Karnataka High Court
R Kalavathi vs Shesha Naik K N on 22 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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MFA No. 1127 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 1127 OF 2021 (MV-D)
BETWEEN:
1. R.KALAVATHI,
W/O LATE.VISHWANATH.D.,
AGE 25 YEARS.
2. K.V. ARJUN,
S/O. LATE VISHWANATH.D.,
AGE 7 YEARS (MINOR)
3. PRANATHI K.V.,
D/O LATE.VISHWANATH.D.,
AGE 4 YEARS (MINOR)
APPELLANTS 2 AND 3 ARE MINORS
R/B N/G MOTHER,
Digitally
signed by V APPELLANT NO.1
KRISHNA
Location: 4. RADHAMMA,
High Court of W/O.DHARMAPPA,
Karnataka AGE 59 YEARS.
APPELLANTS 1 TO 3 ARE
R/O HUNASEKATTE AT POST - 572 137.
MUTHUDU HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT.
APPELLANT NO.4 IS THE
R/O DODDAKARPOORADAKATTE
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MFA No. 1127 of 2021
AT POST,
MUTHUDU HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI. PATEL.D.KARE GOWDA, ADVOCATES)
AND:
1. SHESHA NAIK K.N.,
AGE 45 YEARS,
NEELA NAIK K.S.,
R/O KILARADAHALLI,
THANDA VILLAGE - 572 137,
HULIDORE POST,
BUKKAPATNA HOBLI,
SIRA TALUK,
TUMAKURU DISTRICT.
2. UNITED INDIA INSURANCE CO.LTD.,
1ST FLOOR, RAJA COMPLEX,
DR.AMBEDKAR ROAD,
SIRA TALUK - 572 137,
TUMAKURU DISTRICT,
BY ITS MANAGER.
...RESPONDENTS
(BY SMT. MANJULA N TEJASWI, ADVOCATE FOR R2;
R1 IS SERVED)
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED.23.10.2019 PASSED IN MVC
NO.1225/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION AND ETC.,
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MFA No. 1127 of 2021
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimants challenging the
judgment and award dated 23.10.2019 passed by the Senior
Civil Judge and Additional MACT, Sira (for short 'the Tribunal')
in MVC.No.1225/2018. This appeal is founded on the premise of
inadequacy of compensation. Hence, the appellants seek
enhancement of compensation.
2. Though this matter is listed for admission, with
consent of the learned counsel for the parties, it is taken up for
final disposal.
3. Parties to the appeal shall be referred to as per their
status before the Tribunal.
4. Brief facts of the case are as under:
That on 04.08.2018 at about 8.30 p.m., the deceased
D.Vishwantha, was the pedestrian walking by the High School
under the bridge at Tavarekere, was hit by a Tractor and Trailer
unit bearing Registration No.KA.40.TA.4425 and KA.64.T.1729,
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due to the rash and negligent driving by the driver of the
tractor.
4.1. The claimants are the wife (widow), two children and
mother of the deceased D.Vishwanatha. The deceased,
D.Vishwanatha was aged about 37 years and worked as an
agriculturist, earning Rs.20,000/- per month. In view of the
fact that the deceased D.Vishwanatha suffered grievous injuries
and died on the spot. The claimants have lost their bread
earner, his love and affection and also emotionally and
financially. Hence, they filed a claim petition to seek
compensation.
4.2. On service of notice, respondent No.1 did not file
statement of objections. Respondent No.2-Insurance Company
appeared through his counsel and filed the written statement,
denying the claim of the claimants including age, avocation,
income and the negligence attributed against the driver of the
offending vehicle, as also the compensation claimed to be
exorbitant. Hence, he sought for dismissal of the claim
petition.
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4.3. On the basis of pleadings, the Tribunal framed
relevant issues for consideration.
4.4. In order to substantiate the issues and establish the
case, claimant No.1 got examined herself as PW.1 as produced
documents i.e. Exs.P1 to P8. On the other hand, respondent-
Insurance Company neither examined any witnesses nor got
marked any documents.
4.5. On the basis of material evidence both oral and
documentary and on hearing the submissions of learned
counsel for both parties, the tribunal awarded compensation of
Rs.17,71,000/- with interest @ 6% p.a. to the claimants and
directed respondent No.2 to pay the compensation within a
period of one month.
4.6. Being aggrieved by the meager compensation
awarded by the Tribunal, the claimants are before this Court
challenging the impugned judgment and award. On several
grounds urged in the appeal.
5. It is the vehement contention of the learned counsel for
appellant-claimant that the tribunal has committed an error in
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awarding meager compensation, which calls for interference at
the hands of this Court. Accordingly, he seeks enhancement of
compensation.
6. Per contra, learned counsel for respondent-Insurance
Company contends that the tribunal has awarded just and
reasonable compensation, which does not call for interference.
Hence, he seeks dismissal of the appeal.
7. Having heard the learned counsel Sri. Shreyas, on
behalf of Sri. Patel D Kare Gowda, for appellants/claimants and
the learned counsel, Smt.Manjula N. Tejaswi, for respondent
No.2-Insurance Company and having perused the entire
material evidence, both oral and documentary and the
impugned judgment and award, it is seen that Exs.P-1 to P-7
are the police records which clearly depict the filing of the FIR
and charge sheet against the driver of the Tractor. Hence,
negligence is attributed against the driver of the tractor which
has not been challenged or controverted.
8. Coming to the question of age, avocation and income,
the multiplier to be adopted though claimants have pleaded
that the deceased was working as an agriculturist and earning a
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sum of Rs.20,000/-, there is no proof produced before the
Tribunal or this court. Hence, the Tribunal, due to a lack of
material proof of income, has taken the notional income at
Rs.9000/- per month. I am in agreement with the learned
counsel for the appellants, and the same requires to be
enhanced. The Tribunal and this Court will have to rely upon
the Notional Income chart prescribed by the Legal Services
Authority. Accordingly, the notional income is taken as
Rs.12,500/- per month. There is no denial of the fact that the
deceased was aged 37 years on the date of occurrence of the
accident and the multiplier is correctly taken up to '15', which
does no call for interference.
9. The Tribunal also added 40% of future prospects
considering the age of the deceased to be lesser than 40 years
and deducted 1/4th towards, personal and living expenses,
which did not call for interference. In view of the fact that this
court has enhanced the income to Rs.12,500/- per month. The
loss of the dependency would be (12500 + 40 % = 17,500-
4,375) income would be taken as Rs.13125/- per month,
(13125 * 12 * 15) Rs.23,62,500/- under this head as against
the Rs.17,01,000/- awarded by the Tribunal. Towards loss of
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consortium tribunal has awarded Rs.40,000/- to claimant No.1,
as love and affection. Whereas, the learned counsel for the
claimants contends that in view of the fact that there are four
dependents, each one would be entitled to Rs. 40,000 per head
and they seek enhancement on under this head. Whereas,
learned counsel Smt.Manjula N. Tejaswi, for respondent-
Insurance Company vehemently contends that in the judgment
rendered by the Constitutional Bench, the Hon'ble Apex Court
in the case of National Insurance Company Limited vs.
Pranay Sethi and others reported in (2017) 16 Supreme
Court Cases 680. Therefore, the Hon'ble Apex Court has held
Rs.70,000/- under conventional head including consortium the
same cannot be increased to Rs.40,000/- per head
Rs.1,60,000/- (Rs.40,000/- x 4) as canvassed by learned
counsel for the claimants. After giving thoughtful consideration
to these submissions of both the learned counsel and going
through the judgment of the Hon'ble Apex Court in the case of
National Insurance Company Limited vs. Pranay Sethi
and others reported in (2017) 16 SCC 680, which is followed
by United India Insurance Company Limited vs. Satinder
Kaur @ Satwindar kaur and others reported in 2021 (11)
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SCC 780 and Magma General Insurance Company Limited
vs. Manu Ram Alias chuhru Ram and others reported in
(2018) 18 SCC 130. It is seen that the Hon'ble Apex Court
has thereafter reiterated that the consortium has to be awarded
Rs.40,000/- per person in the form of a spousal consortium, a
parental consortium and filial consortium. The same has not
been questioned or challenged or reversed till date. Under the
circumstances, the contentions put forth by learned counsel for
the insurance is negatived. The consortium has to be awarded
Rs.40,000/- to per head x 4 = 1,60,000/- is awarded with the
escalation of 10% one block period of three years is sum of
Rs.16,000/- added. Towards loss of estate and funeral and
transportation expenses of Rs.15,000/- each, Rs.30,000/- is
awarded, which is also entitled to 10% escalation (30,000 x
10%) as per the judgment in the case of Pranay Sethi stated
supra.
(c) In view of the above, the claimants would be entitled
to a total compensation of Rs.25,71,500/- as against
Rs.17, 71,000/- as mentioned in the table below:
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Heads Amount in Rs.
Loss of dependency 23,62,500-00
Loss of consortium 1,60,000-00
Escalation of 10% 16,000-00
Transportation of dead body, 30,000-00
funeral expenses and obsequies
ceremony
(30,000 x 10%) 3,000-00
TOTAL 25,71,500-00
Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 23.10.2019 passed by
the Senior Civil Judge and J.M.F.C, SIRA in
MVC.No.1225/2018 is modified;
iii) The claimants would be entitled to a sum of
Rs.25,71,500/- as against Rs.17,71,000/- with
interest @ 7% p.a. from the date of petition till
realization;
iv) Enhancement amount of compensation shall carry
interest @ 6% and it shall be paid by the Insurance
Company within a period of four weeks from the date
of receipt of copy of the order.
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v) All other terms and conditions stipulated by the
tribunal shall stand intact with regard to deposit;
vi) Registry is directed to transmit the original records to
the jurisdictional tribunal forthwith.
Sd/-
JUDGE
AMM
