Karnataka High Court

Mrs. Dulsin Monteiro vs Mr. Mohammed Altaf Usman on 5 March, 2024

Author: Jyoti Mulimani

Bench: Jyoti Mulimani

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                                                              NC: 2024:KHC:9241
                                                           MFA No. 7249 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 5TH DAY OF MARCH, 2024

                                                BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                      MISCELLANEOUS FIRST APPEAL NO.7249 OF 2016(MV-D)
                      BETWEEN:

                      1.    MRS. DULSIN MONTEIRO
                            W/O LATE ELIA MONTEIRO,
                            AGED 78 YEARS,

                      2.    MRS. FLAVY FERRAO
                            D/O DUSLIN MONTEIRO,
                            AGED 43 YEARS,

                      3.    PRIYA FERRAO
                            D/O FLAVY FERRAO,
                            AGED 18 YEARS,

                            APPELLANT NO.1 IS THE MOTHER, NO.2 IS THE
                            SISTER AND NO.3 IS THE NIECE OF LATE. JOSEPH
                            MONTEIRO,
                            ALL ARE RESIDING AT SUSHMA NIVAS,
Digitally signed by         KARMIKA COLONY, SHAKTHI NAGAR,
THEJASKUMAR N               PADAVU, MANGALORE D.K.DISTRICT.
Location: HIGH              PIN-575 016.
COURT OF
KARNATAKA                                                           ...APPELLANTS
                      (BY SRI. RAVISHANKAR SHASTRY., ADVOCATE)

                      AND:

                      1.    MR. MOHAMMED ALTAF USMAN,
                            S/O USMAN,
                            AGED ABOUT 28 YEARS,
                            R/AT 5/19-1, TASLI, MANZIL,
                            BASTHIPADPU, ULLAL,
                            MANGALORE, D.K.DISTRICT.
                            PIN-575 008.
                                -2-
                                               NC: 2024:KHC:9241
                                          MFA No. 7249 of 2016




2.  SRIRAM GENERAL INSURANCE CO. LTD.,
    OFFICE AT E-8, EPIP RIICO,
    SITAPUR, JAIPUR, RAJASTHAN,
    REPRESENTED BY ITS DIVISIONAL MANGER.
    PIN-302 022.
                                       ...RESPONDENTS
(R1-SERVED AND UNREPRESENTED;
     BY SRI. B.C.SHIVANNEGOWDA., ADVOCATE FOR R2;

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED: 01.04.2015
PASSED IN MVC NO.191/2013 ON THE FILE OF THE I
ADDITIONAL DISTRICT & SESSIONS JUDGE, MACT-II, D.K.,
MANGALURU.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING-INTERLOCUTARY       APPLICATION,       THIS   DAY,     THE
COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

Sri.Ravishankar Shastry., learned counsel for the

appellants has appeared in person.

Sri.B.C.Shivannegowda., learned counsel for respondent

No.2 has appeared in person.

2. Notice to respondents was ordered on 15.02.2017.

A perusal of the daily order sheet depicts that the first

respondent is served and unrepresented. He has neither

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engaged the services of an advocate nor conducted the case as

party in person.

3. Though the appeal is listed today for hearing on

interlocutory application, with the consent of learned counsel

for the respective parties, it is heard finally.

4. For the sake of convenience, the parties shall be

referred to as per their status and rankings before the Tribunal.

5. It is the case of the claimants that on the 27th day

of November 2012 at about 8:30 p.m., Mr.Joseph Monteiro was

walking on the side of Padavi junction - Nantur Junction road

near Alwaries shipping Centre. At that time the driver of Sumo

Grand bearing Reg. No.KA-19/D-5026 came from Padavi

junction side in a rash and negligent manner and went to the

extreme side of the road and hit Mr.Joseph Monteiro and

caused the accident. As a result of which, Mr.Joseph Monteiro

sustained grievous injuries and shifted to Omega Hospital

Pumpwell Mangalore. The doctor examined him and declared

brought dead. The dead body was shifted to Government

Wenlock Hospital, Mangalore for post-mortem examination.

Regardnig the accident, a complaint was also lodged before

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Traffic East Police who registered a case, investigated the

matter and filed a charge sheet against the driver of the vehicle

Sumo. The dependants of the deceased filed the claim petition

seeking compensation.

In response to the notice, the first respondent did not

appear and he placed ex-parte. The second respondent

appeared through their counsel and filed statement of

objections and they denied the petition averments. Among

other grounds, they prayed for dismissal of the petition against

him with costs.

Based on the above pleadings, the Tribunal framed

issues, parties led evidence and marked the documents. The

Tribunal vide Judgment dated:01.04.2015 allowed the claim

petition in part. It is this Judgment that is called into question

in this appeal on several grounds as set-out in the

Memorandum of appeal.

6. Learned counsel for the appellants and respondent

No.2 have urged several contentions.

Learned counsel for the appellants in presenting his

arguments vehemently contended that the Tribunal has erred

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in awarding meagre compensation. He argued by saying that

the compensation awarded by the Tribunal requires

enhancement. Counsel therefore, submits that the appeal may

be allowed.

Learned counsel for respondent No.2 justified the

Judgment and award of the Tribunal. He submits that the

appeal is devoid of merits and the same may be dismissed.

Heard, the contentions urged on behalf of the respective

parties and perused the appeal papers and also the records

with utmost care.

7. The point that would arise for consideration is

whether the Claimants are entitled for enhanced compensation?

8. The facts are sufficiently stated and do not require

reiteration. The Claimants appeal is one for enhancement of

compensation and modification of the judgment.

It is noticed that the Tribunal has awarded compensation

of Rs.2,10,000/- (Rupees Two Lakhs Ten Thousand only)

towards Loss of dependency. It is contended that the deceased

was working as a Mason. However, there is no proof of income

NC: 2024:KHC:9241

for the same. Hence, the chart prepared by the Legal Service

Authority must be taken into consideration. As per the chart,

the salary of the deceased must be taken as Rs.7,000/-

(Rupees Seven Thousand only) per month if the accident is

occurred in the year 2012. The age of the deceased was 45

years as on the date of accident, hence the multiplier 14 is to

be adopted. Hence, the amount towards the loss of dependency

is as under:

Rs.7,000/- X 12 X 14/2 Rs.5,88,000/-

Add: Future prospects: (+)Rs.1,47,000/-

It is taken into consideration at 25% as per chart because the age of deceased is between 40 to 50.

Rs.5,88,000 X 25/100 =1,47,000/-

Total Rs.7,35,000/-

This Court deems it appropriate to award Rs.15,000/-

(Rupees Fifteen Thousand only) towards Funeral expenses as

against Rs.10,000/- (Rupees Ten Thousand only); Rs.40,000/-

(Rupees Forty Thousand only) towards loss of love and

affection as against Rs.15,000/- (Rupees Fifteen Thousand

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only) and Rs.15,000 (Rupees Fifteen Thousand only) towards

loss of estate as against Rs.10,000/- (Rupees Ten Thousand

only) awarded by the Tribunal.

9. Accordingly, this Court re-determines the

compensation as under:-

1. Funeral expenses 10,000+5,000 Rs.15,000/-

2. Loss of dependency 7,35,000 Rs.7,35,000/-

3. Loss of love and 15,000 + 25,000 Rs.40,000/- affection.

4. Loss of estate 10,000+5,000 Rs.15,000/-

Total: Rs.8,05,000/-

(Less) Compensation awarded by the - Rs.2,45,000/-

Tribunal:

Enhanced compensation awarded by Rs.5,60,000/-

this Court:

Having regard to the facts and circumstances of the case

and the prevailing rate of interest during the relevant time, this

Court deems it appropriate to award interest at the rate of 6%

per annum on the enhanced compensation amount from the

date of claim petition till realization.

10. Hence, the following:

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ORDER

1. The Miscellaneous First appeal is

allowed and the Judgment dated:01.04.2015

passed by MACT, D.K., Mangalore in M.V.C

No.191/2013 is modified to the extent stated

hereinabove.

2. The claimants are entitled for the

enhanced compensation of Rs.5,60,000/- (Rupees

Five Lakhs and Sixty Thousand only) with interest

at the rate of 6% per annum from the date of the

claim petition till the date of realization.

3. The first respondent shall deposit the

enhanced compensation amount along with 6%

interest within a period of two months from the

date of receipt of the certified copy of this

Judgment.