Sunandabai W/O Vasu Pawar @ Rathod ... vs The Proprietor M/S Aarthi Truck ...
2022 Latest Caselaw 5411 Kant

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        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

           MFA No.200237 OF 2014 (MV)
Between:
1.   Sunandabai W/o Vasu Pawar @ Rathod,
     Age: 42 years, Occ: H.H.Work,

2.   Pinki D/o Bheelu Pawar @ Rathod,
     Age: 23 years, Occ: Student,

3.   Kiran S/o Bheelu Pawar @ Rathod,
     Age: 21 years, Occ: Student,

4.   Pavitra D/o Bheelu Pawar @ Rathod,
     Age: 19 years, Occ: Student,

5.   Drakshayani D/o Bheelu Pawar @ Rathod,
     Age: 17 years, Occ: Student,

6.   Akshaya D/o Bheelu Pawar @ Rathod,
     Age: 15 years, Occ: Student,

     Appellant No.5 and 6 are minors
     Represented by their mother i.e.
     Appellant No.1 as minor guardian
     All are R/o Minchanal LT, Tq. Bijapur-586101.

                                           ... Appellants

(By Sri. Babu H.Metagudda, Advocate)
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And:
1.     The Proprietor M/s Aarthi Truck Lines,
       No.12, Shama Rao Compound,
       Mission Road, Bangalore-600001.

2.     The Divisional Manager,
       United India Insurance Co. Ltd.,
       S.S.Front Road, Bijapur-586 101.
                                           ... Respondents
(V/o dtd. 18.08.2016 notice to R1 is dispensed with;
By Smt. Anuradha M.Desai, Advocate for R2)

      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act praying to call for the records in
MVC No.1449/08 on the file of the Motor Accident Claims
Tribunal No.-VII at Bijapur. Allow this appeal and modify
the judgment and award dated 14.01.2011 passed in MVC
No.1449/2008 by the Motor Accident Claims Tribunal No-
VII at Bijapur. And enhancing the compensation from
Rs.3,47,000/- with 6% interest to Rs.14,90,000/- with
12% interest.

      This appeal coming on for hearing, this day, the
Court delivered the following:-


                        JUDGMENT

This appeal is filed by the petitioners under

Section 173(1) of the Motor Vehicles Act (for short

'the Act') challenging the judgment and award dated

14.01.2011 passed by the Motor Accident Claims

Tribunal - VII, Bijapur (for short hereinafter referred

to as 'the Tribunal') in MVC No.1449/2008.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellants are the petitioners and

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of this appeal are

as under:

That, on 01.05.2007 at about 7.30 p.m., on

N.H.13 Horti - Bijapur road, near Kotnal cross, the

deceased Bheelu Lalsing Pawar @ Rathod was riding

motor cycle bearing registration No.MH-13/AA-8936 in

slow and cautious manner by the left side of the road,

at the time, a Volvo lorry bearing No.KA-01/A-5227

and Trolly No.A-5228 came from back side in a high

speed, rash and negligent and driver lost its control

and dashed to motor cycle of deceased and caused

accident, as a result, deceaed Bheelu Lalsing Pawar @

Rathod sustained injuries and succumbed to the

injuries. The petitioners and parents of deceased

being the legal representatives of the deceased -

Bheelu Lalsing Pawar @ Rathod filed claim petition

under Section 166 of the M.V.Act, seeking

compensation on account of the death of Bheelu

Lalsing Pawar @ Rathod in the road traffic accident.

4. The respondent No.1 inspite of service of

notice, remained absent and placed exparte by the

Tribunal.

5. The respondent No.2 - Insurance company

filed written statement denying the averments made

in the claim petition and also denied the age,

occupation, monthly income of deceased, and the

accident occurred due to negligence on the part of

driver of the offending vehicle. Further, it is

contended that the driver of the offending vehicle was

not possessing a valid and effective driving licence as

on the date of accident. Hence, prayed to dismiss the

claim petition.

6. The Tribunal on the basis of the pleadings

of the parties framed the issues.

7. The petitioners in order to prove their case,

examined the petitioner No.1 as PW.2 and got marked

the documents as Ex.P1 to Ex.P7. On behalf of the

respondents, respondent No.2 has not lead any

evidence either oral or documentary, but got marked

the copy of insurance as Ex.R1.

8. The Tribunal, after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded a compensation of

Rs.3,47,000/- with interest at the rate of 6% p.a.,

from the date of petition, till its realization. Being

dissatisfied with the compensation awarded by the

Tribunal, the petitioners have filed this appeal seeking

enhancement of compensation.

9. Heard the learned counsel for the

petitioners and learned counsel for the respondent

No.2 - Insurance Company.

10. Learned counsel for the petitioners submits

that the Tribunal has awarded a lesser compensation,

He further contended that the deceased was working

as Hostel Superintendent and earning Rs.10,000/- per

month. He further submits that as per the chart

provided by the Karnataka State Legal Services

Authority, the Tribunal could have taken the notional

income at Rs.4,000/- per month. On the contrary, the

Tribunal has taken the notional income at Rs.3,000/-,

which is on the lower side. Hence, on these grounds,

he prays to allow the appeal.

11. Per contra, learned counsel for the

respondent No.2 - Insurance company supports the

impugned judgment and award passed by the Tribunal

and submits that the compensation awarded by the

Tribunal is just and proper and does not call for

interference. She further submits that deceased died

leaving behind the parents. The petitioners without

arraying them as parties have filed claim petition.

Hence the claim petition is not maintainable for non-

joinder of necessary parties and prays to dismiss the

appeal.

12. Perused the records and considered the

submissions made by the learned counsel for the

parties.

13. The point that arises for consideration is

with regard to quantum of compensation.

14. It is not in dispute that the deceased

Bheelu Lalsing Pawar @ Rathod met with an accident

and sustained grievous injuries and succumbed to the

injuries. In order to prove that the accident has

occurred due to the rash and negligent driving of the

driver of the offending vehicle, the petitioners have

produced copy of the FIR and charge sheet, which are

marked as Ex.P2 and Ex.P7. Ex.P7 discloses that the

accident has occurred due to rash and negligent

driving of the driver of the offending vehicle.

15. Insofar as quantum of compensation is

concerned, the petitioners have not tendered any

evidence with regard to the income of the deceased

before the Tribunal. In the absence of proof of

income, the notional income of the deceased will have

to be taken as per the chart provided by the

Karnataka State Legal Services Authority. In terms of

the chart, for the accident of the year 2007, the

notional income of the deceased will have to be taken

at Rs.4,000/- as against Rs.3,000/- per month taken

by the Tribunal. To the aforesaid amount, as the

deceased was aged 40 years, 40% of the said amount

has to be added on account of future prospects in

view of the law laid down by the Constitution Bench of

the Supreme Court in the case of National

Insurance Company Limited vs. Pranay Sethi and

Others reported in AIR 2017 SC 5157. Thus, the

monthly income comes to Rs.5,600/-. The petitioners

have not arrayed the parents of the deceased as

parties in the claim petition. However they being legal

representatives are also entitled for compensation on

the account of death of their son. Hence, considering

that there are 8 dependants, I deem it appropriate to

deduct 1/7th towards personal expenses of deceased,

out of Rs.5,600/- (5,600 - 800 = 4,800). Therefore,

the monthly income of the deceased comes to

Rs.4,800/-. Taking into account the age of the

deceased which was 40 years at the time of accident,

multiplier of 15 has to be adopted as per the

judgment of the Hon'ble Supreme Court in the case of

Sarla Verma vs. Delhi Transport Corporation

reported in (2009) 6 SCC 121. Therefore, the

petitioners are entitled to a sum of Rs.8,64,000/-

(4,800 x 12 x 15) on account of loss of dependency as

against Rs.1,32,000/- awarded by the Tribunal.

16. In view of the law laid down by the Hon'ble

Supreme Court in the case of Magma General

Insurance Company Limited vs. Nanu Ram Alias

Chuhru Ram & Others reported in (2018) 18 SCC

130, each petitioners are entitled to a sum of

Rs.40,000/- towards loss of consortium. The

petitioners are 8 in number, hence the compensation

towards loss of consortium would be Rs.3,20,000/-

(40,000 x 8). In addition, the petitioners are entitled a

sum of Rs.15,000/- towards funeral expenses and

Rs.15,000/- under the head of loss of estate.

17. Thus, in all, the petitioners including

parents of the deceased are entitled to a total

compensation of Rs.12,14,000/- as against

Rs.3,47,000/- awarded by the Tribunal. The

petitioners are entitled for enhanced compensation of

Rs.8,67,000/- with interest at the rate 6% per annum,

from the date of petition, till its realization.

In view of the above discussion, I proceed to

pass the following:

ORDER

i. The appeal is allowed in part.

ii. The impugned judgment and award passed by the Tribunal is modified.

iii. The petitioners and parents of deceased are entitled to an enhanced

compensation of Rs.8,67,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization. However, the petitioners are not entitled to interest for the delay period of 1014 days in filing the above appeal.

  iv.      The   respondent     No.2   -    Insurance
           Company is directed to deposit the
           enhanced      compensation         amount

before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.

v. The Tribunal is directed to apportion the compensation amount among the petitioners and parents of the deceased.

SD/-

JUDGE

GRD