Karnataka High Court

Smt. Narasamma And Ors vs Sri.Balaji Pawar S/O ... on 6 January, 2023

Bench: Sreenivas Harish Kumar, T G Gowda

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 6TH DAY OF JANUARY, 2023

                           PRESENT

     THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
                              AND
 THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA


     MISCELLANEOUS FIRST APPEAL NO.200614/2017 (MV)

BETWEEN:

1.    Smt. Narasamma W/o Uday Kumar,
      Aged 20 years, Occ: Household,

2.    Baby Sukanya D/o Uday Kumar,
      Aged 2 years (Minor), Occ: Nil,

3.    Bujamma D/o Late Paguntappa,
      Aged 20 years, Occ: Student,

4.    Smt. Maremma W/o Late Paguntappa,
      Aged 48 years, Occ: Household,

      All are residing at Pothagal Village,
      Tq. & Dist: Raichur.
                                              ... Appellants
(By Sri Sharanagowda V.Patil, Advocate)
                                             MFA No.200614/2017
                             2




AND:

1.   Sri. Balaji Pawar S/o Sharaochandra,
     Age: Major, Occ: Driver,
     R/at Bedga Village, Tq: Omerga,
     Dist: Osmanabad,
     Maharastra State-413606.

2.   Mr. Sharanappa Wale S/o Gundappa,
     Age: Major, Occ: Nil,
     R/at: A/o Ganesh Nagar, Omerga,
     Tq: Omerga, Dist: Osmanabad,
     Maharashtra State-413606.

3.   The New India Assurance Co. Ltd.,
     R/o Ganesh Nagar, Omerga,
     Tq: Omerga, Dist: Osmanabad (M.H.)
     Through its Branch Office Gunj Road,
     Raichur (K.S)
                                             ... Respondents

(By Sri Uday P.Honguntikar, Advocate for R3:
Notice to R1 dispensed with v/o. dtd.06.02.2018)

      This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to allow the appeal by modifying
the impugned judgment and award dated 18.08.2016 passed
by the Motor Accident Tribunal at Raichur, in MVC
No.252/2015 and consequently be pleased to enhance the
compensation from Rs.9,71,250/- to Rs.65,50,000/- with
interest @ 12% per annum from the date of petition till
actual realization, in the interest of justice and equity.
                                                   MFA No.200614/2017
                                  3




     This appeal coming on for hearing, through physical
hearing/video conference, this day T.G. Shivashankare
Gowda, J., delivered the following:

                            JUDGMENT

In this appeal the appellants have challenged the

judgment dated 18.08.2016 passed by the Motor Accident

Tribunal at Raichur, in MVC No.252/2015 (Hereinafter

referred to as 'Tribunal' for short).

2. The parties will be referred with respect to their

status before the Tribunal for the sake of convenience.

3. Briefly stated, the facts are that, 1st petitioner is

the wife, 2nd petitioner is the daughter and 3rd and 4th

petitioners are the parents of Udaya Kumar, the deceased.

Udaya Kumar suffered severe injuries on his vital parts of the

body in a road accident that took place on 28-04-2015 at

Gunjaahalli Village road hit by Cruiser Jeep bearing

registration No.MH-13/AQ-0275 against his Motor cycle MFA No.200614/2017

bearing registration No.KA--24/H-6479. He succumbed to

injuries at RIMS Hospital, Raichur. Petitioners claimed

compensation of Rs.65,50,000/-. They pleaded that deceased

was aged 24 years, working as mason and earning

Rs.9,000/- per month. The claim was opposed by the

Insurance Company. The Tribunal awarded 75% of

Rs.12,95,000/- by deducting contributory negligence of 25%

by the deceased with 6% interest.

4. The petitioners have pleaded inadequacy in the

compensation awarded by the Tribunal, income taken on

lower side, future prospectors was not added, lesser amount

have been awarded towards conventional heads and

attributing contributory negligence against the deceased is

erroneous.

5. According to the learned counsel for petitioners,

criminal prosecution was against the driver of the Jeep, there MFA No.200614/2017

is no negligence on the part of the deceased, he was drawing

salary of Rs.9,000/- per month, future prospects is not taken,

conventional heads are on lower side and accordingly he

sought for re-assessment, enhancement and payment of full

compensation. Learned Counsel relied upon (2018) SCCR 691

to buttress his arguments.

6. Per contra, learned counsel for Insurance

Company contended that the consideration of future

prospects and also the conventional heads has been settled,

the deceased equally contributed for the accident, however

the Tribunal taken it as 25%, Tribunal correctly assessed the

income, adequate compensation is assessed, needs no

interference and supported the impugned judgment.

7. We have given our anxious consideration to the

arguments addressed on behalf of the parties and perused

the records.

MFA No.200614/2017

8. As seen from the impugned judgment, the

Tribunal has considered the income of the deceased as

Rs.7,500/-, the accident was of the year 2015, hence the

income so assessed by the Tribunal is on the lower side, and

it may be assessed at Rs.8,000/- per month. The Tribunal

has not considered future prospects and also the

conventional heads. By applying the principles laid down in

National Insurance Company Limited vs. Pranay Sethi

and Others -2017 ACJ 680 future prospects should be

taken as 40% for age below 40 years. There is dispute with

regard to age of the deceased, Ex.R1 is the SSLC marks card

of the deceased, which point out on the date of accident the

deceased was aged 27. Hence, applicable multiplier as per

decision of Apex Court in the case of Sarla Verma v. DTC-

(2009)6 SCC 121, is '17'.

9. If all these factors are taken into consideration the

assessment of loss of dependency would be: Rs.8,000/-

MFA No.200614/2017

(Income of the deceased) + Rs.3,200/- (40% Future

Prospects) = Rs.11,200/- per month. There are 4

petitioners, 1/4th has to be deducted towards personal

expenses of the deceased. It comes to Rs.8,400/- per month

and Rs.1,08,000/- per year multiplied by '17', it comes to

Rs.17,13,600/-. Under the conventional heads, each of the

petitioners is entitled to Rs.40,000/- towards loss of love and

affection, towards loss of estate and funeral expenses

Rs.15,000/- each. The total compensation comes to

Rs.17,13,000/- + Rs.1,90,000/- = Rs.19,03,600/-, which is

the just compensation to which the petitioners are entitled.

10. As regarding the contention of contributory

negligence, at the time of accident admittedly the deceased

has riding the motor cycle, the Tribunal attributed 25% of

contributory negligence against him. We have perused the

evidence in the cross examination and also the finding

recorded by the Tribunal. The principles laid down in MFA No.200614/2017

"Mangala Ram Vs. Oriental Insurance Co. Ltd. And Ors"

reported in (2018)SCCR 691 is not helpful to the petitioners

as in that case there was no evidence to answer the issue of

contributory negligence, contra we found evidence against

the deceased and it is discussed by the Tribunal. Hence

finding recorded by the Tribunal attributing 25% contributory

negligence against the deceased is not erroneous.

11. The Tribunal though awarded compensation of

Rs.12,95,000/- ordered to pay 75% of it to the petitioners.

Now they are entitled to Rs.19,03,600/-, 75% of it stands at

Rs.14,27,700/-, thereby enhancement of Rs.4,56,450/-. The

appeal filed by the petitioners deserves to be allowed

accordingly.

12. In the result, the following:

ORDER

The appeal is allowed in part.

                                                     MFA No.200614/2017





             The   judgment      and    award   passed     by   the
       Tribunal is modified.

             The   petitioners    are    entitled    to   enhanced