Karnataka High Court

Smt Vimalamma vs Hanumantharaju on 8 January, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

                                             -1-
                                                        NC: 2024:KHC:890
                                                    MFA No. 8434 of 2022




                    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. 8434 OF 2022 (MV-D)

              BETWEEN:

              1.     SMT. VIMALAMMA,
                     W/O. NARAYANAPPA,
                     AGED ABOUT 42 YEARS.

              2.     DHANUSH. N.,
                     S/O. NARAYANAPPA,
                     AGED ABOUT 19 YEARS.

              3.     VENKATESH,
                     S/O. NARAYANAPPA,
                     AGED ABOUT 9 YEARS.
                     APPELLANT NO.3 IS MINOR.
                     REPRESENTED BY 1ST APPELLANT MOTHER AS
                     NATURAL GUARDIAN.

                     ALL ARE R/AT. ANANDANASHASTHRIPALYA,
Digitally
signed by B          BELADHRA KORA HOBLI, TUMAKURU TALUK AND
LAVANYA              TUMAKURU DISTRICT - 572 101.
Location:                                                 ...APPELLANTS
HIGH
COURT OF           (BY SRI. MALLIKARJUN DODDABASAVARAJAPPA RYAKHA,
KARNATAKA
                                       ADVOCATE)
              AND:

              1.     HANUMANTHARAJU,
                     S/O. DODDAHANUMAIAH,
                     AGED ABOUT 45 YEARS,
                     R/AT. GUDIPALYA, HANUMANTHAPURA
                     TUMAKURU - 572 101.
                                -2-
                                             NC: 2024:KHC:890
                                        MFA No. 8434 of 2022




2.   THE MANAGER,
     CHOLAMANDALAM MS GENERAL
     INSURANCE COM. LTD.,
     OFFICE AT UNIT NO.4, 9TH FLOOR
     LEVEL-06 GOLDEN HEIGHTS COMPLEX
     59TH H C CROSS ROAD, 4TH M BLOCK
     INDUSTRIAL SUBURB
     RAJAJINAGARA, BENGALURU - 560 086.
                                            ...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 28.02.2022 PASSED IN MVC
NO.1397/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND C.J.M., MACT-XI, TUMAKURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,

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

                          JUDGMENT

This appeal is preferred by the claimants challenging the

judgment and award dated 28.02.2022 passed by the Principal

Senior Civil Judge and C.J.M., Tumakuru (for short 'the

Tribunal') in MVC.No.1397/2019. 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. Brief facts of the case are as under:

That on 24.10.2019 at about 8.30 p.m, when the

deceased Narayanappa was traveling in two wheeler bearing

Reg.No.KA-06-HB-3912, as a pillion rider, the said bike was

ridden by one Ramakrishna and while proceeding near

Bukkapatna, C.N.Durga Hobli, Koratagere Taluk, the rider of

the said bike rode the same in a rash and negligent manner,

fell into the ditch and caused the accident. As a result, the

pillion rider fell down from the bike and sustained injuries. Due

to the said accident, the pillion rider Narayanappa had received

multiple injuries and was shifted to Govt. Hospital, Koratagere,

but he succumbed to the injuries at about 9.30 p.m., on the

same day while taking treatment in the hospital.

3.1. The claimants are the wife and children of the

deceased Narayanappa. The deceased was aged about 44

years. He was hale and healthy prior to the date of accident

and was earning Rs.30,000/- per month by doing agriculture

activities and coconut business. In view of sudden and untimely

death of the deceased, the claimants have lost their bread

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earner, his love and affection and also mentally and financially.

Hence, they filed a claim petition seeking compensation.

3.2. On service of notice, respondent No.1 remained

absent and he was placed ex-parte. Respondent No.2/

Insurance Company appeared through its counsel and filed

objection statement. In the written statement, respondent

No.2 denied the entire petition averments and contended that,

the rider of the bike bearing Reg.No.KA-06-HB-3912 was not

holding a valid and effective driving licence at the time of

accident and there is no fitness certificate to the said bike to

ply on the road. The said bike has been falsely implicated in the

case. The amount of compensation claimed is highly exorbitant.

Hence, on these grounds respondent No.2-Insurance company

prays to dismiss the petition.

3.3. On the basis of pleadings, the Tribunal framed

relevant issues for consideration.

3.4. In order to substantiate the issues and to establish

the case, claimant No.1 got examined herself as PW.1 and got

examined one eyewitness as PW.2 and got marked documents

as Exs.P1 to P18. On the other hand, the 2nd respondent-

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Insurance Company even though filed written statement,

neither examined any witness nor got marked any documents.

3.5. 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.16,30,000/- with interest @ 6% p.a. to the claimants.

3.6. Being aggrieved by the meager compensation

awarded by the Tribunal, the claimants are before this Court

challenging the impugned judgment and award seeking

enhancement of compensation.

4. The main contention of the learned counsel for the

claimants is that the tribunal has misdirected itself in not

assessing the proper income and has committed an error in not

awarding loss of consortium as contemplated in several

judgments of the Hon'ble Apex Court. Accordingly, he seeks

enhancement of compensation and to allow the appeal

preferred by the claimants.

5. Per contra, learned counsel for the Insurance

Company sustains the judgment and award of the Tribunal and

contends that as there is no proof of income, the tribunal is

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right in awarding just and reasonable compensation, which

does not call for interference. Therefore, on these grounds, he

seeks to dismiss the appeal.

6. Having perused the entire material evidence both

oral and documentary and the impugned judgment and award

and having heard the submission of learned counsel, there is no

dispute with regard to occurrence of accident, involvement of

vehicle and death having occurred due to the accident and the

liability is not questioned or challenged by the Insurance

Company. The accident occurred on 24.10.2019 at about 8:30

p.m. The deceased Narayanappa, who was traveling in a two

wheeler as a pillion rider met with an accident due to the

negligence of the offending vehicle. As on the date of

occurrence of accident, the deceased was aged 46 years. The

appropriate multiplier would be 13, which is correctly taken by

the Tribunal. Hence, the same does not call for interference.

7. The Tribunal has assessed the income at

Rs.12,000/- per month, as the claimant has not placed any

cogent evidence for proof of income. However, the notional

income chart prescribed by the Legal Services Authority of the

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year 2019, the income of the year 2019 is Rs.14,000/-per

month. The same will be taken as the income of the deceased

for computation. 25% of the income is to be added as future

prospectus which is taken by the Tribunal and the same does

not call for interference. Negligence is rightly attributed as

against the rider of the motorcycle. There are three

dependants, 1/3rd will have to be deducted towards personal

and living expenses in accordance with the judgment of the

Hon'ble Apex Court in the case of Sarla Verma (Smt) and

others vs. Delhi Transport Corporation and another

reported in (2009) 6 Supreme Court Cases 121. Therefore,

the loss of dependency would be Rs.14,000/- + 25% =

Rs.17,500/-. On deduction of 1/3rd, the income would be

calculated at Rs.5,833/-. As the deceased was aged 46 years,

the appropriate multiplier would be '13'. Therefore, the loss of

dependency would be Rs.11,667/- x 12 x 13 =

Rs.18,20,052/- as against Rs.15,60,000/-.

8. Towards loss of consortium, the Tribunal has

awarded Rs.40,000/-, which is on the lower side. As there are

three dependents, each would be entitled to a sum of

Rs.40,000/- as per the judgment of the Hon'ble Apex Court in

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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. Therefore, Rs.1,20,000/- would be awarded

under the head of consortium plus 10% as escalation for one

block period, it should be Rs.12,000/-, in all, Rs.1,32,000/-.

(b) The Tribunal has awarded Rs.15,000/- towards

funeral expenses and Rs.15,000/- towards loss of estate, which

does not call for interference. However, 10% escalation for one

block period requires to be awarded, which would be

Rs.3,000/-, in all Rs.33,000/-.

entitled to a total compensation of Rs.19,85,052/- as against

Rs.16,30,000/- as mentioned in the table below:

              Heads                      Amount in Rs.

Loss of dependency                            18,20,052-00

                                                   NC: 2024:KHC:890





Loss of consortium                                  1,32,000-00

Loss of Estate and Transportation of                  33,000-00
dead    body     funeral  expenses
charges      and      miscellaneous
expenses

               TOTAL                             19,85,052-00


     9.     Accordingly, I pass the following:

                             ORDER

     i)     The appeal is allowed-in-part;

     ii)    The judgment and award dated 28.02.2022 passed

by the Principal Senior Civil Judge and C.J.M.,

Tumakuru (for short 'the Tribunal') in

MVC.No.1397/2019, is modified;

iii) The claimants would be entitled to a sum of

Rs.19,85,052/- as against Rs.16,30,000/- with

interest @ 6% p.a. from the date of petition till

realization;

iv) The balance enhanced compensation shall be paid

by the respondent - Insurance Company within a

period of four weeks along with interest at 6% per

annum from the date of receipt of copy of this

order.