Karnataka High Court

Smt. Jayamma vs S.R. Shivananda 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.4942/2016 (MV-D)


BETWEEN:

SMT. JAYAMMA,
W/O LATE VEERAPPASHETTY,
AGED ABOUT 50 YEARS,
HOUSE WIFE,
R/AT KAMANAKERE VILLAGE,
AND POST, KADUR TALUK,
CHIKKAMAGALURU DISTRICT - 577 548.
                                          ...APPELLANT

(BY SRI SHIVASHANKAR S.K., ADVOCATE)


AND:

1.      S.R. SHIVANANDA,
        S/O RUDREGOWDA,
        AGED ABOUT 27 YEARS,
        R/AT SIRGAPURA VILLAGE,
        MALAUR POST,
        CHIKKAMAGALUR TALUK - 577 550,
                              2


2.    THE BRANCH MANAGER,
      NEW INDIA ASSURANCE CO. LTD.,
      "SULTHANA", K.T. STREET,
      CHIKKAMAGALUR - 577 549.

3.    SRI ANADAPPA M.V.,
      S/O LATE VEERAPPASHETTY,
      AGED ABOUT 26 YEARS,

4.    SRI MALLIKARJUNA M.V.,
      S/O LATE VEERAPPASHETTY,
      AGED ABOUT 23 YEARS,
      R/AT KAMANAKERE VILLAGE,
      AND POST, KADUR TALUK,
      CHIKKAMAGALURU DISTRICT - 577 548.
                                    ...RESPONDENTS

(BY SRI RANGA GOWDA N.R., ADVOCATE FOR
    SRI C.R. RAVISHANKAR, ADVOCATE FOR R2
    SRI B.R. SRINIVASA GOWDA, ADVOCATE FOR R1
    R3 AND R4 ARE SERVED BUT UNREPRESENTED)
                        ****

      THIS   MISCELLANEOUS       FIRST   APPEAL    IS   FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.11.2015, PASSED IN
MVC   NO.128/13   ON   THE       FILE   OF   THE   PRINCIPAL
DISTRICT JUDGE AND MMACT, CHIKAMAGALURU, 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 unfortunate wife has preferred the present

miscellaneous first appeal for enhancement of

compensation against the impugned judgment and

award dated 30/11/2015 passed by the Prl. District &

MMACT, Chikkamagaluru ("the Tribunal" for short)

awarding total compensation of Rs.5,19,768/- with

interest at 6% per annum from the date of petition till

realization.

2. It is the case of the appellant/claimant and

two other claimants filed the claim petition contending

that on 18/10/2012 at about 9.00 a.m., the deceased

Veerappa Shetty was proceeding by walk on the

extreme left side of K.M. Road, Chikkamagaluru in

order to go to forest office. While he was so

proceeding, respondent No.1 came riding his

motorcycle bearing registration No.KA-18/W-1193 in a

rash and negligent manner at a high speed and

dashed against the deceased. Due to the impact, the

deceased sustained grievous injuries to head and

other parts of the body. Immediately he was shifted

to M.G.Hospital, Chikkamagauru, wherein he was

given first aid treatment and referred to Victoria

Hospital, but on the way, at about 9.00 a.m. on the

same day, he succumbed to the said injuries and the

body was brought back to M.G.Hospital,

Chikkamagaluru and post-mortem was conducted. The

claimants have spent more than Rs.50,000/- for

funeral and obsequies ceremony. It is further

contended that the deceased was hale and healthy

and was working as Forest Guard in the Forest

Department and earning a sum of Rs.20,000/- per

month and the future income of the deceased could

have been raised considerably as he had the

opportunity of getting promotions. Claimant/

petitioner No.1 is the wife, claimant/ petitioner Nos.2

and 3 are sons of the deceased who are dependents of

the deceased. Due to untimely death of the deceased,

the claimants have lost the earning member of the

family. The accident occurred due to rash and

negligent riding of the rider-cum-owner of the

motorcycle bearing registration No.KA-18/W-1193.

Respondent No.2 is the insurer of the said motorcycle.

Thus, both are jointly and severally liable to pay the

compensation.

3. Respondent No.1/owner-cum-rider of the

motorcycle inspite of service of notice did not choose

to appear before the Court and hence, is placed ex

parte.

4. Respondent No.2/insurance company filed

statement of objections denying the averments made

in the claim petition, but admitted that the insurance

policy issued in respect of the offending vehicle was in

force at the time of accident. It is further contended

that the accident was due to rash and negligent act of

the deceased himself as he had crossed the road

negligently without looking either side of the road,

thereby, they are not liable to pay the compensation

and the compensation sought is excessive and

exorbitant. Hence, the respondent/insurance company

sought to dismiss the claim petition.

5. Based on the aforesaid pleadings, the

Tribunal framed the following issues:

"1. Whether petitioners prove that on 18/10/2012 at about 9.00 a.m. when the deceased Veerappa Shetty was going by walk on left side of K.M.Road, Chikkamagaluru, an accident took place due to the rash and negligent riding of the motorcycle bearing Reg.No.KA 18/W 1193 by respondent No.1, as a result of which, Veerappa Shetty sustained severe injuries and succumbed to the injuries?

2. Whether respondent No.2 proves that respondent No.1 was not having valid and effective driving licence at the time of the accident?

3. Whether petitioners are entitled for compensation? If so, to what extent and form whom?

4. What order?"

6. In order to substantiate the contention of

the claimants, claimant No.1, the wife of the deceased

examined herself as PW.1 and two other witnesses as

PWs.2 and 3 and got marked 11 documents as Exs.P-

1 to P-11. Respondent No.2/insurance company,

marked Ex.R-1 insurance policy by consent.

7. The Tribunal on considering both oral and

documentary evidence on record held that the

claimants have proved that on 18/10/2012 at about

9.00 a.m. when the deceased was going by walk on

the left side of the road, the accident occurred due to

rash and negligent riding of the motorcycle bearing

registration No.KA 18/W 1193 by respondent No.1,

thereby, the deceased succumbed to the injuries

sustained by him. Further recorded a finding that

respondent No.2/insurance company failed to prove

that respondent No.1 did not have valid and effective

driving licence. Accordingly, the claimants were

entitled to compensation of Rs.5,19,768/- with 6%

interest from the date of petition till realization.

8. Being aggrieved by the award of

compensation by the Tribunal, the present appeal is

preferred by the claimants seeking enhancement of

compensation.

9. Heard learned counsel for the parties.

10. Learned counsel for the appellant, Sri

Shivashankar S.K., would contend that the impugned

judgment and award passed by the Tribunal awarding

compensation of Rs.5,19,768/- is on the lower side

and requires further enhancement. He further

contended that the Tribunal has not considered Ex.P-

11 copy of the Government Order dated 19/09/2014,

whereby the Government has regularized the daily

wages workers and fixed the salary as well as other

allowances as given to the permanent employees. As

per the same, the deceased would have got

promotions and got all the benefits as other

employees would be getting, but the Tribunal has not

considered the said document. It is further contended

that the learned Judge erred in holding that the age of

the deceased is more than 50 years ignoring the

material on record, Ex.P-7 post-mortem report which

clearly depicts that the deceased was aged about 50

years. The Tribunal, while fixing the compensation, did

not consider Ex.P-10 salary certificate issued by the

employer and the same clearly depicts that he was

earning Rs.7,648/-. Though he was a Government

employee, the trial Court has not awarded any

compensation towards future prospects, thereby, the

Tribunal has awarded meager compensation. He

would further contend that the trial Court has awarded

only Rs.40,000/- towards consortium and no

compensation was awarded towards love and affection

as held by the Hon'ble Supreme Court in the case of

National Insurance Company Limited Vs. Pranay

Sethi and others [2017 ACJ 2700] (Pranay

Sethi) and not awarded any compensation towards

loss of estate. Hence, the claimant is entitled to

compensation under the aforesaid conventional heads

and sought for enhancement of compensation.

11. Per contra, Sri Range Gowda N.R., learned

counsel appearing for Sri C.R.Ravishankar, learned

counsel for respondent No.2 while justifying the

impugned judgment and award passed by the Tribunal

contended that Ex.P-10 salary certificate for the

month of September 2012, one month prior to the

death of the deceased depicts that he was earning

Rs.7,648/-. The evidence of PW.1 clearly depicts that

the deceased children were major and they are

earning. Therefore, 50% of the salary of the

deceased has to be deducted towards personal

expenses. Therefore, the Tribunal is justified in taking

the income of the deceased at Rs.3,824/-. He would

further contend that the age of the second claimant

son of the deceased is 24 years. Therefore, the

deceased Veerappa Shetty is aged more than 50 years

and thus the appropriate multiplier is 11, thereby, the

trial Court is justified in proceeding to pass the award.

He further contended that the claimant Nos.2 and 3

are major and they do not deserve any compensation.

Therefore, they are not entitled for any compensation

in the present case and considering the entire material

on record, the trial Court has passed just and proper

compensation. Therefore, sought for dismissal of the

appeal.

12. In view of rival contentions urged by the

learned counsel for the parties, the only point that

arises for consideration is:

"Whether the claimants have made out a case for further enhancement of compensation in the facts and circumstances of the case?"

13. We have given our anxious consideration to

the arguments advanced by the learned counsel for the

parties and perused the entire material including original

records carefully.

14. In view of the fatal accident that occurred

on 18/10/2012 at about 9.00 a.m., the deceased

succumbed to the grievous injuries and the accident

occurred due to rash and negligent riding of the

motorcycle bearing registration No.KA-18/W-1193,

and the same is evidenced by Ex.P-2 certified copy of

the FIR and Ex.P-9 copy of the charge sheet filed by

the driver of the offending vehicle. Therefore, the

negligence on the part of the rider is proved.

15. The claimant who is examined as PW.1 has

stated that the deceased was hale and healthy and

was working in Forest Department and was getting

Rs.20,000/- per month and thus loss future income

could have been raised considerably as he had an

opportunity of getting promotions. The said aspect of

the matter has not been considered by the Tribunal.

The claimants have produced Ex.P-10 salary

certificate which clearly depicts that the deceased was

getting Rs.7,648/- and was a Government employee.

In light of the judgment of Apex Court in Pranay

Sethi, he is entitled for future prospects as stated

supra and taking the age of the deceased as 50 years

as per Ex.P-7, postmortem report 30% needs to be

added towards future prospects on Rs.7,648/- as per

Ex.P-10 Salary Certificate. Tribunal proceeded to

deduct 50% towards personal expenses ignoring the

fact that the claimants are three in number and in

terms of the dictum of the Hon'ble Supreme Court in

the case of Sarla Verma vs. Delhi Transport

Corporation [(2009)6 SCC 121] (Sarla Verma)

1/3rd has to be deducted towards the personal

expenses. Therefore the Tribunal is not right in

deducting 50% of the salary of deceased Veerappa

Shetty towards personal expenses. If we take the

income of the deceased as Rs.7,648/- per month,

taking his age as 50 years, 30% is added towards

future prospects, it would come to Rs.9,942/- (7,648

+ 30%). Deducting 1/3rd as per the dictum of Sarla

Verma, the loss of dependency would come to

Rs.10,33,968/- (9,942 x 1/3 = 6,628 x 12 x 13).

Further, the Tribunal proceeded to grant only

Rs.10,000/- towards consortium. On the basis of

dictum of the Hon'ble Supreme Court in the cases of

United India Insurance Company Limited vs.

Satinder Kaur alias Satwinder Kaur and others

[AIR 2020 SC 3076] and Magma General

Insurance Company Ltd. Vs. Nanu Ram & Others

[2018 ACJ 2782] (Magma General Insurance

Company Ltd.) a sum of Rs.40,000/- each is to be

awarded towards consortium to the claimants and a

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

funeral and obsequies ceremony.

16. For the reasons stated above, the claimant

has made out a case for further enhancement of

compensation. Accordingly, the issue framed for

consideration is answered partly in the affirmative.

17. After re-assessing the entire material on

record, the claimant is entitled for enhanced

compensation as under:

Loss of dependency Rs.10,33,968/-

     Loss of consortium                   Rs. 1,20,000/-
     (40,000 x 3)
     Loss of estate                       Rs.      15,000/-
     Funeral and obsequies
      ceremony                             Rs. 15,000/-
                                          ----------------
                         TOTAL            Rs.11,83,968/-
                                          =========

     18.    The     claimants      are        entitled    to     total

compensation        of     Rs.11,83,968/-            as        against

Rs.5,19,768/-      awarded       by     the      Tribunal.        The

claimants are entitled for an enhanced compensation

of Rs.6,64,200/- with interest at the rate of 6% per

annum from the date of petition till the date of

realization.

19. 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

appellant/claimant is entitled to total

compensation of Rs.11,83,968/- as against