Karnataka High Court
Latha vs Vivek G Suvarna on 27 November, 2023
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NC: 2023:KHC:42922-DB
MFA No. 4687 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 4687 OF 2021 (MV-D)
BETWEEN:
1. LATHA,
AGED ABOUT 32 YEARS,
W/O LATE BHASKARA,
2. MINOR SURAKSHA,
AGED ABOUT 12 YEARS,
D/O LATE BHASKARA,
3. MINOR SUHASINI,
AGED ABOUT 8 YEARS,
Digitally signed D/O LATE BHASKARA,
by VALLI M
Location: High APPELLANT NO.2 AND 3 ARE MINORS,
Court of REP: BY THEIR GUARDIAN/MOTHER
Karnataka APPELLANT No.1 SMT. LATHA,
ALL ARE R/O KORAGA KALONI,
CHITTEBETTU, KOTATHATTU VILLAGE,
KOTA POST,
UDUPI TALUK AND DISTRICT-576101.
...APPELLANTS
(BY SMT. SWATI G. HEGDE, ADVOCATE FOR
SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
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MFA No. 4687 of 2021
AND:
1. VIVEK G. SUVARNA,
AGED ABOUT 27 YEARS,
S/O GOVINDA T. SUVARNA,
R/O SRI SHANESHWARA KRUPA,
PADUKERE KOTATHATTU VILLAGE,
UDUPI TALUK AND DISTRICT-576101.
2. SRI HARISH,
AGED ABOUT 34 YEARS,
S/O ASHOKA MOGAVEERA,
R/O RAVI NILAYA,
JANATHA COLONY,
VINAYAKA NAGARA,
KUMBHASHI VILLAGE,
KUNDAPURA TALUK-576201.
3. UNITED INDIA INSURANCE CO. LTD.,
PB NO.78, JEWEL PLAZA,
1ST FLOOR, MARUTHI VEETHIKA,
UDUPI DISTRICT,
REP: BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R3;
VIDE ORDER DATED 24.02.2022 NOTICE TO R1 & R2 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 31.07.2021 PASSED IN MVC NO. 108/2018 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, K.V. ARAVIND J., DELIVERED THE
FOLLOWING:
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MFA No. 4687 of 2021
JUDGMENT
This appeal is filed challenging the judgment and award
dated 31.07.2021 in MVC No.108/2018 passed by the Senior
Civil Judge and Additional MACT, Kundapura.
2. The appellants are claimants, who are the wife and two
minor children of deceased Bhaskara. Parties are referred to
henceforth as per their ranks before the Tribunal for
convenience.
3. Brief facts of the case:
i) On 09.11.2017, at 7.45 p.m., when deceased
Bhaskara was riding his bicycle near Hire Mahalingeshwara
Temple, Kotathattu Village, Udupi Taluk, car bearing
RegistratonNo.KA-20/Z-8883 driven by respondent No.2, hit the
bicycle from behind due to which, Bhaskara suffered head
injuries and was shifted to N.R. Acharya Hospital, Koteshwara.
For further treatment, he was shifted to Adarsha Hospital, Udupi,
wherein he was treated as in-patient for four days. He
succumbed to his injuries on 12.11.2017.
ii) On complaint by Smt. Soni, Kota Police, registered
FIR against respondent No.2 - driver. The Police filed charge
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sheet against respondent No.2 for the offences punishable under
Sections 279 and 304A of IPC and Sections 134 (A & B) and 187
of Motor Vehicles Act, 1988.
iii) The petitioners filed claim petition before Tribunal
seeking compensation of Rs.55,18,000/- under various heads
from the respondents.
4. In response to the notice, respondent No.1-owner and
respondent No.2 - driver of the car remained absent and hence,
placed ex-parte.
Respondent No.3-Insurer appeared through counsel and
filed written statement denying rash and negligent driving by
respondent No.2-driver and that the compensation claimed is
exorbitant, speculative and without any basis. The driver of the
car was not holding valid and effective driving license to drive
the said car at the time of accident. The accident has occurred
due to sole negligence of the deceased Bhaskara. Hence, prayed
for dismissal of claim petition.
5. To substantiate the case of petitioners, petitioner No.1
examined herself as PW.1 and got marked Exs.P.1 to P.41.
Respondent Nos.1 and 2 remained absent and were placed
ex-parte. Respondent No.3 did not lead any evidence.
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6. The Tribunal on consideration of pleadings and evidence on
record framed issues, as under:
1. Whether the petitioners prove that, the
deceased Bhaskara succumbed due to the
injuries sustained in an accident, which was
occurred on 09.11.2017 at about 7.45 p.m. on
NH.66, in front of Hire Mahalingeshwara
Temple, Kotathattu Village, Udupi Taluk, due to
rash and negligent driving by the driver of the
car bearing Reg. No.KA-20-Z-8883?
2. Whether the petitioners are entitled for
compensation? If so, at what quantum and
from whom?
3. What order or award?
7. The Tribunal, on recording evidence and hearing the
parties held that accident occurred due to rash and negligent
driving of the car by respondent No.2 and the death of Bhaskara
is due to the injuries sustained in the accident. The Tribunal
determined the age, notional income, future prospects and
awarded total compensation of Rs.21,42,491/- under various
heads with 6% interest per annum, as under:-
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1. Towards loss of dependency Rs.18,48,060-00
(11,000+40%=15,400-1/3rd=
10,267x12x15)
2. Loss of spousal consortium to Rs. 44,000-00
petitioner No.1.
3. Loss of parental consortium to Rs. 88,000-00
petitioners No.2 and 3.
4. Medical expenses. Rs. 1,29,431-00
5. Towards loss of estate. Rs.16,500-00
6. Towards funeral, obsequies Rs.16,500-00
expenses and transportation of
dead body.
Total Rs.21,42,491-00
8. Being not satisfied with the compensation awarded by the
Tribunal and seeking enhancement, the claimants are before this
Court.
9. Smt. Swati G. Hegde, learned counsel appearing for the
appellants submits that the compensation awarded by the
Tribunal is on lower side. The notional income, multiplier
adopted and future prospects are incorrect. Deduction is
excessive and not in conformity with the settled position of law.
On the above grounds prays for enhancement of compensation.
10. Sri S.V.Hegde Mulkhand, learned counsel appearing for
respondent No.3- Insurer submits that the judgment and award
passed by the Tribunal is strictly in conformity with the law laid
down by the Hon'ble Supreme Court in the cases of Sarla
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Verma and others -V- Delhi Transport Corporation and
another1 and National Insurance Company Limited -V-
Pranay Sethi and Others2. Hence, no interference is warranted
with the judgment and award.
11. We have heard learned counsel appearing for the
appellants and respondent No.3 - Insurance Company.
12. On examining the pleadings, documentary evidence on
record and submissions of learned counsel on both side, the
following point would arise for our consideration:-
"Whether the compensation awarded by the Tribunal
under the impugned award is just one?"
ANALYSIS
13. The Insurer has not preferred any appeal challenging the
findings on actionable negligence or its liability to indemnify
damages.
14. The Tribunal has considered the age of deceased Bhaskara
as per Ex.P.9 - Aadhaar Card and determined the age of the
(2009) 6 SCC 121
(2017) 16 SCC 680
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deceased as on the date of accident as 38 years and applied the
multiplier of '15'. Though the petitioners claimed that deceased
Bhaskara was earning Rs.40,000/- per month, as no evidence
was produced to prove the income, the Tribunal considering
wages and expenses, determined the notional income at
Rs.11,000/- per month. By applying the guidelines laid down by
the Hon'ble Supreme Court in the case of Pranay Sethi (supra),
increased future prospects by 40%. As the deceased had three
dependents, 1/3rd of his income has been deducted towards his
personal expenses as per the judgment of the Hon'ble Supreme
Court in the case Sarla Verma (supra).
15. Loss of estate, loss of consortium and funeral expenses
have been considered at Rs.15,000/-, Rs.40,000/- and
Rs.15,000/- with escalation at 10% in terms of Pranay Sethi's
case (supra). Medical expenses has been awarded considering
the medical bills at Exs.P.10 to P.40 at Rs.1,29,431/-.
16. In our view, the Tribunal after considering the pleadings,
evidence and the law laid down by the Hon'ble Supreme Court in
the cases of Sarla Verma and Pranay Sethi referred to supra
has rightly determined the compensation and awarded a sum of
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Rs.21,42,491/-. No evidence is placed before us in support of
contention of the learned counsel for petitioners to enhance the
compensation awarded by Tribunal. No evidence is placed to
prove the income of the deceased. Adopting notional income is
the only method to determine the income of the deceased.
17. In these circumstances, we do not find any reason to
interfere with the impugned judgment and award. Hence, the
following;
Order
i) Appeal is dismissed.
ii) The judgment and award dated 31.07.2021 in MVC
No.108/2018 passed by the Senior Civil Judge and
Additional MACT, Kundapura, stands confirmed.
iii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MV
