Karnataka High Court
Lalithamma vs Lakshminarayana K on 24 November, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:42513
MFA No. 4333 of 2013
C/W MFA No. 6320 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.4333 OF 2013(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.6320 OF 2018(MV-D)
IN MFA NO.4333/2013
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
NO.16-3-474-A,
KRISHNA MANSION,
MAIN ROAD BAZAAR,
HINDUPUR - 515 701.
ANANTAPUR,
REPRESENTING
NEW INDIA ASSURANCE CO.LTD.,
Digitally signed M.G. ROAD,
by RAMYA D BANGALORE.
Location: HIGH ...APPELLANT
COURT OF
KARNATAKA (BY SRI. R. JAIPRAKASH, ADVOCATE)
AND:
1. SRI. LAKSHMINARAYAN K.,
S/O NARASIMHAPPA,
MAJOR,
13/8/59/BOYAPETA,
HINDUPUR, ANANTAPUR DIST.,
ANANTAPUR - 515 201.
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MFA No. 4333 of 2013
C/W MFA No. 6320 of 2018
2. SMT. LALAITHAMMA,
AGED ABOUT 24 YEARS.
3. SAIRAM,
AGED ABOUT 7 YEARS.
4. FEMALA CHILD,
BORN ON 04/03/2009,
AGED ABOUT 4 YEARS.
5. SRI. RAMANJINAPPA,
AGED ABOUT 51 YEARS.
6. SMT. KAVALLAMMA
AGED ABOUT 46 YEARS.
RESPONDENT NO.2 IS WIFE,
RESPONDENT NO.3 AND 4 ARE CHILDREN,
RESPONDENT NO.5 AND 6 ARE PARENTS OF
RAMESH
SINCE RESPONDENT NO.3 AND 4
ARE MINORS REPRESENTED BY 2ND
RESPONDENT.
ALL ARE R/AT MACHARAJANAHALLI,
PAVAGADA TALUK,
TUMKUR DISTRICT - 561 202.
...RESPONDENTS
(BY SRI. K. SHANTHARAJ, ADVOCATE FOR R2 TO R6;
R3 AND R4 ARE MINORS REPRESENTED BY R2;
VIDE ORDER DATED 05.11.2015 NOTICE TO
R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.01.2013 PASSED IN MVC
NO.41/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE &
MACT XIII, COURT OF SENIOR CIVIL JUDGE, ITINERARY
COURT AT PAVAGADA & MACT XX, MADHUGIRI, AWARDING A
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MFA No. 4333 of 2013
C/W MFA No. 6320 of 2018
COMPENSATION OF Rs.6,62,000/- TOGETHER WITH THE
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
IN MFA NO.6320/2018
BETWEEN:
1. LALAITHAMMA,
W/O LATE RAMESH,
AGED ABOUT 29 YEARS.
2. SAI RAM,
S/O LATE RAMESH,
AGED ABOUT 12 YEARS.
3. RAMYA,
D/O LATE RAMESH,
AGED ABOUT 10 YEARS,
APPELLANT 2 AND 3 ARE MINORS
REPRESENTED BY THEIR
NATURAL GUARDIAN AND MOTHER
1ST APPELLANT,
ALL ARE R/AT
MACHARAJANAHALLI,
PAVAGADA TALUK - 561 202.
...APPELLANTS
(BY SRI. K. SHANTHARAJ, ADVOCATE)
AND:
1. SRI. LAKSHMINARAYAN K.,
S/O K. NARASIMHAPPA,
MAJOR,
R/AT 13/8/59/ BOYAPETA,
HINDUPUR, ANANTAPUR DIST.,
ANANTAPUR - 515 201.
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MFA No. 4333 of 2013
C/W MFA No. 6320 of 2018
2. NEW INDIA ASSURANCE CO. LTD.,
BY ITS MANAGER,
NO.16-3-474-A,
KRISHNA MANSION,
MAIN BAZAAR,
HINDUPUR,
ANANTHPUR DISTRICT,
A.P. - 515 201.
3. RAMANJINAPPA,
HANUMANTHAPPA,
AGED ABOUT 56 YEARS.
4. KAVALLAMMA
W/O RAMANJINAPPA,
AGED ABOUT 51 YEARS.
R/AT MACHARAJANAHALLI,
PAVAGADA TALUK,
TUMKUR DISTRICT - 561 202.
...RESPONDENTS
(BY, SRI. R. JAIPRAKASH ADVOCATE FOR R2;
VIDE ORDER DATED 24.11.2023 NOTICE TO
R1, R3, R4 ARE DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.01.2013 PASSED IN MVC
NO.41/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE
ITINERARY COURT AT PAVAGADA & MACT XX, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 4333 of 2013
C/W MFA No. 6320 of 2018
JUDGMENT
MFA No.4333/2013 is filed by the
appellant/Insurance Company challenging the judgment
and award passed in MVC No.41/2009 dated 11.01.2013
by the Senior Civil Judge, Itinerary Court at Pavagada &
MACT XX, questioning the entire negligence attributed on
the part of the driver of the Eicher Lorry and also for
reducing the quantum of compensation.
MFA No.6320/2018 is filed by the claimants seeking
enhancement of compensation.
2. Heard the arguments on both sides and perused
the records.
3. Learned counsel for the appellant/Insurance
Company submitted that the deceased has also
contributed his negligence for the occurrence of the
accident and therefore, submitted that the driver of the
lorry is not solely responsible for the accident caused.
Hence, prays for allowing the appeal.
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4. Learned counsel for the claimants justified the
judgment and award passed by the Tribunal in so far as
negligent factor is concerned and also prays for
enhancement of compensation.
5. In the present case, the deceased was riding TVS
Moped towards Pavagada Town on Pavagada - Hindupur
Road. The road is leading from East to West and width of
the road is 12 feet. The Eicher Lorry was coming from
Pavagada direction towards Hindupur. The spot mahazar
is produced before the Tribunal. Upon perusal of spot
mahazar, it is revealed that TVS Moped was proceeding in
correct side and fallen on the northern side of the road
which means deceased was proceeding correctly.
Whereas, lorry coming from Pavagada towards Hindupur
had crossed the middle of the road and came wrong side
of the road and hit the TVS Moped. This shows the rash
and negligent driving of the driver of the lorry. Just
because there are three persons riding on the TVS Moped,
it cannot be held that there is rash and negligent riding on
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the part of the deceased. Furthermore, it is contended by
the learned counsel for the Insurance Company that the
deceased has not produced driving license. Non holding
of driving license must be proved and the aspect that
towards which direction deceased was moving is to be
considered. In the complaint, entire allegation is made
against the driver of the lorry and charge sheet is filed
against him. Therefore, three persons riding on TVS
Moped shall not be the reason for contributory negligence
as they were proceeding in correct direction. Hence,
there is no contributory negligence on the part of the
deceased. But, whereas, when the driver of the lorry
drove towards wrong side of the road and has hit the TVS
Moped proves that the driver of the lorry was rash and
negligent in driving the vehicle and has caused the
accident. Therefore, this aspect is rightly considered by
the Tribunal and has correctly held that the driver of the
lorry was completely rash and negligent in driving the lorry
and has caused the accident, which needs no interference
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from this Court. Therefore, appeal filed in this regard is
liable to be dismissed.
6. The Tribunal has granted compensation under
various heads as follows:-
Sl.No. Particulars Amount (in.Rs.)
1. Loss of dependency Rs.6,12,000/-
2. Loss of consortium Rs.10,000/-
3. Loss of estate Rs.10,000/-
4. Loss of love and affection Rs.20,000/-
5. Transportation and Funeral Rs.10,000/-
expenses
Total Rs.6,62,000/-
7. The deceased was aged about 26 years and is
stated to be working as Submercible Motors Rewinding
Mechanic. The accident is of the year 2009. Therefore,
the notional income of the deceased is Rs.5,000/- p.m. as
per the chart prepared by the Karnataka State Legal
Services Authority. The Tribunal has not added 40% of
the income toward future prospects. So, 40% of income is
added towards future prospects. Since the deceased was
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26 years old, therefore, the appropriate multiplier is '17'
and ¼ is to be deducted towards his personal expenses.
Therefore, the loss of dependency is hereby re-assessed
and quantified as under:
Rs.5,000 + Rs.2,000 (40% of Rs.5,000) = Rs.7,000/-
Rs.7,000 x ¾ x 17 x 12 = Rs.10,71,000/-
Accordingly, a sum of Rs.10,71,000/- is awarded
under the head 'loss of dependency'.
8. The Tribunal has awarded a sum of Rs.10,000/-
and Rs.20,000/- towards 'Loss of consortium' and 'Loss of
love and affection', which is on the lesser side. The loss of
love and affection and loss of consortium are more or less
having similar connotations. The claimants are the father,
mother, wife and children of the deceased. As per Magma
General Insurance Company Limited v. Nanu Ram
and Others, reported in 2018 ACJ 2782, Rs.40,000/- is
to be awarded under the head 'loss of consortium'. As per
the dictum of Hon'ble Apex Court in the case of Rasmita
Biswal vs. Div. Manager, National Insurance Co.,
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Ltd., reported in AIR 2022 SC 85, for every three years
10% income is to be raised. Therefore, a sum of
Rs.44,000/- each is awarded under the head 'loss of
consortium'. Accordingly, a sum of Rs.2,20,000/- is
awarded under the head 'loss of consortium'.
9. The Tribunal has granted a sum of Rs.10,000/-
each towards 'Transportation and Funeral expenses' and
'Loss of Estate'. It is just and reasonable to award a sum
of Rs.16,500/- each under the head 'Transportation and
Funeral expenses' and 'Loss of Estate'.
10. Thus, in all, the claimants are entitled for the
following sums:
Sl.No. Particulars Compensation
awarded (in Rs.)
1. Loss of dependency Rs.10,71,000.00
2. Loss of consortium Rs.2,20,000.00
3. Loss of Estate Rs.16,500.00
4. Transportation and Funeral Rs.16,500.00
Expenses
TOTAL 13,24,000.00
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11. The Tribunal has awarded a compensation of
Rs.6,62,000/-, but the appellants/claimants are entitled to
total compensation of Rs.13,24,000/- as against
Rs.6,62,000/- awarded by the Tribunal. Therefore, the
appellants/claimants are entitled to enhanced
compensation of Rs.6,62,000/- (Rs.13,24,000 -
Rs.6,62,000/-), in addition to what has been awarded by
the Tribunal, along with interest at 6% per annum, from
the date of petition till the date of realization.
12. Accordingly, I proceed to pass the following:
ORDER
i. MFA No.4333/2013 filed by the Insurance Company
is hereby dismissed.
ii. MFA No.6320/2018 filed by the claimants is allowed
in part.
iii. The judgment and award passed by the Tribunal in
MVC No.41/2009 dated 11.01.2013 by the Senior
Civil Judge, Itinerary Court at Pavagada & MACT XX
is hereby modified and the claimants are entitled for
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enhanced compensation of Rs.6,62,000/- along
with interest @ 6% p.a., from the date of petition till
its realization, in addition to what has been awarded
by the Tribunal.
iv. The claimants are not entitled for interest for the
delayed period of 1937 days in filing the MFA
No.6320/2018.
v. Costs made easy.
vi. Ordered accordingly.
vii. The other observations and findings including the
apportionment of compensation are kept in tact.
viii. The amount in deposit is ordered to be transferred to
the Tribunal forthwith, along with TCR and a certified
copy of this order.
Sd/-
JUDGE
MH/-
