Partly allowed

Mr Channabasappa v. Mr Naveen Kumar D

Karnataka HC1 Aug 2022MFA/5503/2018

Case brief

AI extract

What is this about?

High Court allowed the Miscellaneous First Appeal partly, enhancing motor accident compensation from Rs.8,46,000 to Rs.14,70,800. Court applied principles from Supreme Court precedents on loss of dependency, love and affection, and funeral expenses.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs.14,70,800/-; additional Rs.6,24,800/- ordered deposited by the insurance company.

Mr Channabasappa Vs Mr Naveen Kumar D — 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 01^ST DAY OF AUGUST, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.5503/2018 (MV-D)

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BETWEEN:

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MR. CHANNABASAPPA S/O. LATE SUBBAPPA, AGE: 57 YEARS, R/O. SOMAHALLI VILLAGE, BEGUR HOBLI, GUNDLUPET TALUK – 571 111.

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MRS. SHIVAMMA W/O. CHANNABASAPPA, AGE: 50 YEARS, R/O. SOMAHALLI VILLAGE, BEGUR HOBLI, GUNDLUPET TALUK. ... APPELLANTS

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(BY SRI NAGARAJ R.C., ADVOCATE)

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AND:

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MR. NAVEEN KUMAR .D S/O. DODDAIAH, AGE: 46 YEARS, R/O. #218, 2^ND MAIN, KATARAYANAGAR, BANGALORE – 560 002.

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MR. BYRAPPA .H S/O. HANUMANTHAIAH .C AGE: 47 YEARS. R/O. NO.45, 5^TH CROSS, NEW BANK COLONY, KONANAKUNTE POST, K.K. PURAM ROAD, BANGALORE – 560 016.

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THE RELIANCE GENERAL INSURANCE CO. LTD., #570, NAIGNUM CROSS ROAD, NEXT TO ROYAL INDUSTRIAL ESTATE, WADAL (W) MUMBAI – 420 031. BRANCH OFFICE 1^ST FLOOR, MYSORE TRADE CENTRE, L-36/D, OPP. KSRTC BUS STAND, MYSURU, KARNATAKA, REP. BY ITS BRANCH MANAGER. ... RESPONDENTS

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(BY SRI D. VIJAY KUMAR, ADVOCATE FOR R-3; VIDE ORDER DATED 04.01.2022; NOTICE TO R-1 AND R-2 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22/02/2018, PASSED IN MVC NO.198/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE JMFC., AND MACT, GUNDLUPET, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, K.S.HEMALEKHA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present appeal is preferred by the parents of the deceased Shantamurthy who died in a road traffic accident that occurred on 20/12/2015 assailing the judgment and award dated 22/02/2018, passed in MVC.No.198/2016, on the file of the Senior Civil Judge & JMFC and MACT, Gundlupet (hereinafter referred to as “the Tribunal” for short), whereby the Tribunal has awarded compensation of Rs.8,46,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization and sought enhancement of compensation.

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The claimant petition is filed by the parents of the deceased under Section 166 of the Motor Vehicles Act, 1988 (“the Act” for short), seeking compensation of Rs.41,00,000/- with interest at the rate of 18% per annum, on account of death of their son Shantamurthy in a road traffic accident that

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occurred on 20/12/2015 at about 7.45 p.m., when the deceased was proceeding on the motorcycle bearing registration No.KA-45/F-2145 as a rider and Nagendra

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was the pillion rider of the said motorcycle to Somahalli, near Madapatana, Ooty-Mysuru Main Road, at that time, the driver of the tempo traveller bearing registration No.KA-05/AB-7899 came from opposite direction in a rash and negligent manner and dashed against the motorcycle of the deceased Shantamurthy and the pillion rider Nagendra, due to which the deceased Shantamurthy and the pillion rider Nagendra sustained grievous injuries. Both the rider and the pillion rider succumbed to the injuries.

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It is stated that the deceased was hale

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and healthy at the time of accident and was earning around Rs.15,000/- per month by doing mason work and he was the only earning member of the family and the claimants were

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depending upon the income of the deceased. Hence, the claimants have filed the claim petition seeking compensation.

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Pursuant to the notice issued by the Tribunal, respondent No.1 was served, however, he did not appear and hence, was placed ex parte.

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Respondent No.3/insurance company filed its objections denying the policy, date, time, place of accident and particulars of the injured and also contended that respondent No.1/owner of the vehicle has not complied with Section 134C of the Motor Vehicles Act, 1988. It is further contended that the accident occurred due to the rash and negligent riding of the motorcycle and not by the driver of the tempo traveller and thus, sought to absolve the liability as alleged by the claimants. Hence, sought to dismiss the claim petition.

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6. On the basis of the pleadings of the parties,

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the Tribunal framed following issues:

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ISSUES

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(i) Whether petitioners prove that, the deceased Nagendra (son of the petitioners) met with an accident on 20/12/2015 at about 7.45 p.m., near Madapatana Boundary, OOtyMysore Main Road, Beguru, Gundlupet Taluk, when he was he was pillion rider of the motor bike bearing registration No.KA-45/F-2142 and he was going from Gundlupet to Somahalli Village on the left side of the road near Madapatana boundary?

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(ii) Whether the petitioners further prove that, respondent No.1 being the driver of Tempo Traveller vehicle bearing registration No.KA-05/AB-7899 driven the same in a rash and negligent manner dashed to the motor bike, due to the actionable negligence of the driver of the Tempo Traveller, the deceased sustained grievous injuries and expired in the hospital?

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(iii) Whether respondent No.3 proves that, respondent No.1 was not having valid and

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effective driving licence at the time of accident to drive Tempo Traveller vehicle bearing registration No.KA-05/AB-7899?

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(iv) Whether respondent No.3 proves that he is not liable to pay the compensation to the petitioners?

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(v) Whether the petitioners prove that they are entitled for the compensation? If yes, how much and from whom?

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7. In order to substantiate their contention, claimant No.1 examined himself as PW.1 and

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examined another witness as PW.2 and got marked 12 documents at Exs.P-1 to P-12. On the other hand, respondent No.3/insurance company did not choose to lead any evidence nor marked any document.

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The Tribunal, on the basis of the pleadings,

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oral and documentary evidence as well as the material on record, held that the accident occurred due to rash

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and negligent driving of the driver of the offending vehicle bearing registration No.KA-05/AB-7899 and

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due to the impact of the accident, the deceased succumbed to the injuries. It is also held that the driver of the offending vehicle had possessed valid and effective driving licence at the time of accident and fastened the liability upon respondent No.3/insurance company, and awarded compensation of Rs.8,46,000/- with interest at 6% per annum from the date of petition till realization.

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Being unsatisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred the present appeal seeking enhancement of compensation. No appeal is preferred by the insurance company assailing the judgment and award.

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Heard learned counsel for the parties to the

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lis. .

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Sri R.C.Nagaraj, learned counsel appearing for the appellant/claimants would contend that the

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award of compensation at Rs.8,46,000/- is on the meager side and contrary to the oral and documentary evidence. It is contended by the learned counsel that the deceased was aged about 30 years at the time of accident and was working as mason and was earning Rs.15,000/- per month. The Tribunal has taken the income of the deceased at Rs.8,000/- per month is much on the lower side and contrary to the guidelines issued by the Karnataka Legal Services Authority (“KSLSA”) and the evidence placed by the claimants that the deceased was doing mason work and was earning Rs.15,000/- per month. It is further contended that the Tribunal has failed to award any compensation under the head loss of love and affection as per the dictum of the Apex Court in the case of United India Insurance Company Limited

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vs. Satinder Kaur alias Satwinder Kaur and others [AIR 2020 SC 3076] (Satinder Kaur) and

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Magma General Insurance Company Ltd. vs. Nanu Ram & Others [2018 ACJ 2782] (Magma General Insurance Company Ltd.) . It is further contended that the Tribunal has not awarded compensation under the head future prospects as per the dictum of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others [2017 ACJ 2700] (Pranay Sethi) and thus sought to enhance the compensation on these grounds.

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Per contra, Sri D.Vijay Kumar, learned counsel appearing for respondent No.3/insurance company would contend that the claimants have failed to produce any material on record to evidence that the deceased was earning Rs.15,000/- per month and in the absence of any material the Tribunal was justified in holding that the deceased was earning Rs.8,000/per month and thus sought to contend that the judgment and award of the Tribunal is just and proper

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and does not call for any interference at the hands of

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this Court and thus sought for dismissal of the appeal.

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Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arises for consideration is:

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“Whether the appellants/claimants have made out a case for enhancement of compensation in the facts and circumstances of the present case?”

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consideration to the arguments addressed by the learned counsel for the parties and perused the material available on record.

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The date, time and occurrence of accident

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are not in dispute. It is not in dispute that the deceased had succumbed to the injuries sustained in

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the fatal road traffic accident that occurred on 20/12/2015. It is also not in dispute that the

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deceased was a bachelor aged about 30 years and was doing mason work and the claimants being the parents are entitled for compensation. It is also not in dispute that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle bearing registration No.KA-05/AB-7899 as is evident from Ex.P-1 FIR, Exs.P-2 and 3 complaint and Ex.P-7 the final report wherein the charge sheet is leveled against the driver of the offending vehicle.

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The Tribunal has taken the income of the deceased at Rs.8,000/- per month. It is relevant to note that in the absence of the material on record to evidence the actual income of the deceased, as per the guidelines issued by the KSLSA needs to be considered. Taking into consideration the guidelines issued by the KSLSA, for the accident that occurred in the year 2015 the notional income to be taken is Rs.9,000/- per month. Taking the income of the

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deceased at Rs.9,000/- per month, adding 40% (Rs.3,600/- as per the dictum of Pranay Sethi) , the notional income that could be arrived at is Rs.12,600/-. The deceased being a bachelor aged about 30 years, 50% need to be deducted towards personal expenses. Deducting 50% towards personal expenses of the deceased as per the dictum of the Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation [(2009)6 SCC 121] (Sarla Verma ) , the notional income arrived at is Rs.6,300/and applying the multiplier 18 taking into consideration the age of the deceased as 30 years, the total amount towards loss of dependency arrived at is Rs.13,60,800/- (3,600 x 12 x 18).

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As per the dictum of the Apex Court in the case of Satinder Kaur and Magma General Insurance Company Ltd., the claimants are entitled for compensation under the head love and affection as

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the claimants are two in number Rs.40,000/- each amounting to Rs.80,000/- and towards loss of estate, and funeral expenses and obsequies ceremony, a sum of Rs.15,000/- each needs to be awarded. Thus, we are of the considered view that the claimants have made out a case for enhancement of compensation and accordingly, answer the point framed for consideration partly in the affirmative. In light of the reasons stated supra the claimants have made out a case for awarding just and fair compensation as under:

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Loss of dependency : Rs.13,60,800/Loss of love and affection : Rs. 80,000/Loss of estate : Rs. 15,000/Funeral & Obsequies ceremony : Rs. 15,000/-----------------TOTAL :- Rs.14,70,800/==========

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The Tribunal has already awarded a sum of Rs.8,46,000/and deducting the same from

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Rs.14,70,800/-, the claimants are entitled for

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enhanced compensation of Rs.6,24,800/- with interest at 6% per annum from the date of petition till the date of realization.

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In the result, we pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed by the Tribunal is hereby modified. The claimants are entitled for compensation of Rs.14,70,800/as against Rs.8,46,000/awarded by the Tribunal. The claimants are entitled for enhanced compensation of Rs.6,24,800/- with interest at the rate of 6% per annum from the date of claim petition till the date of realization.

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(iii) Respondent No.3/insurance company is directed to deposit the enhanced compensation amount of Rs.6,24,800/- with interest at 6% per annum from the date of petition till the realization within a period of six weeks from the date of receipt of a copy of this order.

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