Karnataka High Court

Sharada V vs Badruddin on 27 February, 2024

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                                                      NC: 2024:KHC:8171
                                                  MFA No. 8360 of 2017
                                              C/W MFA No. 5744 of 2017



                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                     BEFORE
                 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                 MISCELLANEOUS FIRST APPEAL NO. 8360 OF 2017
                                     (MV-D)
                                        C/W
                 MISCELLANEOUS FIRST APPEAL NO. 5744 OF 2017
                                     (MV-D)
            IN MFA NO. 8360 / 2017

            BETWEEN:

            1.    SHARADA V
                  W/O ISHWARA BHAT
                  AGED ABOUT 74 YEARS
            2.    KRISHNA MOORTHY
                  S/O ISHWARA BHAT
                  AGED ABOUT 55 YEARS
Digitally   3.    PUSHPALATHA
signed by
SUVARNA T         W/O SEETHARAM BHAT
                  AGED ABOUT 53 YEARS
Location:
HIGH
            4.    RAJASHEKAR MOORTHY
COURT OF
KARNATAKA         S/O ISHWARA BHAT
                  AGED ABOUT 48 YEARS

                  ALL ARE :
                  R/A CHAVARKADU HOUSE
                  P O ADYANADKA, ENMAKAJE VILLAGE
                  MANJESHWARA TALUK
                  KASARAGODU DISTRICT, PIN-574260
                                                          ...APPELLANTS
            (BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)
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                                        NC: 2024:KHC:8171
                                    MFA No. 8360 of 2017
                                C/W MFA No. 5744 of 2017



AND:

1.   BADRUDDIN
     S/O ABUBAKKAR
     R/A NO BALLEKODI HOUSE
     GOLTHAMAJAL VILLAGE
     BANTWAL TALUK, DK DISTRICT
     PIN-574260

2.   THE BRANCH MANAGER
     UNITED INDIA INSURANCE COMPANY LTD
     REEHA PLANET BUILDING
     OPP:JAIN BASADI
     PUTTUR ROAD, VITTAL MANGALORE
     ITS HEAD OFFICE AT 24
     WHITES ROAD, CHENNAI
     PIN-600014
                                          ...RESPONDENTS
(BY SRI. O. MAHESH.,ADVOCATE FOR R2 ( THROUGH V/C);
    R1 - SERVED AND UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED17.03.2017 PASSED IN MVC
NO.1497/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE & JMFC, BANTWAL, D.K., AWARDING COMPENSATION
OF RS.3,41,317/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF DEPOSIT.


IN MFA NO. 5744 / 2017

BETWEEN:



     THE BRANCH MANAGER
     UNITED INDIA INSURANCE CO LTD
     REEHA PLANET BUILDING
     OPP: JAIN BASADI PUTTUR ROAD
     VITTA MANGALORE ITS HEAD OFFICE AT NO.24,
     WHITES ROAD, CHENNAI-600 014
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                                         NC: 2024:KHC:8171
                                     MFA No. 8360 of 2017
                                 C/W MFA No. 5744 of 2017



     BY
     REGIONAL MANAGER
     UNITED INDIA INSURANCE CO LTD
     5TH FLOOR, KRISHI BHAVAN,
     NRUPATHUNGA ROAD
     HUDSON CIRCLE, BANGALORE-560 001
     BY ITS MANAGER
                                              ...APPELLANT
(BY SRI. O MAHESH.,ADVOCATE)

AND:

1.   SHARADA V
     AGE 74 YEARS,
     W/O ISHWARA BHAT

2.   KRISHNA MOORTHY
     AGE 55 YEARS,
     S/O ISHWARA BHAT

3.   PUSHPALATHA
     AGE 53 YEARS
     W/O SEETHAMRAM BHAT

4.   RAJASHEKAR MOORTHY
     AGED ABOUT 48 YEARS
     S/O ISHWARA BHAT

     ALL ARE R/AT CHAVARKADU
     HOUSE ADYANADKA POST,
     ENMAKAJE VILLAGE.
     MANJESHWARA TALUK
     KASARAGODU DISTRICT - 581342.

5.   BADRUDDIN
     S/O ABUBAKKAR
     AGE 36 YEARS
     BELLEKODI HOUSE GOLTHAMAJAL
     VILLAGE BANTWAL TLAUK - 574211.

                                          ...RESPONDENTS
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                                         NC: 2024:KHC:8171
                                     MFA No. 8360 of 2017
                                 C/W MFA No. 5744 of 2017



(BY SRI.G. RAVISHANKAR SHASTRY.,ADVOCATE FOR
    R1 TO R4;
    R5- SERVED AND UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED17.03.2017 PASSED IN MVC
NO.1497/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC,MACT-IX, BANTWAL, DAKSHINA KANNADA,
AWARDING COMPENSATION OF RS. 3,41,317/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF DEPOSIT.

     THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Aggrieved by the award dated 17.03.2017, in

MVC No.1497/2015, passed by the MACT-IX, Court of

Principal Senior Civil Judge & JMFC, Bantwal, D.K., both

the insurance company as well as the claimant are before

this Court. The claimant's appeal is numbered as MFA

No.8360/2017 and insurance company appeal is numbered

as MFA No.5744/2017.

2. The claimants are the wife, married daughter

and two sons, who are aged 53 and 46 years and the wife

is 72 years and the deceased was aged 80 years. The case

of the claimants is that when the deceased was waiting for

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the bus at Adyanadka of Kepu Village, on 20.07.2015 at

about 12.30 p.m., a motor bike came from Saradka side

and dashed against him, due to which he sustained

grievous injuries on his head and other parts of the body.

Immediately, he was shifted to the Government hospital,

Vittla. Thereafter he succumbed to the injuries. According

to the claimants, they have spent an amount of

Rs.2,00,000/- for performing the last rites. It is their case

that they spent about an amount of Rs.3,00,000/- towards

medical treatment. It is the further case of the claimants

that the deceased was having agricultural land and he was

earning an amount of Rs.15,000/- p.m. The court below

has held that the accident had occurred because of the

negligence on the part of the driver of the offending

vehicle and when it comes to the loss of dependency court

below has considered the income at Rs.5,000/- p.m., and

deducted 1/3rd and granted compensation as per the table

below:

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Heads Compensation Awarded

1. Loss of Dependency : Rs. 2,00,000/-

2. Loss of love and affection : Rs. 50,000/-

Towards Funeral and

3. : Rs. 60,000/-

Transportation expenses

4. Towards Medical : Rs. 31,337/-

Expenses TOTAL : Rs. 3,41,337/-

3. Learned counsel appearing for the insurance

company submits that the manner in which the accident

had taken place and the injuries sustained by the

deceased shows that while he was crossing the road he

had met with the accident and that there is contributory

negligence on the part of the deceased. It is submitted

that the deceased is aged about 80 years and there is no

evidence to show that he was working and earning an

amount of Rs.15,000/-. He submits that the court below

had taken the income at Rs.5,000/- p.m., without any

basis. Further it is submitted that when both the son and

daughter are majors and also married and elderly persons

and they are residing in the same roof the court below

had deducted 1/3rd which is not correct and the

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compensation that was awarded by the Tribunal under

other heads are also on higher side.

4. Learned counsel appearing for the respondents

/ claimants submits that the spot sketch shows that the

deceased was waiting on the left side of the road and it is

the case of the claimants that the deceased wanted to

travel to Vittal and the opposite vehicle came and dashed

against the deceased. Secondly, he submits that as per

the partition deed the deceased owns land to an extent of

4 acres and he is cultivating the same and he is also

paying the taxes for the property. The court below while

calculating the notional income at least could have taken

Rs.9,000/- p.m. as income. It is submitted that all the

children are dependant on the deceased and the court

below had rightly deducted 1/3rd amount. He submits that

the compensation that was awarded by the Tribunal is not

just and reasonable compensation.

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5. Having heard the learned counsel on either

side, perused the material on record. First coming to the

contributory negligence, there is no dispute about the fact

that no evidence is adduced by the insurance company

with regard to the contributory negligence, and the burden

lies on them. It is the submission of the learned counsel

for the insurance company that from the injuries

sustained by the deceased it has to be inferred and in

connection with the spot sketch. The fact that the rider of

the opposite vehicle was not examined this court is of the

view that the respondent - insurance company has failed

to prove the contributory negligence and the court below

has rightly held that the accident had taken place because

of the rash and negligent driving of the driver of the

opposite vehicle.

6. Then coming to the loss of dependency, there is

no dispute about the fact that there is no evidence on

record to show the income of the deceased. But according

to the claimants the deceased was doing agriculture,

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business and earning an amount of Rs.15,000/-.

According, to the learned counsel for the claimants the

income of the deceased ought to have been taken as

Rs.9,000/-. However, in the opinion of this Court an

amount of Rs.9,000/- p.m., cannot be considered as there

is no evidence and the court below had rightly taken the

income at Rs.5,000/-. When it comes to deduction towards

personal expenses, except wife, the other claimants

cannot be treated as dependants. If 50% amount is

deducted from Rs.5,000/-, the claimants would be entitled

for an amount of Rs.1,50,000/-, (Rs.2500 x 12 x 5)

towards loss of dependency, towards medical

expenses an amount of Rs.31,337/- is granted by the

court below and the same is as per the bills and receipts

produced and hence no interference is called for, towards

consortium, the wife, daughter and two sons are entitled

for an amount of Rs.1,92,000/- (Rs.48,000 x 4), towards

funeral expenses an amount of Rs.36,000/-.

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7. In the light of the law laid down by the Hon'ble

Supreme Court in the case of V.MEKALA vs. M.

MALATHI AND ANOTHER1, the claimant is entitled for an

amount of Rs.10,000/- towards Legal Expenses.

8. The claimant is therefore, entitled to the

compensation under the following heads:

Description By Tribunal By this Court

Loss of Dependency Rs. 2,00,000/- 1,50,000/-

         Towards Funeral and            Rs.
         Transportation                                                      36,000/-
                                                    60,000/-
         expenses
         Towards Medical                Rs.
                                                    31,337/-                 31,337/-
         Expenses
         Loss of Consortium             Rs.
                                                    50,000/-               1,92,000/-

         Legal Expenses                 Rs.                  0               10,000/-
         Total                          Rs.        3,41,337/-             4,19,337/-
                   Enhancement                            Rs.78,000/-



          9.      Accordingly,       the       appeal        of     the     insurance

company i.e., MFA No.5744/2017 is Dismissed. Appeal

of the claimant in MFA No.8360/2017 is partly

(2014) 11 SCC 178

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allowed, enhancing the compensation amount from

Rs.3,41,337/- to Rs.4,19,337/-.

i) The enhanced amount shall carry interest at 6%

p.a., from the date of petition till the date of

realization.

ii) The apportionment made by the court below

with regard to the compensation shall hold

good.

iii) The insurance company shall deposit the

amount within a period of eight weeks from the

date of receipt of copy of the judgment. On

such deposit, the claimant is entitled to

withdraw the entire amount without furnishing

any security.