Karnataka High Court

Smt Rajamma vs Sri Nagaraj K on 23 October, 2024

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                                                         NC: 2024:KHC:42652-DB
                                                              MFA No.9476/2018




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 23RD DAY OF OCTOBER, 2024

                                          PRESENT

                         THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                              AND
                      THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                 MISCELLANEOUS FIRST APPEAL No.9476/2018 (MV-D)

                BETWEEN:

                SMT RAJAMMA
                W/O LATE SIDDALINGAPPA
                AGED ABOUT 51 YEARS
                R/AT ALADAHALLI VILLAGE
                NONAVINAKERE HOBLI
                TIPTUR TALUK
                TUMAKURU DISTRICT - 572 224                     ...APPELLANT

                (BY SRI BHANU PRAKASH H V, ADVOCATE)

                AND:

                1.    SRI NAGARAJ K
                      S/O GOUNDAPPA
                      AGED ABOUT 56 YEARS
Digitally             R/AT G R 4/974
signed by K S
RENUKAMBA             THANNEERAPANDAL
                      IKKARAINEGAMMA POST
Location:
High Court of         SATYAMANGALAM
Karnataka             TAMILNADU - 638 401

                2.    THE NEW INDIA ASSURANCE CO. LTD.
                      NO.12, 2ND FLOOR
                      NEW HOSPITAL ROAD
                      ABOVE STATE BANK OF INDIA
                      & NEAR GOVERNMENT HOSPITAL
                      GOBIPETTIPALAYAM
                      TAMILNADU - 638 452                    ...RESPONDENTS

                (BY SRI K.POORNABODHA RAO, ADVOCATE FOR R2;
                    NOTICE TO R1 DISPENSED WITH V/O DTD: 07.02.2022)
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                                               NC: 2024:KHC:42652-DB
                                                    MFA No.9476/2018




      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 20.07.2018 PASSED IN M.V.C.NO.801/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., TIPTUR PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

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

CORAM:     HON'BLE MRS JUSTICE K.S.MUDAGAL
           AND
           HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

                        ORAL JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

Though the matter has come up for admission, with

consent of both side, the matter is taken up for final disposal.

2. "Whether the compensation awarded to the

appellant/claimant under the impugned award is just one?" is

the question involved in this case.

3. Appellant was the claimant and respondents were

the respondents before the Tribunal. For the purpose of

convenience, the parties are referred to henceforth according to

their ranks before the Tribunal.

4. Claimant is the wife of the deceased Siddalingappa.

On 06.05.2016 at 11.30 a.m. when Siddalingappa was

proceeding on his TVS XL Super Moped near SLG Iyengar

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Bakery, Gandhinagar Railway Gate, lorry bearing Registration

No.TN-28-AY-2875 hit the moped and caused instantaneous

death of Siddalingappa. At the relevant time respondent Nos.1

and 2 were the owner and Insurer of the lorry respectively.

5. Claimant filed M.V.C.No.801/2017 before the Senior

Civil Judge and MACT XIV, Tiptur claiming compensation of

Rs.20,00,000/- from the respondents on the ground that the

deceased was earning Rs.20,000/- per month and she was

depending on his income. She further claimed that due to

accident and untimely death of her husband, she has suffered

damages and the respondents are liable to compensate the

damages.

6. Respondent No.1 did not contest the petition.

Respondent No.2 alone contested the petition denying

occurrence of the accident, actionable negligence on the part of

the driver of the lorry, age, occupation, income of the deceased

and its liability to pay the compensation.

7. To substantiate the case, claimant got examined

herself as PW.1 and got marked Exs.P1 to P14. Respondent

No.2 did not adduce any evidence. The Tribunal on hearing the

parties and relying on Exs.P1 to P5 i.e. first information report,

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complaint, charge sheet, spot mahazar and postmortem report

respectively, held that the accident occurred due to actionable

negligence on the part of the driver of the lorry.

8. The Tribunal notionally assessed the income of the

deceased at Rs.4,500/- per month, considering the age of the

deceased as 58 years applied 9 multiplier, deducted 1/3rd of his

income towards personal expenses and awarded compensation

of Rs.3,24,000/- on the head of loss of dependency.

9. The Tribunal in all awarded compensation of

Rs.4,34,000/- on different heads as follows:

       Sl.        Particulars                     Amount in Rs.
       No.
        1  Love and affection                      Rs.1,00,000/-
           2   Loss of dependency                  Rs.3,24,000/-
           3   Funeral,     obsequies         &    Rs.   10,000/-
               transportation expenses
                           Total                  Rs.4,34,000/-

10. Claimant has challenged the said award on the

ground that the compensation awarded on all the heads is on

the lower side.

11. Sri H.V.Bhanuprakash, learned Counsel for the

appellant/claimant reiterating the grounds of the appeal

submits that the notional income considered by the Tribunal is

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on the lower side and the compensation awarded on other

heads is also on the lower side.

12. Per contra, Sri K.Poornabodha Rao, learned Counsel

for respondent No.2/Insurer seeks to justify the impugned

award on the ground that there was no proof of occupation and

income of the deceased and having regard to his age, notional

income considered is just one.

13. Respondents have not questioned the award on any

grounds, therefore the findings of the Tribunal regarding

actionable negligence on the part of the driver of the lorry and

liability of the Insurer to pay the compensation have attained

finality.

14. As per postmortem report/Ex.P5, deceased was

aged 58 years. To substantiate the contention that the

deceased was an agriculturist and also doing milk vending

business, claimant relied on Exs.P6 and P7 RTC extracts.

Considering the same, though there was no proof of actual

income of the deceased, it could be said that he had some

gainful avocation. The accident occurred in the year 2016.

Considering the cost of living, prevailing wage rates during the

said period and the evidence on record, the notional income

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considered by the Tribunal at Rs.4,500/- per month is on the

lower side. Reasonably it can be said that notional income at

Rs.9,500/- per month is just.

15. In view of the judgment of the Hon'ble Supreme

Court in National Insurance Company Ltd., v. Pranay Sethi1

and having regard to the age of the deceased, 10% has to be

added to the income of the deceased by way of future

prospects. Therefore his income comes to (Rs.9,500/- +

Rs.950/- =) Rs.10,450/- per month.

16. In view of the judgment of the Hon'ble Supreme

Court in Sarla Verma v. Delhi Transport Corporation2, and

having regard to the fact that the claimant was the sole

dependant of the deceased, the Tribunal ought to have

deducted 50% towards his personal expenses. Thereby his

contribution to the family comes to Rs.5,225/- (Rs.10,450/- -

Rs.5,225/-). The applicable multiplier for the said age is 9.

Therefore the compensation payable on the head of loss of

dependency comes to Rs.5,64,300/- (Rs.5,225 x 9 x 12).

(2017) 16 SCC 680

(2009) 6 SCC 121

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17. As per the judgments of the Hon'ble Supreme Court

in Pranay Sethi's case referred to supra and Magma General

Insurance Company Ltd., v. Nanu Ram3 the claimant is entitled

to compensation on the head of consortium at Rs.40,000/- with

escalation at 10% for every three years which comes to

Rs.48,000/-.

18. As per the judgment of the Hon'ble Supreme Court

in Pranay Sethi's case referred to supra, the claimant is

entitled to compensation of Rs.15,000/- on the head of loss of

estate and Rs.15,000/- for funeral expenses and transportation

with escalation at 10% for every three years. Therefore the

just compensation payable is as follows:

            Sl.           Particulars           Compensation
            No.                                 awarded in Rs.
             1.    Loss of dependency               5,64,300/-
             2.    Loss of consortium                 48,000/-
             3.    Loss of estate                     18,000/-
             4.    Funeral    expenses    &           18,000/-
                   transportation charges
                                        Total        6,48,300/-
                   Less awarded by the               4,34,000/-
                   Tribunal
                        Enhancement                  2,14,300/-

19. Respondent No.2 being the Insurer is liable to pay

the enhanced compensation with interest at 6% per annum.

(2018) 18 SCC 130

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The appeal deserves to be allowed in part. Hence, the

following:

ORDER

The appeal is allowed in part.

(i) The claimant is entitled to enhanced compensation

of Rs.2,14,300/- with interest thereon at 6% p.a. from the date

of petition till the date of deposit.

(ii) Respondent No.2/Insurer shall deposit the

enhanced compensation before the Tribunal within four weeks

from the date of receipt of copy of this order.