Partly allowed

Chandregowda v. P. Kaliyappan

Karnataka HC3 Dec 2021MFA/7354/2015

Case brief

AI extract

What is this about?

High Court enhanced compensation awarded for death in motor accident. Fixed deceased income at Rs.7,000/mo. Revised split between loss of dependency, parental consortium, and funeral expenses per Supreme Court guidelines. Total raised to Rs.11,68,400.

What did the court decide?

Compensation enhanced to Rs.11,68,400 with interest at 6% per annum from date of petition.

Chandregowda Vs P. Kaliyappan — 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 3^RD DAY OF DECEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.N. DESAI

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MFA NO.7354/2015(MV-D)

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BETWEEN:

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1 . CHANDREGOWDA

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S/O KRISHNEGOWDA AGED ABOUT 63 YEARS

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2 . SANNAMMA

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W/O CHANDREGOWDA AGED ABOUT 57 YEARS

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BOTH ARE R/O VIDYANAGAR PALYA VILLAGE, ALUR TALUK PRESENT ADDRESS: CHAMPAKANAGAR EXTENSION SHAKALESHPUR TOWN-573 134

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... APPELLANTS

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(BY SRI. G.M. SHARATH KUMAR FOR SRI. CHETHAN. B, ADVOCATES)

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AND:

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1 . P. KALIYAPPAN S/O PERIYASWAMY NO.7, R.P.C EXTENSION, 206/261

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S.G. MUT, CHAMARAJAPETE

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BANGALORE-18

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2 . THE MANAGER

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UNITED INDIA INSURANCE CO.LTD, NO.2, DR. SHANKARAM ROAD, NAMAKAL REPRESENTED BY BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD VENKATESHWARA BUILDING GANDHI BAZAR CIRCLE HASSAN-573 201

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... RESPONDENTS

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(BY SRI. M.S. SRIRAM, ADVOCATE FOR R-2; NOTICE TO R1 IS DISPENSED WITH V/O DTD:22.8.2019

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.12.2014 PASSED IN MVC NO.1997/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MACT, SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This Appeal is filed by the claimants challenging the judgment and award passed by the Senior Civil Judge and Motor Accident Claims Tribunal, (for short hereinafter referred to as ‘Tribunal’), Sakaleshpur, in MVC No.1997/2013 dated 23.12.2014, whereby the claim petition allowed in part by

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awarding compensation of Rs.8,65,144/- with interest at 6% p.a.

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The appellants/claimants filed a petition before the Tribunal claiming compensation for the death of one Somashekar, who is the son of the appellants/Claimants- 1 & 2.

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Brief case of claimant is that, on 19.02.2012 at about 4.00 p.m, the deceased Somashekar being the driver of a Lorry bearing Registration No.KA/13/A/492 was proceeding towards his native place Vidyanagar, Palya at B.M. Road, in a moderate speed on the left side of the road and when he reached near Singapur Bridge, a Tanker Lorry bearing Registration No.KA.01.AE.8366 came in a rash and negligent manner with high speed from wrong side and dashed against the lorry of the deceased. As a result, the deceased Somashekar died on the spot. Hence, the appellants/petitioner Nos.1 and 2, who are the parents of the deceased, have filed the claim petition before the Tribunal, seeking compensation of Rs.20,00,000/-

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The 1^st respondent- owner of the offending Lorry has been placed ex-parte. The insurance company – respondent No.2 appeared and filed objections statement, wherein it has totally denied the entire material facts as stated in the petition. It has also contended that the death of the deceased was due to negligent act of the deceased himself and the petition is bad for non-joinder of necessary parties, as the owner and insurer of the victim Lorry are also necessary parties to the proceedings. Further, the learned counsel contended that the drivers of both the vehicles were not having a valid and effective driving licence as on the date of accident and thereby the owner of the lorry which was driven by the deceased, was allowed such driver to drive the vehicle and thereby he has violated the terms and conditions of the insurance policy and therefore, the Insurance Company is not liable to pay any compensation and as such, he prayed for dismissal of the claim petition.

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After considering the pleadings of the parties, the Tribunal framed the following issues:

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“i). Whether the petitioners prove that Somashekar died due to accidental injuries sustained by him in the road traffic accident that occurred on 1902-2012 at about 4.00 p.m. on B.M. Road, near Singapur Bridge, Alur Taluk, due to rash and negligent driving of Lorry No.KA-01/AE-8366 by its driver?

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ii) Whether the petitioners are entitled for compensation? If so, to what sum and from whom?

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iii) What Award or Order?”

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Before the Tribunal, petitioner No.1, who is the father of the deceased got himself examined as PW.1 and got marked eight documents consisting of complaint, FIR, Charge Sheet, Spot Mahazar, Inquest Mahazar, Spot Sketch, PM report, and a copy of the Judgment and award passed in connected case in MVC 1129/2012. But, the respondents did not choose lead any evidence either oral and documentary on their behalf. Therefore, the Tribunal after hearing the arguments of the counsels appearing on both sides and on appreciating the oral and documentary evidence available, has awarded total compensation of Rs.8,65,144/- with interest at the rate of 6% per annum. Aggrieved by the quantum of compensation

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awarded by the Tribunal, the appellants/claimants have filed this appeal seeking for enhancement of compensation .

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Heard Sri. G.M. Sharath Kumar for and Sri. Chethan

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B., the learned counsel for the appellants and Sri. M.S. Sriram, learned counsel for respondent No.2-Insurance Company.

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Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum has contended that, the impugned judgment and award passed by the Tribunal is illegal, invalid and unsustainable in law and as such, the same requires interference by this Court. He further contended that, the Tribunal has not taken into consideration the mental agony and pecuniary loss suffered by the appellants because of the death of their son-Somashekar. He also contended that the Tribunal has not properly assessed the monthly income of the deceased and thereby erred in calculating and awarding appropriate compensation amount towards future prospects and therefore, the same needs interference by this Court. However, the main contention of the learned counsel is that, the monthly income assessed by the Tribunal at Rs.5,000/- is

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on the lower side and the same needs to be enhanced. Hence, he prays for allowing the appeal by modifying the impugned judgment and award.

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Per contra, the learned counsel for the 2^nd respondent- Insurance Company supported the impugned judgment and award, and prays to dismiss the appeal.

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I have considered the arguments of learned counsel for the parties and perused the impugned judgment and award passed by the Tribunal. Admittedly, the deceased was a driver of the lorry. This aspect is not disputed. The documentary evidence produced by the claimants viz., the FIR, Complaint, Charge sheet are not disputed and also the occupation of the deceased is also not disputed.

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The reasoning given by the Tribunal is that, the contention of the claimants that the deceased was earning Rs.10,000/- per month cannot be believed, as they have not produced any documentary evidence in that regard and also they have not examined the owner of the lorry, which was driven by the deceased. So, in the absence of any supporting

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document, the Tribunal has rightly assessed the income of the deceased at Rs.5,000/- per month.

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In the instant case, the deceased was aged 22

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years as on the date of accident and the accident has occurred in the year 2012. Therefore , in my considered view, the said

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income assessed by the Tribunal is not just and proper. Because, even for a person doing coolie, having no property or no avocation, in Lok-Adalath chart, the notional income at Rs.7,000/- per month is taken for a person for the year 2012. Therefore, the income of the deceased is enhanced to at Rs .7,000/-

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The deceased was admittedly aged about 22 years, therefore, the appropriate multiplier applicable to the age group of deceased is '18', as per the decision of Hon’ble Supreme Court in the case of SARLA VERMA(SMT) AND OTHERS v. DELHI TRANSPORT CORPORATION AND

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ANOTHER, (2009) 6 SCC 121. Since the deceased was a bachelor, 50% of his income has to be deducted towards personal and living expenses of the deceased. Recently the

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Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017)

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16 Supreme Court Cases 680, has observed that 40% future prospects will have to be added in respect of the person aged below 40 years who is self-employed or having a fixed salary. Therefore, 40% of Rs.7000/- works out to Rs.2,800/- and accordingly, after deducting 50% out of Rs.9,800/- (Rs.7,000/+Rs.2,800/-), the compensation towards loss of dependency works out to Rs.10,58,400/- (Rs.7000+Rs.2800= Rs.9800x50%= Rs.4900x12x18)

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Further, since appellant No.1 is the father and appellant No.2 is the mother of deceased, in view of the decision of Hon’ble Supreme Court reported in (2018) 18 Supreme Court Cases 130 , in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others, they are entitled for a sum of Rs.40,000/- each towards 'Parental Consortium'. But, the Tribunal has awarded Rs.1,00,000/under the head of Loss of love and affection. Therefore, the said amount is reduced to Rs.80,000/- and accordingly, the

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claimants are entitled for a sum of Rs.80,000/- towards 'Parental Consortium' instead of Rs.1,00,000/-

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Further as per the decision in the case of Pranay

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Sethi (supra) a sum of Rs.15,000/- is to be awarded towards 'Funeral Expenses;. But, the Tribunal has awarded a sum of Rs.25,000/- under this head. Therefore, the compensation is reduced to Rs.15,000/- under the head of 'Funeral Expenses'. Further, as per the said decision, Rs.15,000/- has to be awarded under the head of 'Loss of Estate'. But, the Tribunal has only awarded Rs.10,000/- towards Loss of Estate and therefore, the same is enhanced to Rs.15,000/- .

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Further, the Tribunal has awarded a sum of Rs.10,000/- under the head of 'Loss of Expectation of Life. Since the right to Consortium would include the aspects of company, care, help, comfort, guidance, solace and affection of the deceased, which is loss to his family, the amount awarded under the head of 'Loss of expectation of Life' does not arise and therefore, that amount is hereby set aside.

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Since the aspects of liability and rate of interest

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awarded by the Tribunal is appropriate and undisputed, the

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same are left in tact.

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In the result, considering the nature of injuries, evidence of the appellants/claimants, the compensation awarded by the Tribunal need to be re-judged and the compensation awarded by the Tribunal is re-calculated under the different heads of compensation as under:

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Sl. No.	Particulars	Compensation awarded by the tribunal	Compensation re-determined by this court
1.	Loss of dependency	Rs.7,20,000/-	Rs.10,58,400/-
2.	Loss of Parental consortium or (Loss of love and affection) (Rs.40,000x2)	Rs. 1,00,000/-	Rs. 80,000/-
4.	Loss to estate	Rs. 10,000/-	Rs. 15,000/-
5	Loss of expectation in life	Rs. 10,000/-	----
5.	Transportation of dead body or	Rs. 25,000/-	Rs. 15,000/-

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funeral expenses
	Rs. 8,65,144/-	Rs.11,68,400/-
Total

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In the result, I pass the following:

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ORDER

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(i) The appeal is partly allowed;

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(ii) The impugned judgment and award passed by the Tribunal viz., Senior Civil Judge and MACT at Sakaleshpur, having been modified, the compensation is enhanced to Rs.11,68,400/- (Rupees Eleven Lakhs Sixty Eight Thousand Four Hundred only) from Rs.8,65,144/- awarded by the Tribunal. The appellants/claimants are entitled for enhanced compensation of Rs.3,03,256/- with interest at the rate of 6% per annum, from the date of petition till the date of deposit/realisation.

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