Gowramma M vs National Insurance Co. Ltd
2023 Latest Caselaw 6451 Kant

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                                                NC: 2023:KHC:32925-DB
                                                MFA No. 5219 of 2019




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 12TH DAY OF SEPTEMBER, 2023

                                    PRESENT
                    THE HON'BLE MR JUSTICE K.SOMASHEKAR
                                       AND
                    THE HON'BLE MR JUSTICE UMESH M ADIGA
                MISCELLANEOUS FIRST APPEAL NO. 5219 OF 2019 (MV-D)
           BETWEEN:

                 GOWRAMMA M
                 W/O LATE NANJAPPA .H
                 AGED ABOUT 45 YEARS
                 R/O VRUNDAVANAHALLI
                 CHALLAKERE TALUK 577522.
                                                     ...APPELLANT
Digitally
signed by D (BY SMT. SPOORTHY HEGDE NAGARAJA - ADVOCATE)
K BHASKAR
Location:    AND:
High Court
of Karnataka 1. NATIONAL INSURANCE CO. LTD.,
                REP. BY ITS BRANCH MANAGER
                BRANCH OFFICE, B.D. ROAD
                JAGALUR MAHALINGAPPA TOWERS
                CHITRADURGA TOWN 577501.

           2.    GULLAPPA NARASA GOUNDAR
                 S/O DODDABASAPPA
                 OWNER OF TRACTOR/
                 TRAILER BEARING REG.NO.
                 CTW-8371-CTW-8372
                 R/O KANCHANARAGALLI
                 DEVAGUDDA ROAD
                 RANEBENNUR, HAVERI DIST 581110.
                                                      ...RESPONDENTS
           (BY SRI. JANARDHAN REDDY - ADVOCATE FOR
                RESPONDENT NO.1;
                VIDE COURT ORDER DATED 07.03.2022,
                NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH)
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                                      NC: 2023:KHC:32925-DB
                                       MFA No. 5219 of 2019




     THIS MFA FILED U/S 173(1) OF MOTOR VEHICLES ACT,
1988 PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 23.03.2019 PASSED BY THE SR. CIVIL JUDGE AND
MACT, CHALLAKERE IN MVC NO.316/2018, BY ENHANCING THE
COMPENSATION WHICH IS JUST AND REASONABLE HAVING
REGARD TO THE FACTS OF THE CASE BY ALLOWING THIS
APPEAL.

     THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is filed by the appellant challenging the

judgment and award rendered by the Tribunal in MVC

No.316/2018 dated 23.03.2019 by urging various grounds

and seeking for enhancement of compensation on the

premise that the compensation awarded by the Tribunal is

inadequate.

2. Heard learned counsel Sri Spoorthy Hegde

Nagaraja for the appellants / claimant. Learned counsel

Sri Janardhan Reddy for respondent No.1 is on record but

represented by learned counsel Sri B.Pradeep.

3. It is transpired in the case of the claimants that on

01.12.2017 at around 4.40 p.m. near Kunabevu cross,

NH-4, Ranebennur, Haveri District, the son of claimant

NC: 2023:KHC:32925-DB MFA No. 5219 of 2019

was on towards Chitradurga, returning from Ranebennur,

riding his motor cycle bearing Regn.No.KA-16-EK-5760

along with Ganesh as pillion rider. By the time when he

was negotiating near Kunabevu cross, NH-4 road,

Ranebennur, Haveri District, was hit by tractor/trailer

bearing Regn.No.CTW-8371/CTW-8372 driven by its driver

in rash and negligent manner. He sustained grievous

injuries on the vital part of his head, abdomen, leg, hands

and other vital parts of his body. The Doctors of Om

Hospital, Ranebennur declared him as brought dead.

Petitioner has incurred Rs.30,000/- for transportation of

dead body from hospital to her native and also incurred

Rs.1,00,000/- for performance of obsequies of the

deceased. Deceased was aged 24 years and was working

for Saggraha Management services Pvt.Ltd and was

earning monthly salary of Rs.15,000/-. He was her only

son and for being lost her son, was thrown to streets and

she also lost her dependency and facing acute financial

difficulties. The accident was due to rash and negligent

driving of the offending tractor/trailer and respondent No.1

NC: 2023:KHC:32925-DB MFA No. 5219 of 2019

being the owner and respondent No.2 being the insurer

are liable to pay compensation of Rs.50,00,000/-. These

are all the contentions made by the claimant before the

Tribunal in the claim petition seeking compensation.

4. Subsequent to initiation of proceedings under the

relevant provisions of the Motor Vehicles Act, notice came

to be issued against respondents. Since Respondent No.1

did not appear in the case, was placed ex-parte.

Respondent No.2 appeared through his Advocate resisted

the petition by filing objections.

5. Based upon the pleadings of the parties, the

Tribunal framed issues for consideration of the claim

petition. To prove her case, petitioner - Gowramma being

the mother of deceased Sanketh Kumar examined herself

as PW.1 and got marked Ex.P1 to P11. The Tribunal on

appreciation of oral and documentary evidence available

on record allowed the claim petition filed by the petitioner

and awarded compensation of Rs.15,43,600/- with interest

@ 9% p.a. from the date of petition till its realization. It is

NC: 2023:KHC:32925-DB MFA No. 5219 of 2019

this judgment which is challenged by the

appellant/claimant under this appeal seeking enhancement

of compensation awarded by the Tribunal.

6. Learned counsel for the appellant contends that

the Tribunal while determining the compensation has

taken the income as Rs.9,547/- on the basis of salary

certificate and without considering the other income. But

however according to chart of Karnataka State Legal

Services Authority relating to the accident of the year

2017 and also the reliances of Hon'ble Supreme Court, in

the absence of proof of income, the income taken is

Rs.11,000/- p.m. Hence, he contends the same has to be

taken in respect of the present case. In the claim petition

it was contended that her son Sanketh Kumar was of 24

years and working for Saggraha Management Services Pvt.

Ltd as Saggraha Officer and getting monthly salary of

Rs.15,000/- and was contributing his entire income to the

family of petitioner. On this ground counsel for appellant

NC: 2023:KHC:32925-DB MFA No. 5219 of 2019

seeks for intervention of the impugned judgment and

award and to enhance the compensation.

7. On the contrary, learned counsel for the

respondent No.1 - insurance company while countering to

the arguments advanced by counsel for the appellant

emphatically submits that the Tribunal has rightly

considered the income of the deceased as Rs.9,547/-

based upon Ex.P10, the pay slip produced by the claimant

herself seeking compensation. Such being the case, it

cant arise for taking the income as per the chart of the

Karnataka Legal Services Authority. However, he fairly

submits that keeping in view the litigation expenses in

case of initiation of proceedings before the Tribunal as well

as before this Court, the same may considered in this

case.

8. In these context of the contentions taken by

learned counsel for the appellant and also, counsel for

respondent No.1 - insurance company, the Tribunal has

gone into the evidence of PW.1 - Gowramma being the

NC: 2023:KHC:32925-DB MFA No. 5219 of 2019

mother of the deceased who in her affidavit filed in lieu of

her examination in chief has stated that due to the rash

and negligent driving of the driver of the offending vehicle,

her son sustained grievous injuries and succumbed to

injuries. In support of her claim, she has produced Ex.P1

- FIR, Ex.P2 - spot mahazar, Ex.P3 - PM report, Ex.P4 -

complaint, Ex.P5 - inquest report, Ex.P6 - IMV report,

Ex.P7 - charge sheet and Ex.P10 - Pay slip. Based upon

the complaint filed by the pillion rider Ganesh, the

jurisdictional police registered case against the driver of

offending tractor/trailer for the offence under Sections

279, 337, 338, 304-A of IPC. In this case, it is relevant

to refer to Ex.P10, the pay slip which was produced in

proof of income of deceased. The said Ex.P10 was issued

by Saggraha Management Services Pvt. Ltd and the

deceased was drawing gross salary of Rs.9,547/- and the

Tribunal has rightly assessed the compensation based

upon Ex.P10. Section 58 of the Indian Evidence Act, inter

alia, provides that no fact need be proved in any

proceeding which the parties thereto or their agents agree

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to admit it the hearing or which by any rule of pleading in

force at the time they are deemed to have admitted by

their pleading. Therefore, once Ex.P10, the pay slip which

has been produced by the appellant in respect of proof of

income and the same has been admitted on oath, the

same cannot be revisited and cannot be declined. But in

the instant case, the appellant / claimant being the mother

of deceased - Sanketh Kumar has lost love and passionate

of her only son and so also, source of income to eke out

her livelihood. Therefore, in a given peculiar facts and

circumstances of the case and so also, keeping in view the

status of the appellant and also contentious contentions

made by counsel for the appellant and equally the

contention made by counsel for the respondent, we deem

it appropriate to award global compensation of

Rs.50,000/- in addition to what has been awarded by the

Tribunal. Accordingly, the following:

ORDER

Appeal is allowed in part. The appellant is

entitled for global compensation of Rs.50,000/- in addition

NC: 2023:KHC:32925-DB MFA No. 5219 of 2019

to what has been awarded by the Tribunal in MVC

No.316/2018 vide judgment and awarded dated

23.03.2019. However, it is made clear the global

compensation awarded shall not fetch any interest.

The respondent No.1 - insurance company shall

deposit the sum of Rs.50,000/- before the Tribunal in MVC

No.316/2018 within a period of four weeks from the date

of this order. On such deposit, the amount shall be

released in favour of the appellant / petitioner on due

identification.

Sd/-

JUDGE

Sd/-

JUDGE

DKB