Karnataka High Court
Shivayogi Kiran S vs Shivakumar on 21 March, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.387/2017 (MV)
BETWEEN:
1. SHIVAYOGI KIRAN S
S/O SHIVAKUMARA
@ SHIVAKUMAR SWAMY
AGED ABOUT 27 YEARS
R/A HAROBENAVALLI
B.BEERANAHALLI POST
SHIVAMOGGA TALUK-577201
2. SMT.PUSHPA M.N
W/O NAGARAJ,
AGED ABOUT 34 YEARS,
R/A GAMA VILLAGE,
SHIKARIPURA TALUK,
SHIVAMOGGA DIST-577201
... APPELLANTS
(BY SRI. SRIKANTH PATIL K, ADVOCATE)
AND:
1. SHIVAKUAMR @
SHIVAKUMAR SWAMY
S/O BASAVALINGAIAH
AGED ABOUT 63 YEARS
AGRICULTURIST
R/A TARALAGHATTA VILLAGE
SHIKARIPURA TALUK
SHIVAMOGGA DISTRICT-577427
2
2. NATIONAL INSURANCE CO. LTD.,
S.S.COMPLEX, CHURCH OPP.
B.H.ROAD,
SHIVAMOGGA CITY-577201
3. THE EXECUTIVE ENGINEER
PWD DEPARTMENT,
GOVT. OF KARNATAKA,
S.S.ROAD,
SHIKARIPURA-577427
SHIVAMOGGA DIST.
...RESPONDENTS
(BY SRI. L. SREEKANTA RAO, ADV FOR R2
SRI. D.C. PARAMESWARAIAH, HCGP FOR R3
R1 SD & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO CALL FOR RECORDS IN MVC.NO.545/2013 ON THE
FILE OF PRL. SENIOR CIVIL JUDGE & MACT, SHIVAMOGGA; SET
ASIDE THE JUDGMENT AND AWARD DATED 21.03.2016 PASSED
BY THE PRL. SENIOR CIVIL JUDGE & MACT, SHOVAMOGGA, IN
SO FAR AS IT GRANTS ONLY A SUM OF RS.1,80,500/- WITH 9%
AND GRANT JUST COMPENSATION, ETC.,
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 of compensation granted by the Tribunal for
the death of their mother Smt. Hemavathi, in a road traffic
accident dated 22.02.2013 in MVC No.545/2013 which was
a petition filed under section 163A of MV Act under no fault
liability.
3. For the sake of convenience the parties are
referred to by their rank before the Tribunal.
4. It is the case of the petitioners that deceased
Hemavathi and respondent No.1 Shivakumar @
Shivakumaraswamy are their parents. On 22.02.2013, at
about 8.30 PM deceased Hemavathi along with respondent
No.1 was proceeding on motor cycle No.KA-15-S-1885
(hereinafter referred to as offending vehicle) from
Shikaripura towards Taralaghatta. When they were in front
of Kumudwathi College, S.S.Road, Shikaripura Town,
accident occurred due to unscientific road hump.
Hemavathi died while taking treatment at Nanjappa
hospital, Shivamogga.
5. Respondent No.1 is the owner and respondent
No.2 is the insurer of the offending vehicle and as such they
are liable to pay the compensation.
6. Respondent No.1 has filed written statement
contending that on political influence a criminal case is
registered against him and prays to dismiss the petition
against him.
7. Respondent No.2 filed written statement
contending that the petition is filed in collusion with
respondent No.1. Since deceased was not a third party it is
not liable to indemnify respondent No.1 and as such
petition is not maintainable.
8. During enquiry on behalf of petitioners PWs-1 to
3 are examined including petitioner No.1 and Ex-P1 to 8 are
marked.
9. On the other hand respondent No.1 was
examined himself as RW-1 and on behalf of respondent
No.2, RW-2 is examined. Ex. R1-5 are marked.
10. Vide the impugned judgment and award, the
Tribunal has partly allowed the claim petition and granted
compensation in a sum of Rs.1,80,500/- with interest at 9%
p.a, which includes funeral expenses in a sum of Rs.2,000/-
and loss of estate in a sum of Rs.2,500/-.
11. Not being satisfied with the quantum of
compensation granted by the Tribunal, petitioners have
come up with this appeal contending that the Tribunal has
considered the loss of income i.e., loss of service to the
family as 24,000/- instead of Rs.40,000/- and deducted 1/3
towards personal and living expenses of the deceased. The
compensation granted under the head funeral expenses and
loss to estate is meager and seeks enhancement.
12. On the other hand learned counsel for
respondent No.2 supported the impugned judgment and
award and submitted that as per the 2nd schedule to MV Act
the maximum income is taken into consideration and rightly
deducted 1/3 towards personal and living expenses of the
deceased and the compensation granted under the head
funeral expenses and loss to estate is also correct and
prays to dismiss the appeal.
13. Even though the Respondent No.2 has
contended that deceased i.e., the wife of insured is not
third party and as such her risk is not covered by the
insurance policy, the finding of the Tribunal that it is only
the insured who can not be treated as third party and his
wife being the pillion rider is third party and as such
respondent No.2 is liable to cover her risk is not challenged
by respondent No.2. Consequently the said findings has
attend finality.
14. Since the claim petition is filed under section
163A of MV Act, compensation is required to be calculated
as per second schedule to MV Act, 1988. As per this
schedule, a petition could be maintain only when the
income of the deceased/injured does not exceed
Rs.40,000/- per annum. In the present case also
petitioners claim that deceased was earning Rs.40,000/-
per annum by running a petty shop. Since, the petitioners
are major children of the deceased and petitioner No.2 is
married and living with her husband, the Tribunal has
rightly held that they were not dependant on the deceased
and compensation is required to be calculated based on loss
of service to the petitioners.
15. Deceased was stated to be aged 50 years. In the
absence of evidence to establish the same, the Tribunal has
relied upon the PM report of the deceased and considered
her age as 50 years. In the absence of proof of deceased
being employed and earning Rs.40,000/- p.a., having
regard to the age of the deceased and that petitioners are
major daughters not dependant on the deceased, the
Tribunal has taken the value of services of deceased as
Rs.24,000/- p.a., deducted 1/3 of it towards personal and
living expenses, considered 2/3 as the loss of service to the
petitioners. Taking 11 as the multiplier calculated the loss
of service to petitioners as Rs.1,76,000/- i.e., 24,000 x 11 x
2/3=1,76,000/-. As per second schedule the compensation
under the head funeral expenses and loss of estate is fixed
at Rs.2,000/- and Rs.2,500/- respectively and rightly held
that petitioners are entitled for total compensation in a sum
of Rs.1,80,500/- and there are no justifiable grounds to
interfere with the same.
16. Even though the Tribunal has awarded interest
at 9% p.a. without any basis, since respondent No.2 has
not challenge the same, it is maintained.
17. In the result, there is no scope for any
enhancement and consequently, the appeal is liable to be
dismissed. Accordingly, I proceed to pass the following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
RR
