Karnataka High Court

Smt Saroja vs Mr Venkatesh D on 28 February, 2024

Author: Jyoti Mulimani

Bench: Jyoti Mulimani

                                            -1-
                                                           NC: 2024:KHC:8178
                                                     MFA No. 6270 of 2014




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 28TH DAY OF FEBRUARY, 2024

                                         BEFORE
                       THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                MISCELLANEOUS FIRST APPEAL NO.6270 OF 2014(MV-D)
               BETWEEN:

               1.    SMT. SAROJA
                     W/O BHOPAL KRISHNA,
                     AGED ABOUT 64 YEARS,

               2.    SRI. B.KUMAR
                     S/O BHOPAL KRISHNA,
                     AGED ABOUT 41 YEARS,
                     BOTH APPELLANTS R/AT
                     NO.35, VENKATAPPA STREET,
                     CHIKKAMAVALLI,
                     BANGALORE-560 004.

                     OLD ADDRESS:
                     NO.106,
                     GRAMADEVATHA ROAD,
                     MAVALLI,
Digitally signed by  BANGALORE-560 004.
THEJASKUMAR N                                                  ...APPELLANTS
Location: HIGH      (BY SMT. BHANU.H.M., ADVOCATE FOR
COURT OF                SRI. M.R.KUMARASWAMY., ADVOCATE)
KARNATAKA

                AND:

               1.    MR. VENKATESH.D
                     S/O DASEGOWDA,
                     R/AT NO. 166, 12TH LINE,
                     POLICE QUATRES, JYOTHI NAGAR,
                     MYSORE-570 001.

               2.    THE NATIONAL INSURANCE COMPANY LTD.,
                     DO X, MOTOCROP VERTICAL,
                                 -2-
                                                NC: 2024:KHC:8178
                                          MFA No. 6270 of 2014




    101-106, BMC HOUSE,
    CONNAUGHT PLACE,
    NEW DELHI-110 001.
    REPRESENTED BY ITS REGIONAL OFFICE,
    THE NATIONAL INSURANCE CO., LTD.,
    REGIONAL OFFICE, SHUBHRAM COMPLEX,
    M.G.ROAD, BANGALORE-560 001.
                                         ...RESPONDENTS
(NOTICE TO R1-DISPENSED WITH V/O DATED 02.12.2014;
     BY SRI. SRIRAM.M.S., ADVOCATE FOR R2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED: 18.11.2013
PASSED IN MVC NO.2095/2013 ON THE FILE OF THE XIII
ADDITIONAL    SMALL     CAUSE     JUDGE    &    MEMBER,     MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION          AND     SEEKING     ENHANCEMENT           OF
COMPENSATION.

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

Smt.Bhanu.H.M., learned counsel on behalf of

Sri.M.R.Kumarswamy., for the appellants has appeared through

video conferencing.

Sri.Sriram.M.S., learned counsel for respondent No.2 has

appeared in person.

NC: 2024:KHC:8178

Though the appeal is listed today for admission, with the

consent of learned counsel for the respective parties, it is heard

finally.

2. For the sake of convenience, the parties shall be

referred to as per their status and rankings before the Tribunal.

3. It is the case of the claimants that on the 27th day

of January 2013 at about 12:50 pm., Mr.Bhopal Krishna - the

husband of the first claimant and the father of the second

claimant being a pedestrian was crossing the road in front of

Mayura Hotel, J.C.Road, Kalasipalya, Bangalore. At that time,

the rider of the motorcycle bearing Registration No.KA-55 H-

1340 came in a rash and negligent manner and hit against

Mr.Bhopal Krishna. As a result of which, Mr.Bhopal Krishna fell

down and sustained grievous head injuries. Immediately, he

was shifted to KIMS Hospital. But he succumbed to the injuries

on the way to the hospital. Contending that the accident

occurred due to the rash and negligent riding of the motorcycle

in question, the claimants filed the claim petition seeking

compensation.

NC: 2024:KHC:8178

In response to the notice, the respondents appeared

through their counsel and filed separate statement of

objections and they denied the petition averments. The first

respondent contended that on the date of the accident the rider

of the motorcycle was holding valid and effective driving license

to ride the motorcycle and the policy was in force. Hence, he

contended that the compensation if any should be paid by the

second respondent. Accordingly, he prayed for dismissal of the

petition against him with costs.

The second respondent - Insurance Company admitted

the issuance of the policy in respect of the motorcycle and its

force as of the date of the accident. However, it contended that

its liability is subject to the terms and conditions of the policy.

Among other grounds respondents prayed for dismissal of the

petition.

Based on the above pleadings, the Tribunal framed

issues. The first claimant examined herself as PW1 and got

marked the documents. The respondents did neither led

evidence nor got marked the documents. The Tribunal vide

Judgment dated:18.11.2013 allowed the claim petition in part.

NC: 2024:KHC:8178

It is this Judgment that is called into question in this appeal on

several grounds as set-out in the Memorandum of appeal.

4. Learned counsel for the appellants and respondent

No.2 have urged several contentions.

Learned counsel for the appellant in presenting her

arguments vehemently contended that the Tribunal has erred

in fixing 20% contributory negligence on the deceased. She

argued by saying that the compensation awarded by the

Tribunal requires modification. Counsel therefore, submits that

the appeal may be allowed.

Learned counsel for respondent No.2 justified the

Judgment and award of the Tribunal. He submits that the

appeal is devoid of merits and the same may be dismissed.

Heard, the contentions urged on behalf of the respective

parties and perused the appeal papers and also the records

with utmost care.

5. The point that would arise for consideration is

whether the Claimants are entitled for enhanced compensation?

NC: 2024:KHC:8178

6. The facts are sufficiently stated and do not require

reiteration. The Claimants appeal is one for enhancement of

compensation and modification of the judgment. The Tribunal

taking note of the material evidence on record concluded that

the deceased has also contributed some negligence in the

occurrence of the accident and thus, fixed 20% contributory

negligence on the deceased. In my view, the finding on the

contributory negligence is just and proper and it requires no

interference.

It is contended that the deceased was working as a

Caterer and he was earning salary of Rs.15,000/- (Rupees

Fifteen Thousand only) per month. However, there is no proof

of income for the same. In the absence of any proof of income,

the chart prepared by the Legal Service Authority must be

taken into consideration. As per the chart, the salary of the

deceased must be taken as Rs.8,000/- (Rupees Eight Thousand

only) per month. If 50% is deducted, the salary would be

Rs.4,000/- (Rupees Four thousand only). Hence, the amount

towards the loss of dependency is as under:

Rs.4,000/- X 12 X 5 = Rs.2,40,000/-

NC: 2024:KHC:8178

In the present case, the deceased left behind his wife and

son. Hence, they are entitled to compensation under the head

"loss of consortium" as under:

LOSS OF CONSORTIUM:

(1)   Wife:                                Rs.44,000/-
(2)   Son:                                 Rs.44,000/-
                           Total       Rs.88,000/-
Towards loss of love and             + Rs.33,000/-
affection,    Loss   of   Estate
and Funeral expenses
                           Total     Rs.1,21,000/-

Since this Court has affirmed the finding regarding

contributory negligence of 20% on the part of the deceased,

the claimants are entitled for enhanced compensation as under:

Loss of Dependency:                                        Rs.2,40,000/-
Loss of Consortium:                                        Rs.1,21,000/-
                                       TOTAL              Rs.3,61,000/-
(Less):      20%     of   the      contributory          (-) Rs.72,200/-

negligence on the part of the deceased i.e., (3,61,000 X 20/100 = 72,200) TOTAL Rs.2,88,800/-

(Less): Compensation awarded by (-) Rs.2,12,000/-

the Tribunal Enhanced Compensation awarded Rs.76,800/- by this Court

NC: 2024:KHC:8178

Having regard to the facts and circumstances of the case

and the prevailing rate of interest during the relevant time, this

Court deems it appropriate to award interest at the rate of 6%

per annum on the enhanced compensation amount from the

date of claim petition till realization.

7. Hence, the following:

ORDER

1. The Miscellaneous First appeal is

allowed in part and the Judgment

dated:18.11.2013 passed by the 13th Addl. Small

Causes Judge and Member, MACT, Bengaluru in

M.V.C No.2095/2013 is modified to the extent

stated hereinabove.

2. The claimants are entitled for the

enhanced compensation of Rs.76,800/- (Rupees

Seventy Six Thousand and Eight Hundred only)

with interest at the rate of 6% per annum from the

date of the claim petition till the date of realization.

3. The second respondent - Insurance

Company shall deposit the enhanced compensation

NC: 2024:KHC:8178

amount along with 6% interest within a period of

two months from the date of receipt of the certified

copy of this Judgment.