Karnataka High Court

Sri. Annappa And Anr vs Shivakumar And Ors on 25 July, 2024

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                                                        MFA No.201603 of 2018




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                              DATED THIS THE 25TH DAY OF JULY, 2024

                                             PRESENT

                             THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                                AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                           MISCL. FIRST APPEAL NO.201603 OF 2018 (MV-D)

                      BETWEEN:

                      1.   SRI. ANNAPPA
                           S/O HANMANTAPPA JAMADAR,
                           AGED ABOUT: 63 YEARS,
                           OCC: NIL,

                      2.   SMT. NANDA
                           W/O ANNAPPA JAMADAR,
                           AGE: 55 YEARS,
                           OCC: HOUSEWIFE,

Digitally signed by        BOTH ARE R/AT HOUSE NO.11-45/17D,
BASALINGAPPA
SHIVARAJ                   AMBIKA NILAYA SADARE CHOWK,
DHUTTARGAON
Location: HIGH             MATA MANIKESHWARI COLONY,
COURT OF                   BRAHAMPUR, KALABURAGI - 585 102.
KARNATAKA
                                                                 ...APPELLANTS

                      (BY SRI NARENDRA N. BETTAD, ADVOCATE)

                      AND:

                      1.   SHIVAKUMAR
                           S/O MANIKAPPA WALI,
                           AGE: 30 YEARS,
                           OCC: OWNER CUM DRIVER
                           OF VEHICLE NO.KA-9-A-5614
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                                   MFA No.201603 of 2018




     TUM TUM,
     R/O YALAWANTAGI (B),
     TQ & DIST: KALABURAGI - 585 102.

2.   MALAPPA
     S/O VIRANNA
     AGE: MAJOR,
     OCC: BUSINESS,
     R/O H.NO.26, AURAD (B),
     TQ & DIST: KALABURAGI - 585 102.
     (INSURED PERSON VEHICLE
     NO.KA-09/A-5614 TUM TUM,
     POLICY NO.610401/31/12/6300002223
     VALID :10.8.2012 TO 9.8.2013.

3.   NATIONAL INSURANCE CO. LTD,
     THROUGH ITS DIVISIONAL MANAGER
     DR. JAWALI COMPLEX,
     SUPER MARKET,KALABURAGI.
     POLICY NO.610401/31/12/6300002223
     VALID :10.8.2012 TO 9.8.2013 OF
     VEHICLE NO. KA-9/A-5614, TUMTUM)
                                          ...RESPONDENTS

(BY SRI DEEPAK V. BARAD, ADVOCATE FOR R3;
V/O DTD. 28.06.2023 R1 AND R2 DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS AND
MODIFY THE JUDGMENT AND AWARD IN THE MVC
NO.1099/2015 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND MOTOR ACCIDENTS CLAIMS TRIBUNAL AT
KALABURAGI PASSED ON 17.05.2018 AWARD PREPARED ON
25.05.2018 FOR RS.8,48,000/- BY ENHANCING AWARD
RS.34,58,000/- AS URGED IN THE APPEAL, BY ALLOWING THIS
APPEAL WITH COSTS.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE ASHOK S. KINAGI
          AND
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                                       MFA No.201603 of 2018




          HON'BLE MR. JUSTICE RAJESH RAI K


                       ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This Miscellaneous First Appeal is filed by the

appellants being dissatisfied with the compensation

awarded by the II Additional Senior Civil Judge and MACT,

Kalaburagi (for short, 'the Tribunal') in MVC No.1099/2015

dated 17.05.2018.

2. Parties are referred to as per their ranking

before the Tribunal. Appellants are the petitioners and the

respondents are the respondents before the Tribunal.

3. Brief facts leading to rise filing of this appeal

are as under:

On 19.03.2013 at about 9.30 p.m, son of the

petitioners namely Srikanth was proceeding on motorcycle

bearing No.KA-32/R-2901 towards Kalaburagi, near Ali

Hall Bridge, Aurad(B) limits, Kalaburagi, at that time a

Tum Tum vehicle bearing Registration No.KA-09/A-5614

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being driven by its driver in a rash and negligent manner

came and dashed to the motorcycle. As a result, Srikanth

sustained grievous injuries and succumbed to the injuries

on the spot. It is contended that the deceased was

working as an Assistant Engineer and getting salary of

Rs.18,000/- p.m. Due to his death the petitioners have

lost their beloved family member, who was the only

earning member of the family. Hence, the petitioners

being the legal heirs of the deceased filed claim petition

under Section 166 of the Act seeking compensation on

account of death of Srikanth.

4. The respondent No.1 though served with the

notice, remained absent and hence placed exparte.

Respondent No.2 did not file written statement.

Respondent No.3 filed the written statement denying the

averments made in the claim petition contending that

driver of the offending vehicle was not possessing valid

and effective driving license as on the date of accident.

Hence, prayed to dismiss the claim petition.

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5. The Tribunal, on the basis of the pleadings of

the parties framed relevant issues. The Petitioner No.1 in

order to prove his case examined himself as PW.1 and got

marked 11 documents as Exs.P1 to 11. Official of

respondent No.3 was examined as RW.1 and examined

one witness as RW.2 and got marked 3 documents as

Exs.R1 to 3.

6. The Tribunal, after recording the evidence,

hearing on both sides and on the assessment of oral and

documentary evidence, partly allowed the claim petition

with costs and held that the petitioners are entitled for

compensation of Rs.8,48,000/- with interest @ 6% p.a.

from the date of petition till realization and held that

respondent Nos.2 and 3 are jointly and severally liable to

pay the compensation and directed respondent No.3 to

deposit the award amount with interest within 60 days

from the date of compensation award. The petitioners

being dissatisfied with the compensation awarded by the

Tribunal, have filed this appeal.

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7. Heard the learned counsel for the petitioners

and also learned counsel for respondent No.3.

8. Learned counsel for the petitioners submits

that, the deceased was working in the cadre of Assistant

Engineer with effect from 29.12.2010 and thereafter he

had applied for regularization of his service. He died on

19.03.2013 in a road traffic accident. After the demise of

Srikanth, the petitioners have challenged the endorsement

dated 29.07.2017 in W.P.No.54251/2017 passed by

learned Single Judge vide order dated 30.11.2020, allowed

the writ petition filed by the petitioners and directed

Corporation i.e., Karnataka Power Transmission

Corporation Limited (for short 'KPTCL'), to consider the

case of the petitioners' son Srikanth for regularization of

his service as on 29.12.2010 and he submits that in

pursuant to the order passed by the learned Single Judge,

KPTCL vide communication dated 03.07.2021 regularized

the service of Srikanth with effect from 13.12.2011 and

fixed the pay at Rs.27,735/-, the compensation awarded

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by the Tribunal is on the lower side. Hence, on these

grounds, prays to allow the appeal.

9. Per contra, learned counsel for respondent No.3

supports the impugned judgment and award and submits

that the compensation awarded by the Tribunal is just and

proper and does not call for any interference. Hence, on

these grounds he prays to dismiss the appeal.

10. Perused the records and considered the

submissions of the learned counsel for the parties. The

point that arises for our consideration is with regard to the

quantum of compensation.

11. It is not in dispute that, the deceased Srikanth

met with an accident and sustained injuries and

succumbed to the injuries. In order to prove that the

accident was occurred due to rash and negligent driving of

the driver of the offending vehicle, the petitioner No.1 has

produced certified copy of FIR marked as Ex.P1 and

certified copy of the charge sheet marked as Ex.P3. From

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the perusal of Ex.P3, it discloses that the accident was

occurred due to rash and negligent driving of the driver of

the offending vehicle.

12. Insofar as the quantum of compensation, it is

the case of the petitioners that Srikanth was working as an

Assistant Engineer in KPTCL on a contract basis pursuant

to the employment notification dated 07.02.2007. The

other Assistant Engineers and Junior Engineers appointed

along with deceased Srikanth i.e., son of the petitioners

approached this Court in W.P.No.47587-47591/2012 and

connected matters seeking for a mandamus directing

KPTCL and others to regularize their service. Learned

Single Judge vide order dated 16.12.2015 disposed of the

batch of writ petitions directing the Corporation to

regularize the service of Assistant Engineers and Junior

Engineers including petitioners' son with effect from

29.12.2010. Pursuant to the order in aforesaid writ

petitions, the Corporation regularized the service of

Assistant Engineers, service on contract of Assistant

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Engineers and Junior Engineers of 2003, 2004 and 2006

batches with effect from 29.12.2010 and subsequently,

petitioner No.1 submitted the representation to the

Corporation requesting to regularize the service of his son

Srikanth with effect from 29.12.2010 and to pay

consequential death benefits including arrears of salary.

The corporation issued endorsement dated 29.07.2017.

The petitioner No.1 aggrieved by the endorsement issued

by the Corporation preferred the writ petition in

W.P.No.54251/2017. The learned Single Judge vide order

dated 30.11.2020 disposed of the writ petition and

certified copy of the writ petition is marked as Ex.P12,

wherein the writ Court directing Corporation to consider

the case of the petitioners' son for regularization of his

service as on 29.12.2010. Pursuant to the order passed in

the writ petition No.54251/2017, Corporation regularized

the service of the petitioners' son Srikanth and the copy of

communication dated 03.07.2021 is marked as Ex.P13 and

also letter dated 23.09.2021 is marked as Ex.P14, letter

dated 02.12.2021 is marked as Ex.P15, letter dated

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09.04.2021 is marked as Ex.P16 and pay fixation

statement from 14.12.2011 to 13.12.2012 is marked as

Ex.P16(a). Exs.P12 to 16 are marked by this Court with

the consent of the learned counsel for the parties.

13. From the perusal of Ex.P16, it discloses that the

salary of Srikanth was fixed at Rs.27,735/-. The deceased

was aged about 34 years as on the date of accident, his

monthly income is assessed at Rs.27,735/- and he was

working in the KPTCL. In view of the law laid down by the

Hon'ble Supreme Court in the case of National

Insurance Company Limited Vs. Pranay Sethi

reported in (2017) 16 SCC 680, 50% of his income has

to be added to the monthly income towards future

prospects. Thus, it comes to Rs.41,602/- (Rs.27,735 +

Rs.13,867). The deceased was a bachelor as on the date

of accident, 50% has to be deducted towards personal

expenses of the deceased out of Rs.41,602/- which comes

to Rs.20,801/-. The deceased was aged about 34 years.

The multiplier applicable to his age group is '16' as per the

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judgment of the Hon'ble Supreme Court in the case of

Sarla Verma and others Vs. Delhi Transport

Corporation and another reported in (2009) 6 SCC

121. Thus, the petitioners are entitled for compensation of

Rs.39,93,792/- (Rs.20,801 X 12 X 16) under the head of

'loss of dependency'.

14. Further, in view of the law laid down by the

Hon'ble Supreme Court in the case of Magma General

Insurance Company Limited Vs. Nanu Ram Alias

Chuhru Ram & Others reported in (2018) 18 SCC 130,

each petitioners are entitled to a sum of Rs.44,000/-

towards loss of consortium. There are two petitioners,

hence the compensation towards loss of consortium would

be Rs.88,000/- (Rs.44,000 X 2). In addition to it, the

petitioners are entitled for a sum of Rs.16,500/- towards

funeral expenses and Rs.16,500/- towards loss of estate.

15. Thus, we re-assess the compensation as

under:

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     Sl.       Heads                    By this Court
     No.
      1. Funeral expenses and           Rs.16,500/-
         Transportation charges
      2. Loss of dependency             Rs.39,93,792/-

      3.   Loss of consortium           Rs.88,000/-

      4.   Loss of estate               Rs.16,500/-

                      Total             Rs.41,14,792/-

           Enhanced                     Rs.32,66,792/-
           compensation