Karnataka High Court
Madamma vs Suresh G C on 16 March, 2022
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.6526/2019 (MV-I)
BETWEEN:
1. MADAMMA
W/O LATE T.HANUMANTHAPPA
AGED ABOUT 52 YEARS
2. KUM. MANASA
D/O LATE T.HANUMANTHAPPA
AGED ABOUT 13 YEARS
REPRESENTED BY HER MOTHER
MINOR GUARDIAN OF MADAMMA
BOTH ARE R/O HIREGANGURU VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT - 577 213 ... APPELLANTS
(BY R.SHASHIDHARA, ADVOCATE)
AND:
1. SURESH G.C
S/O CHANDRAPPA
MAJOR
R/O K S R T C DRIVER CUM CONDUCTOR
BADGE NO 5151, SIRSI KSRTC DEPOT
UTTARAKANNADA DISTRICT
R/O GUNDERI VILLAGE, HOLALKERE
TALUK - 577526
CHITRADURGA DISTRICT - 577526
2. SRINIVASA H. G.
S/O GURURAJ.H
MAJOR,
2
R/AT NO 100, 5TH MAIN
7TH CROSS, GOPALAGOWDA
EXTENSION, SHIVAMOGGA - 577 201
3. UNITED INDIA INSURANCE CO. LTD
SHIVAMANGALA BUILDING
CHANNAGIRI ROAD
BHADRAVATHI - 577 301
SHIVAMOGGA DISTRICT ... RESPONDENTS
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION U/S 173(1) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED 21.06.2018, PASSED IN MVC
NO.1486/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., AND MACT, HOLALKERE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is preferred by the claimants being
dissatisfied with the compensation awarded by the Senior
Civil Judge and MACT at Holalkere (hereinafter referred to
as 'Tribunal' for brevity) in MVC No.1486/2016 dated
21.06.2018. This appeal is founded on the premises of
inadequacy of compensation awarded to the claimants,
who have lost their husband and father respectively.
2. Brief facts of the case:
On 21.08.2016 at about 9.30 a.m, when
Hanumanthappa was travelling along with Suresh and
Kumar on his TVS XL motorcycle bearing Reg.No.KA-
17/AS-4638 to attend the House warming ceremony of the
newly constructed house. At that time when they reached
near the land of one Rajanna, a car driven by its driver
bearing Reg.No.KA-27/M-819 came with high speed in a
rash and negligent manner, so as to endanger human life
and safety and dashed against the two wheeler ridden by
Hanumanthappa. Due to the accident Hanumanthappa
and his friends fell down and sustained injuries on the
face, right hand and right leg and etc. Immediately after
the accident Hanumanthappa was shifted to Meggan
Hospital, Shivamogga. On clinical examination by the
doctor at 11.30 a.m, he declared Hanumanthappa to be
dead.
3. It is the case of the claimants that deceased
Hanumanthappa died due to the injuries sustained in the
accident which was due to rash and negligent driving of
the driver of the car namely-Suresh who is respondent
No.1. It is further claimed that deceased Hanumanthappa
was doing agriculture work and also business in Kerosene
and was earning income of more than Rs.20,000/- p.m.
He was hale and healthy prior to the date of occurrence of
the accident and was only sole earning member of the
family. The claimants herein are none other than his
widow wife and minor daughter. Due to unfortunate
accident, wherein the claimants lost their beloved husband
and father respectively and having incurred certain
expenses during his treatment and having lost the sole
bread earning member, preferred the claim petition
seeking compensation for the death having been caused by
the rash and negligent driving of respondent No.1.
4. On notice being served respondent Nos.1 and
2 filed the statement of objections and took up the plea
that, the rider of motorcycle did not have a valid and
effective driving license as on the date of occurrence of
accident and further respondent took-up plea that
respondent No.3 is the insurer and respondent No.2 who is
the owner of the vehicle was insured with respondent
No.3. Hence, the liability if any for payment of
compensation would be on respondent No.3 who would
have to indemnify respondent No.2.
5. Respondent No.3-insurer filed the Statement of
Objections taking up the plea that, the insured vehicle did
not have a valid and effective driving license as on the
date of occurrence of the accident. It was further pleaded
that respondent No.3 was not liable to pay compensation,
in view of the owner of motorcycle and insurer of
motorcycle have not been made parties to the claim
petition. On these grounds sought for dismissal of the
claim petition.
6. On the basis of the pleadings, the Tribunal has
framed relevant issues for consideration of the matter.
7. In order to substantiate the issues and to
establish the case, the claimant No.1 examined herself as
PW.1 and got marked Ex.P's.1 to Ex.P.10. Respondents did
not lead any evidence, however, respondent No.3 has
produced insurance policy copy being marked as Ex.R1
with consent.
8. After hearing the parties to the proceedings
and consideration of the materials placed before the Court,
the Tribunal partly allowed the claim petition and granted
compensation to an extent of Rs.6,03,000/- with an
interest @ 6% p.a., from the date of petition till the date
of deposit. The Tribunal ordered respondent Nos.1 to 3 to
be jointly and severally liable to pay the compensation and
in view of the insurance policy being in subsistence and
valid, respondent No.3 was directed to deposit the
compensation amount.
9. Being aggrieved and dissatisfied by the
judgment and award passed by the Tribunal, the
unfortunate widow and minor daughter are before this
Court seeking enhancement of compensation.
10. It is the vehement contention of learned
counsel appearing for the appellant-claimants that the
Tribunal has erred in not considering the material evidence
both oral and documentary while appreciating the
computation of compensation to be awarded to the
claimants due to the death having been caused by the rash
and negligent driving by respondent No.1. It is further
contended that the Tribunal has erred in not only awarding
the meager amount of compensation but has also not
taken proper income to arrive at computation of loss of
future prospects. It is further contended by the learned
counsel that the deceased Hanumanthappa was doing
agriculture activities along with he was also doing sale of
kerosene business and his earning was Rs.20,000/- p.m.
which has been not considered and thereby the Tribunal
has erred in not assessing proper income of the deceased
to award compensation, thereby causing mis-carriage of
justice to the claimants herein.
11. It is further contended by the learned counsel
that the Tribunal has erred in not awarding suitable
compensation under the head loss of consortium. Moreso
judgment of the Hon'ble Apex Court in the case of
NATIONAL INSURANCE COMPANY LIMITED VS.
PRANAY SETHI, wherein the fixed compensation is
prescribed under the head of loss of consortium. Learned
counsel further contends that the Tribunal has not taken
all these material evidence both oral and documentary for
consideration and thereby committed error in awarding
meager compensation to the claimants. On these grounds
learned counsel for the appellants seeks to allow the
appeal and enhance the compensation in favour of the
claimants.
12. Per contra, learned counsel Sri.Laxmi
Narasappa appearing on behalf of Sri.A.M.Venkatesh, for
respondent No.3- the insurer has vehemently opposed the
contentions put-forth by the learned counsel for the
appellants and has contended that the judgment and
award passed by the Tribunal is in accordance with the
material evidence, oral and documentary and same does
not warrant any interference by this Court. He further
contends that in view of there being no material of proof of
income by the deceased Hanumanthappa and the
claimants have failed to produce necessary material oral
and documentary, the Tribunal has rightly assessed the
income of Rs.6,000/- p.m, and same does not warrant
interference by this Court. He further contends that the
Tribunal has correctly taken appropriate multiplier and
taken 1/3 as personal and living expenses towards the
deceased and awarded just and reasonable compensation
which does not call for interference by this Court.
13. Learned counsel further contends under other
heads the Tribunal has awarded reasonable compensation
which also does not warrant interference by this Court. On
the basis of this submissions, he seeks to dismiss the
appeal and confirm the order passed by the Tribunal.
14. Having heard the learned counsel appearing
for the appellant-claimants and learned counsel for
respondent- insurer and on perusal of the entire material
on record including the Exhibits and on hearing the
submissions made by the learned counsel, I am of the
opinion that claimants are entitled to marginal indulgence
in enhancement of compensation for the reasons stated
herein below.
15. It is not in dispute that on 21.08.2016, at
about 9.30 a.m, when the deceased Hanumanthappa was
travelling on his TVS XL motorcycle bearing Reg.No.KA-
17/AS-4638 along with his two friends for attending House
Warming Ceremony. The driver of Car bearing No.KA-
27/M-819 came in a rash and negligent manner and
dashed against the deceased Hanumanthappa causing
serious injuries , due to the impact of which the deceased
Hanumanthappa succumbed to the injuries at the spot and
was declared dead by the doctor while he was taken to
nearby Meggan Hospital, Shivamogga.
16. In order to prove and establish this fact the
claimant No.1-PW.1 widow of deceased Hanumanthappa
has produced Ex.P's1 to 5 and 9 which are the police
records. Pursuant to the accident having occurred on
21.08.2016, the police have registered the criminal case as
against the driver of vehicle namely respondent No.1 for
the offences punishable under section 304(A) of Indian
Penal Code read with sections 279 and 337. These police
records are not challenged by either of the respondents.
Further no contra evidence has been produced before this
Court nor any evidence being elicited in the cross
examination of PW.1 to disprove these police records
produced by the PW.1. The charge sheet having been filed
against respondent No.1, same not have been challenged,
can be safely concluded that the driver of the
car/respondent No.1 was driving the vehicle in rash and
negligent manner which has caused the accident resulting
in the death of the deceased Hanumanthappa. Hence,
negligence is clearly attributed as against respondent
No.1.
17. Now coming to the aspect of the avocation and
income of the deceased Hanumanthappa as on the date of
occurrence of the accident, though, in the present case on
hand that the claimants have alleged that the deceased
Hanumanthappa was working as agriculturist along with
doing business in kerosene selling, but have not placed
any material before the Court to show the income that is
derived by the deceased Hanumanthappa. This fact of
non-production of necessary documents, proof of income is
undisputed. In a situation where the claimants have not
produced or unable to produce the necessary proof of
income with regard to the earnings, the Courts are left
with no other option but to do guess work on the basis of
avocation of the person namely the deceased herein to
arrive to assess the income for computation of
compensation.
18. Admittedly, the accident has occurred in the
year 2016. The notional income chart provided by the High
Court Legal Services Authority prescribes Rs.9,500/- to be
adopted for the accident having been occurred in the year
2016. In the absence of any proof of income the Courts
are left with no other alternative but to do guess work. To
arrive at standard guess work notional income has been
prescribed by the Legal Services Authority. Hence, in
the present case on hand accident having occurred in the
year 2016 and notional income required to be taken as
Rs.9,500/- p.m, as against Rs.6,000/- assessed by the
Tribunal. I am in agreement with the contentions put up
by the learned counsel for the appellants that income of
Rs.6,000/- taken by the Tribunal is erroneous and same
requires to be enhanced to Rs.9,500/- p.m. The deceased
as on date of accident was aged about 65 years. It is not
in dispute that deceased was aged 50-60 years. Future
earnings prescribed is to be taken in addition of 10%.
Therefore, Rs.9500/- + 10% would be Rs.10,450/-.
19. Admittedly, in the present case the deceased
Hanumanthappa is survived by his wife and his minor
daughter. Therefore, there are two dependents of
deceased Hanumanthappa. Therefore, 1/3 will have to be
deducted towards personal living expenses of deceased
Hanumanthappa. After taking 1/3 deduction on the
income arrived at above, which would be Rs.10,450 -
3,483 = Rs.6,967/- which would be left for the
disbursement of family maintenance.
20. The deceased was aged 55 years and in view
of the same appropriate multiplier to be adopted. In view
of the dictum of the Hon'ble Apex Court in the case of
SARLA VERMA & OTHERS VS. DELHI TRANSPORT
CORPORATION AND ANOTHER reported in 2009 ACJ
1298, the appropriate applicable multiplier would be '11'
in the present case on hand. The Tribunal has taken the
multiplier 11, which is the proper multiplier. Accordingly, I
do not find any illegality or legal infraction. Therefore,
Rs.6,967 x 12 x 11 would be Rs.9,19,644/-. This would
be amount towards loss of dependency as against
Rs.5,28,000/- awarded by the Tribunal.
21. The Tribunal has awarded Rs.25,000/- towards
love and affection and towards consortium Rs.25,000/-. In
view of the judgment of the Hon'ble Apex Court in the case
of NATIONAL INSURANCE COMPANY VS PRANAY
SETHI AND OTHERS reported in (2017) 16 SCC 680,
wherein the claimant is entitled to Rs.40,000/- each
towards loss of consortium thereby the claimants are
entitled to consortium at Rs.80,000/- as against
Rs.50,000/- awarded by the Tribunal. Towards cremation,
transportation charges and other obsequies ceremony the
Tribunal has awarded Rs.25,000/-. In view of the
judgment cited above, same requires to be enhanced to
Rs.30,000/- as against Rs.25,000 awarded by the Tribunal.
Therefore, on consideration of the above, and on
enhancement of the income made above, the claimants
are entitled to enhancement of compensation as stated in
table below.
1. Loss of Dependency Rs.9,19,644/-
2. Towards Love and affection Rs.40,000/-
3 Towards Consortium Rs.40,000/-
4 Towards Cremation, transportation Rs.30,000/-
charges and other obsequies
Total Rs.10,29,644/-
Enhanced compensation 10,29,644 -
6,03,000 =
Rs.4,26,644/-
22. Accordingly, I pass the following :
ORDER
(i) The appeal is partly allowed.
(ii) Consequently Judgment and Award passed by
the Senior Civil Judge and MACT at Holalkere
(hereinafter referred to as 'Tribunal' for
brevity) in MVC No.1486/2016 dated
21.06.2018 is modified.
(iii) The claimants are entitled for enhancement of
compensation from Rs.6,03,000/- to
Rs.10,29,644/-.
(iv) All the other terms and conditions stipulated by
the Tribunal shall stand intact and the same is
not disturbed.
(v) The respondent-insurer shall pay the enhanced
compensation of Rs.4,26,644/- at 6% per
annum, from the date of the filing of the
petition within a period of 4 weeks from the
date of receipt of certified copy of the order
before the concerned M.A.C.T.
Sd/-
JUDGE
SKS
