Partly allowed

Smt Lakshmidevi v. Mr Sali Mathew v

Karnataka HC7 Mar 2022MFA/2451/2019

Case brief

AI extract

What is this about?

This appeal under Section 173(1) sought enhancement of compensation under Section 163-A for a motor vehicle accident. The court modified the award, citing the Second Schedule limits for estates and funeral expenses regardless of the Pranay Sethi precedent, and corrected the personal expenditure deduction to 1/3rd, ordering total compensation of Rs.4,79,700/-.

What did the court decide?

Compensation enhanced to a total sum of Rs.4,79,700/- (Loss of dependency Rs.4,75,200/-, Loss of Estate Rs.2,500/-, Funeral expenses Rs.2,000/-).

Smt Lakshmidevi Vs Mr Sali Mathew v — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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M.F.A.NO.2451/2019 (MV)

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BETWEEN:

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SMT. LAKSHMIDEVI

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W/O LATE SRINIVASA V.S AGED ABOUT 45 YEARS

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MADHUSUDHAN KUMAR V.S. S/O LATE SRINIVASA V.S AGED ABOUT 24 YEARS

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SANDEEP KUMAR V.S S/O LATE SRINIVASA V.S AGED ABOUT 22 YEARS

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ALL ARE R/O RAYAPURA VILLAGE MOLAKALMURU TALUK CHITRADURGA DISTRICT-577501

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… APPELLANTS

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(BY SRI B.PRAMOD, ADVOCATE)

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AND:

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MR.SALI MATHEW V MAJOR RC OWNER OF LORRY R/O NIRAPRATH HOUSE MOOLANKAVE POST SULTHAN BATHERY

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WAYANAD, KERALA STATE-673592

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THE BRANCH MANAGER

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UNITED INDIA INSURANCE CO LTD., BRANCH OFFICE, DRM HOSPITAL COMPLEX HOLALKERE ROAD,

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CHITRADURGA TOWN-577501.

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...RESPONDENTS

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(BY SRI. B.C.SEETHARAMA RAO, ADVOCATE FOR R2 R1 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 05.01.2019 PASSED IN MVC.NO.735/2018 BY THE COURT OF I ADDL. SENIOR SIVIL JUDGE AND ADDL.MACT-IV, CHITRADURGA AND AWARD JUST AND PROPER COMPENSATION; AND PASS SUCH OTHER ORDER/S DEEMED JUST AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN INTEREST OF JUSTICE AND EQUITY.

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THIS MFA HAVING BEEN HEARD AND RESERVED ON 22.02.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the matter is posted for admission, with the

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consent of learned counsel for the parties, the same is taken up for final disposal.

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This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’), seeking enhancement of the compensation granted in a petition filed under Section 163-A by claimants who are mother and brothers of one Manoj Kumar, who died in a

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motor vehicle accident dated 21.01.2018, contending that as per the decision of the Pranay Sethi’s case reported in 2017 16 SCC 680, future prospects are required to be granted at the rate of 40%. Under the head parental consortium, the petitioner No.1 being the mother of the deceased is to be granted compensation as per the decision of the Hon’ble Supreme Court in Magma General

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Insurance Company case . The compensation granted under the head transportation of dead body and funeral expenses is on lower side.

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By the impugned judgment and award the Tribunal has granted compensation in a sum of Rs.3,86,400/- with interest at 9% p.a and directed the respondent being the insurer of the offending vehicle to pay the same as detailed below:

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Heads	Amount in Rs.
Loss of earnings	3,56,400/-
Loss of Estate	15,000/-
Transportation and funeral	15,000/-
expenses
TOTAL	3,86,400

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For sake of convenience the parties are referred

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to by their rank before the Tribunal.

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It is the case of the petitioners that deceased was an auto driver earning Rs.3,300/- p.m. On 21.01.2018, at about 9.45 p.m, he was driving auto rickshaw bearing registration No.KA 16/C 4415 from Rayalapura towards Tumakuranahalli Solar Plant. When he was near Tumakuranahalli Gate, Molakalmuru Taluk, on NH 150(A), driver of lorry bearing registration No.KL 12/G 3139 (hereinafter referred to as offending vehicle), came in a rash or negligent manner and dashed against the auto rickshaw, as a result of which Manoj Kumar sustained

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severe injuries and died on the spot.

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At the time of accident, the deceased was aged about 25 years. Petitioners being the mother and brothers of the deceased were dependent on him and as such they

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are entitled for compensation. Respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation.

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Respondent No.1 has remained Ex-parte.

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Respondent No.2 has filed the objections

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contending that the accident occurred due to the rash or negligent driving by deceased Manoj Kumar. In fact the concerned police have filed charge sheet against the deceased and has sought for dismissal of the appeal.

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[ 9. In support of their claim, petitioner No.1 is examined as PW-1 and Ex.P1 to 10 are marked.

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Respondent No.2 has not led any oral evidence, but relied upon Ex.R1 copy of the policy.

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I have heard the learned counsel representing the petitioners and respondent No.2 and perused the records.

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Even though during the course of appeal memo, petitioners have claimed enhancement of compensation under several heads, during the course of arguments, the learned counsel representing the petitioners submitted that Section 163-A of the MV Act is substituted by Section 164 through 2019 amendment and as such at least the compensation is required to be enhanced to Rs.5,00,000/-.

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On the other hand the learned counsel

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representing the respondent submits that since the petition is under Section 163-A of the MV Act, wherein the compensation is to be determined on structured formula basis i.e., no fault liability, the computation is to be made strictly in accordance with the second Schedule. He further submits that the amendment of 2019 whereby Section 163A is substituted by Section 164 is prospective in effect and since the date of accident is 21.01.2018, Section 164 of MV Act is not applicable and therefore the calculations are to be made in accordance with the earlier Act.

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It is an undisputed fact that the accident in question took placed on 21.01.2018, which is prior to the 2019 amendment and as such the benefit of Section 164 of MV Act cannot be given to the petitioners. It is also not in dispute that at the time of accident, deceased was driving auto rickshaw bearing No.KA 16/C 4415. After the investigation, the police have filed charge sheet against deceased. Consequently, the petitioners have chosen to file the claim petition under Section 163-A of the MV Act under no fault liability wherein, the compensation is required to be granted on structured formula basis.

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One of the condition for application of Section 163-A of the MV Act is that the income of the deceased shall not exceed Rs.40,000/-p.a. According to the claimants, the deceased was earning Rs.3,300/- p.m. which comes to Rs.39,600/- p.a. within the limitation prescribed by Schedule-2. In the absence of any evidence to support the claim of the petitioners regarding the income of

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deceased, the Tribunal has rightly taken Rs.3,300/- as the monthly income of the deceased, which is well below the minimum wages.

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Since the deceased was a bachelor, the Tribunal has deducted his personal and living expenses at 50% which is not correct. As per the second Schedule, the personal and living expenses to be deducted is restricted to 1/3rd and it shall not exceed the same. Since deceased was stated to be aged 25 years which fact is not seriously disputed by the respondent and based on the evidence on record, the Tribunal has accepted the age of the deceased as 25 and consequently, the appropriate multiplier taken at 18 is correct. Therefore, after deducting 1/3^rd income towards personal and living expenses of the deceased, the petitioners are entitled for compensation under the head loss of dependency based on 2/3^rd of his income i.e., 3,300 x 12 x 18 x 2/3^rd which comes to Rs.4,75,200/-.

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Based on the decision of the Hon’ble Supreme Court in National Insurance company Ltd vs Pranay Seti’s and others , the Tribunal has granted a compensation of sum of Rs.15,000/- under the head loss of estate and Rs.15,000/- under the head transportation and funeral expenses which is not correct. The decision in Pranay Seti’s case is not applicable to the present petition which is filed under Section 163A of the MV Act. As per the second Schedule, the funeral expenses is to be restricted to Rs.2,000/- and similarly loss of estate is to be restricted to Rs.2,500/-. To this extent the impugned judgment and award is liable to be modified. While the claimants are entitled for compensation of sum of Rs.4,75,200/- under the head loss of dependency as against Rs.3,56,400/granted by the Tribunal, as against Rs.15,000/- under the head loss of estate, the petitioners are entitled for Rs.2,500/- and as against Rs.5,000/- under the head transportation of funeral expenses they are entitled for Rs.2,000/-. In all the petitioners are entitled for

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compensation in total sum of Rs.4,79,700/- as against

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Rs.3,86,400/- granted by the Tribunal as detailed below:

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Heads	Amount granted by the Tribunal In Rs.	Amount granted by this Court In Rs.
Loss of earnings	3,56,400-00	4,75,200-00
Loss of Estate	15,000-00	2,500-00
Transportation and funeral expenses	5,000-00	2,000-00
TOTAL	3,86,400-00	4,79,700-00

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To this extent the impugned judgment and award is

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liable to be modified and accordingly, I proceed to pass the following order

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ORDER

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The appeal is allowed in part.

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The judgment and award dated 05.01.2019 passed in MVC No.735/2018 on the file of the I Additional Senior Civil Judge and Additional MACT-IV, Chitradurga, is modified.

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The petitioners/appellants are entitled for enhanced compensation of Rs.4,75,700/- as against Rs.3,86,400/- granted by the Tribunal .

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Sd/JUDGE

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Smt Lakshmidevi v. Mr Sali Mathew v

Case brief

What is this about?

What did the court decide?

Smt Lakshmidevi v. Mr Sali Mathew v

Case brief

What is this about?

What did the court decide?

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