Karnataka High Court
Smt Parvathi vs Sri Gopala on 3 January, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:223
MFA No. 2158 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 2158 OF 2020 (MV-D)
BETWEEN:
1. SMT. PARVATHI,
W/O LATE SANJEEV SHETTIGAR,
AGED ABOUT 50 YEARS,
2. SRI. SATHYANARAYA,
S/O LATE SANJEEV SHETTIGAR,
AGED ABOUT 30 YEARS,
3. SRI. MANJUNATHA SHETTIGAR,
S/O LATE SANJEEV SHETTIGAR,
AGED ABOUT 28 YEARS,
4. SRI. MADHUKAR,
S/O LATE SANJEEV SHETTIGAR,
AGED ABOUT 26 YEARS,
Digitally signed ALL ARE RESIDING AT DODDAMANE BETTU,
by CHAITHRA P BEEJADI GRAMA, KUNDAPURA TALUK,
Location: High UDUPI DISTRICT.
Court of
Karnataka ...APPELLANTS
(BY SRI. NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI. GOPALA,
S/O THIMMA MOGAVEERA,
AGED ABOUT 29 YEARS,
R/O THIMMA NILAYA,
SEETHIMAKKI BETTU, MARKODU,
KOTESHWARA GRAMA, KUNDAPURA TALUK.
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MFA No. 2158 of 2020
2. UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE: UDUPI,
REPRESENTED BY ITS
DIVSIONAL MANAGER.
...RESPONDENTS
(BY SRI. RAVISH BENNI, ADVOCATE FOR R2;
R1 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 23.01.2017 PASSED IN MVC
NO.792/2015 ON THE FILE OF THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE, UDUPI, SITTING AT KUNDAPURA,
KUNDAPURA AND ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimants challenging the
judgment and award dated 23.01.2017 passed by the
Additional District and Sessions Judge and M.A.C.T., Udupi
(Sitting at Kundapura), Kundapura (for short 'the Tribunal') in
MVC.No.792/2015. This appeal is founded on the premise of
inadequacy of compensation. Hence, the appellants seek
enhancement of compensation.
2. Parties to the appeal shall be referred to as per their
status before the Tribunal.
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3. Heard the learned counsel for appellants and learned
counsel for respondents.
4. Brief facts of the case are as under:
This appeal is preferred by the claimants seeking
enhancement of compensation for the death of deceased
Sanjeeva Shettigar. It is the case of the claimants that
deceased was walking on the left side of Koteshwara Main Road
side mud portion of road on Koteshwara Village, Kundapura
Taluk at 20.15 hours on 06.08.2015, at that time a motor cycle
bearing registration No.KA-20-X-4148 ridden by its rider in a
rash and negligent manner, lost control of the vehicle and
dashed against the deceased Sanjeeva Shettigar. Due to the
impact of the vehicle on the said Sanjeeva Shettigar, he
sustained grievous injuries and was immediately rushed to
Adarsha Hospital, Udupi, where he succumbed to the injuries
during the course of treatment on 08.08.2015.
4.1. It is the case of claimants that the deceased was
working as a driver and earning a sum of Rs.12,000/- per
month as income, the claimants are none other than the wife
and children of deceased Sanjeeva Shettigar. The deceased, at
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the time of accident was hale and healthy and was sole bread
earner of family and was maintaining the family. Due to the
death of the deceased, the family has suffered financial loss,
loss of love and affection and enormous, trauma and pain and
agony. Due to the death of deceased in the above traffic
accident, the claimants preferred claim petition seeking
compensation against the owner of the two wheeler and the
Insurance Company.
4.2. Pursuance to the issuance of notice though the
respondent No.1 owner appeared along with respondent No.2
before the Court, respondent No.1 did not contest the matter.
However, respondent No.2-Insurance Company filed detailed
statement of objections and disputed the claim made by the
claimants in the claim petition.
4.3. After contest on the basis of pleadings, the tribunal
framed the relevant issues for consideration
4.4. In order to substantiate the case and to establish the
case, claimant No.1 was examined as PW.1 and other two
witnesses were examined on her behalf and got marked Exs.P1
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to P11. However, respondents did not choose to lead any
evidence and got marked one document marked as Ex.R1.
4.5. After considering the material evidence placed on
record both oral and documentary and on hearing the
submissions of both parties, the tribunal awarded a total
compensation of Rs.8,60,000/- along with interest at 6% per
annum from the date of petition till the date of realization.
4.6. Being aggrieved by the meager compensation
awarded by the tribunal, the claimants are before this Court
seeking enhancement of compensation.
5. Learned counsel for claimants submits that the tribunal
has committed an error in not awarding suitable compensation.
Secondly, the tribunal has failed to award consortium to the
claimants and has not awarded future prospects while
computing the compensation. It is also submitted that the
income taken by the tribunal is on the lower side as the
deceased was a driver by profession and Ex.P10 is the driving
licence, but the same has not been considered by the tribunal.
Therefore, he contends that the tribunal ought to have taken
Rs.12,000/- per month as income rather than Rs.10,000/- and
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has also failed to take into consideration the evidence of PW-3
who is the employer, who has admitted in his evidence that the
deceased employee was earning income along with batta
charges. On all these grounds, he seeks enhancement of
compensation.
6. Per contra, learned counsel Sri Ravish Benni appearing
on behalf of the Insurance Company vehemently contends that
the judgment and award passed by the tribunal does not call
for interference as the same is in accordance with the material
evidence on record. In fact, on the contrary he contends that
the income taken by the tribunal is on the higher side and there
being no material evidence placed on record with regard to
proper income or proof of income placed by the claimants. He
also contends that evidence of PW-3 cannot be taken into
consideration for the reason that the batta cannot be taken as
income as held by several judgments of the Hon'ble Apex Court
and this Court. He also contends that the argument put forth
by the learned counsel for claimants with regard to age of the
deceased being 54 years, cannot be appreciated. The tribunal
has rightly appreciated Ex.P10 which is the driving licence
which clearly depicts the date of birth as 17.03.1951 and as on
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the date of accident i.e., 2015, age of the deceased would be
64 years which is rightly taken by the tribunal and the same
does not call for interference. Learned counsel for Insurance
Company also contends that, in view of the age as per Ex.P10
is 64 years, the question of awarding future prospects would
not arise, hence the argument of the counsel for the claimants
deserves to be negated. He further contends that the
compensation awarded under other heads by the tribunal is
justified and the appeal deserves to be rejected.
7. Having heard learned counsel for claimants and the
respondent-Insurance Company, having perused the original
records, the impugned judgment and the exhibits relied by the
parties, it is not in dispute that the accident occurred on
06.08.2015 involving the deceased Sanjeeva Shettigar in the
motor cycle bearing No.KA-20-X-4148 which is insured with
respondent No.2. The FIR and the charge sheet have been
lodged against the driver of the motor cycle. The driver and
owner of the motor cycle have not challenged the same.
8. Coming to the aspect of age, avocation and income of
the deceased, it is clearly seen from Ex.P10 that age of
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deceased was 64 years as on date of occurrence of accident
i.e., 06.08.2015, the appropriate multiplier would be 7 as
contemplated in the case of Sarla Verma (Smt) and others
vs. Delhi Transport Corporation and another reported in
(2009) 6 Supreme Court Cases 121. The claimants having
not produced any single piece of document to show the proof of
income except adducing the evidence of PW-3 and self serving
statement in the claim petition and evidence. However, the
tribunal has computed the income to be Rs.10,000/- per month
considering the avocation of the deceased as a driver. I am an
agreement with the learned counsel for respondent-Insurance
Company that the same cannot be interfered as no cogent
evidence is placed by the claimants to enhance the income
from that of Rs.10,000/- awarded by the tribunal and also not
in agreement with the arguments put forth by the learned
counsel for respondent - Insurance Company that the income
has to be reduced in view of the pleadings and evidence of PW-
3 as the tribunal has taken a right decision with regard to the
deceased being a driver and awarded Rs.10,000/- as income
per month, the same does not call for interference in my
opinion. The multiplier has been rightfully applied by the
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tribunal at 7 which also does not call for interference.
Therefore, loss of dependency would also not call for
interference, the same is correctly calculated by the tribunal at
Rs.6,30,000/-.
9. The tribunal has awarded a sum of Rs.1,30,000/-
under the head of medical expenses, which does not call for
any interference and the same is retained.
10. The tribunal has awarded consortium at Rs.50,000/-
plus Rs.25,000/- as love and affection, in all Rs.75,000/-
awarded under the head consortium and Rs.25,000/- under the
head loss of estate and funeral expenses and transportation of
dead body.
11. I am in agreement with the learned counsel for
claimants that the tribunal has committed an error in awarding
consortium as the same has to be awarded at Rs.40,000/- per
person as there are four dependents, which would come to
Rs.1,60,000/- (Rs.40,000/- x 4) along with 10% escalation
towards one block period, which would be Rs.1,76,000/-
(Rs.1,60,000/- + 16,000/-). The tribunal has awarded
Rs.25,000/- under the head loss of estate, as stated above,
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whereas, Rs.30,000/- requires to be awarded towards loss of
estate and funeral expenses along with 10% escalation towards
one block period which should be Rs.33,000/- in all.
12. In view of the discussions made here and above, the
claimants would be entitled to total compensation of
Rs.9,69,000/- as against Rs.8,60,000/- as mentioned in the
table below:
Heads Amount in Rs.
Loss of dependency 6,30,000-00
Medical expenses 1,30,000-00
Loss of consortium 1,76,000-00
Loss of estate, funeral expenses 33,000-00
and transportation of dead body
TOTAL 9,69,000-00
Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 23.01.2017 passed by
the Additional District and Sessions Judge and
M.A.C.T., Udupi (Sitting at Kundapura), Kundapura is
modified;
iii) The claimants would be entitled to a sum of
Rs.9,69,000/- as against Rs.8,60,000/- with interest
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at 6% per annum from the date of petition till
realization;
iv) The balance compensation amount shall be paid by the
respondent - Insurance Company within four weeks
from the date of receipt of copy of this order with
interest at 6% per annum on the balance
compensation amount to be paid.
v) The balance enhanced compensation amount awarded
by this Court shall be disbursed in favour of the
appellants/claimants as per the proportionate share as
stipulated by the tribunal forthwith upon proper
verification.
Sd/-
JUDGE
CPN
CT: BHK
