Karnataka High Court

Susheela Poojary vs G. Jagadish on 8 April, 2024

                                                   -1-
                                                                NC: 2024:KHC:14489
                                                              MFA No. 4218 of 2017




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 8TH DAY OF APRIL, 2024

                                                 BEFORE
                               THE HON'BLE MR JUSTICE VENKATESH NAIK T
                           MISCELLANEOUS FIRST APPEAL NO.4218 OF 2017 (MV-D)
                      BETWEEN:
                      1.    SUSHEELA POOJARY
                            AGED ABOUT 65 YEARS
                            W/O. LATE DEJAPPA POOJARY
                            RESIDING AT NAGOLI HOUSE
                            KABETTU, KARKALA KASABA VILLAGE
                            KARKALA TALUK.

                      2.    JAYANTHI
                            AGED ABOUT 33 YEARS
                            W/O. LATE ASHOK POOJARY.

                      3.    KUMARI THRIPTHI
                            AGED ABOUT 11 YEARS
                            D/O. LATE ASHOK POOJARY.

                      4.    KUMARI THRISHA
                            AGED ABOUT 7 YEARS
                            D/O. LATE ASHOK POOJARY.

Digitally signed by
                            APPELLANT NOS.3 AND 4 ARE MINORS
MOUNESHWARAPPA              REPRESENTED BY THEIR MOTHER, JAYANTHI,
NAGARATHNA
Location: HIGH              RESIDING AT NO.1-35, KAPU HOUSE
COURT OF                    MARPADY VILLAGE AND POST, MOODABIDRI
KARNATAKA
                            MANGALORE TALUK-574 227.
                                                                       ...APPELLANTS
                            (BY MS. AKSHAYA K., ADVOCATE, FOR
                                SRI PAVANA CHANDRA SHETTY H.)

                      AND:

                      1.    G. JAGADISH
                            AGED ABOUT 56 YEARS
                            S/O. LATE MAHALINGA
                            RESIDING AT 4-87-9, DEREBAILU
                            MANGALORE CITY, MANGALORE TALUK-575 008.
                                 -2-
                                              NC: 2024:KHC:14489
                                          MFA No. 4218 of 2017




2.   THE DIVISIONAL MANAGER
     THE NEW INDIA ASSURANCE CO. LTD.
     UDUPI DIVISIONAL OFFICE
     UDUPI-576 101.
                                                  ...RESPONDENTS

     (BY SRI A.R. LAKSHMI NARAYANA, ADVOCATE, FOR
         SMT. GEETHARAJ, FOR R-2, &
         VIDE ORDER DATED 7-12-2017, NOTICE TO R-1
         IS DISPENSED WITH)

                               ***

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE M.V. ACT AGAINST THE JUDGMENT AND
AWARD DATED 29-11-2016 PASSED IN M.V.C. NO.972 OF 2015 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT, KARKALA,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is filed by the claimants aggrieved by the

judgment and award dated 29-11-2016 passed in M.V.C.

No.972 of 2015 on the file of the Senior Civil Judge and

Additional Motor Vehicles Accident Claims Tribunal,

Karkala, whereby, the Tribunal awarded a sum of

Rs.13,22,660/- as compensation with interest at the rate

of 8% per annum from the date of filing the petition till the

date of realisation.

NC: 2024:KHC:14489

2. For the sake of convenience, the parties herein

shall be referred to in terms of their status before the

Tribunal.

3. Mother, wife and two minor daughters of Sri Ashok

Poojary (hereinafter referred to as 'deceased') filed a claim

petition under Section 166 of the Motor Vehicles Act,

1988, claiming compensation for the death of the

deceased inter alia contending that on 15-4-2015 at

5:30 p.m., when the deceased along with his co-worker,

Sri Chandrahasa Shetty, were distributing sugarcane

saplings to a bunk shop at Achcharikatte, Bannadka of

Padumarnadu Village by parking their mini door auto

rickshaw, bearing Registration No.KA-19 B-1456 by the

side of Karkala-Mangalore National Highway-13, an

Innova car, bearing Registration No.KA-19 Z-6661, came

from Karkala in a rash and negligent manner and dashed

against the auto rickshaw, as a result, the auto rickshaw

was thrown into a roadside channel and the deceased and

Chandrahasa Shetty sustained grievous injuries.

NC: 2024:KHC:14489

Immediately, both of them were shifted to Alva's Health

Centre, Moodabidri, and on the way to the hospital, the

deceased succumbed to the injuries. The claimants, being

mother, wife and daughters of the deceased, contended

that the deceased was working as a Salesman and earning

more than Rs.15,000/- per month. Due to his death, they

have lost their dependency and hence, claimed the

compensation on various heads.

4. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

5. As there is no dispute regarding the death of the

deceased in a road traffic accident occurred on

15-4-2015 due to rash and negligent driving of Innova car,

bearing Registration No.KA-19 Z-6661, by its driver and

liability of the insurer of the offending vehicle, the only

point that arises for my consideration in this appeal is:

NC: 2024:KHC:14489

"Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"

6. After hearing the learned counsel appearing for

the parties and perusing the judgment and award of the

Tribunal, I am of the view that the compensation awarded

by the Tribunal is not just and reasonable, it is on the

lower side and hence, it is required to be enhanced.

7. In order to substantiate their claim, claimant

No.2-wife of the deceased examined herself as PW1,

Proprietor of Juice Center as PW2, another injured as PW3

and got marked eleven documents as Exs.P1 to P11. On

behalf of the respondents, none of the witnesses was

examined, but Ex.R1-copy of insurance policy was

marked.

8. The claimants have established the fact that the

driver of Innova car came in a rash and negligent manner

and dashed against the mini auto rickshaw of the

deceased, as a result, the deceased sustained injuries and

NC: 2024:KHC:14489

died on the way to the hospital. The claimants have stated

that at the time of the accident, the deceased was working

as Salesman and was earning more than Rs.15,000/- per

month. Apart from oral evidence of PWs.1 and 2, the

claimants have not furnished any documents to prove that

the deceased was earning Rs.15,000/- per month. The

accident is of the year 2015. During the relevant period,

the notional income considered is Rs.9,000/- per month.

As per the dictum of the Hon'ble Apex Court in the case of

National Insurance Company Limited v. Pranay Sethi

and Others reported in (2017) 16 SCC 680, 25% of the

income has to be added towards future prospects, which

comes to Rs.2,250/- (9,000 X 25%). Thus, the total

salary would be Rs.11,250/- per month (9,000 + 2,250),

annually it will be Rs.1,35,000/- (11,250 X 12). There are

four dependents, as such 1/4th of income of the deceased

has to be deducted towards his personal expenses, i.e.

Rs.1,35,000 X ¼ = Rs.33,750/-. After deduction, the

amount to be contributed to his family would be

Rs.1,01,250/- (1,35,000/- minus 33,750/-). Considering

NC: 2024:KHC:14489

the age of the deceased, '14' multiplier would be

applicable, thus, the compensation payable under the

head of 'loss of dependency' would be Rs.14,17,500/-

(1,01,250 X 14).

9. In the case of Magma General Insurance Co.

Ltd. v. Nanu Ram alias Chuhru Ram and Others

reported in 2018 ACJ 2782 (SC), the Hon'ble Supreme

Court by referring to the decision of the Constitution

Bench in Pranay Sethi (supra) has discussed about

granting the compensation under the head of 'loss of

consortium' and has also issued guidelines for grant of

'spousal consortium', 'parental consortium' and 'filial

consortium'. The claimants are the mother, wife and two

daughters of the deceased. In view of the ratio laid down

by the Hon'ble Supreme Court in the aforesaid decision,

the claimants are entitled to compensation of Rs.40,000/-

each towards 'loss of consortium' as against Rs.30,000/-

awarded by the Tribunal. In addition to that, the

claimants are entitled to Rs.15,000/- towards 'loss of

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estate' as against Rs.10,000/- awarded by the Tribunal.

Further, Rs.15,000/- (5,000 + 10,000) awarded towards

'transportation and funeral expenses' are maintained.

10. Thus, the claimants are entitled for the following

compensation:

                HEADS                         Rs.
Loss of dependency                        14,17,500.00
Loss of consortium/loss of love and
                                           1,60,000.00

affection (Rs.40,000 X 4 dependents) Loss of estate 15,000.00 Transportation 5,000.00 Funeral expenses 10,000.00 TOTAL 16,07,500.00 Less: Compensation awarded by the 13,22,660.00 Tribunal ENHANCED COMPENSATION 2,84,840.00

11. Accordingly, the appeal is allowed in part. The

judgment and award passed by the Tribunal is modified to

the extent stated herein above. The claimants are entitled

for a total compensation of Rs.16,07,500/- as against

Rs.13,22,660/- awarded by the Tribunal with interest at

the rate of 6% per annum on the additional compensation

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of Rs.2,84,840/- from the date of filing of the claim

petition till the date of its realisation.

12. Respondent No.2/Insurance Company is directed

to deposit the additional compensation amount together

with interest within six weeks from the date of receipt of a