Ramsevak Das S/O Siyaram Das And ... vs Kashinath S/O Manik And Anr
2022 Latest Caselaw 5527 Kant

                            1




        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             MFA No.201446/2021 (MV)
Between:
1.   Ramsevak Das S/o Siyaram Das,
     Age: 66 years, Occ: Labour,

2.   Shashikumari Devi W/o Ramsevak Das,
     Age: 58 years, Occ: Household,

3.   Abhay Das S/o Ramsevak Das,
     Age: 26 years, Occ: Student,

4.   Manjet Das S/o Ramsevak Das,
     Age: 15 years, Occ: Student,

5.   Anjani Kumari D/o Ramsevak Das,
     Age: 17 years, Occ: Student,

     All the above appellants are
     R/o: Bhatphokra Village Panchayat,
     Jale Paschimi, Post Jale,
     Tq: Jale, Dist: Darbhanga,
     Bihar-585 403.

     The appellants No.4 & 5
     Are minors and they are U/g of appellant No.1

                                            ... Appellants
(By Sri. Sharanagowda V. Patil, Advocate)
                              2




And:
1.     Kashinath S/o Manik,
       R/o 1-152, Jannikeri Village,
       Tq: Aurad-Burad, Dist: Bidar-585 403.

2.     IFFCO-TOKIT General Insurance Co. Ltd.,
       Branch Office, Havappa Complex,
       No.200 to 202, Udgir Road,
       Shivanagar, Bidar.
       Tq. & Dist: Bidar-585 403.
                                          ... Respondents

(By Sri. Subhash Mallapur, Advocate for R2;
Notice to R1 is dispensed with)

      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to allow this appeal and
modify the judgment and award dated 23.12.2019 passed
by the Senior Civil Judge & JMFC (MACT) Aurad-B in MVC
No.62/2018,     by   enhancing    the    compensation     of
Rs.14,50,000/-.

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


                       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 appellants-petitioners

being aggrieved by the judgment and award dated

23.12.2019 passed in MVC No. 62/2018 by the Senior

Civil Judge & JMFC and MACT Aurad-B, (hereinafter

referred to as 'the Tribunal', for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellants are petitioners, respondents are

respondents before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 13.08.2017 at 7.30 p.m., at

Amareshwara Kanya Secondary School on

Narayanpur-Bidar road, within the limits of Aurad

P.S., the driver of the vehicle bearing registration

No.KA-38/T-2145 drove his vehicle in a rash and

negligent manner so as to endanger human life and

personal safety of others, while driving so, he dashed

his vehicle to incoming vehicle bearing registration

No.AP-29/AL-0330 being ridden by one Sachin S/o:

Ramasevak Das, who sustained fatal injuries and died

on the spot. The Petitioners being legal

representatives of deceased Sachin filed a claim

petition under Section 166 of M.V.Act, seeking for

compensation due to untimely death of deceased

Sachin in the road traffic accident.

4. Respondent Nos.1 and 2 being the owner

and insurer of the offending vehicle filed their

objections denying the averments made in the petition

and denied that the petitioners are dependants of the

deceased and prayed to dismiss the claim petition.

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

the Tribunal framed the issues and thereafter

recorded the evidence. In order to prove the claim

petition, petitioner No.3 examined as PW.1 and got

one more witness as PW.2 and got marked documents

Exs.P1 to P6. Respondents have not adduced any

evidence. After recording the evidence and

considering the material on record, the Tribunal held

that the petitioners have proved that deceased Sachin

died in the motor vehicle accident, that occurred on

13.08.2017, on account of the rash and negligent

driving of the driver of offending vehicle and further

held that the petitioners are entitled for compensation

and consequently allowed the claim petition in part

and awarded compensation of Rs.10,57,200/- with

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

petition till its realization and dismissed the petition

against respondent No.3 by holding that respondent

Nos1 and 2 are jointly and severally liable to pay

compensation. Being dissatisfied with the

compensation awarded by the Tribunal, the petitioners

have filed the present appeal seeking for

enhancement of compensation.

     6.       Heard    the      learned        counsel   for   the

petitioners    and    learned        counsel    for   respondent-

Insurance Company.

7. Learned counsel for the petitioners submits

that deceased was working as a labour and getting

salary of Rs.12,000/- per month. However, he submits

that the tribunal has assessed the notional income at

Rs.6,000/-. He submits that in the absence of income

of proof, the tribunal ought to have taken the notional

income as per the guidelines issued by Karnataka

State Legal Services Authority. He submits that the

tribunal has awarded lesser compensation. Hence, on

these grounds, he prays to allow the appeal.

8. Per contra, learned counsel for the

respondent-Insurance Company supports the

impugned judgment and award passed by the

tribunal. Hence, he prays to dismiss the appeal.

9. Heard the learned counsel for the parties

and perused the records.

10. The only point that arise for consideration

is with regard to quantum of compensation.

11. It is not in dispute that deceased Sachin

died in the road traffic accident occurred on

13.08.2017 due to rash and negligent driving of the

driver of the offending vehicle. In order to establish

that the accident was occurred due to rash and

negligent driving of the driver of the offending vehicle,

the petitioners have produced copy of charge sheet,

marked at Ex.P2. Ex.P2, discloses that the accident

was occurred due to rash and negligent driving of the

driver of the offending vehicle. The tribunal was

justified in recording a finding that the accident was

occurred due to rash and negligent driving of the

driver of the offending vehicle.

12. Insofar as quantum of compensation is

concerned, the deceased was aged 22 years as on the

date of the accident. It is contended that the deceased

was working as a labour and getting monthly salary of

Rs.12,000/-. In the absence of any evidence or proof

of income, the notional income has to be assessed as

per the guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2017, the notional income has to be taken

at Rs.10,250/- p.m. as per chart. In view of the law

laid down by the Constitution Bench of the Supreme

Court in National Insurance Co., Ltd., vs. Pranay

Sethi and others reported in AIR 2017 SC 5157, to

the aforesaid amount, 40% has to be added on

account of future prospects as the deceased was

bachelor aged about 22 years. Thus, the monthly

income comes to Rs.14,350/-. Out of which, it is

appropriate to deduct 50% towards personal expenses

and therefore, the monthly income comes to

Rs.7,175/-.

13. As on the date of the accident, the

deceased was aged 22 years, as per the decision of

Hon'ble Apex Court in the case of SARLA VERMA

(SMT) & OTHERS VS. DELHI TRANSPORT

CORPORATION & ANOTHER, reported in (2009) 6

SCC 121, the multiplier applied to the age group of

the appellant is 18. Taking into account the age of

deceased which was 22 years at the time of accident,

multiplier of 18 has to be adopted and therefore, the

petitioners are entitled to a sum of Rs.15,49,800/-

(7,175 x 12 x 18) on account of loss of dependency as

against Rs.15,49,800/- awarded by the Tribunal.

14. Thus, the petitioners are entitled to

compensation of Rs.15,49,800/- on account of 'loss of

dependency'.

15. In addition, the petitioners are entitled to

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

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

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

Supreme Court in Magma General Insurance

Company Limited vs. Nanu Ram Alias Chuhru

Ram & Others reported in 2018 ACJ 2782, each of

the petitioners are entitled for compensation of

Rs.40,000/- under the head of 'loss of consortium',

which comes to Rs.1,60,000/-.

17. The tribunal has dismissed the claim

petition in respect of petitioner No.3 is concerned on

the ground that petitioner No.3 is the brother of

deceased and he is not dependant on the deceased.

Hence, the tribunal was justified in dismissing the

petition as against petitioner No.3.

18. Thus the petitioners are entitled to a total

compensation of Rs.17,39,800/- as against

Rs.10,57,200/- awarded by the tribunal. Hence, the

petitioners are entitled for enhanced compensation of

Rs.6,82,600/-.

19. In view of the above discussions, I proceed

to pass the following:

ORDER

(a) The appeal is allowed in part.

(b) The petitioners are entitled to a total

compensation of Rs.17,39,800/- as

against Rs.10,57,200/- awarded by

the tribunal.

     (c)   The   petitioners     are   entitled   for

           enhanced          compensation         of

Rs.6,82,600/- along with interest at

the rate of 6% p.a. from the date of

claim petition till the date of

realization of amount.

      (d)   Respondent              No.2,         Insurance

            Company is directed to deposit the

            enhanced     compensation               amount

along with interest, within a period of

eight weeks from the date of receipt

of copy of this order.

Sd/-

JUDGE

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