under Section 173 (1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'MV

Act'), seeking enhancement of the compensation granted in

a petition filed under Section 163-A by claimants who are

mother and brothers of one Manoj Kumar, who died in a

motor vehicle accident dated 21.01.2018, contending that

as per the decision of the Pranay Sethi's case reported in

2017 16 SCC 680, future prospects are required to be

granted at the rate of 40%. Under the head parental

consortium, the petitioner No.1 being the mother of the

deceased is to be granted compensation as per the decision

of the Hon'ble Supreme Court in Magma General

Insurance Company case. The compensation granted

under the head transportation of dead body and funeral

expenses is on lower side.

3. By the impugned judgment and award the

Tribunal has granted compensation in a sum of

Rs.3,86,400/- with interest at 9% p.a and directed the

respondent being the insurer of the offending vehicle to pay

the same as detailed below:

                      Heads             Amount in Rs.
           Loss of earnings                 3,56,400/-
           Loss of Estate                     15,000/-
           Transportation and funeral         15,000/-
           expenses
           TOTAL                                3,86,400

4. For sake of convenience the parties are referred

to by their rank before the Tribunal.

5. It is the case of the petitioners that deceased

was an auto driver earning Rs.3,300/- p.m. On 21.01.2018,

at about 9.45 p.m, he was driving auto rickshaw bearing

registration No.KA 16/C 4415 from Rayalapura towards

Tumakuranahalli Solar Plant. When he was near

Tumakuranahalli Gate, Molakalmuru Taluk, on NH 150(A),

driver of lorry bearing registration No.KL 12/G 3139

(hereinafter referred to as offending vehicle), came in a

rash or negligent manner and dashed against the auto

rickshaw, as a result of which Manoj Kumar sustained

severe injuries and died on the spot.

6. At the time of accident, the deceased was aged

about 25 years. Petitioners being the mother and brothers

of the deceased were dependent on him and as such they

are entitled for compensation. Respondent No.1 being the

owner and respondent No.2 being the insurer of the

offending vehicle are jointly and severally liable to pay the

compensation.

7. Respondent No.1 has remained Ex-parte.

8. Respondent No.2 has filed the objections

contending that the accident occurred due to the rash or

negligent driving by deceased Manoj Kumar. In fact the

concerned police have filed charge sheet against the

deceased and has sought for dismissal of the appeal.

[ 9. In support of their claim, petitioner No.1 is examined as PW-1 and Ex.P1 to 10 are marked. [[

10. Respondent No.2 has not led any oral evidence,

but relied upon Ex.R1 copy of the policy.

11. I have heard the learned counsel representing

the petitioners and respondent No.2 and perused the

records.

12. Even though during the course of appeal memo,

petitioners have claimed enhancement of compensation

under several heads, during the course of arguments, the

learned counsel representing the petitioners submitted that

Section 163-A of the MV Act is substituted by Section 164

through 2019 amendment and as such at least the

compensation is required to be enhanced to Rs.5,00,000/-.

13. On the other hand the learned counsel

representing the respondent submits that since the petition

is under Section 163-A of the MV Act, wherein the

compensation is to be determined on structured formula

basis i.e., no fault liability, the computation is to be made

strictly in accordance with the second Schedule. He further

submits that the amendment of 2019 whereby Section 163-

A is substituted by Section 164 is prospective in effect and

since the date of accident is 21.01.2018, Section 164 of MV

Act is not applicable and therefore the calculations are to be

made in accordance with the earlier Act.

[[[

14. It is an undisputed fact that the accident in

question took placed on 21.01.2018, which is prior to the

2019 amendment and as such the benefit of Section 164 of

MV Act cannot be given to the petitioners. It is also not in

dispute that at the time of accident, deceased was driving

auto rickshaw bearing No.KA 16/C 4415. After the

investigation, the police have filed charge sheet against

deceased. Consequently, the petitioners have chosen to file

the claim petition under Section 163-A of the MV Act under

no fault liability wherein, the compensation is required to be

granted on structured formula basis.

15. One of the condition for application of Section

163-A of the MV Act is that the income of the deceased

shall not exceed Rs.40,000/-p.a. According to the

claimants, the deceased was earning Rs.3,300/- p.m. which

comes to Rs.39,600/- p.a. within the limitation prescribed

by Schedule-2. In the absence of any evidence to support

the claim of the petitioners regarding the income of

deceased, the Tribunal has rightly taken Rs.3,300/- as the

monthly income of the deceased, which is well below the

minimum wages.

16. Since the deceased was a bachelor, the Tribunal

has deducted his personal and living expenses at 50%

which is not correct. As per the second Schedule, the

personal and living expenses to be deducted is restricted to

1/3rd and it shall not exceed the same. Since deceased was

stated to be aged 25 years which fact is not seriously

disputed by the respondent and based on the evidence on

record, the Tribunal has accepted the age of the deceased

as 25 and consequently, the appropriate multiplier taken at

18 is correct. Therefore, after deducting 1/3rd income

towards personal and living expenses of the deceased, the

petitioners are entitled for compensation under the head

loss of dependency based on 2/3 rd of his income i.e., 3,300

x 12 x 18 x 2/3 rd which comes to Rs.4,75,200/-.

17. Based on the decision of the Hon'ble Supreme

Court in National Insurance company Ltd vs Pranay

Seti's and others, the Tribunal has granted a

compensation of sum of Rs.15,000/- under the head loss of

estate and Rs.15,000/- under the head transportation and

funeral expenses which is not correct. The decision in

Pranay Seti's case is not applicable to the present petition

which is filed under Section 163A of the MV Act. As per the

second Schedule, the funeral expenses is to be restricted to

Rs.2,000/- and similarly loss of estate is to be restricted to

Rs.2,500/-. To this extent the impugned judgment and

award is liable to be modified. While the claimants are

entitled for compensation of sum of Rs.4,75,200/- under

the head loss of dependency as against Rs.3,56,400/-

granted by the Tribunal, as against Rs.15,000/- under the

head loss of estate, the petitioners are entitled for

Rs.2,500/- and as against Rs.5,000/- under the head

transportation of funeral expenses they are entitled for

Rs.2,000/-. In all the petitioners are entitled for

compensation in total sum of Rs.4,79,700/- as against

Rs.3,86,400/- granted by the Tribunal as detailed below:

            Heads             Amount granted         Amount granted
                              by the Tribunal         by this Court
                                   In Rs.                 In Rs.
    Loss of earnings              3,56,400-00            4,75,200-00

    Loss of Estate                       15,000-00         2,500-00

    Transportation and                    5,000-00         2,000-00
    funeral expenses

    TOTAL                           3,86,400-00        4,79,700-00

*18. The Tribunal has granted at 9%p.a. without any basis and

the same is restricted to 6% p.a.

To this extent the impugned judgment and award is

liable to be modified and accordingly, I proceed to pass the

following order

ORDER

1. The appeal is allowed in part.

2. The judgment and award dated 05.01.2019

passed in MVC No.735/2018 on the file of the I

Additional Senior Civil Judge and Additional

MACT-IV, Chitradurga, is modified.

*Corrected vide court order dated 17.03.2022