Premlata And Ors vs Eshwar And Anr
2022 Latest Caselaw 4958 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 17TH DAY OF MARCH 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

         M. F. A. NO.200585 OF 2020 (MV)

BETWEEN:

1.   PREMLATA,
     W/O BHIMU CHAVAN,
     AGE ABOUT 47 YEARS,
     OCC: HOUSEHOLD,

2.   PURUSHOTTAM,
     D/O LATE BHIMU CHAVAN,
     AGED ABOUT 28 YEARS,
     OCC: AGRIL.

3.   YUVARAJ,
     S/O LATE BHIMU CHAVAN,
     AGED ABOUT 26 YEARS,
     OCC: AGRIL,

     ALL ARE RESIDENTS OF CHIKANAGAON
     HANUMAN NAGAR THANDA,
     BASAVAKALYAN TALUK, NOW AT
     KHADI JHANDA ASHRAY COLONY,
     BASAVAKALYAN, BIDAR DISTRICT -584101.

                                       ...APPELLANTS

(BY SRI. BABU H METAGUDDA, ADVOCATE)
                               2




AND:

1.     ESHWAR,
       S/O LAXIMAN GAIKWAD,
       AGED MAJOR,
       OCC: SOCIAL WORKER AND
       OWNER OF THE HERO-SPLENDOR PLUS
       MOTOR CYCLE NO. KA-56/E-9506,
       R/O: GANGA COLONY,
       BASAVAKALYAN TALUK,
       BIDAR DISTRICT - 584 101.

2.     THE DIVISIONAL MANAGER,
       UNITED INDIA INSURANCE CO. LTD.,
       DIVISIONAL OFFICE,
       DR. JAWALI COMPLEX SUPER MARKET,
       KALABURAGI - 585 101.
                                      ...RESPONDENTS

(BY SRI.SHIVANAND PATIL, ADVOCATE FOR R-2;
    NOTICE TO R-1 D/W V/O DTD:04.12.2021)

       THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST   THE    JUDGMENT   AND   AWARD    DATED
25.09.2019 PASSED IN MVC No.56/2018 ON THE FILE OF
THE SENIOR CIVIL JDUGE & J.M.F.C., BASAVAKALYAN AND
ENHANCING THE COMPENSATION FROM Rs.8,74,350/-
WITH    9%   INTEREST    TO   Rs.14,99,000/-   WITH   11%
INTEREST.


       THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                              3




                          JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the petitioners aggrieved

by the judgment and award dated 25.09.2019 passed

in MVC No.56/2018 by the Senior Civil Judge and

J.M.F.C., Basavakalyan.

For the sake of convenience, parties are referred

to as per their ranking before the Tribunal. Appellants

are the petitioners and respondents are the

respondents before the Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 27.11.2016 at about 7 p.m.,

the deceased Bhimu S/o Bhoju Chavhan was returning

from Mudbi to Basavakalyan on his motorcycle bearing

registration No.KA-03/Y-5585 along with his brother

by name Ramachandra. The said deceased Bhimu was

riding the motorcycle and his brother was pillion rider.

When they were proceedings near by Hanumanthwadi

at that time, one motorcycle bearing registration

No.KA-56/E-9506 came from Basavakalyan side riding

by its rider in a high speed rash and negligent

manner, dashed against the deceased motorcycle,

which resulted in accident. Due to the impact,

deceased Bhimu fell on the tar road and sustained

grievous injuries and succumbed to the injuries.

3. The petitioners being legal representatives

of the deceased Bhimu filed a petition under Section

166 of the M.V.Act, seeking compensation for the

death of deceased Bhimu, in the road traffic accident.

4. The respondent No.1 appeared through

counsel and filed written statement denying the

averments made in the claim petition as to the age,

occupation and income of the deceased and also

denied the accident was in question has occurred

solely due to rash and negligent riding of the

motorcycle bearing registration No.KA-56/E-9506 and

prayed to dismiss the petition.

5. The respondent No.2 - Insurance Company

appeared through its counsel and filed written

statement denying the averments made in the claim

petition and contended that due to the culpable

negligence of the deceased the accident occurred.

Therefore, deceased is contributed for occurring

accident and liable for contributory negligence.

Hence, sought for dismissal of the petition.

6. On the basis of the pleadings of the parties,

the Tribunal framed the issues. The petitioners, in

order to prove their case, the petitioner No.1

examined himself as PW-1 and got marked the

documents as Ex.P1 to Ex.P.21. On behalf of

respondents, respondents have not produced any oral

or documentary evidence. The Tribunal after recording

the evidence and considering the material on record,

held that the deceased Bhimu died due to the injuries

sustained in the road traffic accident on the account of

rash and negligent riding of the rider of Hero Splendor

Plus motorcycle bearing registration No.KA-56/E-9506

and petitioners are entitled for the compensation of

Rs.8,74,350/- with 9% interest per annum from the

date of the petition till realization of amount by

respondent No.2. Further, held that respondents No.1

and 2 are jointly and severally liable to pay the

compensation amount. The petitioners being

dissatisfied with the compensation awarded by the

Tribunal has filed this appeal seeking for enhancement

of compensation amount.

     7.       Heard   the      learned      counsel   for   the

petitioners     and   also     learned      counsel   for   the

respondent No.2 - Insurance Company.

8. Learned counsel for the petitioners submits

that the Tribunal has committed an error in not adding

'future prospects' as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -VS- PRANAY SETHI AND OTHERS

[AIR 2017 SC 5157]. He further submits that the

Tribunal has awarded lesser compensation under the

heads of 'loss of consortium, estate and funeral

expenses'. Hence, they prays to allow the appeal.

9. Per contra, learned counsel for the

respondent No.2 - Insurance Company supports the

impugned judgment and award passed by the

Tribunal.

10. Perused the records and considered the

submissions made by learned counsel for the parties.

11. The only point that arise for consideration is

with regard to quantum of compensation.

12. It is not in dispute that the deceased Bhimu

died in the road traffic accident, in order to establish

that accident was occurred due to rash and negligent

riding of the offending vehicle by its rider. The

petitioners have produced the copy of FIR and

Chargesheet marked as Ex.P1 and Ex.P3. Ex.P3

discloses that the accident was occurred due to rash

and negligent riding of the rider of the offending

vehicle, insofar as the quantum of compensation is

concerned. It is the case of the petitioners that the

deceased was working as driver of Heavy Goods

Vehicle in Gulf Country since from 1983 and was

getting salary of Rs.50,000/- per month. In order to

establish the income of the deceased, petitioners have

not tendered any evidence to show that deceased was

a driver of Heavy Goods Vehicle at Gulf Country. In

the absences of income proof, the Tribunal has taken

notional income at Rs.9,000/- per month. The

respondent No.2 - Insurance Company has not

challenged the judgment and award passed by the

Tribunal.

Taking into consideration, the notional income at

Rs.9,000/- in view of the law laid down by the Hon'ble

Apex Court in the case of NATIONAL INSURANCE CO.

LTD. -VS- PRANAY SETHI AND OTHERS [AIR 2017 SC

5157], the deceased was aged about 55 years, 10%

has to be added towards 'future prospects'. Thus, it

comes to Rs.9,900/-, and taking the notional income

of the deceased is Rs.9,900/-. There are three

petitioners out of Rs.9,900/- 1/3rd is to be deducted,

which comes to Rs.6,600/-. The deceased was aged

about 55 years at the time of the accident and

multiplier applicable to his age group is '11' as per

SARLA VERMA's case. Thus, the loss of dependency

would be Rs.6600/- X 12 X 11 = Rs.8,71,200/-

(Rs.9900 x 1/3rd = Rs.6600/-).

In addition, the claimants are entitled to

Rs.15,000/- on account of 'loss of estate' and

Rs.15,000/- on account of 'funeral expenses'.

In view of the law laid down by the Hon'ble Apex

Court in the case of MAGMA GENERAL INSURANCE CO.

LTD. -VS- NANU RAM [2018 ACJ 2782], each of the

claimants are entitled for compensation of Rs.40,000/-

under the head of 'loss of consortium', which comes to

Rs.1,20,000/-.

The petitioners have contended that they have

spent Rs.22,350/- towards medical expenses for the

treatment of deceased Bhimu.

Thus the petitioners are entitled to a total

compensation of Rs.10,43,500/- as against

Rs.8,74,350/-. Accordingly, the petitioners are

entitled for enhanced compensation of Rs.1,69,150/-.

13. Accordingly, the appeal is allowed in part.

Judgment and award passed by the Tribunal dated

25.09.2019, is modified. The petitioners are entitled

for enhanced compensation of Rs.1,69,150/- along

with interest at the rate of 6% p.a. from the date of

filing of the claim petition till the date of realization of

amount. Respondent No.2 - Insurance Company is

directed to deposit the compensation amount along

with interest, within a period of eight weeks from the

date of receipt of copy of this judgment.

SD/-

JUDGE

GRD