Karnataka High Court

Smt Shruthi vs Nayaz Ahmed 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.2540/2016 (MV-D)


BETWEEN:

1.      SMT. SHRUTHI,
        W/O LATE VINAYA @ VINAYAKUMAR,
        AGED ABOUT 26 YEARS,

2.      G.NAGARAJAPPA,
        S/O LATE NAGAPP,
        AGED ABOUT 54 YEARS,

3.      SMT. MADHURA,
        W/O G.NAGARAJAPPA,
        AGED ABOUT 50 YEARS,

ALL ARE RESIDENTS OF
CHINNAMANE VILLAGE,
MANDAGHATTA POST - 577 211,
SHIVAMOGGA TALUK AND DISTRICT.
                                      ...APPELLANTS
(BY SRI. HARISH SHIVALKOPPA, ADVOCATE FOR
    SRI. B.G. CHIDANANDA URS, ADVOCATE)
                           2



AND:

1.     NAYAZ AHMED,
       S/O MAHBOOB,
       AGED ABOUT 57 YEARS,
       R/AT JATPAT NAGAR,
       SULEBAILU EXTENSION,
       SHIMOGA - 577 201.

2.     MANIKANTA,
       S/O BANGAAPPA,
       AGED ABOUT 50 YEARS,
       R/AT SANTHEKADUR VILLAGE - 577 222,
       SHIMOGA DISTRICT AND TALUK.

3.   THE BRANCH MANAGER,
     THE UNITED INDIA INSURANCE COMPANY LTD.,
     SHIVAMOGGA - 577 201.
                                   ...RESPONDENTS
(BY SRI P.B. RAJU, 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 26.09.2015 PASSED IN
MVC NO.367/2014 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND ADDITIONAL MACT-VII,
SHIMOGA, 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:
                              3


                        JUDGMENT

The claimants, being the unfortunate wife and

parents of deceased Vinaya @ Vinayakumar filed the

present Miscellaneous First Appeal against the

impugned judgment and award dated 26.09.2015

made in MVC No.367/2014 on the file of the 1st

Additional Senior Civil Judge and Additional MACT-VII,

Shimoga (hereinafter referred to as the 'the Tribunal'

for short) seeking enhancement of compensation,

whereby the Tribunal has awarded total compensation

of Rs.16,11,000/- with interest @ 6% p.a. from the

date of petition till the date of realization.

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.51,05,000/- with interest on account of death of

deceased Vinaya @ Vinayakumar, who succumbed to

the injuries sustained in a road traffic accident that

occurred on 26.02.2014 at about 8.30 a.m., the

deceased and his relative Smt. Meenakshamma were

proceeding on a Hero Honda Splendor Motor Bike

bearing registration No.KA-14-W-9760 from

Chinnamane Village to Shivamogga slowly on the left

side of the road and when they reached near

Veeragarana Bhairanakoppa Village, B.H. Road,

Ayanoor, at that time, a Tipper Lorry bearing

registration No.KA-14-5235 came from the opposite

direction in a rash and negligent manner, dashed

against the bike. Due to the impact, the pillion rider

Smt. Meenkshamma sustained grievous injuries and

died on the spot and rider Vinaya @ Vinayakumar

sustained grievous injuries to his head, legs and other

parts of the body and immediately he was shifted to

the hospital, but he died on the way to the hospital.

It is further case of the claimants that the deceased

Vinaya @ Vinayakumar was earning Rs.20,000/- per

month from his job and other works. Prior to the

accident he was hale and healthy. It is further

contended that the accident occurred due to rash and

negligent driving of the driver of the tipper lorry.

Therefore respondent Nos.2 and 3 are jointly and

severally liable to pay the compensation.

3. In pursuance of the notice issued by the

Tribunal, respondent Nos.1 to 3 appeared through

their advocates. Respondent Nos.1 and 2 have not

filed their written statement.

4. Respondent No.3-insurance company filed

written statement denying the averments made in the

petition and contended that the petition is bad for

non-joinder of owner and the insurer of the motor

cycle involved in the accident. The rights and liabilities

or respondent No.3 are as per the terms and

conditions of the insurance policy. It is further

contended that the driver of the lorry had no valid and

effective driving licence to drive the same. The owner

had permitted the vehicle to be used by a person, who

was not authorized to drive the vehicle and thereby

violated the policy conditions. The accident occurred

due to the fault on the part of the deceased.

Therefore, sought for dismissal of the petition.

5. The Tribunal on the basis of the pleadings,

framed the following issues:

1. Whether the petitioners prove that on 26.2.2014, at about 8.30 am., on Chinmane- Shivamogga Road, near Veeragarana Bhairanakoppa Village, the deceased succumbed to the injuries caused in the accident due to the rash and negligent driving of Tipper Lorry bearing Regn.No.KA.14.5235 by the 1st respondent?

2. Whether the 3rd respondent proves that the 1st respondent does not possess valid driving license to drive commercial vehicle?

3. Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?

4. What Order or Award?

6. In order to substantiate the case, examined

claimant No.1-wife of the deceased as PW.1 and

examined one more witness as PW.2 and got marked

documents at Exs.P.1 to P.17. On the other hand,

respondent No.3 did not adduce any evidence and

only got marked document at Ex.R.1 - Insurance

Policy.

7. The Tribunal, on the basis of the pleadings,

evidence, the oral and documentary evidence on

record held that the claimants have proved that the

accident occurred due to rash and negligent driving of

the driver of the Tipper Lorry bearing registration

No.KA-14-5235 and thereby the deceased Vinaya @

Vinayakumar succumbed to the injuries and

respondent No.3 has failed to prove that respondent

No.1 did not possess valid and effective driving licence

to drive the commercial vehicle and thereby fastened

the liability upon the insurance company by awarding

total compensation of Rs.16,11,000/- with interest @

6% p.a. from the date of the petition till the date of

realization.

8. Being unsatisfied with the quantum of

compensation awarded by the Tribunal being on the

lower side, the claimants preferred the present

appeal.

9. Respondent No.3-insurance company has

not preferred any appeal against the judgment and

award passed by the Tribunal.

10. We have heard the learned counsel for the

parties to the lis.

11. Learned counsel Sri. Harish Shiralkoppa for

Sri. B.G. Chidananda, learned counsel for the

appellants vehemently contended that the impugned

judgment and award passed by the Tribunal awarding

total compensation of Rs.16,11,000/- with interest @

6% p.a. is on the lower side and needs to be

enhanced. He further contended that PW.1 in her

evidence stated that deceased was working as Sales

Executive in Udaya Aluminium Industries and he was

earning Rs.14,405/- per month, which is evident from

the Salary Certificate produced at Ex.P.8 and apart

from that, was cultivating the lands pertaining to his

father and grandfather as per Exs.P.12, 13 and 15 -

RTC extracts and earning about Rs.6,000/- per month,

in all he was earning Rs.20,000/- per month and the

same is not controverted by the insurance company

except producing the document at Ex.R.1-Insurance

Policy and contrary to the material adduced by the

claimants, the Tribunal has taken the notional income

of the deceased at Rs.7,000/- per month. He further

contended that the award of compensation under the

conventional heads is on the meager side. Therefore,

sought for enhancement of compensation by allowing

the appeal.

12. Per contra, learned counsel Sri. P.B. Raju

for the insurance company while justifying the

impugned judgment and award of the Tribunal has

contended that the claimants have not examined the

author of Ex.P.8-Salary Certificate, who issued the

same and except, RTC extracts at Exs.P.12, 14 and

15, no other materials are forthcoming to show that

the deceased was earning Rs.6,000/- from the

agricultural resources. He further contended that the

Tribunal is justified in taking the monthly income of

the deceased at Rs.7,000/- per month and the award

of compensation under the various heads is just and

proper compensation and does not call for any

interference in the hands of this Court. Therefore,

sought to dismiss the appeal filed by the claimants.

13. Having heard the learned counsel for the

parties, the only point that would arise for

consideration is:

"Whether the appellants/claimants have made out a case for enhancement of compensation, in the facts and circumstances of the present case?"

14. We have given our anxious consideration to

the arguments advanced by the learned counsel for

the parties and perused the material on records

carefully.

15. It is an undisputed fact that unfortunate

accident that occurred on 26.02.2014, the deceased

succumbed to the injuries due to the rash and

negligent driving of the driver of the Tipper Lorry

bearing registration No.KA-14-5235. The same is

evidenced from the material documents at Ex.P.2-FIR

and Ex.P.10-Chargesheet filed by the jurisdictional

police. Thereby the negligence on the part of the

driver of the Tipper Lorry was proved. Admittedly, the

owner and the insurance company have not

challenged the adverse finding of the Tribunal. PW.1

- wife of the deceased stated on oath that her

husband was working as a Sales Executive in Udaya

Aluminium Industries and earning Rs.14,405/- per

month and apart from that, he was also earning

Rs.6,000/- per month from the agricultural resources,

which is evident from RTC Extracts produced as per

Exs.P12, 13 and 15. It is the contention of the

insurance company that the claimants have not

examined the author of the Salary Certificate at Ex.P.8

but the fact remains that deceased was doing

agriculture and the same is not disputed.

16. In the absence of any documents produced

in respect of the agricultural income, the Tribunal

ought to have been taken some amount towards

agricultural income. In view of the evidence adduced

by the wife of the deceased, we are of the considered

opinion that Rs.1,000/- per month has to be taken

towards the agricultural income of the deceased. The

Tribunal has taken the notional income of the

deceased at Rs.7,000/- per month ignoring the fact

that the accident occurred in the year 2014. As per

the guidelines of the Karnataka State Legal Services

Authority, Bengaluru for the accident occurred in the

year 2014, the notional income to be taken is

Rs.8,500/- per month and in all Rs.9,500/- per month.

Considering the age of the deceased, 40% needs to be

added as Future Prospects (in view of 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)

amounting to Rs.3,800/- totaling Rs.13,300/-) and as

per the dictum of the Hon'ble Apex Court in the case

of Sarla Verma 1/3rd of the income towards personal

expenses has to be deducted as the dependents are

three in number. Considering the age of the deceased

as 24 years, the applicable multiplier applicable is 18.

Thus, a sum of Rs.19,15,200/- is arrived at towards

loss of dependency (13300 x 18 x 12 x 2/3

=19,15,200/-).

17. The Tribunal has awarded compensation of

Rs.3,000/- under the head Transportation of Dead

Body, which 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 Pranay Sethi, the claimants are

entitled for a sum of Rs.15,000/- under the head

Transportation of dead body.

18. 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 compensation under different heads

as under:

Sl. Head of Compensation Amount in Rs. No.

   1.       Loss of dependency             19,15,200.00
   2.       Loss of consortium             1,00,000.00
   3.       Filial Love and Affection      50,000.00
   4.       Funeral expenses               25,000.00
   5.       Dead body transportation       15,000.00
   6.       Repairs to the bike            5,000.00
            Total                          21,10,200.00

19. The Tribunal has already awarded a sum of

Rs.16,11,000/- and deducting the same out of

Rs.21,10,200/-, the claimants are entitled to

enhanced compensation of Rs.4,99,200/- with interest

@ 6% p.a. from the date of petition till the date of

realization. Accordingly, we answer the point framed

for consideration partly in affirmative in favour of the

claimants.

20. In the result, we pass the following:

ORDER

i. The appeal filed by the claimants is

allowed in part.