Karnataka High Court

Gangarathnamma vs Inthiyaz Pasha on 30 March, 2022

Bench: Pradeep Singh Yerur

                          -1-



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 30TH DAY OF MARCH, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.665 OF 2020 (MV-D)

BETWEEN:
1.     GANGARATHNAMMA
       W/O.LATE NINGANNA
       AGED ABOUT 32 YEARS

2.     HARSHITHA
       D/O.LATE NINGANNA
       AGED ABOUT 08 YEARS
3.     LOCHAN
       D/O.LATE NINGANNA
       AGED ABOUT 06 YEARS

4.     GANGAMMA
       W/O.GANGADHARAIAH
       AGED ABOUT 63 YEARS

5.     GANGADHARAIAH
       S/O.LATE ANDANAIAH
       AGED ABOUT 68 YEARS
       APPELLANT NOS. 2 & 3 ARE
       MINORS REP.BY THEIR
       N/G AND MOTHER
       APPELLANT NO.1
       ALL ARE R/AT KALLUPALYA
       VILLAGE, KOTHAGERE HOBLI
       KUNIGAL TALUK
       TUMAKURU DISTRICT               ... APPELLANTS

(BY SRI RAGHU R ., ADVOCATE)

AND:
1.     INTHIYAZ PASHA
       S/O.CHOTE SAB @ GHOSE SHARIFF
                            -2-



     MAJOR
     R/A 3RD & 4TH CROSS
     SRIRAMA NAGAR
     TUMAKURU - 01

2.   THE MANAGER
     RELIANCE GEN.INSURANCE
     COMPANY LIMITED
     S.M.TOWERS, 2ND FLOOR
     11TH MAIN, 3RD BLOCK
     JAYANAGAR
     BENGALURU - 560 061                ... RESPONDENTS

(BY SRI D.VIJAYA KUMAR, ADVOCATE FOR R-2;
    NOTICE TO R-1 IS DISPENSED WITH V.O.D.
     30.03.2022)
                          ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
10.04.2018 PASSED IN MVC.NO.8403/2016 BY VII
ADDITIONAL SMALL CAUSES JUDGE AND XXXII ACMM,
MEMBER, MACT-3, BENGALURU AND ETC.

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

                       JUDGMENT

This appeal is preferred by the claimants aggrieved

by the judgment and award passed by II Additional Small

Causes Judge and XXXII ACMM Member, MACT-3,

Bengaluru (for short 'the tribunal') in MVC.No.8403/2016

dated 10.04.2018. This appeal is premised on the ground

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 27.09.2016 at 7.15 p.m. when the deceased

Ninganna was riding his bike bearing registration No.KA-04-

EY-1485 from Kunigal side towards Tumkur side on

Kunigal-Tumkur Main Road, while proceeding on the left

side of the road, at that time, Lorry bearing registration

No.KA-07-6594 driven by its driver with high speed in a

rash and negligent manner, dashed against the bike, due to

which, he sustained fatal injuries and died on the spot,

immediately, thereafter, he was shifted to CHC Kunigal,

where the Doctor conducted Post Mortem and he was

declared as dead.

4.1. It is stated that the claimant was hale and

healthy and aged about 34 years and doing plumbing,

centering and agricultural work and was earning more than

Rs.600/- per day. Due to untimely death of the deceased,

who was sole bread winner of the family, the claimants

herein who are none other than the wife, minor children

and parents of the deceased have lost their beloved one

who was the only source of income for maintenance and

sustenance of family. Accordingly, they have filed a claim

petition seeking compensation.

4.2. On service of notice, respondents appeared

before the Court and respondent No.1-owner of the vehicle

admitted the ownership and denied the negligence on his

behalf whereas respondent No.2-Insurer admitted the

issuance of insurance policy to respondent No.1 but denied

its liability and sought for dismissal of claim petition. The

tribunal framed relevant issues for consideration on the

basis of pleadings of the parties.

4.3. In order to substantiate the case, the appellants-

claimants examined claimant No.1 as PW.1 and another

witness as PW.2 and got marked documents as EXs.P1 to

P13 whereas respondents neither lead any evidence on

their behalf nor produced any documents.

4.4. On the basis of oral and documentary evidence,

the tribunal has awarded compensation of Rs.15,82,000/-

with interest @ 8% p.a. from the date of petition.

5. Now, the point for consideration before this Court

is - "whether the claimants are entitled for enhancement of

compensation?"

6. This Court need not delve upon the aspects with

regard to the ownership of the offending vehicle of

respondent No.1; issuance of insurance policy by

respondent No.2-Insurer and the same being in operation

as on the date of occurrence of accident; the occurrence of

accident and the negligence having been committed by the

driver of the offending vehicle namely, lorry as the Police

records namely, Exs.P1 to P8 wherein the jurisdictional

Police has lodged criminal case against the driver of

offending vehicle and laid the charge sheet are all admitted

and not disputed.

7. Coming to the aspect of the age, avocation and

income, the tribunal has assessed income at Rs.7,500/-

p.m., as admittedly there is no proof of income produced by

the claimants. In the case on hand, where there is no proof

of income produced by the claimants, this Court is left with

no other alternative, but to do a guess work and in order to

do a standard guess work without variations, the Legal

Services Authority has prescribed the notional income chart

which stipulates the income of Rs.9,500/- for the accident

of the year 2016. Accordingly, Rs.9,500/- is required to be

taken as income as against Rs.7,500/- assessed by the

tribunal.

8. The age of the deceased and multiplier adopted

by the tribunal is not in dispute. Hence, same is not going

to be delved upon by this Court. The only point for

consideration would be the income, which is taken as

Rs.9,500/- per month. Therefore, the compensation

awarded by the tribunal under the head of loss of

dependency is modified, in view of the income being

enhanced by this Court to Rs.9,500/-. Accordingly, 40% is

to be added to the income towards future prospects.

Therefore, Rs.9,500/- + 40% would come to Rs.3,800/-,

which would be Rs.13,300/-. Since there are five (05)

dependents, in view of the judgment of the 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, 1/4th has to be

deducted towards personal and living expenses, which has

been rightly adopted by the tribunal. Therefore, Rs.9,975/-

(Rs.13,300/- x 1/4) would be the income available for the

sustenance/maintenance of family. Therefore,

Rs.19,15,200/- (Rs.9,975/- x 12 x 16) would be the loss

of dependency.

9. The tribunal has awarded RS.15,000/- towards

loss of estate and Rs.15,000/- towards transportation of

dead body and funeral expenses, which do not call for

interference.

10. Towards loss of consortium, the tribunal has

awarded RS.40,000/-, whereas learned counsel for

appellants-claimants contends that tribunal ought to have

awarded Rs.40,000/- per head as held by 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. In the present case

on hand there being five (05) dependents, Rs.40,000/- per

head is to be awarded, which comes to Rs.2,00,000/-

(Rs.40,000/- x 5) which is awarded under the head of loss

of consortium.

11. In view of the discussions made above and on the

basis of the submissions of learned counsel, the claimants

deserve enhancement of compensation as stated in the

table below:

          Heads             Awarded by         Awarded by this
                            the tribunal           Court
                              (in Rs.)            (in Rs.)
Loss of dependency           15,12,000-00         19,15,200-00
Loss of estate                  15,000-00            15,000-00
Loss of consortium              40,000-00          2,00,000-00
Transportation     of
dead     body    and              15,000-00            15,000-00
funeral expenses
       TOTAL               15,82,000-00            21,45,200-00

For the aforesaid reasons, I pass the following:

ORDER

i) The appeal is allowed-in-part;

ii) The judgment and award passed by II Additional

Small Causes Judge and XXXII ACMM Member,

MACT-3, Bengaluru in MVC.No.8403/2016 dated

10.04.2018 is modified;

iii) The claimants are entitled for total compensation

of Rs.21,45,200/- as against Rs.15,82,000/-

awarded by the tribunal;

iv) The enhanced compensation shall carry interest @

6% p.a.;