Karnataka High Court

Smt.Shashikala Kanchan vs Sharath Kanchan on 8 January, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                         NC: 2024:KHC:781
                                                   MFA No. 3937 of 2021




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 8TH DAY OF JANUARY, 2024

                                       BEFORE

               THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

                   MISCELLANEOUS FIRST APPEAL NO.3937 OF 2021 (MV-D)

              BETWEEN:

              1.    SMT.SHASHIKALA KANCHAN
                    AGED ABOUT 51 YEARS
                    W/O LATE MADHUKAR KANCHAN

              2.    HARSHNI M KANCHAN
                    AGED ABOUT 21 YEARS
                    D/O LATE MADHUKAR KANCHAN

              3.    MANISHA M KANCHAN
                    AGED ABOUT 20 YEARS
                    D/O LATE MADHUKAR KANCHAN

                    ALL ARE RESIDING AT SUNDARI NILAYA
                    THOTADA MANE
                    BELLAMPALLI.
                    UDUPI TALUK AND DISTRICT- 18.
                                                            ...APPELLANTS
Digitally
signed by B   (BY SRI. PAVANA B.K., ADVOCATE FOR SRI. PRATHEEP K C.,
LAVANYA       ADVOCATE)
Location:
HIGH          AND:
COURT OF
KARNATAKA     1.    SHARATH KANCHAN
                    AGED ABOUT 32 YEARS
                    S/O ANNAYYA PUTHRAN
                    R/AT KELAMANE
                    KUKKIKATTE POST
                    BELLAMPALLI VILLAGE
                    UDUPI TALUK
                    UDUPI DISTRICT-1.
                                -2-
                                              NC: 2024:KHC:781
                                         MFA No. 3937 of 2021




2.   THE DIVISIONAL MANAGER
     UNITED INDIA INS. CO. LTD
     DIVISIONAL OFFICE
     JEWEL PLAZA, MARUTHI VITHIKA
     OPP: SHRINIDHI MEDICAL
     NEAR CHITTARANJAN CIRCLE
     UDUPI-576101.
                                        ...RESPONDENTS
(BY SRI. KRISHNA KISHORE, ADVOCATE FOR R2)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.02.2020 PASSED IN MVC
NO. 1075/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is preferred by the appellants-claimants

challenging the judgment and award dated 05.02.2018 in

MVC.No.1075/2018 passed by the Principal Senior Civil

Judge and Additional MACT, Udupi (for short 'the

tribunal'). The appellants are before this Court seeking

enhancement of compensation being dissatisfied with the

meager amount of compensation awarded by the Tribunal.

2. Parties to the appeal shall be referred to as per

their status before the tribunal.

NC: 2024:KHC:781

3. Brief facts of the case are as under:

That on 07.02.2017 at about 10.50 p.m, one

Madhukar Kanchan was riding scooter bearing No.KA-20-

X-3651 proceeding from Hiriadka towards Udupi. At that

time, one motorcycle bearing No.KA-20-EG-1792 came

from opposite direction in a rash and negligent manner so

as to endanger human life and dashed against the scooter

of the said Madhukar Kanchan. Due to severe impact of

the accident, Madhukar Kanchan fell down and sustained

severe head injuries. Thereafter, he was immediately

shifted to KMC hospital, Manipal, but he succumbed to the

injuries on 09.02.2017.

4. It is the case of the claimants that huge amount

was spent on the medical expenses of the deceased. The

claimants pleaded that deceased Madhukar Kanchan was

working in Dharmasthala Nature of cure hospital as a night

watchman and earning monthly income of Rs.20,000/-

p.m. Due to the death having occurred by the negligence

of the rider of the offending vehicle, the claimants

NC: 2024:KHC:781

preferred a claim petition seeking compensation against

the respondents.

5. Respondent No.2 appeared and filed a

statement of objections whereas respondent No.1 was

placed exparte, despite service of notice. Respondent

No.2- Insurance company had taken a plea that the

accident was not caused due to the negligence of rider of

the offending vehicle, but it occurred due to the negligence

of the deceased himself and denied the income and other

averments made in the claim petition and sought for

dismissal of the claim petition.

6. Based on the pleadings, the Tribunal framed the

relevant issues for consideration.

7. In order to substantiate the issues and to establish

the case, claimant No.1 was examined herself as PW.1,

who is the wife of the deceased and one eye witness was

examined as PW.2. Exs.P.1 to 10 came to be marked on

behalf of the claimants. The respondents examined the

NC: 2024:KHC:781

rider of the offending vehicle as RW.1 and official of the

respondent No.2 was examined as RW.2.

8. On the basis of the material evidence both oral

and documentary, the Tribunal awarded total

compensation of Rs.10,38,000/- with interest @ 6% p.a.

and fastened the liability against respondent Nos.1 and 2

and directed the Insurance Company to pay the

compensation along with interest @ 6% from the date of

petition till full and final realisation.

9. Being aggrieved by the meager compensation

amount awarded by the tribunal, the claimants are before

this Court seeking enhancement of compensation.

10. It is the vehement contention of learned counsel

for claimants that the tribunal has committed an error in

not awarding suitable compensation and ignored the

material evidence on record, both oral and documentary

and so also, it is contended that under the other heads

including consortium, the tribunal has awarded meagre

compensation, which is contrary to the well established

NC: 2024:KHC:781

judgment of the Hon'ble Apex Court and hence, seeks

enhancement of compensation.

11. Per contra, learned counsel for respondent No.2-

Insurance Company contends that the tribunal has not

committed any error and has taken into account the

materials placed on record for the purpose of computation

of income, multiplier, consortium and has awarded just

and reasonable compensation, which does not call for

interference. He further contends that though the

claimants pleaded that the deceased was working as a

watchman and earning Rs.20,000/-, but they have

produced Ex.P9-salary certificate of the deceased, which

discloses the income of the deceased at Rs.10,000/-.

Taking into consideration of the same, the tribunal has

taken the income of Rs.10,000/-, which is not exorbitant

and it is just and reasonable. Hence, seeks for dismissal

of the appeal.

NC: 2024:KHC:781

12. Having heard learned counsel for appellants and

respondent No.2 and having perused the impugned

judgment and award and original records, it is not in

dispute that the accident occurred on 07.02.2017 between

two vehicles, in which the deceased was travelling by

riding a scooter and the offending vehicle came from

opposite direction and dashed against the vehicle of the

deceased and due to severe impact, the deceased

succumbed to the severe head injury on 09.02.2017. To

establish this aspect of occurrence of accident,

involvement of the vehicle, injury suffered by the

deceased and death having occurred, the claimants have

produced Exs.P1 to P10, the Police records, which clearly

establish the negligence of the rider of the offending

vehicle and the same is not questioned and not

challenged. Therefore, the negligence is proved against

the rider of the offending vehicle. It is also not in dispute

that the offending vehicle was insured with respondent

No.2 and policy was in force as on the date of occurrence

of the accident.

NC: 2024:KHC:781

13. Now coming to the aspect of age, avocation and

income of the deceased as on the date of occurrence of

accident, it is seen that the age of the deceased was 51

years. The appropriate multiplier would be '11', which is

rightly applied by the tribunal. The income assessed by

the tribunal is at Rs.10,000/- per month, but the notional

income chart of the Legal Services Authority for accident

of the year 2017 is Rs.11,000/- per month and the same

is taken in the present case. As the deceased was aged

51 years, 10% would have to be taken as future prospects

and there being three dependants, 1/3rd would have to be

deducted towards personal and living expenses of the

deceased. Therefore, Rs.11,000/- + 10% = Rs.12,100/- -

1/3rd would be Rs.8,067/-, which would be the income for

computation. Therefore, the loss of dependency due to the

death of deceased would be Rs.10,64,844/- (Rs.8,067/-

x 12 x 11) as against Rs.9,68,000/-awarded by the

tribunal.

NC: 2024:KHC:781

14. There are three dependents. Admittedly, the

tribunal has awarded Rs.40,000/- towards consortium,

whereas 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

Supreme Court Cases 680, which has been

subsequently followed by the Hon'ble Apex Court in the

cases of Magma General Insurance Co.Ltd. vs. Nanu

Ram and others, reported in (2018) 18 SCC 130 and

United India Insurance Co. Ltd. v. Satinder Kaur

Alias Satwinder Kaur reported in AIR 2020 SC 3076

awarded Rs.40,000/- per person. Therefore, the claimants

would be entitled to Rs.1,20,000/- (Rs.40,000/- x 3) and

10% escalation for one block period on consortium would

be Rs.12,000/- (Rs.1,20,000/- x 10%). Therefore, in all,

the claimants would be entitled for Rs.1,32,000/-

(Rs.1,20,000/- + Rs.12,000/-) towards loss of consortium.

15. Towards loss of estate and funeral expenses,

Rs.15,000/- each i.e. Rs.30,000/- is awarded and 10%

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NC: 2024:KHC:781

escalation on Rs.30,000/- would be Rs.3,000/-. Hence, in

all, Rs.33,000/- (Rs.30,000/- + Rs.3,000/-) is awarded

under this head.

16. In view of the above discussions, the claimants

would be entitled to a total compensation of

Rs.12,29,844/- as against Rs.10,38,000/- as mentioned

in the table below:

                 Heads                                    Amount in Rs.
Loss of dependency                                           10,64,844-00
Loss of consortium                                            1,32,000-00
Loss of estate and funeral expenses                             33,000-00
                 TOTAL                                      12,29,844-00

17. Accordingly, I pass the following: