Kotrappa Gurupadappa ... vs Jagadish Yallappa Madar
2022 Latest Caselaw 11686 Kant

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                                     MFA No. 22336 of 2011


            IN THE HIGH COURT OF KARNATAKA

                     DHARWAD BENCH

       DATED THIS THE 9TH DAY OF SEPTEMBER, 2022

                          BEFORE
          THE HON'BLE MR JUSTICE H.P.SANDESH
 MISCELLANEOUS FIRST APPEAL NO. 22336 OF 2011 (MV-D)
BETWEEN:

1.   KOTRAPPA GURUPADAPPA SHETTAMMANAVAR,
     AGE: 44 YERAS, OCC: AGRICULTURE, R/O NELOGAL
     VILLAGE, TQ. and DIST. HAVERI.

2.   VIRUPAXAPPA S/O GURUPADAPPA
     SHETTAMMANAVAR,
     AGE: 42 YEARS, OCC: AGRICULTURE, R/O NELOGAL
     VILLAGE, TQ. and DIST. HAVERI.

3.   CHANNAPPA S/O GURUPADAPPA SHETTAMMANNAVAR,
     AGE: 40 YEARS, OCC: AGRICULTURE, R/O NELOGAL
     VILLAGE, TQ. and DIST. HAVERI.

4.   SIDDAPPA S/O GURUPADAPPA SHETTAMMANAVAR
     AGE: 37 YEARS, OCC: AGRICULTURE, R/O NELOGAL
     VILLAGE, TQ. and DIST. HAVERI.
                                            ...APPELLANTS
(BY SRI. B S SANGATI, ADVOCATE)

AND:

1.   JAGADISH YALLAPPA MADAR,
     AGE: MAJOR, OCC: DRIVER OF THE KSRTC BUS REG.
     NO. KA-01/F-8099, R/O BANGALORE CENTRAL DIVISION,
     R/O SUNADOLI

2.   THE MANAGING DIRECTOR,
     KSRTC NORTH DIVISION, GOKUL ROAD, HUBLI

                                          ...RESPONDENTS
(BY SRI.S.C.BHUTI, ADVOCATE FOR R2,
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                                       MFA No. 22336 of 2011


    NOTICE TO R1 IS DISPENSED WITH)

      THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.ACT
1988, AGAINST THE JUDGMENT AND AWARD DATED
23.10.2010 PASSED IN MVC No.38/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK JUDGE, RANEBENNUR AT
RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

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

                          JUDGMENT

Heard the learned counsel appearing for the appellants

and the learned counsel appearing for the respondents.

2. This appeal is filed challenging the judgment and

award dated 23.10.2010 passed in M.V.C.No.38/2008 on the

file of the Fast Track, Ranebennur.

3. The factual matrix of the case of the claimants

before the Tribunal is that on 18.02.2007 at about 10 a.m.,

when the deceased Danamma was crossing Poona-Bangalore

road, near Darga in Nelogal village, Haveri taluk, by that time

the offending KSRTC bus bearing registration No.KA-01/F-8099

came in a rash and negligent manner on the said public road

being driven by its driver and dashed against the deceased. As

a result, deceased suffered severe injuries and she was shifted

MFA No. 22336 of 2011

to Government Hospital at Davanagere and then to Bapuji

hospital, Davanagere for further treatment. But she

succumbed to the injuries during treatment. It is further case

of the claimants being the sons of deceased Danamma that at

the time of accident, their mother was hale and healthy and

earning Rs.6,000/- p.m. by doing agricultural work and

maintaining her family. Hence, the claimants filed a claim

petitions before the Tribunal seeking for compensation.

4. In support of their claim, the 4th claimant got

examined himself as PW-1 and also got marked documents

Ex.P.1 to Ex.P.9. On the other hand, respondents did not

examine any witness and did not mark any documents. The

Tribunal after assessing both oral and documentary evidence

allowed the claim petition awarding compensation of

Rs.50,000/- with interest at the rate of 6% p.a. Being

aggrieved by the judgment and award, the claimants have filed

the present appeal seeking for enhancement of compensation.

5. The main contention of the learned counsel

appearing for the claimants is that the Tribunal committed an

error in not considering the income of the deceased and has

MFA No. 22336 of 2011

granted only a sum of Rs.50,000/- as compensation. The

Tribunal also committed error in not granting medical expenses

when the bills are produced to the tune of Rs.5,114/-. The

accident has taken place on 18.02.2007 and the deceased

succumbed to the injuries on 11.03.2007 and hence, medical

expenses ought to have been considered. Accordingly, he

submits that the judgment and award of the Tribunal calls for

interference of this Court.

6. Per contra, learned counsel appearing for the

KSRTC would vehemently contend that the Tribunal has taken

note of the fact that the claimants are the major sons of the

deceased and they are not dependant on the income of the

deceased and hence, they are not entitled for loss of

dependency. However, the Tribunal as per Schedule II of the

Motor Vehicles Act, has granted compensation of Rs.50,000/-

to the claimants/appellants. Hence, the judgment and award of

the Tribunal does not call for interference.

7. Having heard the learned counsel appearing for the

parties and also on perusal of the material available on record,

the points that arise for consideration of this Court are:

MFA No. 22336 of 2011

i) Whether the claimants being the major sons of the

deceased are entitled for compensation as

contended by the claimants?

ii) What order?

8. Admittedly, the deceased is the mother of the

claimants and claimants are all majors. Similar question was

raised before the Hon'ble Apex Court in NATIONAL

INSURANCE COMPANY LTD., VS. BIRENDER AND OTHERS

(2020 ACJ 759) wherein the Apex Court held that the claim of

the major sons cannot be limited to conventional heads. The

Apex Court in paragraph 14 held that the legal representatives

of the deceased could move application for compensation by

virtue of clause (c) of Section 166 (1) of the Motor Vehicle Act.

The major married son who is also earning and not fully

dependant on the deceased would still be covered by the

expression 'legal representative' of the deceased. The Apex

Court has taken note of the decision in MANJURI BERA VS.

ORIENTAL INSURANCE CO., LTD., (2007 ACJ 1279 (SC)

wherein the Apex Court had expounded that liability to pay

compensation under the Act does not cease because of absence

MFA No. 22336 of 2011

of dependency of the concerned legal representative. The Apex

Court has also discussed in detail the meaning of 'legal

representative' as found in Section 2 (11) of the CPC. It

further held that there is a distinction between 'right to apply

for compensation' and 'entitlement to compensation'. The

compensation constitutes part of the estate of the deceased.

As a result, the legal representative of the deceased would

inherit the estate. Indeed, in that case, the court was dealing

with the case of a married daughter of the deceased and the

efficacy of Section 140 of the Act. Nevertheless, the principle

underlying the exposition in this decision would clearly come to

the aid of the claimants event though they are major sons of

the deceased and also earning. Hence, in view of the judgment

of the Hon'ble Apex Court, in the case on hand, the claimants

who are majors and married sons are entitled for

compensation.

9. Now, coming to the aspect of quantum of

compensation, the deceased was aged about 70 years in terms

of the Ex.P.4/post mortem report. The accident is of the year

2007 and in the absence of any proof, notional income of

Rs.4,000/- would have to be taken. Out of the said amount,

MFA No. 22336 of 2011

1/3rd has to be deducted towards personal expenses of the

deceased since the claimants are 4 in number. Hence, the

claimants are entitled to a sum of Rs.1,60,020/-(Rs.4,000 less

Rs.1,333 = Rs.2,667X12X5).

10. The claimants are entitled to a sum of Rs.5,114/-

towards medical expenses incurred when the deceased was

admitted to the hospital immediately after the accident.

11. The claimants are also entitled for a sum of

Rs.40,000/- each towards loss of love and affection which

comes to Rs.1,60,000/-.

12. The claimants are further entitled to a sum of

Rs.33,000/- towards loss of estate and funeral expenses.

13. In all, the claimants are entitled to a total

compensation of Rs.3,58,134/- as against the sum of

Rs.50,000/- awarded by the Tribunal.

14. In view of the above discussions, I pass the

following:

MFA No. 22336 of 2011

ORDER

i) The appeal is allowed in part,

ii) The judgment and award dated 23.10.2010 passed by the Fast Track Judge, Ranebennur, in M.V.C.No.38/2008 stands modified.

iii) The claimants are entitled to total compensation of Rs.3,58,134/- as against the sum of Rs.50,000/- awarded by the Tribunal.

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

v) The order of the Tribunal with regard to apportionment and release of the amount remains unaltered.

vi) The Insurance Company is directed to pay the difference amount within four weeks.

vii) The registry is directed to send back the TCR forthwith.

Sd/-

JUDGE

JM