Karnataka High Court

Smt.Banashankari vs O.Suresh Kumar, S/O Orumudi on 6 March, 2024

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                                                          NC: 2024:KHC-D:4909
                                                   MFA No. 104789 of 2019




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                         DATED THIS THE 6TH DAY OF MARCH, 2024

                                         BEFORE
                      THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
               MISCELLANEOUS FIRST APPEAL NO. 104789 OF 2019 (MV-D)

               BETWEEN:

               1.   SMT. BANASHANKARI @ V. BANASHANKARI,
                    W/O. LATE K. VENKATESH,
                    AGED ABOUT 30 YEARS, OCC: HOUSEWIFE.

               2    V. THANAY KUMAR,
                    S/O. LATE K. VENKATESH,
                    AGED ABOUT 18 YEARS, OCC: STUDENT,

               3.   MINOR V. PUSHOTHAMA,
                    S/O. LATE K. VENKATESH,
                    AGED ABOUT 16 YEARS, OCC: STUDENT,

               4.   MINOR V. GIRIJA,
                    D/O. LATE K. VENKATESH,
                    AGED ABOUT 13 YEARS, OCC: STUDENT,
                    THE APPELLANT NO. 3 & 4 ARE THE
                    MINORS, SINCE MINOR REPRESENTED
Digitally           BY GUARDIAN AND NATURAL MOTHER
signed by
JAGADISH T R        SMT. BANASHANKARI @ V BANASHANKARI
Location:           W/O. LATE K. VENKATESH,
HIGH COURT
OF                  AGED ABOUT: 30 YEARS, HOUSEWIFE,
KARNATAKA
                    ALL ARE RESIDENTS OF 31ST WARD,
                    BEHIND RTO OFFICE,
                    PRASHANTH NAGAR, HOSAPETE,
                    PRESENTLY RESIDING AT GADANG STREET,
                    COWL BAZAAR, BALLARI.
                                                                ...APPELLANTS
               (BY SMT. SOUBHAGYA S. VAKKUND, ADV. FOR
                   SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)

               AND:

               1.   O. SURESH KUMAR S/O. ORUMUDI
                    AGED ABOUT 38 YEARS,
                    DRIVER OF LORRY BEARING REGN
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                                             NC: 2024:KHC-D:4909
                                      MFA No. 104789 of 2019




     NO.TN-43/H -9645, R/O. WOODBROOK,
     T. R. BAZAAR POST, UDHAGA MANDALAM,
     THE NILGIRIS-643001, TAMIL NADU STATE,
     BEARING DL.NO. TN43Z20070001316.

2.   SRI. R. NIRAN S/O. RAJA,
     AGED ABOUT 40 YEARS,
     OWNER OF LORRY BEARING REGN
     NO.TN-43/H-9645,
     R/O. D.NO 261, VENKATESHWARAM NILAYAM,
     NEAR HMT ELK, HILL ROAD, OOTY TALUK,
     NILGIRI DISTRICT-643001, TAMIL NADU.

3.   THE BRANCH MANAGER,
     ROYAL SUNDARAM GENERAL INSURANCE
     CO. LTD, PLOT NO.3 & 9,
     T. S. NO.52, W.NO.16, 1ST FLOOR, SPL.
     COMPLEX, DR. RAJ KUMAR ROAD,
     BALLARI, BEARING POLICY
     NO.VGC0520861000100,
     VALID FROM 13.07.2018 TO 12.07.2019,
     (POLICY ISSUED AT: RAMANIKRISHNA
     MARVEL, FIRST FLOOR, OLD NO.140
     AND NEW NO.137, D.B ROAD,
     R.S. PURAM, C3-CIOBATORE-461002.

                                                 ...RESPONDENTS

(BY SRI. G. N. RAICHUR, ADV. FOR RESPONDENT NO.3,
  NOTICE TO RESPONDENT NO.1 AND 2 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 30.10.2019
PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL-II AT
BALLARI, IN MVC NO.14/2019 BY ENHANCING THE COMPENSATION
FROM RS. 14,99,000/- TO THE APPELLANT AND PASS SUCH OTHER
ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE
CIRCUMSTANCES IN THE INTEREST OF JUSTICE AND EQUITY,

      THIS APPEAL, COMING ON FOR HEARING ON INTERLOCUTORY
APPLICATION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2024:KHC-D:4909
                                       MFA No. 104789 of 2019




                           JUDGMENT

This appeal is filed by the legal heirs of the deceased

K.Venkatesh seeking for enhancement of the compensation.

Being aggrieved by the judgment and award dated 30.10.2019

passed in MVC No.14/2019 by the Member, MACT-II, Ballari

(for short, 'Tribunal').

2. Brief facts leading to filing of this appeal are that

deceased K.Venkatesh was driving the lorry bearing registration

No.KA-35/B-1590 and was proceeding from Mysore to Maddur

on 21.11.2018 around 11.20 p.m., he parked his lorry to have

his dinner and was crossing the road, at that time the 1st

respondent drove lorry bearing registration No.TN-43/H-9645

in rash and negligent manner from Mysore side and dashed to

the deceased resultantly the deceased sustained grievous

injuries and later he succumbed to those injuries. After taking

treatment at Government Hospital, Maddur and MIMS Hospital,

Mandya, he died. It is averred that the deceased was hale and

healthy and aged about 48 years at the time of accident, he

was earning Rs.15,000/- per month and maintaining his entire

family. The claim petition is filed by the legal heirs of

K.Venkatesh and seeking for compensation for his death.

NC: 2024:KHC-D:4909

3. The respondent No.3/insurance company entered

appearance before the Tribunal and filed objections by denying

the averments made in the claim petition. They have denied

age, income, avocation of the deceased and sought for

dismissal of the claim petition. During the Trial, the

appellant/claimant examined two witnesses as PW1 and 2 and

got marked 12 documents as Exs.P1 to P12. The Tribunal after

analyzing the evidence available on record awarded total

compensation of Rs.12,40,000/- along with interest at the rate

of 7% per annum. Being aggrieved by the quantum of

compensation, the present appeal is filed by the claimants

seeking for enhancement.

4. Heard Smt.Soubhagya S. Vakkund, learned counsel

for Shri.Y. Lakshmikant Reddy, learned counsels appearing for

the appellants and Shri.G.N. Raichur, learned counsel

appearing for respondent No.3.

5. Learned counsel Smt.Soubhagya S. Vakkund,

appearing for the appellants submits that the Tribunal

committed grave error in assessing the income of the deceased

as he was working as a driver and earning sum of Rs.15,000/-

per month. It is submitted that the Tribunal committed further

NC: 2024:KHC-D:4909

error in awarding the compensation under the head of loss of

consortium. She seeks to enhance the same appropriately by

allowing the appeal.

6. Per contra, Shri.G. N. Raichur, learned counsel

appearing for the respondent/insurance company supports the

judgment and award of the Tribunal and submits that the

appellants have not produced any evidence to support the

income of the deceased. Hence, the Tribunal has justified in

assessing the income of the deceased at Rs.8,000/-. He

submits that the award of compensation by the Tribunal on

other heads are just and proper and does not call for any

enhancement. Hence, he seeks to dismiss the appeal.

7. Heard the arguments of learned counsel for the

parties and perused the material available on record, the only

point that arises for consideration in this appeal is "whether the

appellants are entitled for the enhanced compensation?"

8. Answer to the above point is in the 'affirmative' for

the following reason.

9. It is not in dispute that deceased K.Venkatesh,

husband of appellant No.1 was driver and lorry bearing

registration No.KA-35/B-1590 was proceeding from Mysore to

NC: 2024:KHC-D:4909

Maddur, he was parked his lorry to have his dinner and when

he was crossing the road, at that time the 1st respondent drove

lorry bearing registration No.TN-43/H-9645 in rash and

negligent manner from Mysore side and dashed to the

deceased, he sustained grievous injuries and later he

succumbed to those injuries. It is also not in dispute that the

appellants are the legal heirs of the deceased and filed claim

petition seeking compensation for the death of K.Venkatesh in

a road accident dated 21.11.2018.

10. The Tribunal while assessing the compensation, has

assessed the income of the deceased notionally at Rs.8,000/-

per month. Admittedly, the appellants have not produced any

evidence to substantiate the claim of income. This Court placing

reliance on the chart prepared by the Karnataka State Legal

Services Authority assessed the notional income of the

deceased at Rs.11,750/- per month for the purpose of

determination of compensation. The Tribunal has committed

grave error in awarding compensation of Rs.40,000/- only to

the 1st appellant under the head of loss of consortium. Keeping

in mind the law laid down by the Hon'ble Apex Court in the

case of Magma General Insurance Company Limited Vs.

NC: 2024:KHC-D:4909

Nanu Ram & Others1, each of the appellants are entitled to

Rs.40,000/- under the head of loss of consortium along with

10% escalation. The Tribunal has awarded Rs.15,000/- under

the head of loss of estate and Rs.15,000/- under the head of

funeral expenses. The appellants are entitled to 10% escalation

on the aforesaid amount. The appellants are entitled to 6%

interest on the enhanced compensation.

11. Thus, the claimants would be entitled for modified

compensation on the head of loss of dependency as under:

Rs.11,750 + 25% x 12 x 13 x 3/4=17,18,496/-

12. Thus, the claimants would be entitled to modified

compensation on the following heads:

                         Particulars                    Amount
                                                        (in Rs.)
           Loss of dependency                           17,18,496/-
           Loss of estate and funeral expenses              33,000/-
           Loss of consortium (44,000x4)                  1,76,000/-
                             Total                      19,27,496/-
           Amount awarded by the Tribunal                12,40,000/-
           Enhancement                                   6,87,496/-





    2018 ACJ 2782

                                              NC: 2024:KHC-D:4909

13. Thus, the claimants shall be entitled to total

compensation of Rs.19,27,496/- as against Rs.12,40,000/-

awarded by the Tribunal.

14. In the result, this Court proceeds to pass the

following:

ORDER

a) Appeal stands allowed in part.

b) The impugned judgment and award of the

Tribunal is modified to an extent that the

claimant would be entitled to total compensation

of Rs.19,27,496/- as against Rs.12,40,000/-

awarded by the Tribunal.

c) The enhanced compensation amount shall carry

interest at the rate of 6% per annum from the

date of petition till the date of payment.

d) The Corporation shall deposit the enhanced

compensation amount with accrued interest

before the Tribunal within a period of six weeks

from today.

NC: 2024:KHC-D:4909

e) The apportionment, deposit and disbursement of

enhanced compensation shall be made as per

award of the Tribunal.