Dismissed

Shivayogi Kiran S v. Shivakumar

Karnataka HC21 Mar 2022MFA/387/2017

Case brief

AI extract

What is this about?

The High Court held that the Motor Accident Claims Tribunal correctly calculated compensation under Section 163A of the Motor Vehicles Act. The Court found no justifiable grounds for enhancement of the awarded sum considering the loss of service to adult, non-dependent daughters.

What did the court decide?

The appeal filed for enhancement of compensation under Section 163A of the Motor Vehicles Act was dismissed.

Shivayogi Kiran S Vs Shivakumar — 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 21^ST 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.387/2017 (MV)

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BETWEEN:

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SHIVAYOGI KIRAN S

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S/O SHIVAKUMARA @ SHIVAKUMAR SWAMY

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AGED ABOUT 27 YEARS

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R/A HAROBENAVALLI

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B.BEERANAHALLI POST

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SHIVAMOGGA TALUK-577201

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SMT.PUSHPA M.N

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W/O NAGARAJ, AGED ABOUT 34 YEARS,

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R/A GAMA VILLAGE, SHIKARIPURA TALUK, SHIVAMOGGA DIST-577201

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… APPELLANTS

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(BY SRI. SRIKANTH PATIL K, ADVOCATE)

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AND:

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SHIVAKUAMR @ SHIVAKUMAR SWAMY S/O BASAVALINGAIAH AGED ABOUT 63 YEARS AGRICULTURIST R/A TARALAGHATTA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA DISTRICT-577427

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NATIONAL INSURANCE CO. LTD., S.S.COMPLEX, CHURCH OPP. B.H.ROAD, SHIVAMOGGA CITY-577201

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THE EXECUTIVE ENGINEER PWD DEPARTMENT, GOVT. OF KARNATAKA, S.S.ROAD, SHIKARIPURA-577427 SHIVAMOGGA DIST.

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...RESPONDENTS

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(BY SRI. L. SREEKANTA RAO, ADV FOR R2 SRI. D.C. PARAMESWARAIAH, HCGP FOR R3

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R1 SD & UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO CALL FOR RECORDS IN MVC.NO.545/2013 ON THE FILE OF PRL. SENIOR CIVIL JUDGE & MACT, SHIVAMOGGA; SET ASIDE THE JUDGMENT AND AWARD DATED 21.03.2016 PASSED BY THE PRL. SENIOR CIVIL JUDGE & MACT, SHOVAMOGGA, IN SO FAR AS IT GRANTS ONLY A SUM OF RS.1,80,500/- WITH 9% AND GRANT JUST COMPENSATION, ETC.,

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

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J U D G M E N T

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Though this appeal is posted for Admission, with the

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

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This is an appeal by the petitioners seeking enhancement of compensation granted by the Tribunal for the death of their mother Smt. Hemavathi, in a road traffic accident dated 22.02.2013 in MVC No.545/2013 which was a petition filed under section 163A of MV Act under no fault liability.

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For the sake of convenience the parties are referred to by their rank before the Tribunal.

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It is the case of the petitioners that deceased Hemavathi and respondent No.1 Shivakumar @ Shivakumaraswamy are their parents. On 22.02.2013, at about 8.30 PM deceased Hemavathi along with respondent No.1 was proceeding on motor cycle No.KA-15-S-1885 (hereinafter referred to as offending vehicle) from Shikaripura towards Taralaghatta. When they were in front of Kumudwathi College, S.S.Road, Shikaripura Town, accident occurred due to unscientific road hump.

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Hemavathi died while taking treatment at Nanjappa hospital, Shivamogga.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle and as such they are liable to pay the compensation.

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Respondent No.1 has filed written statement contending that on political influence a criminal case is registered against him and prays to dismiss the petition against him.

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Respondent No.2 filed written statement

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contending that the petition is filed in collusion with respondent No.1. Since deceased was not a third party it is not liable to indemnify respondent No.1 and as such petition is not maintainable.

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During enquiry on behalf of petitioners PWs-1 to 3 are examined including petitioner No.1 and Ex-P1 to 8 are marked.

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On the other hand respondent No.1 was

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examined himself as RW-1 and on behalf of respondent No.2, RW-2 is examined. Ex. R1-5 are marked.

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Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition and granted compensation in a sum of Rs.1,80,500/- with interest at 9% p.a, which includes funeral expenses in a sum of Rs.2,000/and loss of estate in a sum of Rs.2,500/-.

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Not being satisfied with the quantum of compensation granted by the Tribunal, petitioners have come up with this appeal contending that the Tribunal has considered the loss of income i.e., loss of service to the family as 24,000/- instead of Rs.40,000/- and deducted 1/3 towards personal and living expenses of the deceased. The compensation granted under the head funeral expenses and loss to estate is meager and seeks enhancement.

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On the other hand learned counsel for

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respondent No.2 supported the impugned judgment and award and submitted that as per the 2^nd schedule to MV Act the maximum income is taken into consideration and rightly deducted 1/3 towards personal and living expenses of the deceased and the compensation granted under the head funeral expenses and loss to estate is also correct and prays to dismiss the appeal.

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Even though the Respondent No.2 has contended that deceased i.e., the wife of insured is not third party and as such her risk is not covered by the insurance policy, the finding of the Tribunal that it is only the insured who can not be treated as third party and his wife being the pillion rider is third party and as such respondent No.2 is liable to cover her risk is not challenged by respondent No.2. Consequently the said findings has attend finality.

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Since the claim petition is filed under section 163A of MV Act, compensation is required to be calculated as per second schedule to MV Act, 1988. As per this schedule, a petition could be maintain only when the income of the deceased/injured does not exceed Rs.40,000/- per annum. In the present case also petitioners claim that deceased was earning Rs.40,000/per annum by running a petty shop. Since, the petitioners are major children of the deceased and petitioner No.2 is married and living with her husband, the Tribunal has rightly held that they were not dependant on the deceased and compensation is required to be calculated based on loss of service to the petitioners.

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Deceased was stated to be aged 50 years. In the absence of evidence to establish the same, the Tribunal has relied upon the PM report of the deceased and considered her age as 50 years. In the absence of proof of deceased being employed and earning Rs.40,000/- p.a., having

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regard to the age of the deceased and that petitioners are major daughters not dependant on the deceased, the Tribunal has taken the value of services of deceased as Rs.24,000/- p.a., deducted 1/3 of it towards personal and living expenses, considered 2/3 as the loss of service to the petitioners. Taking 11 as the multiplier calculated the loss of service to petitioners as Rs.1,76,000/- i.e., 24,000 x 11 x 2/3=1,76,000/-. As per second schedule the compensation under the head funeral expenses and loss of estate is fixed at Rs.2,000/- and Rs.2,500/- respectively and rightly held that petitioners are entitled for total compensation in a sum of Rs.1,80,500/- and there are no justifiable grounds to interfere with the same.

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Even though the Tribunal has awarded interest at 9% p.a. without any basis, since respondent No.2 has not challenge the same, it is maintained.

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In the result, there is no scope for any

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enhancement and consequently, the appeal is liable to be dismissed. Accordingly, I proceed to pass the following:

ORDER

Appeal is dismissed.

Sd/JUDGE

Shivayogi Kiran S v. Shivakumar

Case brief

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Shivayogi Kiran S v. Shivakumar

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