Karnataka High Court

Smt. Akula Chandana W/O Late Akula ... vs The Managing Director on 26 May, 2022

Bench: Rajendra Badamikar

                                1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 26TH DAY OF MAY 2022
                            BEFORE
     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.200401/2020 (MV)

BETWEEN:

1.     Smt. Akula Chandana
       W/o Late Narsimulu,
       Age: 30 Years, Occ: Household,
2.     Master Akula Abhilesh
       S/o Late Akula Narsimula,
       Age: 14 Years, Occ: Student,
3.     Akula Bunny
       S/o Late Akula Narsimulu,
       Age: 14 Years, Occ: Student,
       Petitioner No.2 and 3 are minors they are
       U/g of natural Mother i.e. petitioner No.1
       Smt Akula Chandana.
4.     Akula Chennaiah S/o Akula Narsaiah,
       Age: 65 Years, Occ: Nil,
5.     Smt. Akula Parvathamma
       W/o Akula Chennaiah,
       Age: 65 Years, Occ: Nil,

       All R/o H.No.5-42 Nagsanpally Sadashivpet
       Mandal Peddapur Togarpalli Medak
       Andhra Pradesh, Now at near Om Nagar Gate,
       Sedam Road, Kalaburagi.
                                                    ..Appellants
(By Sri.B.Ali Mohammad, Advocate)
                                2



AND

The Managing Director,
NEKRTC Sarige Sadan Main Road,
Kalaburagi-585 102.
                                              .....Respondent
(By Smt. Sangeeta Bhadrashetty, Advocate)

       This MFA is filed under section 173(1) of the Motor
Vehicles Act, praying to call the records in MVC No.1092/2018
on the file of III Addl. Senior Civil Judge & MACT, at Kalaburagi
and the impugned judgment and award dated 14.06.2019
caused in MVC No.1092/2018 on the file of III Addl. Senior Civil
Judge & MACT, at Kalaburagi may be modified by granting
compensation has claimed in the claim petition and this
Miscellaneous First Appeal may be allowed as prayed with costs.

       This appeal coming on for Admission, this day, the court
delivered the following:

                         JUDGMENT

This appeal is filed by the petitioners challenging

the judgment and award dated 14.06.2019 passed in

MVC No.1092/2018 by the III Addl. Senior Civil Judge

and MACT, Kalaburagi, seeking enhancement of

compensation.

2. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

3. The factual matrix leading to the case are

that the deceased Akula Narsimulu was the husband

of petitioner No.1, father of petitioner Nos.2 and 3 and

son of petitioner Nos.4 and 5. That on 08.09.2018 at

about 9.20 a.m., the deceased after completing his

work was returning to Nagusanpally Village from

Sadasivpet on motorcycle bearing registration No.TS-

15/RTR-8330 and when he reached near Nandkani

village on NH.65, at that time, the driver of NEKRTC

bus bearing registration No.KA-36/F-1147, drove it in

a rash and negligent manner endangering to human

life and dashed to the motorcycle of deceased causing

the accident. Due to the said accident, the deceased

sustained fatal injuries and immediately he was

shifted to Government Hospital, Sadasivpet and later

on he was shifted to Balaji Hospital at Sangareddy for

higher treatment, but he succumbed in the hospital

because of the accidental injuries. The accident was

occurred solely because of the actionable negligence

on the part of the driver of bus. That the deceased

was doing agricultural work and contract work and

was earning Rs.25,000/- per month. Due to untimely

death of deceased, the petitioners who are entirely

depending on the deceased have suffered untold

hardship. Hence, they filed claim petition seeking

compensation of Rs.30,75,000/- with interest.

4. The respondent-Corporation has appeared

through its counsel and denied the allegations and

assertions made thereunder. It is contended that the

accident is due to negligence on the part of rider of

the motorcycle and there is no negligence on the part

of the driver of the bus. It is also contended that the

rider of the motorcycle was not possessing valid

driving license and the deceased himself fell from the

bike and sustained grievous injuries. It is also

contended that the petition is also bad for non-joinder

of necessary parties. Hence, sought for dismissal of

the claim petition.

5. The petitioner No.1 was examined as PW.1

and placed reliance on documents marked as Exs.P1

to P6. The officer of respondent was examined as

RW.1 and got marked two documents as Exs.R1 and

R2.

6. After appreciating the oral and

documentary evidence, the tribunal has awarded the

total compensation of Rs.11,70,000/- under the

various heads as under;

Sl.No.             Heads                      Amount
1.           Towards loss of love and         Rs.25,000/-
             affection
2.           Loss of consortium               Rs.20,000/-
3.           Towards loss of estate           Rs.25,000/-
4.           Towards funeral expenses         Rs.20,000/-
             and transportation charges
5.           Loss of dependency               Rs.10,80,000/-
                   Total                      Rs.11,70,000/-

7. Being dissatisfied with the quantum of

compensation awarded by the tribunal, the petitioners

have filed this appeal seeking enhancement of

compensation.

8. Learned counsel for the appellants would

contend that the notional income taken by the tribunal

is on lower side and further the compensation

awarded under the head loss of consortium is also

meager and the tribunal has failed to award just

compensation. As such, it is prayed for enhancement

of compensation.

9. The learned counsel for respondent-

Corporation would support the award passed by the

tribunal.

10. Heard the arguments advanced by the

learned counsel for the appellants and learned counsel

for the respondent. Perused the records.

11. The tribunal has held that the accident in

question is because of actionable negligence on the

part of the driver of KSRTC bus. This finding is not at

all challenged by the Corporation and that has

reached finality. There is no serious dispute of the fact

that the deceased succumbed because of the

accidental injuries in respect of accident occurred on

08.09.2018 at 9.20 p.m. Further the involvement of

KSRTC bus and the two wheeler is also not under

serious dispute.

12. The tribunal has taken the notional income

of the deceased @ Rs.8,000/- per month. Admittedly

the accident is of the year 2018. As per the Lok

Adalath Chart, this Court is consistently taking the

notional income of Rs.11,750/- per month for the

accident occurred in the year 2018.

13. Admittedly, there are 5 dependants on the

deceased and hence 1/4th is required to be deducted

towards personal expenses. 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 since the deceased was not having

permanent avocation. Thus, the monthly income

comes to Rs.16,450/- (Rs.11,750 + 4700). Out of

which, it is appropriate to deduct 1/4th towards

personal expenses. Thus, the total loss of dependency

works out to Rs.22,20,750/- (Rs.16,450 x 12 x 15 x

3/4).

14. Further, it is also important to note here

that the tribunal has awarded a sum of Rs.20,000/-

under the head loss of consortium, which is very

meager. As per the decision of 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.2,00,000/-.

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. Thus the petitioners are entitled to a total

compensation of Rs.24,50,750/- as against

Rs.11,70,000/- awarded by the tribunal under the

following heads;

Sl.No.            Heads                           Amount
1.           Loss of consortium                   Rs.2,00,000/-
2.           Towards loss of estate               Rs.15,000/-
3.           Towards funeral expenses             Rs.15,000/-
4.           Loss of dependency                   Rs.22,20,750/-
                  Total                           Rs.24,70,000/-

17. Hence, the petitioners are entitled for

enhanced compensation of Rs.12,80,750/-.

Accordingly, the appeal needs to be allowed in part.

18. Accordingly, I proceed to pass the

following;

ORDER

(a) The appeal is allowed in part.

(b) The petitioners are held entitled to a total compensation of Rs.24,50,750/- as against Rs.11,70,000/- awarded by the tribunal.

(c) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till the date of realization of amount.

(d) However, the petitioners are not entitled for any interest for the delayed period of 168 days in filing the appeal.

(e) The respondent-Corporation is directed to deposit the enhanced compensation amount with accrued interest thereon within a period of four weeks from the date of the award.