Disposed

Smt. Saroja.v Raikar v. Ganesh v Raikar

Karnataka HC12 Mar 2021MFA/2941/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of an appeal filed by the legal representatives of a deceased to enhance accident compensation. The court recalculated the dependency loss based on the number of claimants and applied Supreme Court precedents to determine the final compensation amount and interest.

What did the court decide?

Claimants held entitled to total compensation of Rs. 19,18,715/- with interest at 6% p.a. from the date of filing of the petition.

Smt. Saroja.v Raikar Vs Ganesh v Raikar — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF MARCH 2021

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PRESENT

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THE HON’BLE MR.JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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MFA NO.2941 OF 2019 (MV)

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BETWEEN :

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SMT. SAROJA.V RAIKAR W/O LATE VENKATESH R RAIKAR,

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AGE 48 YEARS,

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KUMARI PRIYANKA V RAIKAR D/O LATE VENKATESH R RAIKAR AGE 27 YEARS,

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MASTER PRAJVAL V RAIKAR D/O LATE VENKATESH R RAIKAR AGE 21 YEARS,

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SMT JANAKAMMA R RAIKAR W/O LATE RAMAKRISHNA RAIKAR AGE 27 YEARS,

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ALL ARE RESIDENTS OF VIDYANAGAR, HARIHAR TOWN DAVANAGERE DISTRICT - 577 601.

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...APPELLANTS (BY SRI. MAHESH R UPPIN, ADVOCATE FOR SRI. R. PRADEEP KUMAR, ADVOCATE)

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AND:

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GANESH V RAIKAR S/O LATE RAMAKRISHNA AGE 48 YEARS,

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OWNER OF TATA INDIGO BEARING REG NO.KA-17-M-8967 R/O RUKMINI NIVASA 60 FEET ROAD, VIDYANAGARA HARIHAR TOWN DAVANAGERE DISTRICT - 577 601.

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THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., WALI COMPELX, MAIN ROAD HARIHARA-577 601. DAVANAGERE DISTRICT.

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…RESPONDENTS

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(BY SRI. S V SUDHAKAR REDDY, ADVOCATE FOR R-2 R-1 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 29.08.2018 PASSED IN MVC NO.209 OF 2015 BY THE SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, HARIHARA BY ALLOWING THE APPEAL BY ENHANCING THE COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J.,DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the MV Act

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has been filed by the claimants against the judgment dated 29.8.2018 seeking enhancement of the amount of compensation.

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Facts giving rise to the filing of this appeal briefly stated are that the deceased Venkatesh R Raikar was travelling in a Tata Indigo Car bearing registration No.KA-17M-8967 from Davangere to Harihar on 8.1.2015. As a result of the rash and negligent driving of the car by its driver, the vehicle turned turtle on the left side of the road. As a result of the aforesaid accident, the deceased sustained injuries and succumbed to the same on 22.11.2015.

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The claimants thereupon filed the petition

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under Section 166 of the MV Act in which inter alia it was pleaded that the accident took place on account

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of the rash and negligent driving of the car by its driver. It was further pleaded that the deceased at the time of accident was aged 54 years and was a jeweller by profession. He used to earn Rs.22,000/per month. Accordingly, a compensation of Rs.86,75,000/- along with interest at the rate of 9% p.a. was sought.

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Respondent No.2 filed the written statement in

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which the claim of the claimants was disputed. The age, avocation and income of the deceased was also denied and the factum of the accident was also denied. However, respondent No.2 admitted issuance of the policy and it was pleaded that its liability, if any, would be subject to the terms and conditions mentioned in the policy.

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The Claims Tribunal on the basis of the pleadings

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of the parties framed the issues and recorded the

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evidence of each of the parties. The claimants examined six witnesses namely Saroja, Prajwal, Kotranaika, Suresh, Anand and T Moodalagiriyappa as PW-1 to PW-6 and exhibited documents namely Ex.P1 to Ex.P20. Respondent No.2 did not adduce any oral evidence. However, a copy of the insurance policy was placed on record.

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The Claims Tribunal vide judgment dated 29.8.2018 held that the accident took place on account of the rash and negligent driving of the driver of the Tata Indica vehicle and the deceased sustained injuries in the aforesaid accident. It was further held that the claimants are entitled to a sum of Rs.18,33,235/- on account of the compensation along with interest at the rate of 6% p.a. from the date of petition till its realisation. In the aforesaid background, this appeal has been filed by the claimants seeking enhancement of the compensation.

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Learned counsel for the appellants has submitted that the Tribunal in the facts and

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circumstances of the case ought to have deducted 1/4^th amount on account of the personal expenses as the claimants were four in number. It is also urged that the amount awarded under the head loss of consortium is on the lower side.

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On the other hand, learned counsel for the insurance company submitted that the amount of compensation which has been awarded is just and proper and the Tribunal has rightly deducted 1/3^rd of the amount as expenses as the daughter of the deceased was married before filing of the claim petition.

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We have considered the submissions made

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on both sides and have perused the record.

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The only issue which arises for consideration

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in this appeal is with regard to the quantum of compensation.

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Admittedly, deceased at the time of accident

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was aged about 57 years and his yearly income was

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assessed by the Tribunal at Rs.1,88,390/- which comes to Rs.15,700/- p.m. To this amount, if 10% is added towards future prospects, it comes to Rs.17,270/- p.m. The Hon'ble Supreme Court in ' NATIONAL INSURANCE COMPANY LIMITED VS. BIRENDER', 2020 SCC ONLINE SC 28, has held that the legal representatives of the deceased are entitled to make an application for compensation in view of Section 166(1)(c) of the Act. It is further been held that even the major and married earning sons of the deceased has right to apply for compensation and it is the bounden duty of the Tribunal to consider the application irrespective of the

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fact whether the said LR who was fully dependent on the deceased and not to limit the claim towards the conventional heads. Therefore, it is evident even assuming that the daughter of the deceased was married before filing of the petition, still she is entitled to compensation. Since the number of dependents on the deceased were four, the Tribunal ought to have deducted 1/4^th of the amount towards personal expenses of the deceased. Therefore, the monthly dependency comes to Rs.12,952/- (1/4^th of 17,270) and taking into account the age of the deceased which was 57 years at the time of accident, multiplier of '9' has to be applied. Therefore, the claimants are entitled to compensation of Rs.13,98,816/(Rs.12,952 x 12 x 9) on account of loss of dependency.

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In view of laid down by the Supreme Court in

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‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in

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‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ AIR 2020 SC 3076 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants, who are four in number in this appeal, are held entitled to Rs.1,60,000/- (40,000 x 4). In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. The amount of compensation awarded under the head 'medical expenses' at Rs.5,19,899/- is maintained. Thus, in all, the claimants are held entitled to a total compensation of Rs.19,18,715/-.

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The aforesaid amount of compensation shall carry interest at 6% p.a. from the date of filing of the petition till its realisation.

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In the result, appeal is disposed of.

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SD/JUDGE

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SD/JUDGE

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