Karnataka High Court

Padmavati And Ors vs Basavaraj And Ors on 15 April, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                       MFA No.201876 of 2022




                                 IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                              DATED THIS THE 15TH DAY OF APRIL, 2024

                                             PRESENT

                           THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                               AND
                               THE HON'BLE MR. JUSTICE K V ARAVIND

                           MISCL. FIRST APPEAL NO.201876 OF 2022 (MV-D)


                      BETWEEN:

                      1.   PADMAVATI
                           W/O LATE DODAPPAGOUDA
                           AGE: 49 YEARS
                           OCC: HOUSEHOLD

                      2.   SHRUTI
                           D/O LATE DODAPPAGOUDA
                           AGE: 29 YEARS
                           OCC: PRIVATE SERVICE
Digitally signed by
BASALINGAPPA
SHIVARAJ              3.   PREETI
DHUTTARGAON
Location: HIGH
                           D/O LATE DODAPPAGOUDA
COURT OF
KARNATAKA
                           AGE: 23 YEARS
                           OCC: STUDENT

                      4.   SRINIVAS REDDY
                           S/O LATE DODAPPAGOUDA
                           AGE: 21 YEARS
                           OCC: STUDENT

                      5.   GAYATRI
                           D/O LATE DODAPPAGOUDA
                           AGE: 17 YEARS
                           MINOR STUDENT
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                                   MFA No.201876 of 2022




     PETITIONER NO.05 BEING A MINOR
     HENCE REPRESENTED BY HER MOTHER
     APPELLANT NO.1.

     ALL R/O YELLI NAWADGI
     TQ: ALAND, DIST: KALABURAGI

     NOW R/O-H.NO.2-908/114
     BADEPUR COLONY
     SEDAM ROAD
     KALABURAGI - 5.
                                            ...APPELLANTS

(BY SRI NARESH V.KULKARNI, ADVOCATE)

AND:

1.   BASAVARAJ
     S/O SIDRAMAPPA TOGLORE
     AGE: 43 YEARS
     OCC: DRIVER OF PICK UP VAN
     R/O TAMBAKWADI
     ALAND, DIST: KALABURAGI - 585 103.

2.   MANSANAPPA
     S/O SIDRAMAPPA KAMURRI,
     AGE: 51 YEARS
     OCC: OWNER OF PICKUP VEHICLE
     NO.KA-32-C-2384
     R/O H.NO.256
     MUNNALLI SHANTLINGEWAR TEMPLE
     ALAND, DIST: KALABURAGI - 585 103.

3.   THE MANAGER
     ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,
     VISHRANTHI MELARAM TOWERS NO.2/319
     RAJIV GANDHI, SALAI (OM) KARAPAKAM
     CHENNAI - 600 097.

     THROUGH ITS BRANCH MANAGER
     MAIN ROAD
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                                     MFA No.201876 of 2022




     STATION AREA,
     KALABURAGI - 585 103.
                                             ...RESPONDENTS

(BY SRI SUDARSHAN M., ADVOCATE FOR R3;
V/O DATED 30.01.2023 SERVICE OF NOTICE TO R1 AND R2 IS
HELD SUFFICIENT)

      THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE IMPUGNED JUDGMENT AND AWARD DATED
15-10-2018 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL
JUDGE AND M.A.C.T. AT KALABURAGI IN M.V.C. NO.616/2016
AND THE SAME WAS ALLOWED IN PART AND CONSEQUENTLY
BE PLEASED TO ENHANCE THE COMPENSATION AS PRAYED
FOR, IN THE INTEREST OF JUSTICE AND EQUITY.


      THIS MFA COMING ON FOR ADMISSION THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:


                        JUDGMENT

1. This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the claimants being aggrieved by

the judgment and award dated 15.10.2018 passed by the

I Additional Senior Civil Judge & Member MACT, Kalaburagi

in MVC No.616/2016.

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2. Facts giving rise to the filing of the appeal briefly

stated are that on 28.03.2015, when the deceased

Doddappagouda was proceeding on a motorcycle bearing

registration No.KA-32-EH-3781 on Aland-Kalaburagi road,

near Nellur Cross, at that time, a pickup van bearing

registration No.KA-32-C-2384 which was being driven in a

rash and negligent manner, dashed against the motorcycle

of the deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed to

the injuries.

3. The claimants filed a petition under Section 166 of

the Act seeking compensation for the death of the

deceased along with interest.

4. On service of summons, the respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent Nos.1 and 3 did not appear before the Tribunal

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inspite of service of notice and hence were placed ex-

parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants, in order to prove the case,

examined claimant No.1 as PW-1 and another witness as

PW-2 and got exhibited documents namely Ex.P1 to Ex.P9.

On behalf of respondents, neither any witness was

examined nor any document was produced. The Claims

Tribunal, by the impugned judgment, inter alia, held that

the accident took place on account of rash and negligent

driving of the offending vehicle by its driver, as a result of

which, the deceased sustained injuries and succumbed to

the injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.13,40,000/- along

with interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation amount

along with interest. Being aggrieved, this appeal has been

filed.

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6. The learned counsel for the claimants has raised the

following contentions:

a) Firstly, the claimants claim that the deceased was

aged about 50 years at the time of the accident and he

was earning Rs.15,000/- per month by working as Toll

Collector in GVRMP construction and examined PW-2, co-

worker of the deceased. They have also produced RORs at

Ex.P-8 and 9 to show that deceased was owning

agricultural land and getting income from the agricultural

land and due to the death of the deceased, there is loss of

income. The Tribunal is not justified in taking the monthly

income of the deceased as merely as Rs.8,000/-.

b) Secondly, as per the law laid down by the Hon'ble

Supreme Court in the case of NATIONAL INSURANCE

CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017

SC 5157], in case the deceased was self-employed or on

a fixed salary, an addition of 25% of the established

income towards 'future prospects' should be the warrant

where the deceased was between the age group of 40-50

years. The Tribunal has rightly considered the same.

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c) Thirdly, as per the law laid down by the Hon'ble

Supreme Court in the case of PRANAY SETHI (supra),

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

estate' and Rs.15,000/- towards 'funeral expenses'.

d) Fourthly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ

2782], each of the claimants are entitled for

compensation of Rs.40,000/- under the head of 'loss of

love and affection and consortium'.

e) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the lower side. Hence, he prays for allowing

the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

a) Firstly, the claimants claim that the deceased was

earning Rs.15,000/- per month and except examining PW-

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2, no other supporting documents are produced to prove

the income. Therefore, the Tribunal has rightly assessed

the income of the deceased notionally.

b) Secondly, since the claimants have not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

c) Thirdly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal and

original records.

9. It is not in dispute that Doddappagouda died in the

road traffic accident occurred on 28.03.2015 due to rash

and negligent driving of the offending vehicle by its driver.

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10. The claimants claim that deceased was earning

Rs.15,000/- per month by working as Toll Collector in

GVRMP construction and examined PW-2, co-worker of the

deceased. They have not produced any other documents

to prove the income of the deceased. In the cross-

examination, PW-2 has admitted that he has not produced

any documents to show that he is working in the said

construction company. Further, the claimants except

producing the RORs, they have not produced any other

documents to show that the deceased was getting

agricultural income and due to his death, there is loss of

income. In the absence of proof of income, considering the

age and avocation of the deceased and evidence of PW-1,

the notional income of the deceased can be safely taken at

Rs.9,000/- p.m. To the aforesaid income, 25% has been

rightly added on account of future prospects in view of the

law laid down by the Constitution Bench of the Supreme

Court in 'PRANAY SETHI' (supra). Thus, the monthly

income comes to Rs.11,250/-. Since there are 5

dependents, the Tribunal has rightly deducted 1/4th of the

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income of the deceased towards personal expenses and

remaining amount has been taken as his contribution to

the family. The deceased was aged about 50 years at the

time of the accident and multiplier applicable to his age

group is '13'. Thus, the claimants are entitled to

compensation of Rs.13,16,250/- (Rs.11,250*12*13*3/4)

on account of 'loss of dependency'.

11. In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of estate'

and compensation of Rs.15,000/- on account of 'funeral

expenses'. Claimant No.1, wife of the deceased is entitled

for compensation of Rs.40,000/- under the head of 'loss of

spousal consortium'.

12. In view of the law laid down by the Supreme Court in

the case of 'MAGMA GENERAL INSURANCE' (supra),

claimant Nos.2 to 5, children of the deceased are entitled

for compensation of Rs.40,000/- each under the head of

'loss of parental consortium'

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13. Thus, the claimants are entitled to the following

compensation:

Compensation under different Amount in (Rs.) Heads

Loss of dependency 13,16,250

Funeral expenses 15,000

Loss of estate 15,000

Loss of spousal consortium 40,000

Loss of Parental consortium 160,000

Total 15,46,250

14. In the result, the following order is passed:

ORDER

a) The appeal is allowed in part.

b) The judgment of the Claims Tribunal is modified.

c) The claimants are entitled to a total compensation of

Rs.15,46,250/- as against Rs.13,40,000/- awarded by

the Tribunal.

d) The Insurance Company is directed to deposit the

compensation amount along with interest at 6% p.a. from

the date of filing of the claim petition till the date of