Karnataka High Court

Smt.Hanumanthi W/O Late ... vs G.Gangadhar S/O Gangappa And Ors on 2 January, 2023

Bench: J.M.Khazi

                              1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 2ND DAY OF JANUARY, 2023

                          BEFORE

         THE HON'BLE MRS. JUSTICE J.M.KHAZI

               MFA No.200719/2015 (MV)
Between:

1.     Smt.Hanumanthi
       W/o Late Sharanabasava
       Aged about 21 Years
       Occ: Household, R/o Ballatagi Village
       Tq: Manvi, Dist: Raichur

2.     Smt. Ningamma @ Lingamma
       W/o Late Sanjivappa
       Age: 45 Years, Occ: Household
       R/o Ballatagi Village
       Tq: Manvi, Dist: Raichur

3.    Hanumesh S/o Late Sanjivappa
      Age: 17 Years, Occ: Student
      R/o Ballatagi Village
      Tq: Manvi, Dist: Raichur
      Through his next friend his natural mother
      Ningamma @ Lingamma i.e.,
      Petitioner No.2 herein
                                             ... Appellants
(By Sri Mahantesh Patil, Advocate)

And:

1.     G. Gangadhar S/o Gangappa
       Age: 38 Years, Occ: Driver
                              2




      R/o Garudacharalhalli Village
      Tq: Gudibande, Dist: Chikka Ballapur
      (Driver of Lorry No.KA-40/5346)

2.    P. Muniraju S/o Papanna
      Age: 42 Years
      Occ: Owner of Lorry No.KA-40/5346
      R/o Maralakunte Village
      Tq: & Dist: Chikka Ballapur

3.    The Branch Manager
      National Insurance Company Ltd.
      1092/2, New Extension
      Near Dome Light Circle
      Kolar, Karnataka
                                          ... Respondents

(Sri Sharanabasappa M. Patil, Advocate for R3;
R1 served;
V/o dt. 04.01.2021, notice to R2 dispensed with)


      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act praying to modify the
judgment and award dated 14.11.2014 passed by the
learned Principal District and Sessions Judge (MACT) at
Raichur   in   MVC     No.25/2014    by    enhancing    the
compensation as claimed in the claim petition.


      This appeal coming on for Admission this day, the
Court delivered the following:-
                               3




                           JUDGMENT

This miscellaneous first appeal is filed under

Section 173(1) of Motor Vehicles Act (for short 'the

MV Act') by the claimants seeking enhancement of the

compensation granted by the Tribunal for the death of

one Sharanabasava in a motor vehicle accident dated

02.04.2013.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. It is the case of the petitioners that they

are the wife, mother and brother of deceased

Sharanabasava. On 02.04.2013 he was proceeding

on motorbike bearing registration No.KA-36/W-4472

near Anjaneya temple of Amareshwar camp. A lorry

bearing registration No.KA-40/5346 (hereinafter

referred as "offending vehicle") came from Sindhanur

side, driven by its driver in a rash or negligent manner

and dashed against the motorcycle of the deceased,

as a result of which, he died on the spot.

3.1. Deceased was aged 22 years. He was

earning Rs.8,00,000/- per annum by growing paddy

and Rs.10,000/- per month by milk vending. The

wife, mother and brother of the deceased were

dependent on him.

3.2. At the time of accident, the offending

vehicle was insured with respondent No.3 and as

such, it is liable to pay the compensation.

4. Before the Tribunal, though duly served,

respondent Nos.1 and 2 remained ex parte.

5. Respondent No.3 appeared and filed

written statement disputing the relationship of

petitioners with deceased, the age, occupation,

income of the deceased and also that the accident was

as a result of rash or negligent driving by the driver of

the offending vehicle. The driver of the offending

vehicle was not having valid driving licence. The

owner and insurer of the motorcycle is the necessary

party. The compensation claimed is highly exorbitant

and fanciful and prays to dismiss the petition.

6. Based on the pleading, the Tribunal framed

necessary issues.

7. On behalf of the petitioners, petitioner No.1

is examined as P.W.1 and they have relied upon

Exs.P.1 to 12.

8. On behalf of respondent No.3, one witness

is examined as R.W.1 and Exs.R.1 to 5 are marked.

9. Vide the impugned judgment and award,

the Tribunal has partly allowed the claim petition and

granted compensation in a sum of Rs.9,99,000/- and

directed respondent No.3 to pay the same with

interest at 6% per annum as detailed below :

        For       loss     of    :    `8,64,000/-
        dependency
        For       loss     of    :    `1,00,000/-
        consortium
        For loss of estate       :    `10,000/-
        For     funeral    &     :    `25,000/-
        obsequies expenses
        Total                    :    `9,99,000/-

10. Respondent No.3 has not challenged the

impugned judgment and award.

11. Though duly served with notice, respondent

No.1 has remained ex parte.

12. Vide order dated 04.01.2021, notice to

respondent No.2 is dispensed with as per the memo

filed on behalf of the petitioners.

13. Petitioners are before this Court

challenging the quantum, contending that in the light

of Exs.P.7 to 12, the Tribunal has erred in restricting

the income of the deceased at Rs.6,000/- per month.

The Tribunal has also not added future prospects. The

compensation granted under the head loss of

consortium and loss to estate is on the lower side.

14. On the other hand, learned counsel for

respondent No.3 supported the impugned judgment

and award and prays to dismiss the appeal.

15. Heard learned counsel for the petitioners

and learned counsel for respondent No.3 and perused

the records.

16. Through the testimony of P.W.1, petitioners

have proved their relationship with the deceased.

After detailed investigation, the concerned police have

filed chargesheet against the driver of the offending

vehicle, which negates the contention of respondent

No.3 that there was contributory negligence on the

part of the deceased. Admittedly, as on the date of

accident, the offending vehicle was covered by valid

policy. Though pleaded that the driver of the

offending vehicle was not holding a valid driving

licence and issued legal notice to respondent Nos.1

and 2 to produce driving licence and RC, respondent

No.3 has not chosen to get authentic copies from the

concerned authority. Therefore, the Tribunal has

rightly rejected the said defence of respondent No.3.

Considering the oral and documentary evidence placed

on record, the Tribunal has rightly held that the

accident occurred due to the rash or negligent driving

of the offending vehicle by its driver and as the

insurer, respondent No.3 is liable to indemnify the

owner i.e., respondent No.2.

17. Therefore, the only question that is to be

decided is whether the quantum of compensation

granted by the Tribunal is just and reasonable under

the following heads:

18. Loss of dependency:- Though petitioners

have produced RTCs and contended that the deceased

was doing agricultural and earning Rs.8,00,000/- p.a.

and by milk vending, Rs.10,000/- p.m., except the

self-serving statement of P.W.1, no evidence is placed

on record to prove the same. Therefore, the Tribunal

has rightly considered the income of the deceased on

notional basis. However, it has taken the income of

the deceased at Rs.6,000/- p.m. Having regard to the

fact that the accident occurred during 2013, based on

minimum wages, it would be appropriate to consider

the notional income of deceased at Rs.7,000/- p.m.

18.1. While calculating the compensation, the

Tribunal has not considered loss of future prospects.

Though petitioners claimed that the deceased was

aged 22 years, in the absence of evidence to prove

the same, based on the post mortem report, the

Tribunal has rightly considered his age as 24 years

and consequently, the appropriate multiplier 18. As

per the Magma General Insurance Company

Limited Vs. Nanu Ram Alias Chuhru Ram And

Others1, since the deceased was aged below 40 years

and was self-employed, 40% of the notional income is

required to be added towards loss of future prospects.

40% of Rs.7,000/- comes to Rs.2,800/-. therefore,

the total income required to be taken is Rs.7,000 +

Rs.2,800 = Rs.9,800.

18.2. Petitioners being the wife, mother and

brother of deceased were dependent on the deceased.

Therefore, the Tribunal has rightly deducted 1/3rd of

the income of the deceased towards his personal and

living expenses. The remaining 2/3rd income is to be

(2018) 18 SCC 130

taken into consideration for calculating loss of

dependency. With Rs.9,800/- as notional income, 18

multiplier, the loss of dependency comes to Rs.9,800

x 12 x 18 x 2/3 = Rs.14,11,200/-. Thus, the

petitioners are entitled for compensation in a sum of

Rs.14,11,200/- as against Rs.8,64,000/- granted by

the Tribunal.

19. Loss of consortium:- The Tribunal has

granted compensation in a sum of Rs.1,00,000/-

under this head to petitioner No.1. However, no

compensation is granted under this head to petitioner

No.2, who is the mother. As per National Insurance

Company Limited V. Pranay Sethi and others 2

(Pranay Sethi's case), under the head loss of

consortium, the wife, parents and children of the

deceased are entitled for compensation in a sum of

Rs.40,000/- each. Therefore, Rs.1,00,000/- granted

(2017) 16 SCC 680

in favour of petitioner No.1 is required to be reduced

to Rs.40,000/- and petitioner No.2 is entitled for

Rs.40,000/- under this head. Though petitioner No.3

being the minor brother of deceased was a dependent

on him, he is not entitled for compensation under this

head. Thus, the compensation under the head loss of

consortium is reduced to Rs.80,000/- as against

Rs.1,00,000/- granted to petitioner No.1 alone.

20. Loss to estate and Funeral expenses:-

The Tribunal has granted compensation in a sum of

Rs.10,000/- under the head loss to estate and

Rs.25,000/- under the head funeral and obsequies

ceremonies. When major compensation is granted

under the head loss of dependency, as per Pranay

Sethi's case referred to supra under the conventional

head of loss to estate and funeral expenses, which

includes transportation charges, a sum of Rs.15,000/-

each is required to be granted. Therefore,

compensation under the head loss to estate is

enhanced to Rs.15,000/- and compensation under the

head funeral expenses is reduced to Rs.15,000/-.

21. Thus, in all the petitioners are entitled for

compensation in a sum of Rs.15,21,200/- together

with interest at 6% p.a., as against Rs.9,99,000/-

granted by the Tribunal as detailed below:

Sl.         Heads        Amount         Amount awarded
No.                      awarded by the by this Court
                         Tribunal
1.    Loss            of Rs.8,64,000/-  Rs.14,11,200/-
      dependency
2.    Loss           of   Rs.1,00,000/-   Rs.80,000/-
      consortium
3.    Loss of estate      Rs.10,000/-     Rs.15,000/-
4.    Funeral             Rs.25,000/-     Rs.15,000/-
      expenses
          Total           Rs.9,99,000/-   Rs.15,21,200/-

22. Of course as the insurer of the offending

vehicle, respondent No.3 is liable to pay the enhanced

compensation with interest. Accordingly, I proceed to

pass the following: