Karnataka High Court

Sri S Chidambara Murthy vs Sri Chandra on 9 January, 2023

Bench: K.S.Mudagal, Anil B Katti

                                          M.F.A.No.9806/2013


                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF JANUARY 2023

                         PRESENT

          THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                             AND
           THE HON'BLE MR.JUSTICE ANIL B KATTI

     MISCELLANEOUS FIRST APPEAL NO.9806/2013 (MV-D)

BETWEEN:

1.     SRI S.CHIDAMBARA MURTHY
       S/O LATE C SIDDAIAH
       AGED ABOUT 39 YEARS
2.     SRI S.RAVICHANDRA
       S/O LATE SIDDAIAH
       AGED ABOUT 36 YEARS
       BOTH ARE R/AT
       KADUKOTHANAHALLI VILLAGE
       C.A.KERE HOBLI, MADDUR TALUK
       MANDYA DISTRICT - 571 432
3.     SMT.S.BHARATHI
       W/O SRI M.D.RAGHAVENDRASWAMY
       AGED ABOUT 42 YEARS
       R/AT NO.83, 14TH B MAIN
       8TH E CROSS, ATTIGUPPE
       VIJAYANAGARA 2ND STAGE
       BANGALORE - 560 040                  ...APPELLANTS

(BY MS.RAKSHA KEERTHANA K, ADVOCATE FOR
    SRI KEMPARAJU, ADVOCATE)

AND:

1.     SRI CHANDRA
       S/O PUTTASWAMY
       R/AT 1 WARD, HKV NAGARA
                                               M.F.A.No.9806/2013


                                  2


      MADDUR TOWN
      MANDYA DISTRICT

2.    THE GENERAL MANAGER (LEGAL)
      BAJAJ ALLIANCE GENERAL INSU. CO. LTD.,
      NO.363, SRI HARI COMPLEX
      SEETHA VILAS ROAD
      MYSORE - 570 024                       ...RESPONDENTS

(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
     R1 SERVED)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 21.09.2013 PASSED BY THE COURT OF SENIOR
CIVIL JUDGE, MACT, MADDUR, IN MVC NO.992/2012 PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:

                          JUDGMENT

"Whether the compensation awarded by the Tribunal to

the appellants under the impugned award is just"? is the

question involved in this case.

2. The appellants are the sons and daughter of

deceased Smt.Leelavathi. On 29.09.2011 at 1.45 p.m. when

Leelavathi was proceeding as a pillion rider on the motorcycle

bearing No.KA-11-6543 rode by appellant No.1 near Gururaj

Continental Hotel, Mandya, Goods Auto bearing Reg.No.KA-

M.F.A.No.9806/2013

11-A-1988 hit the said motorcycle. In the accident Leelavati

suffered grievous injuries. After giving her preliminary

treatment in the District Hospital, Mandya, she was shifted to

Columbia Asia Hospital, Mysore. She was treated as inpatient

in Columbia Asia Hospital from 29.09.2011 to 15.10.2011.

For the injuries suffered, she was again admitted into the

hospital from 19.10.2011 and ultimately she succumbed to the

injuries on 30.11.2011 in Victoria Hospital. At the relevant

time, respondent No.1 was the owner and respondent No.2

was the Insurer of the Goods Auto bearing No.KA-11-A-1988.

3. The appellants filed M.V.C.No.992/2012 before the

Senior Civil Judge & MACT, Maddur claiming compensation of

Rs.17,20,0000/- on the ground that due to the death of

Leelavathi they have suffered damages. They claimed that

accident occurred due to rash and negligent driving of the

driver of said Goods Auto, Leelavathi was earning Rs.8,000/-

per month from the agricultural work. They further claimed

that due to untimely death, they have suffered loss of

dependency and incurred costs towards medical expenses,

transportation of dead body, funeral expenses etc. M.F.A.No.9806/2013

4. Respondent No.1 did not contest the petition.

Respondent No.2 Insurer alone contested the petition denying

the occurrence of the accident due to rashness and negligence

on the part of the driver of the Goods Auto, age, occupation,

income of the deceased and its liability to pay the

compensation. It was also contended that at the time of the

accident, the driver of the Goods Auto was not holding valid

license, thereby there is breach of policy condition.

5. The parties adduced evidence before the Tribunal

to substantiate their claim. The Tribunal on hearing both side,

by the impugned award granted compensation of

Rs.1,25,000/- on different heads as stated below:

      Sl.              Particulars                Compensation
      No.                                         awarded in Rs.
      1.    Loss of Love and affection                      15,000/-
      2.    Loss of Estate                                  30,000/-
      3.    Medical Expenses                                65,000/-

      4.    Transportation of dead                          15,000/-
            body, funeral expenses and
            obsequies ceremony
                           Total                        1,25,000/-
                                                           M.F.A.No.9806/2013

6. The Tribunal held that the accident occurred due

to rash and negligent driving of the Goods Auto by its driver.

The Tribunal further held since the appellants were major sons

and married daughter of the deceased, having regard to her

age, they are not entitled to any compensation under the head

loss of dependency. The Tribunal further held that the driver

of the Goods Auto was not holding valid driving license.

Therefore respondent No.2 is not liable to pay the

compensation and passed award against respondent No.1 the

registered owner of the vehicle.

7. Reiterating the grounds of the appeal, Ms.Raksha

Keerthana, learned Counsel for the appellants submits that the

compensation awarded on the heads of medical expenses,

regarding loss of estate are on lower side. She further

contended that the Tribunal was in error in not awarding

compensation under the heads of loss of dependency,

consortium, transportation of the victim to the hospital and

attendant charges. Relying on the judgment of the Hon'ble M.F.A.No.9806/2013

Supreme Court in Pappu v. Vinod Kumar Lamba1 she submits

that even if there was any violation of the policy condition, the

Tribunal should have directed the Insurer to pay the

compensation amount and recover the same from the owner.

8. Sri A.N.Krishnaswamy, learned Counsel for the

Insurer justifies the impugned award and submits that since

the deceased was over 70 years, there is no question of

dependency for the major sons and married daughter. He

further submits that the compensation awarded under other

heads is just and proper and so also the findings of the

Tribunal with regard to liability.

9. The Insurer has not challenged the findings of the

Tribunal with regard to occurrence of the accident due to rash

and negligent driving of the Auto bearing No.KA-11-A-1988

and also the injury suffered by the victim and consequential

death. Ex.P11 discharge summary and Ex.P5 postmortem

report show that the deceased Leelavathi was treated as

inpatient in Columbia Asia Hospital between 29.09.2011 till

(2018) 3 SCC 208 M.F.A.No.9806/2013

15.10.2011 and in Victoria Hospital from 19.10.2011 to

30.11.2011.

10. As per the postmortem report she was aged 70

years. Though it was contended that she was earning

Rs.8,000/- per month by doing agricultural work, there is no

proof of such occupation or income. Moreover the appellants

were major sons aged 37 and 34 years and married daughter

aged 40 years. Therefore the contention that they were

dependant on her income was rightly rejected by the Tribunal.

Thus Tribunal was justified in not awarding any compensation

under the head loss of dependency.

11. Similarly the compensation of Rs.65,000/- is

awarded on the basis of the medical bills produced by the

appellants themselves. Therefore that does not warrant any

interference. In view of the judgment of the Hon'ble Supreme

Court in National Insurance Company Limited vs. Pranay

Sethi2 and Magna General Insurance Company Ltd. v. Nanu

AIR 2017 SC 5157 M.F.A.No.9806/2013

Ram3, the appellants are entitled to compensation of

Rs.40,000/- each under the head loss of consortium. The

compensation awarded on the conventional heads like funeral

expenses, transportation of dead body, loss of estate is just

and proper.

12. The Tribunal should have awarded compensation

on the head of transportation of injured from Mandya to

Mysore and again Mandya to Bangalore for the purpose of

taking her for further treatment to Columbia Asia Hospital and

Victoria Hospital. Therefore awarding a sum of Rs.10,000/- on

the said head would meet the ends of justice. The victim was

in hospital for 59 days. Therefore the Tribunal could have

awarded attendant charges at the rate of Rs.300/- per day

which comes to Rs.17,700/- (59 x 300).

13. So far as the liability, even assuming that the

driver of the offending vehicle was not holding valid driving

license, as per the judgment of the Hon'ble Supreme Court in

Pappu's case referred to supra, the Insurer is liable to pay the

2018 (18) SCC 130 M.F.A.No.9806/2013

compensation to the claimants and recover the same from the

owner of the vehicle. That portion of the award needs to be

modified. That just compensation payable to the appellants is

as follows:

      Sl.             Particulars                Compensation
      No.                                        awarded in Rs.
      1.      Loss of consortium (40,000             1,20,000/-
              x 3)
      2.      Medical Expenses                         65,000/-
      3.      Transportation of dead body              15,000/-
      4.      Loss of estate                           15,000/-

      5.      Transportation to hospital               10,000/-
      6.      Attendant Charges (300 x                 17,700/-
              59)
                         Total                       2,42,700/-

The order of the Tribunal needs to be modified accordingly.

Hence the following:

ORDER

The appeal is partly allowed. The impugned award is

modified as follows:

(i) The appellants are entitled to compensation of

Rs.2,42,700/- with interest thereon at 6% per annum from

the date of the petition till its realization.

M.F.A.No.9806/2013

(ii) Respondent No.2 shall deposit the compensation

amount before the Tribunal within six weeks from the date of

receipt of copy of this award.