Karnataka High Court
Smt. Roopa And Ors vs Sri. Venkanagouda And Anr on 12 February, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 202139 of 2019
C/W MFA No. 202624 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.202139 OF 2019 (MV-D)
C/W
MISCL. FIRST APPEAL NO.202624 OF 2019(MV-D)
IN MFA NO.202139/2019:
BETWEEN:
1. SMT. ROOPA W/O SUBHASH SOMAPUR,
AGED ABOUT 39 YEARS,
OCC: HOUSEHOLD WORK,
2. KUMARI SUSHMA D/O SUBHASH SOMAPUR
AGED ABOUT 18 YEARS, OCC: STUDENT,
Digitally signed by
BASALINGAPPA 3. KUMAR SANKET S/O SUBHASH SOMAPUR
SHIVARAJ AGED ABOUT 16 YEARS, OCC: STUDENT,
DHUTTARGAON
Location: HIGH APPELLANT-3 IS MINOR REP. BY
COURT OF APPELLANT-1 AS MG AND NATURAL MOTHER,
KARNATAKA
ALL ARE R/O. MANAGULI, NOW RESIDING AT
GANESH NAGAR, VIJAYAPUR.
...APPELLANTS
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
1. SRI. VENKANAGOUDA
S/O HANAMANTAGOUDA GOWDANNAVAR,
AGED ABOUT 39 YEARS,
OCC: AGRI/BUSINESS,
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MFA No. 202139 of 2019
C/W MFA No. 202624 of 2019
R/O. UGALAWAT, TALUKA: BADAMI,
DIST: BAGALKOT - 587101.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
BEHIND S.S.TEMPLE, S.S. ROAD,
VIJAYAPUR - 586101.
...RESPONDENTS
(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION
AMOUNT BY SUITABLY MODIFYING THE JUDGMENT AND
AWARD DATED 28.08.2019 PASSED BY THE HON'BLE IV ADDL.
DISTRICT JUDGE AND MACT XIII, VIJAYAPUR IN MVC
NO.995/2015.
IN MFA NO.202624/2019:
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
NEAR 21ST CENTURY, S.S. BACK ROAD,
VIJAYAPURA - 586101.
NOW REPRESENTED BY,
AUTHORISED SIGNATORY
NATIONAL INSURANCE COMPANY LTD.,
BILAGUNDI COMPLEX, I FLOOR,
MAIN ROAD, KALABURAGI.
...APPELLANT
(BY SRI SANJAY M. JOSHI, ADVOCATE)
AND:
1. SMT. ROOPA W/O SUBHASH SOMAPUR,
AGE: 39 YEARS, OCC: HOUSEHOLD,
2. SUSHMA D/O SUBHASH SOMAPUR
AGE: 19 YEARS, OCC: STUDENT,
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MFA No. 202139 of 2019
C/W MFA No. 202624 of 2019
3. SANKET S/O SUBHASH SOMAPUR
AGE: 16 YEARS, OCC: STUDENT,
MINOR REPRESENTED BY HIS NEXT FRIEND
SMT. ROOPA W/O SUBHASH SOMAPUR
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O VIJAYAPUR - 586101.
4. VENKANAGOUDA
S/O HANAMANTGOUDA GOWDANNAVAR
AGE: 39 YEARS, OCC: AGRI./ BUSINESS,
R/O: UGALAWAT, TQ: BADAMI,
DIST: BAGALKOT - 587201.
...RESPONDENTS
(BY SRI S.S.MAMADAPUR, ADV. FOR R1 TO R3;
NOTICE TO R4 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT 1988, PRAYING TO SET ASIDE THE JUDGEMENT
AND AWARD, DATED 28.08.2019, IN SO FAR AS THE SAME IS
SADDLED UPON THE APPELLANT INSURANCE COMPANY, AND
ALSO REDUCE THE COMPENSATION AWARDED OF
RS.37,25,524/- AND THE EXTENT LIABILITY SADDLED UPON
THE APPELLANT INSURANCE COMPNAY AND ALSO REDUCE THE
RATE OF INTEREST FROM 9% TO 6% P.A. IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR JUSTICE RAJESH RAI K
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MFA No. 202139 of 2019
C/W MFA No. 202624 of 2019
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K.,)
These appeals are directed against the judgment and
award dated 28.08.2019 passed in MVC No.995/2015 by
the IV Additional District Judge and Motor Accident Claims
Tribunal-XIII, Vijayapura.
2. Parties are referred to as per their ranking
before the Tribunal.
3. Facts apposite for filing of these appeals are as
under:
On 05.09.2014 deceased Subhash and his friend
Shrishail Alagond were proceeding in a motorcycle bearing
Reg.No.KA-29/W-4591 from Managuli to Vijayapur. While
so proceeding at about 7.30 p.m., when they approached
NH-50 nearby Savalahalla bridge, the rider of the
motorcycle was riding the motorcycle in a rash and
negligent manner and dashed to the road divider resulting
in accident. Due to the said accident, the pillion rider i.e.,
the husband of the petitioner No.1 tossed and fell down
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and sustained grievous injuries. Immediately, he was
shifted to Sanjeevini Hospital and thereafter, to
Yashodhara Hospital at Solapur, wherein he was treated as
inpatient for 40 days and thereafter, he succumbed to the
injuries on 25.10.2014. The petitioners being the legal
representatives of deceased have filed the claim petition
under Section 166 of Motor Vehicles Act seeking
compensation of Rs.91,61,154/- on account of death of
Sri.Subhash in a road traffic accident.
4. Respondent No.1 being the owner of the vehicle
remained absent and he was placed exparte. Respondent
No.2 appeared through its counsel and filed the written
statement denying the averments made in the claim
petition and prayed to dismiss the claim petition.
5. The Tribunal on the basis of pleadings of the
parties framed the issues. The petitioners in order to prove
their claim examined petitioner No.1 as P.W.1 as well as
one witness as P.W.2 and got marked 22 documents as
per Exs.P1 to P22. On the other hand, respondent No.2
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got examined official of hospital as RW.1 and its officer as
RW.2 and got marked documents as per Exs.R1 to R6.
6. The Tribunal, after hearing both sides and on
the assessment of oral and documentary evidence, allowed
the petition in part and ordered that the petitioners are
entitled for compensation of Rs.37,25,524/- with interest
at the rate of 9% p.a. from the date of petition, till the day
of realization and held that respondent Nos.1 and 2 are
jointly and severally liable to pay the compensation and
further directed the respondent No.2 to deposit the entire
compensation amount within 30 days from the date of
order.
7. Being dissatisfied with the compensation
awarded by the Tribunal, the petitioners have filed appeal
in MFA No.202139/2019 seeking enhancement of
compensation and respondent No.2-Insurance Company
has filed appeal in MFA No.202624/2019 challenging the
liability and quantum.
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8. Heard learned counsel for the appellants-
petitioners and learned counsel for the respondent-
Insurance Company.
9. The learned counsel for the petitioners submits
that the compensation awarded by the Tribunal is on the
lower side. He submits that the deceased-Subhash was a
Class-I Civil Contractor and his income as per Ex.P12 to
P14 was Rs.2,22,530/- per annum. However, the Tribunal
erred while granting compensation under the head of loss
of dependency. According to the counsel, the Tribunal
ought to have taken into consideration the average income
of the deceased for the last three years. Hence, on these
grounds, he prays to allow the appeal filed by the
petitioners and prays to dismiss the appeal filed by the
respondent-Insurance Company.
10. Per contra, learned counsel appearing for the
respondent/Insurance Company submits that petitioners in
order to set up the claim and succeed have lodged the
complaint after two days of the accident and the deceased
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who is shown as pillion rider was infact the rider of the
motorcycle. He submits that the police have colluded with
the petitioners and respondent No.1 by planting false rider
by name Shrishail Alagond and the said respondent No.1
willfully and purposefully remained exparte. To
substantiate his contention, he relies on Ex.R3, notice of
medico legal case to police station by Yashodhara Super
Specialty Hospital, Solapur, where the deceased was
admitted before his death. It is further submitted that the
income of the deceased for the assessment year 2013-14
has slided down from the assessment year 2012-13.
Hence, there is no definite income of the deceased.
Therefore, the question of making addition to the income
by way of loss of future income is not sustainable and the
Tribunal has wrongly added the additional income to the
extent of 30%. He further submits that the interest
awarded by the Tribunal at 9% per annum is on the higher
side which needs to be reduced to 6% per annum. Hence,
on these grounds, he prays to allow the appeal filed by the
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Insurance Company and dismiss the appeal filed by the
petitioners.
11. Perused the records and considered the
submissions made by the learned counsel for the parties.
12. The points that would arise for our
consideration are liability and quantum.
13. It could be seen from the records to prove the
accident in question, the petitioners have relied on the
documents Exs.P1 to P7, i.e., FIR, complaint and other
charge sheet materials. On careful perusal of the
complaint Ex.P2, one Vishwanath had lodged the
complaint on 17.09.2014 i.e., after two days from the date
of accident stating that on 15.09.2014, the deceased and
one Shrishail went to Vijayapur on a motorcycle and the
said motorcycle was being ridden by Srishail and when
they reached near Savalahalla Bridge in Managuli village,
the rider of the motorcycle rode the same in a rash and
negligent manner and dashed to the road divider resulting
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the pillion rider tossing from the motorcycle and sustaining
severe injuries. On the strength of said complaint, FIR
came to be registered by the jurisdictional police as per
Ex.P1 and after investigation in the case, the jurisdictional
police laid charge sheet as per Ex.P7 against the rider of
the motorcycle. Said charge sheet has not been
challenged by the Insurance Company. Though, there is a
delay of two days in lodging the complaint, the same is
explained by P.W.1 in her evidence.
14. Learned counsel for the respondent No.2-
Insurance Company has vehemently argued that Ex.R3
depicts the different story as that of Ex.P2 complaint. We
have carefully perused both the documents. Ex.R3, MLC
sent by the Hospital at Solapur to the Police reveals that
the deceased was going on a two wheeler from Vijayapura
to Managuli road and he dashed to the stone which was
lying on the road and sustained injuries. The contents of
Ex.P2 also disclose that the deceased was travelling on a
motorcycle. In such circumstance, the contention raised by
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the Insurance Company that a false claim has been raised
by the petitioners cannot be accepted. Per contra, the
charge sheet materials Exs.P1 to P7 clearly prove that the
deceased sustained injuries while riding on a motorcycle
with one Srishail. Hence, the Tribunal has rightly fastened
the liability on the Insurance Company.
15. The Tribunal has granted compensation under
the following heads:
Sl. Heads of claims Amount
No. awarded
01 Loss of income Rs.19,28,602/-
02 Loss of future prospects Rs.8,67,867/-
03 Medical expenses Rs.7,64,055/-
04 Marital consortium Rs.1,00,000/-
05 Parental consortium Rs.50,000/-
06 Funeral expenses Rs.15,000/-
Total: Rs.37,25,524/-
16. The Income Tax returns filed by the deceased
for the year 2011-12 as per Ex.P12 depicts that the gross
total income of the deceased was Rs.2,13,010/- and he
has paid tax of Rs.1,880/-, thus, his income was
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Rs.2,11,130/-; For the year 2012-13, the gross income of
the deceased was Rs.5,50,740/- and he has paid tax of
Rs.38,738/- thus, his net income was Rs.5,12,002/- as per
Ex.P13; For the year 2013-14, his gross income was
Rs.2,22,530/- and he has paid tax of Rs.2,321/- thus, his
net income was Rs.2,20,209/-. Thus, for the purpose of
calculation of income of the deceased, average of these
three incomes has to be taken, which comes to
Rs.3,14,447/- per annum as on the date of death. To the
aforesaid amount, 30% of the said amount has to be
added on account of future prospects, in view of the law
laid down by the Constitutional Bench of the Supreme
Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others reported in AIR
2017 SC 5157. Thus, the annual income of the deceased
comes to Rs.4,08,781/-. Out of which, considering that
there are three dependents, we deem it appropriate to
deduct 1/3rd of the said income towards personal expenses
of the deceased and therefore, the annual income of the
deceased comes to Rs.2,72,521/. Taking into account the
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age of the deceased which was 46 years at the time of the
accident, multiplier of '13' has to be adopted as per the
judgment of the Hon'ble Supreme Court in the case of
Sarla Verma vs. Delhi Transport Corporation reported
in (2009) 6 SCC 121. Therefore, the petitioners are
entitled to the sum of Rs.35,42,773/- (2,72,521 x 13) on
account of loss of dependency as against Rs.27,96,469/-
awarded by the Tribunal.
17. The Tribunal has awarded compensation under
the head loss of consortium at Rs.1,50,000/-. In view of
the law laid down by the Hon'ble Supreme Court in the
case of Magma General Insurance Company Limited
vs. Nanu Ram Alias Chuhru Ram & Others reported in
2018 ACJ 2782, each of the petitioners are entitled to a
sum of Rs.40,000/- under the head of 'loss of consortium'.
Therefore, compensation under this head would be
Rs.1,20,000/- (Rs.40,000x3).
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18. The Tribunal has awarded a sum of
Rs.7,64,055/- towards medical expenses, the same needs
to be retained as it is.
19. In addition, the petitioners are entitled to a sum
of Rs.15,000/- towards funeral expenses and Rs.15,000/-
under the head of loss of estate.
20. Thus, the petitioners are entitled for total
compensation of Rs.44,56,828/- as against Rs.37,25,524/-
awarded by the Tribunal. Hence, the claimants are entitled
for enhanced compensation of Rs.7,31,304/-.
21. In view of the above discussion, we proceed to
pass the following:
ORDER
a) The appeal filed by the petitioners in MFA
Nos.202139/2019 and the appeal filed by the
respondent-Insurance Company in MFA
No.202624/2019 are allowed in part.
b) The impugned judgment and award passed by
the Tribunal is modified. The petitioners are
entitled for total compensation of
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Rs.44,56,828/- as against Rs.37,25,524/-
awarded by the Tribunal. Hence, the
petitioners are entitled for enhanced
compensation of Rs.7,31,304/- along with
interest at the rate of 6% per annum from the
date of petition till the date of realization.
c) The respondent No.2-Insurance Company is
directed to deposit the enhanced
compensation amount within a period of eight
weeks from date of the receipt of certified
copy of this judgment.
d) The amount in deposit shall be transmitted to
the Tribunal forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
VNR
CT: PS
