Karnataka High Court

Smt Susheelamma vs C Srininvas on 9 March, 2022

Bench: J.M.Khazi

                            1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

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

               M.F.A.NO.5886/2015 (MV)
BETWEEN:

1.   SMT. SUSHEELAMMA,
     W/O LATE M.MAHADEVU,
     AGED 48 YEARS,

2.   SRIDHAR,
     S/O LATE MAHADEVU,
     AGED 29 YEARS,

3.   BASAVARAJU,
     S/O LATE MAHADEVU,
     AGED 24 YEARS,

4.   LAKSHMI,
     D/O LATE MAHADEVU,
     AGED 21 YEARS,

     THE PPELLANT NO.1 TO 4 ARE
     R/O HOSABUDANUR VILLAGE,
     MANDYA TALUK,
     MANDYA DISTRICT - 571 436

     (NOTE: THE 3RD PETITIONER BEFORE THE TRIAL COURT
     HAS NOT MADE PARTY SINCE SHE IS DEAD AND LRs ARE
     THE APPELLANT NO.1 TO 4)
                                        ... APPELLANTS

(BY SRI. R.RAGHU, ADVOCATE FOR
    SRI. R.PRAMOD, ADVOCATE)
                                2


AND:

1.     C.SRININVAS,
       S/O CHIKKAIAH.K.S.,
       R/AT NO.23, SAPTHAGIR NILAYA,
       K.N.STREET, DB SANDRA,
       VIDYARANYAPURA,
       BANGALORE - 97

2.   THE BRANCH MANAGER,
     H D F C ERGO GENERAL INSURANCE LTD.,
     1ST FLOOR, NO.14, H.M.JENEVA HOUSE,
     CUNNINGHAM ROAD,
     BANGALORE - 52
                                          ...RESPONDENTS
(BY SRI B.PRAMOD, ADVOCATE FOR R2;
    V/O/DTD 17.06.2019, R1 NOTICE DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THE APPEAL AND ENHANCE THE
COMPENSATION TO Rs.15,00,000/- BY MODIFYING THE
JUDGEMNT AND AWARD DATED 19.02.2015 PASSED BY
PRINCIPAL CIVIL JUDGE (Sr.Dn.) AND MACT AT MANDYA IN
M.V.C.NO.496/2013.
    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Though this appeal is posted for admission, with the

consent of learned counsel for both the parties, the same is

taken up for final disposal.

2. This is an appeal by the petitioners seeking

enhancement.

3. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

4. The petitioners have filed this appeal seeking

enhancement contending that the compensation granted is

highly insufficient, inadequate and disproportionate and as

such requires enhancement. The compensation granted

under various heads is on the lower side.

5. It is the case of the petitioners that they are wife

and children of late M.Mahadevu. On 27.03.2013, the said

Mahadevu was riding bicycle on the left side of the Mysuru-

Bengaluru road. At about 3.50 p.m. when he was

proceeding towards Hosabudanur in between Srinivasapura

gate, Mandavya College, car bearing registration No.KA

04/MC 4940 driven by its driver in a rash or negligent

manner came from his behind and dashed against the

bicycle. As a result of which Mahadevu thrown out and

sustained fatal injuries and died on the spot.

6. At the time of accident, deceased was aged 48

years. He was working as a security guard and was earning

Rs.8,000/- p.m. By doing cable work he was also earning

Rs.3000/- p.m. Being the wife and children of Mahadevu,

petitioners are dependents.

7. Before the Tribunal, both respondents appeared

and filed written statement.

8. Respondent No.1 has denied that the accident

occurred due to the rash or negligent driving by the driver

of the car. He was having a valid and effective driving

license and vehicle was duly insured with respondent No.2

He has denied the other averments of the claim petition.

9. Respondent No.2 has filed objections admitting

the coverage of the vehicle in question, but its liability is

subject to the terms and conditions of the policy. However,

it has denied the mode of accident, age, avocation, income,

nature of the injury sustained and the fact that death was

due to the said injuries.

10. During enquiry on behalf of the petitioners, three

witnesses are examined as PWs-1 to 3 and Ex.P1 to 10 are

marked.

11. Respondents have not led any oral and

documentary evidence on their behalf.

12. Vide the impugned judgment and award, the

Tribunal has partly allowed the claim petition and granted

compensation in a sum of Rs.7,92,000/- together with

interest at 6% p.a and directed respondent No.2 to pay the

same. The details of the compensation granted are as

under:

                    Heads                   Amount in Rs.
     Loss of dependency                           7,02,000
     Towards transportation & funeral               20,000
     and 11th day ceremony expenses
     Towards loss of consortium                     25,000
     Towards loss of love & affection and           20,000
     also protection
     Towards loss of estate                          25,000
     TOTAL                                        7,92,000

13. Respondent No.2 Insurance company has not

challenged the impugned judgment and award.

14. Thus, the petitioners are seeking enhancement

contending that the compensation granted is on the lower

side and needs interference by this Court. In view of the

same, it is necessary to examine whether the compensation

granted under various heads are just and proper and if not

whether it is a fit case for interference.

15. Loss of dependency: The date of accident is

27.03.2013 and it is an undisputed fact that the deceased

died on the spot due to accidental injuries. He was aged 48

years which fact is not in dispute. Therefore, the

appropriate multiplier would be 13. In the absence of

admissible evidence, the Tribunal has taken the monthly

income of deceased as Rs.6,000/-. However, based on

minimum wages, it would be appropriate to take the

income as Rs.7,000/- instead of Rs.6,000/-. Having regard

to the age of the deceased and the work he was doing and

in view of the Magma Insurance Co. case, 25% of

income is to be added towards loss of future prospects.

25% of Rs.7,000/- comes to Rs.1,750. Therefore, the

notional income that is to be taken is Rs.8750/-.

15.1 Since there are four dependents, 1/4th is to be

deducted towards his personal and living expenses and ¾ is

required to be taken towards the loss of dependency i.e.,

8750 x 12 x 13 x ¾ = 10,23,750. Therefore, the

compensation under the head loss of dependency comes to

Rs.10,23,750/-.

16. Loss of consortium: The Tribunal has granted a

sum of Rs.25,000/- under the head loss of consortium and

Rs.20,000/- under the head loss of love & affection and

protection. However, as per the Pranay Seti's case, each

one of the dependent viz., parents, spouse and children are

entitled for compensation of Rs.40,000/- under the head

loss of consortium. In the present case, though the claim

petition was filed by the wife and four children of the

deceased, during the pendency of the claim petition,

petitioner No.3 Sheela died. Therefore, there are only four

dependents. At the rate of Rs.40,000/- each, they are

entitled for compensation in a sum of Rs.1,60,000/- as

against Rs.45,000/- granted by the Tribunal.

17. Funeral expenses: The Tribunal has granted

compensation in a sum of Rs.20,000/- under the head

transportation, funeral and 11th day ceremony expenses.

However, as per the Pranay Seti's case, when the major

compensation granted is under the head loss of

dependency, under the conventional head of funeral

expenses which includes transportation charges,

Rs.15,000/- is required to be granted and accordingly,

compensation under the head funeral expenses is restricted

to Rs.15,000/- as against Rs.20,000/- granted by the

Tribunal.

18. Loss of estate: The Tribunal has granted

Rs.25,000/- under this head. As already discussed when

major compensation is granted under the head of loss of

dependency, as per Pranay Seti's case, under the head

the loss of estate Rs.15,000/- is required to be granted and

therefore, compensation under this head is restricted to

Rs.15,000/- as against Rs.25,000/- granted by the

Tribunal.

19. Thus, in all petitioners are entitled for

compensation in a total sum of Rs.12,13,750/- as against

Rs.7,92,000/- granted by the Tribunal as detailed below:

Heads Amount granted Amount granted by the Tribunal by this Court In Rs. In Rs.

Loss of dependency 7,02,000 10,23,750 Towards loss of 25,000 1,60,000 consortium Towards loss of love 20,000 -

   & affection and also
   protection
   Funeral expenses                    20,000               15,000
   Towards     loss  of                25,000               15,000
   estate
   TOTAL                             7,92,000         12,13,750

20. Of course, the petitioners are entitled for interest

at 6% p.a. on the compensation granted as held by the

Tribunal. Accordingly, I proceed to pass the following:

ORDER

(i) Appeal is allowed in part.

     (ii)    Appellant/claimant is entitled for compensation in

             a    sum      of     Rs.12,13,750/-     as      against

Rs.7,92,000/- granted by the Tribunal, with

interest at 6% p.a. from the date of petition till

realization (minus the amount already

paid/deposited)