Karnataka High Court
Gangamma W/O Late Bhimaraya And ... vs Srishail And Anr on 11 January, 2023
Bench: J.M.Khazi
1 MFA NO 200506 OF 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
MFA NO 200506 OF 2015 (MV)
BETWEEN
1. GANGAMMA W/O LATE BHIMARAYA
AGE: 30 YEARS
OCCU: HOUSEHOLD
2. HIRAGAPPA S/O LATE BHIMARAYA
AGE: 14 YEARS
OCCU: STUDENT
3. SRIDEVI D/O LATE BHIMARAYA
AGE: 10 YEARS
OCCU: STUDENT
BOTH MINORS, U/G OF THEIR
REAL MOTHER NAMELY GANGAMMA
I.E., APPELLANT NO.1
4. SHARANAMMA W/O NAGAPPA
AGE: 57 YEARS
OCCU: NIL
ALL R/O H.NO.1-32, BHAHARPET
TQ. CHITTAPUR, DIST. GULBARGA
...APPELLANTS
(BY SRI SANJEEV PATIL, ADVOCATE)
2 MFA NO 200506 OF 2015
AND
1. SRISHAIL
AGE: MAJOR, OCCU: BUSINESS
AND OWNER OF LORRY
NO.KA-28/B-0299
R/O AT POST: KENGAL GUTTI
TQ. BIJAPUR, GUNDAL B.O.
BIJAPUR
2. M/S. CHOLOMANDALAM MS GENERAL
INSURANCE CO. LTD.
REGIONAL OFFICE
1ST FLOOR, V.A. KALBURGI SQUARE
DESAI CROSS, DESHPANDE NAGAR, HUBLI
REPRESENTED BY ITS
REGIONAL MANAGER
RESPONDENTS
(SRI S. S. ASPALLI, ADVOCATE FOR R2;
V/O DT. 26.11.2015, NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, PRAYING TO ALLOW
THIS APPEAL AND ENHANCE THE COMPENSATION OF
RS.25,00,000/- ALONG WITH INTEREST BY MODIFYING
THE JUDGMENT AND AWARD OF THE SENIOR CIVIL JUDGE
AND MACT, CHITTAPUR DATED 27.01.2015, IN MVC
NO.16/2012.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3 MFA NO 200506 OF 2015
JUDGMENT
Not being satisfied with the quantum of
compensation, appellants who are petitioners before the
Tribunal have come up with this appeal under Section
173(1) of M.V.Act, seeking enhancement.
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, children and mother of deceased Bhimaraya. On
21.03.2012, at about 5.30 a.m., deceased Bhimaraya
along with others was proceeding by walk to have darshan
of Ghattaragi Devi. While they were on Sonna Cross-
Hipparagi Road, lorry bearing registration No.KA-28/B-
0299 (hereinafter referred to as offending vehicle) driven
by its driver in a rash of negligent manner came from back
side and dashed against deceased Bhimaraya and one
Jagannath. In the said accident, deceased sustained
grievous injuries. He was treated as in-patient at
4 MFA NO 200506 OF 2015
Kamreddy Hospital, Kalaburagi and Government Hospital,
Kalaburagi. He died while undergoing treatment on
01.04.2012. Respondents being the owner and insurer of
the offending vehicle are liable to pay the compensation.
4. Though duly served with notice respondent
No.1 did not appear and as such he was placed ex-parte.
5. Respondent No.2 appeared and filed written
statement denying the age, occupation, income of the
deceased and that accident occurred due to the rash of
negligent driving by the driver of the offending vehicle.
Though the offending vehicle was duly insured with
respondent No.2, since the driver of the offending vehicle
was not holding a valid driving license, it is not liable to
indemnify respondent No.1 and prays to dismiss the
petition.
6. Based on these pleadings, the Tribunal has
framed necessary issues.
5 MFA NO 200506 OF 2015
7. In support of petitioners, petitioner No.1
examined herself as PW-1 and Ex-P1 to 6 were marked.
8. Respondent No.2 has not led any oral or
documentary evidence.
9. Vide the impugned judgment and award the
Tribunal has granted compensation in a sum of
Rs.10,27,000/- and directed respondent No.2 to pay the
same with interest at 6% p.a. The details of compensation
granted are as under:
Heads Amount
In Rs.
Loss of dependency and Rs.8,64,000/-
expectancy
Medical expenses during Rs.1,13,000/-
treatment period
Loss of consortium Rs.10,000/-
Towards love and affection Rs.25,000/-
Towards transportation of dead Rs.5,000/-
body
Towards funeral expenses Rs.10,000/-
TOTAL Rs.10,27,000/-
10. During the course of arguments, the learned
counsel representing the petitioners submitted that the
6 MFA NO 200506 OF 2015
income of the deceased ought to have been taken at
Rs.10,000/-p.m. The Tribunal has failed to add
compensation towards loss of future income. The
compensation granted under the other heads are also on
lower side.
11. On the other hand learned counsel
representing respondent No.2 supported the impugned
judgment and award and sought for dismiss of the appeal.
12. Heard arguments and perused the record.
13. On the basis of complaint filed in respect of the
accident, the concerned police conducted detailed
investigation, filed charge sheet against the driver of the
offending vehicle. Based on the evidence of PW-1 and the
documents in question, the Tribunal has rightly come to
the conclusion that accident was due to the rash or
negligent driving by the driver of the offending vehicle.
14. Loss of dependency: As per the PM report,
the age of the deceased taken at 35 years is correct and
7 MFA NO 200506 OF 2015
consequently, the 16 multiplier taken is appropriate. Since
petitioners being the wife, children and mother were
dependent on the deceased, 1/4th deduction towards his
personal and living expenses is correct and remaining
3/4th is to be taken into consideration for calculating loss
of dependency. In the absence of proof of actual income of
the deceased, the Tribunal has considered the income of
the deceased on notional basis at Rs.6,000/-. However,
since the accident is of the year 2012, based on the
minimum wages it ought to have been taken at Rs.6,500/-
Since the deceased was aged 35 years i.e., below 40
years, as per the decision of Hon'ble Supreme Court in
Magma General Insurance Company Limited Vs.
Nanu Ram Alias Chuhru Ram And Others1 (Magma's
case), 40% of his income is required to be added towards
loss of future prospects, which comes to Rs.2,600/-.
Therefore, the total income to be taken into consideration
is Rs.9,100/-. With the above components, the loss of
(2018) 18 SCC 130
8 MFA NO 200506 OF 2015
dependency is Rs.9,100 x 12 x 16 x 3/4 = Rs.13,10,400/-
as against Rs.8,64,000/- granted by the Tribunal.
15. Medical expenses: Based on the medical
bills, the Tribunal has correctly granted compensation in a
sum of Rs.1,13,000/- and it requires no modification.
16. Loss of consortium: The Tribunal has
granted compensation in a sum of Rs.10,000/- under this
head. As per the decision of Hon'ble Supreme Court in
National Insurance Company Limited vs. Pranay
Sethi and others2 (Pranay Sethi's case) and
Magma General Insurance Co. cases, Rs.40,000/- each
is to be granted to the petitioners towards loss of
consortium which comes to Rs.1,60,000/- as against
Rs.10,000/- granted by the Tribunal.
17. Loss to estate and funeral expenses: The
Tribunal has granted compensation in a sum of Rs.5,000/-
for transportation of dead body and Rs.10,000/- towards
(2017) 16 SCC 680
9 MFA NO 200506 OF 2015
funeral expenses. It has not granted any compensation
under the head loss to estate. When substantial
compensation is granted under the head loss of
dependency, as per Pranay Sethi and Magma's case
under the conventional head loss to estate and funeral
expenses (which includes transportation charges), the
petitioners are entitled for compensation in a sum of
Rs.15,000/- each. Hence, Rs.15,000/- each is granted
under the head loss to estate and under the head funeral
expenses (which includes transportation charges).
18. Towards love and affection: When
compensation is granted under the head loss of
consortium, no compensation is required to be granted
under the head loss of love and affection. Hence,
compensation of Rs.25,000/- under the head loss of love
and affection is disallowed.
19. Thus, in all petitioners are entitled for total
compensation in a sum of Rs.16,13,400/- as against
Rs.10,27,000/- granted by the Tribunal as detailed below:
10 MFA NO 200506 OF 2015
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Loss of dependency 8,64,000/- 13,10,400/-
Medical expenses 1,13,000/- 1,13,000/-
during treatment
period
Loss of consortium 10,000/- 1,60,000/-
Loss to estate -- 15,000/-
Loss of love and 25,000/- --
affection
Transportation of dead Rs.5,000/- --
body
Funeral expenses 10,000/- 15,000/-
TOTAL 10,27,000/- 16,13,400/-
20. To this extent the appeal deserves to be
allowed and accordingly, I proceed to pass the following:
ORDER
(i) Appeal is allowed.
(ii) Petitioners are entitled for compensation in a
sum of Rs.16,13,400/- as against
Rs.10,27,000/- granted by the Tribunal
together with interest at 6% p.a.
(iii) Respondent No.2 is directed to pay the
compensation together with interest at 6% p.a
11 MFA NO 200506 OF 2015
from the date of petition till realization (minus
the amount already paid/deposited) within a
period of six weeks from the date of this order.
(iv) Send a copy of this order to the Tribunal.
Sd/-
JUDGE
RR
