Karnataka High Court
Smt. B. Lakshmi Devi vs Mr. A Shankarappa on 3 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:25880
MFA No. 43 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.43 OF 2021 (MV-D)
BETWEEN:
1. SMT. B LAKSHMI DEVI,
W/O LATE. B.AADIPPA,
AGED ABOUT 34 YEARS.
2. MASTER B NARENDRA,
S/O LATE B. AADIPPA,
AGED ABOUT 16 YEARS,
3. KUMARI B NAVYA,
D/O LATE B. AADIPPA,
AGED ABOUT 13 YEARS
4. SRI. B. CHOWDAPPA,
S/O LATE B CHOWDAPPA,
AGED ABOUT 68 YEARS
5. SMT. B.LAKSHMAMMA,
W/O B CHOWDAPPA,
Digitally
AGED ABOUT 63 YEARS
signed by
YAMUNA K L (SINCE THE APPELLANT NO.2 AND 3 ARE
Location: MINORS DULY REPRESENTED BY THEIR
High Court of MOTHER I.E NATURAL GUARDIAN
Karnataka APPELLANT NO.1)
ALL ARE RESIDING AT NO.2-89,
UPPINELLI DINNE, MALENATHAM,
RAMASAMUDRAM,
MALENATHAM,
CHITTOOR DISTRICT-517 247,
ANDHRA PRADESH.
...APPELLANTS
(BY SRI. K N HARISH BABU., ADVOCATE)
AND:
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NC: 2024:KHC:25880
MFA No. 43 of 2021
1. MR.A SHANKARAPPA,
S/O A.VENKATAPPA,
NO.1-55, R.NADIMAPALLE, RAMASAMUDRAM,
CHITTOR DISTRICT-517 001.
ANDHRA PRADESH.
2. THE BRANCH MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.
S-5, 2ND FLOOR, MONARACH CHAMBERS
INFANTRY ROAD
BANGALORE-560 001.
...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2;
V/O DATED 24.01.2023, NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.03.2020 PASSED IN MVC
NO.2340/2017 ON THE FILE OF THE IX ADDITIONAL SMALL
CAUSES JUDGE AND ACMM, MEMBER, MACT, BENGALURU
SCCH-7, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The above appeal is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 19881 for enhancement of compensation challenging the judgment and award dated 02.03.2020 passed in MVC 1 Hereinafter referred to as the 'Act' -3- NC: 2024:KHC:25880 MFA No. 43 of 2021 No.2340/2017 by the IX Addl. Small Causes and MACT, Bangalore2.
2. Heard the learned counsel for the parties.
3. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.
4. Facts giving rise to filing of the appeal briefly stated are that on 14.03.2017 at about 08.00 p.m. when the deceased Aadippa was proceeding by riding his Motor Bike bearing Reg.No.AP-03-BL-0803 from Ramasamudram to Ballavaripalli village on Ramasamudram-Punganur main road, when deceased reached near Boodidhapalli Village, Miniki of Ramasamudam Mandal, the driver of Auto bearing Reg.No.AP-03-TE-4422 drove the same in opposite direction in a rash and negligent manner with high speed and dashed against the deceased motorcycle Bike. As a result of the accident, the deceased succumbed to the injuries, after the accident deceased was shifted to 2 Hereinafter referred to as the 'Tribunal' -4- NC: 2024:KHC:25880 MFA No. 43 of 2021 CHC Hospital, Punganur and thereafter, deceased was shifted to SVIMS Hospital, Tirupathi and died on the way to the Hospital. The petitioners are the wife, children and mother of the deceased. Hence, the petitioners have filed the claim petition under Section 166 of the Act claiming compensation for the death of the deceased, who died in the road traffic accident.
5. On service of summons, respondent No.1 did not appear. Respondent No.2 appeared through counsel and filed written statement by denying the averments made in the claim petition and denied the rash and negligent, age, income and dependency of the deceased. However, they taken contention that the driver of the Auto Riksha did not have any valid driving licence and effective R.C. at the time of the accident and taken all the contentions available to the Insurance Company and prays for dismissal of the appeal.
6. On the basis of the pleadings of the parties, the Tribunal framed the following issues: -5-
NC: 2024:KHC:25880 MFA No. 43 of 2021 i. Whether the Petitioners proves that they are the legal representatives of the deceased Sri.Aadippa?
ii) Whether the Petitioners prove that the accident occurred due to rash and negligent act of driver of the Auto Rickshaw bearing registration No.AP-03-TE-4422 and as a result Sri.Aadippa sustained fatal injuries and succumbed to injuries.
iii) Whether the Petitioners are entitled for compensation? If so, to what extent and from whom?
iv) What order or award?
7. In order to prove their case, claimant/petitioner No.1 examined herself as PW.1 and got marked Exs.P1 to Ex.P13. Shri.Barigalla Anjappa got examined as PW-2 and got marked one document as Ex.P.14. On the other hand, respondent No.2 Legal officer of Insurance Company got examined as RW-1 and got marked 4 documents as per Ex.R2 to Ex.R5 and Junior Assistant, Chittor RTO got examined as RW-2 and got marked one document as per Ex.R6. In the cross examination of PW-2, the accident spot sketch is marked as Ex.R1.
8. The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and -6- NC: 2024:KHC:25880 MFA No. 43 of 2021 negligent driving of the offending vehicle. As a result of accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.15,82,000/-, along with interest at the rate of 6% p.a. from the date of petition till realization of entire amount. Further, respondent No.2 is directed to deposit the compensation amount within two months from the date of award at the first instance and respondent No.2 has to recover the compensation amount from the owner of offending vehicle. Being aggrieved by the quantum of compensation, the claimants have filed this appeal for enhancement of compensation.
9. Learned counsel for the appellants/claimants contended that as per the Karnataka State Legal Service Authority Chart, the Tribunal has committed an error in taking income of the deceased at Rs.8,000/- per month instead of Rs.11,000/- and also not granted any proper consortium in view of the judgment of the Hon'ble -7- NC: 2024:KHC:25880 MFA No. 43 of 2021 Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM 3. Hence, seeks for enhancement of compensation.
10. Per contra, learned counsel for Respondent No.2 supported the judgment and award passed by the Tribunal and prays for dismissal of the appeal.
11. Having heard the learned counsel for the parties and perused the material available on record, the point that arises for consideration is:-
i) Whether the appellants are entitled for enhancement of compensation, if so, what order/award?
12. Having perused the records, the accident occurred on 14.03.2017 at Ramasamudram District, which is not in dispute. Respondent No.1 has not contested the matter and respondent No.2 has not filed any appeal with regard to filing of charge sheet against the driver of the Auto 3 [2018 ACJ 2782], -8- NC: 2024:KHC:25880 MFA No. 43 of 2021 Riksha but has orally alleged that the question of quantum of compensation awarded by the Tribunal is correct.
13. The claimants claim that deceased was earning Rs.15,000/- per month by doing Business and Coolie. But they have not produced any documents to support their contention. Hence, the Tribunal has taken the monthly income of the deceased at Rs.8,000/- per month, which is not correct. Hence, the notional income has to be re- assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2017, the notional income of the deceased has to be taken at Rs.11,000/- p.m. To the aforesaid income, 40% has to be added towards 'future prospects' in view of the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED -V- PRANAY SETHI & OTHERS 4 and as there are more than three dependants, 1/4th of the total income has to be deducted towards personal 4 (2017) 16 SCC 680 -9- NC: 2024:KHC:25880 MFA No. 43 of 2021 expenses. Hence, income of the deceased comes to Rs.11,550/- (11,000 + 40% - 1/4). The deceased was aged about "36" years at the time of the accident and multiplier applicable to his age group is '15'. Thus, the claimants are entitled to compensation of Rs.20,79,000/- (11,550 X 12 X 15) under the head 'loss of dependency'.
14. Towards 'loss of consortium', the Tribunal has awarded Rs.40,000/-. The appellants are being wife, children and parents of the deceased, as per the Magma General Insurance Company case (stated supra) appellants are entitled for an amount of Rs.40,000/- each, in all a sum of Rs.2,00,000/- (40,000 x 5) under the head "spousal consortium", "parental consortium", and "filial consortium".
15. The Tribunal has awarded just and proper compensation towards 'Loss of Estate', 'Loss of consortium' and 'funeral, obsequies ceremony and conveyance' and the same need not be interfered with.
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NC: 2024:KHC:25880 MFA No. 43 of 2021
16. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of estate 15,000/-
For funeral, obsequies 15,000/-
ceremony and conveyance,
Loss of Consortium 2,00,000/-
Loss of dependency 20,79,000/-
Total Rs. 23,09,000/-
17. With regard to the liability, respondent No.2 has examined RWs-1 and 2 and stated that driver of the offending vehicle did not possess any valid and effective driving license and permit. Except obtaining the Insurance policy from the respondent No.2, the owner of the offending vehicle has not followed the terms and conditions of the policy. Such the being the case, the Tribunal has rightly fastened liability on the Insurance Company and in turn, recover the same from the owner of the vehicle. Neither Insurance Company nor respondent No.1 has challenged the liability fastened on them.
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NC: 2024:KHC:25880 MFA No. 43 of 2021 Therefore, there is no interference with regard to the liability fastened on respondent No.2 and is directed to pay the compensation to the claimants at first instance and recover the same from the respondent No.1 i.e., owner of the offending vehicle.
18. Accordingly, I pass the following:-
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated 02.03.2020 passed in MVC No.2340/2017 by the IX Addl. Small Causes and MACT, Bengaluru is hereby modified.
iii) The appellants are entitled to total compensation of Rs.23,09,000/- as against Rs.15,82,000/- awarded by the Tribunal.
iv) The Respondent No.2/Insurance Company is directed to satisfy the award amount to appellants at first
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NC: 2024:KHC:25880 MFA No. 43 of 2021 instance and in turn, recover the same from respondent No.1/owner of vehicle.
v) The Respondent No.2/Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. on the enhanced compensation from the date of filing of petition till the date of realization within a period of 60 days from the date of receipt of copy of this judgment.
vi) The apportionment, deposit and release of amount shall be made in terms of the award of the Tribunal.
Sd/-
JUDGE ASN List No.: 1 Sl No.: 41