Karnataka High Court

Geetha vs Sathish on 10 June, 2024

                           1               M.F.A NO.26 OF 2021




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 10TH DAY OF JUNE, 2024

                         BEFORE

            THE HON'BLE MS.JUSTICE J.M.KHAZI

              M.F.A NO.26 OF 2021 (MV-D)

BETWEEN:

1.   GEETHA
     AGED ABOUT 59 YEARS
     W/O LATE K.BABU RAO

2.   JYOTHI
     AGED ABOUT 33 YEARS
     D/O LATE K.BABU RAO
     W/O NAGARAJA

3.   SWATHI
     AGED ABOUT 30 YEARS
     D/O LATE K.BABU RAO
     W/O SUBRAHMANYA

4.   SOUMYA U.S
     AGED ABOUT 30 YEARS
     D/O LATE K.BABU RAO
     W/O UDAYA SHEREIGAR

     ALL ARE RESIDING AT H.NO.3-53,
     CHIKKANSAL ROAD
     KUNDAPURA TALUK - 576 201
     UDUPI TALUK AND DISTRICT - 576 101
                                       ......APPELLANTS
(BY KUM. SWATHI G HEGDE, ADVOCATE FOR
    SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)

AND:

1.     SATHISH
       AGED ABOUT 26 YEARS
       S/O GOVINDA
       R/O DURGAPARAMESHWARI NILAYA
                                2                M.F.A NO.26 OF 2021




     2ND CROSS, BANTWADI
     HAKLADI VILLAGE
     KUNDAPURA TALUK - 576 201

2.   RAGHAVENDRA BHAT
     AGED MAJOR
     S/O SUBRAMANYA BHAT
     R/O BHARATHI MOTORS
     NEAR MAHALINGESHWARA TEMPLE ROAD,
     BANNANJE
     UDUPI TALUK AND DISTRICT - 576 201

3.   THE ORIENTAL INSURANCE CO. LTD.,
     KUNDAPURA BRANCH
     2ND FLOOR, SAI DEPARTMENTAL STORE BUILDING
     MAIN ROAD, NEAR SHASTRI CIRCLE
     KUNDAPURA - 576 201
     REP. BY ITS BRANCH MANAGER
                                      .....RESPONDENTS
(BY SRI. O.MAHESH, ADVOCATE FOR R3;
    VIDE ORDER DATED 22.09.2022, NOTICE TO R1 & R2
    ARE DISPENSED WITH)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 07.12.2019 PASSED BY THE ADDITIONAL DISTRICT
JUDGE AND ADDL. MACT, UDUPI (SITTING AT KUNDAPURA),
KUNDAPURA IN MVC NO.827/2018 TO THE EXTENT OF
DISALLOWED CLAIM AND ALLOW THIS APPEAL BY
ENHANCING THE COMPENSATION, IN THE INTEREST OF
JUSTICE.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
29.05.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                   JUDGMENT

Not being satisfied with the quantum of

compensation granted by the Tribunal for the death of K

Babu Rao, the husband of petitioner No.1 and father of

petitioner Nos.2 to 4, in a motor vehicle accident dated

24.06.2018, they have filed the present appeal under

Section 173 (1) of Motor Vehicles Act.

2. For the sake of convenience, the parties are

referred to by their ranks before the Tribunal.

3. Facts: It is the case of petitioners that they are

the wife and daughters of K. Babu Rao. On 24.06.2018,

at 9:45 p.m, K.Babu Rao was proceeding on bicycle on

NH-66. When he was near Shastri Circle, Vadera Hobli

village, bus bearing registration No.KA-20-C-4949 (for

short 'offending vehicle') coming from Koteshwara side

and proceeding towards Kundapura side, being driven by

respondent No.1 in a high speed in a rash or negligent

manner and dashed against the deceased from his

backside. As a result of the impact, K Babu Rao sustained

injuries. Immediately he was shifted to Government

Hospital, Kundapura and from there to Chinmayi

Hospital, Kundapura and ultimately to KMC hospital,

Manipal. While undergoing treatment, he died on

02.07.2018. At the time of accident deceased was aged

63 years. He was working as an operator at Vinayaka

Talkies, Kundapura, and earning not less than

Rs.18,000/- p.m. Petitioners were dependent on him. As

the driver, owner and insurer, all the respondents are

jointly and severally liable to pay the compensation and

hence the petition.

4. Despite appearing through counsel,

respondent No.1 has not filed written statement.

Respondent No.2 remained absent and as such placed

ex-parte.

5. Respondent No.3 filed written statement

admitting the coverage of the offending vehicle, but its

liability is subject to the terms and conditions of the

policy. However, it has disputed the age, occupation,

income of the deceased and that he sustained injuries on

account of rash or negligent driving of the offending

vehicle by respondent No.1. It has also disputed that

being major and married daughters respondent Nos.2 to

4 were dependent on the earnings of the deceased. The

compensation claimed is highly exorbitant, fanciful, and

without any basis and sought for dismissal of the

petition.

6. Based on the pleadings, Tribunal framed

necessary issues.

7. In support of the petition, petitioner No.1

and one witness are examined as PW-1 and 2. Ex.P1 to

14 are marked.

8. Respondent No.3 did not lead any oral and

documentary evidence.

9. Vide the impugned judgment and award, the

Tribunal partly allowed the claim petition granting

compensation in a sum of Rs.8,19,000/- with interest at

6% p.a and directed respondent No.3 to pay the same

with accrued interest.

10. Respondents have not challenged the

judgment and award.

11. Not being satisfied with the quantum of

compensation, the petitioners have filed this appeal

contending that the petitioners have spent Rs.1,20,000/-

for transportation of the body and funeral expenses, but

the Tribunal has granted only Rs.15,000/- under the

head funeral expenses and Rs.5,000/- under the head

transportation of dead body. It requires reconsideration.

Similarly, the compensation granted in a sum of

Rs.15,000/- under the head loss of estate is also on the

lower side. The income ought to have been taken at

Rs.18,000/- p.m, but the Tribunal has considered

Rs.12,000/- p.m and consequently, the compensation

granted under the head loss of dependency is on the

lower side. Viewed from any angle, the impugned

judgment and award are not sustainable and pray to

allow the appeal and enhance the compensation.

12. On the other hand, learned counsel for

respondent No.3 has supported the impugned judgment

and award and sought for dismissal of the appeal.

13. Having regard to the fact that respondents

have not challenged the impugned judgment and award,

the findings of the Tribunal that accident occurred due to

the rash or negligent driving of offending vehicle by the

respondent No.1 and in the said accident, K Babu Rao,

sustained injuries and succumbed to the same while

undergoing treatment has attained finality.

14. The petitioners have claimed that at the time

of accident, deceased was aged 63 years. In the medical

records, the age of the deceased is given as 60 years.

However, in the Aadhaar card, the year of birth of

deceased is noted as 1955. Consequently, at the time of

accident, he was aged 63 years and therefore the

multiplier '7' considered by the Tribunal is correct.

Petitioners claim that at the time of accident, petitioner

was still employed as a film operator in Vinayaka Talkies,

Kundapur and earning Rs.18,000/- p.m. But, no concrete

evidence is produced to prove the same. Ex.P11 is the ID

card issued by the Manager of Geethanjali Theatre,

Kundapura. Ex.P12 is the certificate issued on behalf of

Vinayaka Theatre, Kundapura. In the petition, petitioners

have not pleaded that earlier deceased was working at

Geethanjali Theatre and subsequently, at Vinayaka

Theatre. From the very perusal of Ex.P11 indicate that it

was issued several decades back. The photograph of the

deceased found in Ex.P11 show that he was quite young.

Ex.P12 is dated 10.10.2018. However, the petitioners

have not examined the concerned person to prove this

document. Therefore, the Tribunal has rightly held that

petitioners failed to prove that deceased was still working

and getting monthly income of Rs.18,000/-. Therefore,

the Tribunal is justified in taking the income of deceased

on notional basis. Since the accident is of the year 2018,

based on the minimum wages, the notional income ought

to have been taken Rs.11,750/- and the Tribunal has

taken the same at Rs.12,000/-, which is on the higher

side. Since the deceased was above the age group of 60

years, petitioners are not entitled for any compensation

under the head of loss of future prospects.

15. It is pertinent to note that petitioner Nos.2

to 4 are the married daughters of deceased. It has come

in the evidence that they are staying in their respective

husband's house. Consequently, they were not

dependent on the deceased. Therefore, for calculating

loss of dependency, they cannot be taken into account.

Hence, only petitioner No.1 is to be held as the

dependent of deceased. As per the decision of the

Hon'ble Supreme Court in Sarla Verma and Ors. Vs.Delhi

Transport Corporation and Anr. (Sarla Verma)1, when

the deceased is having less than two dependents i.e.,

having only one dependent, then the deduction towards

personal and living expenses of the deceased is to be at

50%. The balance of 50% is required to be taken into

account for calculating loss of dependency. With the

notional income at Rs.11,750/- multiplier '7' and taking

50% of the income, the loss of dependency is

Rs.11750x12x7x50% = Rs.4,93,500/-, whereas the

Tribunal has granted a sum of Rs.6,72,000/- under this

head, which is on the higher side.

(2009) 6 SCC 121

16. Though petitioner Nos.2 to 4 cannot be

considered as dependent, on the death of their father,

they have lost his love and affection. Therefore, along

with petitioner No.1, they are also entitled for

compensation in a sum of Rs.40,000/- each under the

head loss of consortium, which comes to Rs.1,60,000/-.

Therefore, the compensation granted in a sum of

Rs.40,000/- under this head is on the lower side. When

the compensation is granted under the head loss of

consortium, no separate compensation is required to be

granted under the head loss of love and affection. It

appears since petitioner Nos.2 to 4 are not granted

compensation under the head loss of filial consortium,

the Tribunal has granted compensation in sum of

Rs.25,000/- under the head loss of love and affection.

The Tribunal has rightly granted compensation in a sum

of Rs.15,000/- each under the head funeral expenses

(which includes expenses for transportation of the dead

body) and loss of estate. After the accident, the injured

(deceased) was shifted to hospital and therefore the

Tribunal is justified in granting additional compensation

in a sum of Rs.5,000/- under the head transportation

charges. Based on medical bills, the Tribunal has rightly

granted compensation in a sum of Rs.47,000/-.

17. Thus, in all the petitioners are entitled for

compensation in a sum of Rs.7,35,500/- as against

Rs.8,19,000/- granted by the Tribunal as detailed below:

           Heads         Amount granted by         The just and
                           the Tribunal             reasonable
                              In Rs.              compensation
                                                       which
                                                  petitioners are
                                                  entitled in Rs.
Loss of dependency                  6,72,000             4,93,500
Loss of consortium                    40,000              1,60,000
                           (only for Petitioner            (for each
                                         No.1)             petitioner
Loss of estate                        15,000                   15,000
Funeral expenses                      15,000                   15,000
                                                  (including expenses
                                                  for transportation of
                                                  dead body
Loss of love and                      25,000               -
affection
Transportation charges                 5,000                 5,000
Medical expenses                      47,000                47,000
TOTAL                              8,19,000              7,35,500

18. Perusal of the impugned judgment and award

indicate that though the Tribunal has not granted the

compensation in a sum of Rs.40,000/- each in favour of

petitioner Nos.2 to 4, the total compensation granted is

more than what the petitioners are entitled. Respondent

No.3 has not challenged the impugned judgment and

award and therefore the compensation granted by the

Tribunal cannot be reduced. Of course, for the reasons

forthcoming in the judgment, there is no scope for

enhancement of the compensation. In the result, the

appeal fails and accordingly, the following: