Karnataka High Court

Smt. Chandramma vs Sri Azam Pasha on 29 July, 2024

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                                                        NC: 2024:KHC:29798
                                                      MFA No. 3846 of 2015




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 29TH DAY OF JULY, 2024

                                           BEFORE
                   THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                   MISCELLANEOUS FIRST APPEAL NO.3846 OF 2015(MV-D)
                   BETWEEN:

                   1.      SMT. CHANDRAMMA
                           W/O LATE ANANTHACHARI,
                           SINCE DEAD HER LRS

                   1(A). SRI NAGARAJA,
                         S/O LATE ANANTHACHARI
                         AGED ABOUT 30 YEARS

                   1(B). SRI. RAVI
                         S/O LATE ANANTHACHARI
                         AGED ABOUT 26 YEARS

                   1(C). SRI. A. RAJESH
                         S/O LATE ANANTHACHARI
                         AGED ABOUT 24 YEARS
Digitally signed by
PRAJWAL A
Location: HIGH COURT       ALL ARE R/AT THOTADAMANE,
OF KARNATAKA               NEAR DEVANOOR GATE,
                           ANCHECHOMANAHALLY VILLAGE,
                           KERESANTHE POST, SINGATAGERE HOBLI,
                           KADUR TALUK,
                           CHIKMAGALUR DISTRICT 577 101.
                                                              ...APPELLANTS
                   (BY SRI. C RAVIKUMAR., ADVOCATE)
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                                       NC: 2024:KHC:29798
                                     MFA No. 3846 of 2015




AND:

1.   SRI. AZAM PASHA
     S/O KHASIM SAB,
     AGED ABOUT 45 YEARS,
     DRIVER CUM OWNER OF THE VEHICLE,
     TATA SUMO BEARING REG NO. KA 19-M-7996,
     R/AT TANK MOHALL, 2ND CROSS,
     OPP. S.R.K SHIVAMOGGA 584 001.

2.   THE BRANCH MANAGER
     UNITED INDIA INSURANCE
     CO.LTD., BRANCH OFFICE,
     MANGALORE 575 110.
                                          ...RESPONDENTS
(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2;
    R1 SERVED)

                      **********

       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE

JUDGMENT AND AWARD DATED 30.01.2015 PASSED IN MVC

NO.50/2010 ON THE FILE OF      THE SENIOR CIVIL JUDGE, &

MACT, KADUR, CHIKMAGALUR DISTRICT, PARTLY ALLOWING

THE CLAIM PETITION FOR COMPENSATION AND SEEKING

ENHANCEMENT OF COMPENSATION.


       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                          NC: 2024:KHC:29798
                                        MFA No. 3846 of 2015




CORAM:     HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                     ORAL JUDGMENT

1. In this appeal, the petitioners have challenged the

judgment and award dated 30.01.2015 passed in

M.V.C.No.50/2010 on the file of the Senior Civil Judge and

M.A.C.T., Kadur, Chikmagalur District ('the Tribunal' for

short).

2. The appellants were the petitioners and respondents

were the respondents before the Tribunal. For the sake of

convenience, the rank of the parties shall be referred to as

per their status before the Tribunal.

3. Brief facts of the case are, one Ananthachari, the

deceased, the husband of the 1st petitioner and father of

petitioners 2 to 4, on 29.11.2009 at 5.45 p.m., while

traveling as a pillion rider in the motor-cycle bearing

Registration No.KA-11/Q-3469 from Anchechomanahally

to Kadur ridden by one Ravi, near Anchechomanahally

gate, Kadur Taluk a Tata Sumo bearing Registration

No.KA-19/M-7996 driven by respondent No.1 dashed

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against the motor-cycle, as a result of which, the deceased

fell down and sustained injuries. After treatment at

Government Hospital, Kadur, during transit to McGann

Hospital, Shimoga, he succumbed to death.

4. The petitioners as dependents approached the

Tribunal seeking grant of compensation. Claim was

opposed by the Insurance Company. The Tribunal by

taking evidence and on hearing both the parties by

impugned judgment awarded compensation of Rs.33,750/-

with interest at 8% p.a. Pleading inadequacy and seeking

enhancement the petitioners have filed this appeal on

various grounds.

5. Heard arguments of Sri.C.Ravi Kumar, learned

counsel for the petitioners and Sri.S.V.Hegde Mulkhand,

learned counsel for the Insurance Company.

6. It is contended by learned counsel for the petitioners

that the deceased was an Agriculturist, earning Rs.8,000/-

p.m, the Tribunal has not considered the dependency and

has not awarded any compensation. Though liability is

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fastened against the Insurance Company, for production of

Xerox copy of the Driving Licence, 25% of the

compensation is deducted erroneously and he has sought

for enhancement of compensation.

7. Per contra, learned advocate for the Insurance

Company has contended that the petitioner Nos.2 to 4 are

major sons, not dependents of the deceased, the Tribunal

has rightly considered that they have not proved the

dependency and awarded compensation under

conventional heads, there is a contributory negligence on

the part of the rider, deduction of 25% of compensation is

proper and supports the impugned judgment.

8. I have given my anxious consideration to the

arguments advanced by learned counsel for both the

parties and perused the material on record.

9. The material on record shows that there was an

accident on 29.11.2009 involving motor-cycle and Tata

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Sumo referred supra, wherein the pillion rider

Ananthachari sustained injuries and succumbed to death.

10. The contention of the Insurance Company that the

petitioners are not the dependants entitled to claim

compensation is concerned, law has been settled by the

Hon'ble Apex Court in National Insurance Co.Ltd. -vs-

Birender and Others1 wherein at para-14, it has

observed thus:

"14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. . . . ."

11. Admittedly, the first petitioner is the wife and third

petitioner is the son of the deceased. Having regard to

their age and the avocation, they cannot be non-

(2020) 111 SCC 356

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dependants on the deceased, hence, they are treated as

full dependants.

12. In a case of this nature the Hon'ble Apex Court laid

down principles for assessing the compensation in the case

of National Insurance Company Limited -vs- Pranay

Sethi and Others 2, Sarla Verma (Smt) and Others -

vs- Delhi Transport Corporation and Another3 and

Magma General Insurance Co.Ltd. -vs- Nanu Ram @

Chuhru Ram and Others4.

13. The deceased was aged 45 years, he has no proof of

income, his notional income is to be taken at Rs.5,500/-

per month, future prospects is to be considered at 25%

and 1/4th is to be deducted towards personal expenses.

The multiplier applicable is '14'. Then the loss of

dependency comes to :-

Rs.5,500/- + Rs.1,375/- (25%)= Rs.6,875/- - Rs.2,292/-

(1/3rd) = Rs.4,583/- x 12 x 14 = Rs.7,69,944/-

(2017) 16 SCC 680

(2009) 6 SCC 121

(2018) 18 SCC 130

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14. Under conventional heads Rs.15,000/- each is

assessed towards funeral expenses and loss of estate.

There are 3 dependents i.e., loss of filial love to the

children Rs.40,000/- each is assessed. The accident is

of the year 2011, in view of Pranay Sethi's case cited

supra 10% appreciation on conventional heads is to be

considered at Rs.12,000/-. The petitioners are entitled

to compensation as follows:-

1. Loss of dependency Rs. 7,69,944/-

2. Loss of consortium Rs. 1,20,000/-

3. Towards Funeral expenses Rs. 15,000/-

4. Loss of estate Rs. 15,000/-

5. 10% appreciation on Rs. 15,000/-

conventional heads TOTAL Rs.9,34,944/-

      Less compensation                        Rs. 33,750/-
      awarded by the Tribunal
      Enhanced compensation                     Rs.9,01,194/-

15. The Tribunal has awarded loss of love and

affection a sum of Rs.30,000/-, Transportation expenses

Rs.5,000/-, Funeral/obsequies expenses of Rs.10,000/-.

Out of Rs.45,000/-, 25% is deducted towards negligence

on the part of the deceased. The deceased was a pillion

rider, thus there is no question of contributory negligence

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on his part. Hence deduction of 25% is erroneous. Hence

appeal merits consideration, in the result the following :-

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award is modified.

(iii) The petitioners would be entitled to enhanced compensation of Rs.9,01,194/- together with interest at 6% p.a. from the date of petition till the date of deposit.

(iv) The respondents 1 and 2 shall pay the compensation amount jointly and severally.

(iv) The Insurance Company is directed to deposit the entire compensation amount with interest @ 6% within eight weeks from the date of receipt of certified copy of this judgment.