Karnataka High Court
Smt Yashodamma vs Sri H P Shivakumarachar on 31 May, 2022
Bench: B.Veerappa, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.2863/2016 (MV-D)
BETWEEN:
1. SMT. YASHODAMMA,
W/O SRI BASAVARAJAPPA,
AGED ABOUT 47 YEARS,
OCC: HOUSE HOLD WORK,
2. SRI BASAVARAJAPP,
S/O LATE KARIBASASHETTY,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURIST,
APPELLANT NOS 1AND 2 ARE,
R/O MADDARAHALLI VILLAGE,
KITTANAKERE POST,
KANAKATTE HOBLI,
ARASIKERE TALUK,
HASSAN DISTRICT - 573 144.
3. SMT. PREMA,
W/O LATE MALLEGOWDA,
AGED ABOUT 47 YEARS,
2
OCC: AGRICULTURIST AND
HOUSE HOLD WORK,
4. MASTER VEDHANA,
S/O LATE M.B. PRAVEENA,
AGED ABOUT 04 YEARS,
SINCE MINOR IS REPRESENTED,
BY HIS NATURAL GUARDIAN AND
GRANDMOTHER SMT. PREMA,
APPELLANT NO.3
APPELLANT NO.3 AND 4 ARE,
R/AT MARLE VILLAGE AND POST,
CHIKMAGALUR TALUK,
CHIKMAGALUR DISTRICT - 577 101.
...APPELLANTS
(BY SRI. RAJASHEKAR M., ADVOCATE)
AND:
1. SRI H.P. SHIVAKUMARACHAR,
S/O PARVATHACHAR,
AGED ABOUT 24 YEARS,
R/AT HULIKERE VILLAGE AND POST,
SAKRAYAPATNA HOBLI,
KADUR TALUK,
CHIKMAGALUR DISTRICT - 577 135.
2. SRI ASHWATH,
S/O SIDDAIAH,
AGED ABOUT 35 YEARS,
R/AT NO.236,
HIREGOWDA VILLAGE AND POST,
3
LAKYA HOBLI,
CHIKMAGALUR TALUK,
CHIKMAGALUR DISTRICT - 577 168.
3. THE MANAGER,
M/S THE NEW INDIA ASSURANCE,
COMPANY LIMITED,
BRANCH OFFICE,
PANDURANGA COMPLEX,
K.T. STREET,
CHIKMAGALUR - 577 101.
...RESPONDENTS
(BY SRI M.P. SRIKANTH, ADVOCATE FOR R3.
R1 AND R2 ARE SERVED BUT UNREPRESENTED)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 14.12.2015 PASSED IN
MVC NO.262/14 ON THE FILE OF THE 2ND ADDITIONAL
DISTRICT JUDGE AND MACT, CHIKKAMAGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION, THIS DAY, B.VEERAPPA J., DELIVERED
THE FOLLOWING:
4
JUDGMENT
The claimants being the unfortunate parents,
minor son and mother-in-law of deceased M.B.
Praveena have filed the present Miscellaneous First
Appeal against the impugned judgment and award
dated 14.12.2015 made in MVC No.262/2014 on the
file of the II Additional District Judge and MMACT,
Chikkamagaluru (hereinafter referred to as the 'the
Tribunal' for short) seeking enhancement of
compensation, whereby the Tribunal has awarded
total compensation of Rs.13,45,704/- with interest @
6% p.a. from the date of petition till the date of
realization. The present appeal is confined only in
respect of death of M.B. Praveena in MVC
No.262/2014.
2. It is the case of the claimants that they
filed claim petition under the provisions of Section 166
of the Motor Vehicles Act seeking compensation of
Rs.35,00,000/- on account of death of deceased
Praveena, who succumbed to the injuries sustained in
a road traffic accident that occurred on 16.08.2013 at
about 3.30 p.m., when the deceased along with his
wife Uma were proceeding on a motor bike bearing
registration No.KA-13-X-5423 from Maddarahalli
Village to Chikkamagaluru on the left side of the road
slowly by observing all traffic rules, at that time, a
TATA Turbo lorry bearing registration No.KA-18-A-
5618 came from opposite direction in a rash and
negligent manner with high speed dashed the motor
bike of the deceased. Due to the impact, the
deceased fell down and sustained grievous injuries
and died on the spot. It is further contended that the
deceased Praveena was hale and healthy prior to the
accident and was earning Rs.15,000/- per month by
doing jobs. Both Praveena and his wife Uma died
leaving behind his parents and minor son and mother-
in-law. Thereby sought for compensation.
3. In pursuance of the notice issued by the
Tribunal, respondent Nos.1 to 3 appeared through
advocates and filed separate written statements.
4. Respondent No.1 adopted the objection
filed by respondent No.2. Respondent No.2-owner of
the vehicle involved in the accident has denied the
entire averments made in the claim petition and
contended that accident occurred due to the
negligence on the part of the deceased and
respondent No.1 had not caused any accident by
driving the vehicle rashly and negligently as alleged.
It is further contended that the petition is bad for non-
joinder of necessary parties and therefore, sought for
dismissal of the petition.
5. Respondent No.3-insurance company filed
written statement denying the averments made in the
claim petition and admitted the issuance of policy and
its validity as on the date of the accident and disputed
the age and income the deceased and contended that
the rider of the motor bike and respondent No.1 had
no valid and effective driving licence to drive the
vehicles and further contended that the petition is bad
for mis-joinder of unnecessary parties and sought for
dismissal of the claim petition.
6. The Tribunal on the basis of the pleadings,
framed the following issues:
1. Whether the petitioners prove that on
16.08.2013 at about 3:30 p.m., while the
deceased M.B.Praveen, along with his wife
Smt.Uma were procedding in TVS Sports Motor
Cycle bearing Reg.No.KA-13-X-5423, from
Maddarahalli Village of Arasikere on K.M.Road,
near Kanive Cross, the 1st respondent being
the driver of Tata 407 Turbo Lorry bearing
No.KA-18-A-5618, came from the opposite
direction in a high speed and rash and
negligent manner, and dashed against the
deceased motorcycle, as a result the deceased
died at the spot and his wife the pillion river
sustained severe injuries?
2. Whether the 1st Respondent proves that
he was holding a valid driving to drive the said
vehicle, in question, as on the date of the
accident?
3. Whether the petitioner is entitled for
compensation? Is so, what amount and from
whom?
4. What order?
7. Claimants in order to substantiate their
case, examined claimant No.3 as PW.1 and examined
one more witness as PW.2 and got marked documents
at Exs.P.1 to P.14. On the other hand, respondents
did not chose to led the evidence and only got marked
documents at Exs.R.1 to R.5.
8. The Tribunal, on the basis of the pleadings,
evidence, oral and documentary evidence on record
held that the accident occurred due to the rash and
negligent driving of the TATA Turbo lorry bearing
registration No.KA-18-A-5618 by its driver and
respondent No.1 has proved that he was holding valid
and effective driving licence to drive the said lorry as
on the date of the accident and fastened the liability
upon the insurance company by awarding
compensation of Rs.13,45,704/- with interest @ 6%
p.a. from the date of the petition till the date of
realization.
9. Being unsatisfied with the quantum of
compensation awarded by the Tribunal being on the
lower side the present appeal is preferred by the
claimants.
10. Respondent No.3-Insurance company has
not preferred any appeal against the judgment and
award passed by the Tribunal.
11. We have heard the learned counsel for the
parties to the lis.
12. Learned counsel Sri. Rajashekar .M for the
appellants contended that the impugned judgment
and award passed by the Tribunal awarding total
compensation of Rs.13,45,704/- with interest @ 6%
p.a. is on the lower side and same needs to be
enhanced. He further contended that the Tribunal has
not taken the future prospects while awarding the
compensation under the head loss of dependency and
wrongly deducted 1/3rd of the income and thereby
erroneously passed the impugned judgment and
award. He further contended that the award of
compensation under the conventional heads is on the
meager side and same needs to be enhanced.
Therefore, sought for enhancement of compensation
by allowing the appeal.
13. Per contra, learned counsel Sri. M.P.
Srikanth for the insurance company while justifying
the impugned judgment and award of the Tribunal has
contended that in the absence of any material
documents produced, the Tribunal is justified in not
taking the future prospects. He further contended
that the award of compensation under the various
heads is just and proper compensation and does not
call for any interference at the hands of this Court.
Therefore, sought to dismiss the appeal filed by the
claimants.
14. Having heard the learned counsel for the
parties, the only point that would arise for
consideration in the present appeal is:
"Whether the appellants/claimants have made
out a case for enhancement of compensation,
in the facts and circumstances of the present
case?
15. We have given our anxious consideration to
the arguments advanced by the learned counsel for
the parties and perused the material on record
including original records carefully.
16. It is undisputed fact that deceased M.B.
Praveena, who is the son of claimant Nos.1 and 2,
son-in-law of claimant No.3 and father of claimant
No.4 and his wife Uma died in a road traffic accident
that occurred on 16.08.2013 due to the rash and
negligent driving of the driver of the TATA Turbo Lorry
bearing registration No.KA-18-A-5618 and same is
evident from the material documents at Ex.P.2-FIR
and Ex.P.12-Chargesheet. Thereby the claimants
have proved the rash and negligence on the part of
the driver of the TATA Turbo Lorry stated supra.
Admittedly, the owner of the offending vehicle and the
insurance company have not challenged the adverse
finding of the Tribunal. The Tribunal has taken the
income of the deceased at Rs.9563.90/- per month
and proceeded to award the compensation. The
Tribunal has not considered the future prospects while
awarding the compensation under the head loss of
dependency. As per the dictum of the Hon'ble Apex
Court in the case of National Insurance Company
Limited Vs. Pranay Sethi and others [2017 ACJ
2700] (Pranay Sethi), if the deceased was self-
employed or on a fixed salary, an addition of 40% of
the established income should be the warrant where
the deceased was below the age of 40 years. In the
case on hand, the deceased was self employed and
considering the age of the deceased as 27 years, 40%
needs to be added towards Future Prospects. Thus,
the income of the deceased that would be arrived at is
Rs.13,389.46/- (9563.90 + 40% towards future
prospects amounting to Rs.3826/-) and as per the
dictum of the Hon'ble Apex Court in the case of Sarla
Verma vs. Delhi Transport Corporation [(2009)6
SCC 121] (Sarla Verma) 1/4th of actual income has to
be deducted towards personal expenses as the
dependents are four in number. The notional income
would be Rs.10,042/-. Considering the age of the
deceased as 27 years, the multiplier applicable is '17'.
The claimants are entitled for Rs.20,48,568/- under
the head loss of dependency. (10,042 x 12 x 17 =
20,48,568/-)
17. Though the learned counsel for the
insurance company contended that the Tribunal is
justified in deducting 1/3rd of the income instead of
1/4th as claimed by the claimants, the Hon'ble Apex
Court considering the identical question in the case of
N. Jayasree and others Vs. Cholamandalam MS
General Ins. Co. Ltd. reported in 2021 ACJ 2685 at
paragraph Nos.10,16 and 21 held as under:
"10. The provisions of the Motor Vehicles Act,
1988 (for short 'MV Act') give paramount
importance to the concept of 'just and fair'
compensation. It is a beneficial legislation
which has been framed with the object of
providing relief to the victims or their families.
Section 168 of the MV Act deals with the
concept of 'just compensation' which ought to
be determined on the foundation of fairness,
reasonableness and equitability. Although
such determination can never be arithmetically
exact or perfect, an endeavour should be made
by the court to award just and fair
compensation irrespective of the amount
claimed by the applicant(s). In Sarla Verma,
2009 ACJ 1298 (SC), this court has laid down
as under:
"(8) ...Just compensation is adequate
compensation which is fair and equitable,
on the facts and circumstances of the
case, to make good the loss suffered as
a result of the wrong, as far as money
can do so, by applying the well settled
principles relating to award of
compensation. It is not intended to be a
bonanza, largesse or source of profit..."
16. In our view, the term 'legal
representative' should be given a wider
interpretation for the purpose of Chapter XII of
MV Act and it should not be confined only to
mean the spouse, parents and children of the
deceased. As noticed above, MV Act is a
benevolent legislation enacted for the object of
providing monetary relief to the victims or
their families. Therefore, the MV Act calls for a
liberal and wider interpretation to serve the
real purpose underlying the enactment and
fulfil its legislative intent. We are also of the
view that in order to maintain a claim petition,
it is sufficient for the claimant to establish his
loss of dependency. Section 166 of the MV Act
makes it clear that every legal representative
who suffers on account of the death of a
person in a motor vehicle accident should have
a remedy for realization of compensation.
21. Coming to the facts of the present case,
the appellant No.4 was the mother-in-law of
the deceased. Materials on record clearly
establish that she was residing with the
deceased and his family members. She was
dependent on him for her shelter and
maintenance. It is not uncommon in Indian
society for the mother-in-law to live with her
daughter and son-in-law during her old age
and be dependent upon her son-in-law for her
maintenance. Appellant No.4 herein may not
be a legal heir of the deceased, but she
certainly suffered on account of his death.
Therefore, we have no hesitation to hold that
she is a 'legal representative' under section
166 of the MV Act and is entitled to maintain a
claim petition."
Thereby the contention of the learned counsel
for the insurance company that the Tribunal is
justified in deducting 1/3rd cannot be accepted.
18. It is also not in dispute that the award of
compensation under the heads funeral expenses and
loss of love and affection is on the lower side and
same needs to be enhanced, in view of the dictum of
the Hon'ble Apex Court in the case of United India
Insurance Company Limited vs. Satinder Kaur @
Satwinder Kaur and others [AIR 2020 SC 3076]
(Satinder Kaur) and Magma General Insurance
Company Ltd. Vs. Nanu Ram & Others [2018 ACJ
2782] (Magma General Insurance Company Ltd.), as
the claimants/dependents are four in number, they
are entitled for Rs.40,000/- each amounts to
Rs.1,60,000/- and Rs.15,000/- each towards funeral
expenses and loss of estate. Accordingly, the point
framed for consideration is answered partly in the
affirmative and the claimants are entitled for just and
proper compensation.
19. On reassessing the entire oral and
documentary evidence on record, this Court is of the
considered opinion that the appellants/claimants are
entitled for just and proper compensation as under:-
entitled for just compensation under different heads
as under:
Sl. Head of Compensation Amount in Rs.
No.
1. Loss of dependency 20,48,568.00
2. Loss of love and affection 1,60,000.00
3. Funeral expenses 15,000.00
4. Transportation of dead 5,000.00
body
5. Loss of estate 15,000.00
Total 22,43,568.00
20. The claimants are entitled to total
compensation of Rs.22,43,568/- as against
Rs.13,45,704/- awarded by the Tribunal. The
claimants are entitled for an enhanced compensation
of Rs.8,97,864/- with interest at the rate of 6% per
annum from the date of petition till the date of
realization.
21. In the result, we pass the following:
ORDER
(i) The Miscellaneous First Appeal is allowed in
part.
(ii) The impugned judgment and award passed by
the Tribunal is hereby modified. The
appellants/claimants are entitled to total
compensation of Rs.22,43,568/- as against
Rs.13,45,704/-.
(iii) The enhanced compensation of Rs.8,97,864/-
shall carry interest at the rate of 6% per annum
from the date of petition till the date of
realization
(iv) Respondent No.3/insurance company shall
deposit the enhanced compensation within a
period of six weeks from the date of receipt of
copy of this judgment with proportionate
interest.
(v) On such deposit, the disbursement shall be
made in terms of the award of the MACT.
(vi) The Registry is directed to return the trial Court
records forthwith.
(vii) Office is directed to draw the award accordingly.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBM
