Karnataka High Court

Akkaboramma vs Manjunath K S on 23 March, 2022

Bench: Pradeep Singh Yerur

                         -1-



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF MARCH, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.3496 OF 2019 (MV)

BETWEEN:
1.     AKKABORAMMA
       W/O.KENCHAPPA
       AGED ABOUT 48 YEARS
2.     KENCHAPPA
       S/O.MALLAIAH
       AGED ABOUT 53 YEARS

       BOTH ARE RESIDING AT
       GOLLARAHATTI VILLAGE
       SANTHEMAVATHUR POST
       KASABA HOBLI, KUNIGAL TALUK
       TUMAKURU DISTRICT - 572 130
                                       ... APPELLANTS
(BY SRI RAGHU R., ADVOCATE)

AND:
1.     MANJUNATH K.S.
       S/O.SANNAPPA
       MAJOR
       R/AT NO.131, KARAGADA KRISHNAPPA
       BUILDING, VIVEKNAGAR
       BENGALURU - 560 047

2.     THE MANAGER
       RELIANCE GENERAL INSURANCE
       COMPANY LIMITED
       2ND FLOOR, S.M.TOWERS
       11TH MAIN, 3RD BLOCK
       JAYANAGAR
       BENGALURU - 560 011           ... RESPONDENTS
(BY SRI MALLIKARJUNA REDDY N.A. FOR
    SRI B.PRADEEP, ADVOCATES FOR R2;
    NOTICE TO R1 IS DISPENSED WITH V.O.D.23.03.2022)
                                 -2-



      THIS    MISCELLANEOUS           FIRST   APPEAL   IS    FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
24.01.2018    PASSED       IN   MVC     NO.7238/2016    BY    THE
MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, BENGALURU AND ETC.


      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

This appeal is preferred by the claimants who are

none other than the unfortunate parents of the deceased

Mache Hanuma, who died in a road traffic accident

aggrieved by the judgment and award passed by XVI

Additional Judge, Court of Small Causes and MACT,

Bengaluru (for short 'the tribunal') in MVC.No.7238/2016

dated 24.01.2018. This appeal is founded on the premise of

inadequacy of compensation.

2. Though this matter is listed for Orders, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

4. Brief facts of the case is as under:

On 17.09.2016 at about 8.15 a.m., when Mache

Hanuma was riding his TVS XL bearing registration No.KA-

06-EQ-8509 towards Santhemavathur from Kunigal side on

the left side of Kunigal-Huliyurdurga road, near Vajarapalya

gate, at that point of time, one Omni car bearing

registration No.KA-05-MG-8119 came from Huliyurdurga

side towards Kunigal side driven by its driver with high

speed in a rash and negligent manner so as to endanger

human life and safety, dashed against motor cycle ridden

by Mache Hanuma, as a result, Mache Hanuma fell down

and sustained head injury. Due to the impact of accident

and injuries sustained, immediately the said Mache Hanuma

was shifted to CHC, Kunigal, where he obtained first aid

treatment and thereafter, he was shifted to NIMHANS

Hospital, Bengaluru, where he was admitted as an inpatient

and during the course of treatment, he succumbed to the

fatal injuries.

5. It is stated that due to the impact of accident

caused by the rash and negligent driving of Omni car

driver, the said Mache Hanuma met with fatal injuries and

succumbed to the death. He was aged 25 years as on the

date of occurrence of accident and he was sole bread

winner of the family. The claimants herein are none other

than the unfortunate parents who were solely dependent on

their son. It was stated that he was working as an

electrician and earning Rs.500/- per day and was

contributing entire amount to the welfare of the family. It

is stated that he was unmarried and the claimants are only

dependents. Due to the occurrence of accident, the

jurisdictional Police have registered a case against the

driver of the offending vehicle for the offences punishable

under Sections 279 and 304-A of IPC. Respondent Nos.1

and 2 are none other than the owner and Insurer of the

offending vehicle. In view of death having been caused due

to rash and negligent driving of the offending vehicle and

expenses having been spent by the claimants towards

treatment and loss of dependency on the deceased, the

claimants preferred a claim petition before the tribunal

seeking compensation.

6. On service of notice, respondent No.1-owner of

the vehicle remained absent and was placed ex parte

whereas respondent No.2 appeared and filed its statement

of objections denying the claim made by the claimants and

took up plea that the accident did not take place due to

rash and negligent driving of Omni car whereas due to the

negligence of the deceased. It further pleaded and denied

the age, avocation and income of the deceased. However,

respondent No.2-Insurer admitted subsistence of Insurance

policy as on the date of occurrence of accident and

contended that it is subjected to liability as per terms and

conditions specified therein. It was further pleaded that the

driver of offending vehicle was not possessing a valid and

effective driving licence as on the date of occurrence of

accident. Respondent No.2 inter alia denied the averments

and contents of the claim petition and sought for dismissal

of the claim petition. On the basis of pleadings, the tribunal

framed relevant issues for consideration.

7. In order to substantiate the issues and establish

the case, the claimants examined the mother of deceased

as PW.1 and examined one witness as PW.2-eye witness

who was standing at the spot of occurrence of accident and

got marked documents as Exs.P1 to P10. On the other

hand, neither respondent No.2-Insurer has led-in any

evidence nor did they produce any documents in their

favour.

8. On the basis of pleadings, the material evidence

both oral and documentary and on hearing the submissions

of learned counsel, the tribunal has awarded a

compensation of Rs.8,94,000/- with interest @ 9% p.a.

from the date of petition till realization. The tribunal has

held that respondent Nos.1 and 2 were jointly and severally

held liable to pay compensation. However, respondent No.2

being the Insurer has directed to pay compensation.

9. It is the vehement contention of learned counsel

for claimants that the judgment and award passed by the

tribunal is erroneous for a simple reason that the tribunal

has erred in not considering the material evidence placed

on record both oral and documentary. It is further

contended that the tribunal has erred in not appreciating

the avocation, income and dependency of the claimants of

the deceased and the earning capacity of the deceased.

Hence, the tribunal is erred in not computing just and

reasonable compensation, which leads to miscarriage of

justice to the claimants. He further contends that the

tribunal has grossly erred in not taking future earning

prospects of the deceased. No award is passed on loss of

future prospects.

10. It is also contended by learned counsel that the

tribunal has erred in not awarding compensation under the

head of loss of consortium. Hence, on this ground also, the

compensation requires to be enhanced. Learned counsel

further contends that the tribunal has assessed the income

of the deceased at Rs.8,000/- which is erroneous in law as

the same is lower than the notional income as prescribed

by the Legal Services Authority. Therefore, this also

requires to be enhanced in proportion to the notional

income as prescribed in the chart by the Legal Services

Authority for the relevant year of accident. He further

contends that on overall view, the tribunal has awarded

meager compensation without appreciating material

evidence and also relevant legal proposition of law and

hence, he seeks to allow the appeal and consequently seeks

enhancement of compensation.

11. Per contra, learned counsel for the Insurer

vehemently contends that the tribunal has awarded

compensation on the basis of material evidence placed

before the Court and in the absence of necessary proof of

income has rightly assessed the income at Rs.8,000/- per

month and same does not call for interference by this

Court. He further contends that there is no legal infirmity

or infraction in the judgment and award passed by the

tribunal. It is further contended that the compensation

awarded by the tribunal under the other heads is just and

reasonable. Therefore, the award of compensation does not

call for interference. On the basis of these submissions, he

seeks to dismiss the appeal and uphold the judgment and

award passed by the tribunal.

12. Having heard learned counsel for appellants-

claimants and learned counsel for respondent-Insurer, the

points that arise for consideration are -

"(i) Whether the tribunal has awarded meager compensation?

(ii) Whether the claimants are entitled for enhancement of compensation?"

13. The points stated above are answered

hereinbelow:

(a) In my opinion, on the basis of material placed

before the Court and documents Exhibited, the claimants

herein are entitled for enhancement of compensation and

the tribunal has not properly calculated the compensation in

accordance with the material evidence and law applicable

for the award of compensation in the Motor Vehicles cases.

(b) It is not in dispute that on 17.09.2016 at about

8.15 a.m., the accident occurred between TVS XL motor

cycle and Omni car. To substantiate and establish this fact,

the claimant-PW.1 has produced Exs.P1 to P8 which are

Police records. The Police after conducting investigation and

enquiry have laid charge sheet against the driver of Omni

car, the offending vehicle which was involved in the

accident resulting in the death of the deceased. Admittedly,

these documents have not been challenged by the driver of

the offending car or by respondents herein so also no

contra material evidence placed before the Court or elicited

through cross-examination of PW.1 to prove otherwise as

the accident has not occurred or it is occurred due to the

negligence of the deceased. In the absence of such

material, it can be safely concluded that the accident had

occurred due to the rash and negligent driiving of the driver

of Omni car resulting in the accident leading to the death of

deceased Mache Hanuma.

the deceased Mache Hanuma, no doubt, it is pleaded that

the deceased was working as Electrician and was earning

income of Rs.15,000/- per month. However, no material

- 10 -

has been placed before the Court to substantiate and prove

the same. In view of the same, the tribunal has assessed

the income at Rs.8,000/- per month for computation of

compensation. I am in agreement with the contention put-

forth by the learned counsel for the claimants that the

income taken by the tribunal is on the lower side for a

simple reason that the tribunal atleast should have adopted

the chart prescribed by the Legal Services Authority for

assessment of income, in the absence of material proof of

income. In a case on hand, where the material proof of

income is not produced, the Courts are relegated to adopt

some guess work which is on standard basis for which Legal

Services Authority has prescribed notional income chart

based on the year accident. In the present case on hand,

the chart prescribes the notional income for the accident of

the year 2016 as Rs.9,500/- per month. In the absence of

any material placed by the claimants with regard to

avocation and income of deceased, the notional income of

the deceased is taken at Rs.9,500/- as against Rs.8,000/-

adopted by the tribunal.

(d) As on the date of occurrence of accident, the

deceased was aged 25 years and proper multiplier

- 11 -

applicable in the present case on hand would be '18' as per

the judgment of Hon'ble Apex Court in the case of Sarla

Verma (Smt) and others vs. Delhi Transport

Corporation and another reported in (2009) 6

Supreme Court Cases 121.

(e) It is also not in dispute that as on the date of

occurrence of accident, the deceased was unmarried and he

was aged 25 years. Hence, future prospects requires to be

added. Accordingly, since he was below the age of 40 years

and not having established the income, future prospects to

be added at 40% which comes to Rs.13,300/- (Rs.9,500/-

+ 40%). The deceased has left behind two dependents

namely, his parents and hence, since he was unmarried,

50% would have to be deducted towards his personal and

living expenses, which would come to Rs.6,650/-

(Rs.13,300/- x 50%). Hence, the income would be taken at

Rs.6,650/- towards family and expenditure other than his

person and living expenses. The claimants are entitled to

Rs.14,36,400/- (Rs.6,650/- x 12 x 18) under the head of

loss of dependency for the death having been caused to the

deceased as against Rs.8,64,000/- awarded by the tribunal.

- 12 -

(f) The tribunal has not awarded any amount under

the head of loss of consortium there being two dependents

namely, the parents of the deceased. Hence, I deem it

appropriate to award Rs.40,000/- each, which would totally

comes to Rs.80,000/- under the head of loss of

consortium in view of judgment of the Hon'ble Apex Court

in the case of National Insurance Company Limited

vs. Pranay Sethi and others reported in (2017) 16

Supreme Court Cases 680, which is followed by the

Hon'ble Apex Court in the case of United India Insurance

Co.Ltd. v. Satinder Kaur Alias Satinder Kaur reported in

AIR 2020 SC 3076.

(g) The tribunal has awarded Rs.15,000/- each under

the heads of transportation of dead body and funeral

expenses and loss of estate respectively, in all Rs.30,000/-,

which does not call for interference.

(h) In view of the above discussions, I am of the

opinion that the claimants are entitled for the enhancement

of compensation as stated in the table below:

        Heads           As awarded by         As awarded by
                         the tribunal           this Court
                           (in Rs.)              (in Rs.)
Loss of dependency          8,64,000-00          14,36,400-00
Loss of consortium            Nil                   80,000-00
                                 - 13 -



Transportation    of
dead     body    and              15,000-00           15,000-00
funeral expenses
Loss of Estate                  15,000-00             15,000-00
       TOTAL                 8,94,000-00          15,46,400-00

For the aforesaid reasons, I pass the following:

ORDER

(i) The appeal is allowed-in-part;

(ii) The judgment and award passed by XVI

Additional Judge, Court of Small Causes and

MACT, Bengaluru in MVC.No.7238/2016 dated

24.01.2018 is modified;

(iii) The claimants are entitled for total

compensation of Rs.15,46,400/- as against

Rs.8,94,000/- awarded by the tribunal;

(iv) All other terms and conditions stipulated by the

tribunal shall stand intact and same is not