Partly allowed

Mallavva W/O Mylareppa v. Veerupakshappa S/O Titappa

Karnataka HC6 Nov 2023MFA/100623/2018

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal sought enhancement of compensation awarded in a motor vehicle accident case. The High Court allowed the appeal in part, enhanced compensation by increasing notional income to Rs. 6,500 and applying a 40% multiplier for loss of future prospects as per Supreme Court precedents.

What did the court decide?

Compensation revised to Rs. 15,40,400/- with 6% interest from the date of petition till realization.

Mallavva W/O Mylareppa Vs Veerupakshappa… — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12921-DB MFA No. 100623 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL NO. 100623 OF 2018

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(MV-D)

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BETWEEN:

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MALLAVVA W/O. MYLAREPPA, SINCE DIED, APPELLANT NO.2 TO 6 ARE LRS.

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BHAGYASHREE D/O. SHASHIKANTH GANAVARI, AGE: 12 YEARS.

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VEERAMANI S/O. SHASHIKANTH GANAVARI, AGE: 12 YEARS.

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SARASWATI D/O. SHASHIKANTH GANAVARI, AGE: 8 YEARS.

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SHIVAKUMAR HIREMATH

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2023.11.17 11:43:52 +0530

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SAVITA D/O. SHASHIKANTH GANAVARI, AGE: 7 YEARS.

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SANGEETHA D/O. SHASHIKANTH GANAVARI, AGE: 5 YEARS,

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ALL ARE R/O: PARAMANAHATTI, TQ: KUSHTAGI, DIST: KOPPAL.

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[AS APPELLANT NOS.4 TO 6 ARE MINORS, THEY ARE REPRESENTED BY THEIR BROTHER-APPELLANT NO.3 AS MINOR GUARDIAN.]

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…APPELLANTS

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(BY SRI. P. G. MOGALI, ADVOCATE)

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AND:

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VEERUPAKSHAPPA S/O. TITAPPA AGE: 56 YEARS, OCC: DRIVER OF BUS NO.KA-23/F-603, OF BETAGERI KSRTC, DEPOT, GADAG AT, TQ & DT: GADAG.

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THE DIVISIONAL CONTROLLER, NWKRTC, GADAG, OWNER OF THE BUS NO.KA-23/F-603, BETAGERI DEPOT, TQ & DIST: GADAG.

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…RESPONDENTS

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(BY SRI. S. C. BHUTI, ADV. FOR R2, NOTICE TO R1 DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT 1988, PRAYING THIS COURT TO, MODIFY THE JUDGMENT AND AWARD PASSED IN M.V.C NO.115/2015 DT: 29/08/2016 BY THE LEARNED SENIOR CIVIL JUDGE, M.A.C.T, AT: KUSHTAGI BY ENHANCING THE COMPENSATION TO RS. 30,50,000/- ALONG WITH COST AND ENHANCED INTEREST IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the claimants i.e. legal heirs of the deceased Mylareppa Ganavari, seeking enhancement of the compensation amount awarded in MVC No.115/2015 dated 29.08.2016 by the Senior Civil Judge

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and MACT, Kushtagi (hereinafter referred to as ‘the tribunal’).

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The brief facts giving rise to filing of this appeal

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are that, on 12.03.2012 at about 7.30 p.m., the deceased Shashikant along with Mallavva and Shashikala were proceeding on the Tam Tam i.e. three wheeler vehicle bearing registration No.KA-29/7454 along with goods on the left side of the road, at that time, the respondent No.1 the driver of the bus bearing No.KA-23/F-603 with a high speed in a rash and negligent manner and dashed against the said three wheeler Tam Tam, resultantly, the deceased Shashikant sustained grievous injuries and succumbed to the injures on the spot. It is averred that, the deceased Shashikant was working as a driver and also doing agriculture, and the deceased was the sole bread earner in the family. It is further averred that, the claimants/legal heirs of the deceased Shashikant were dependents on his income. Hence, the claimants have filed a claim petition before the tribunal.

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The respondents No.1 remained ex-parte and respondent No.2 appeared and filed written statement. The respondent No.2 opposed the claim petition by denying age, occupation, income of the deceased and averred that the compensation sought is excessive and exorbitant. It is submitted that there was no negligence on the part of the driver of the offending vehicle and the deceased Shashikant was totally negligent in driving his vehicle, which has resulted in accident.

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The Tribunal framed issues and recorded the evidence of parties. The claimants examined PW-1 and P.W.2 and got marked the documents at Ex.P1 to Ex.P.23. The respondents have not examined any witness and not marked any documents. On considering the materials and evidence placed on record, tribunal has awarded compensation of Rs.4,71,720/- with eight percent interest from the date of petition till realization.

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Learned counsel Sri. P.G.Mogali, appearing for

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the appellants submits that, the tribunal has committed an

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error in fastening the liability of 60% on the KSRTC Bus bearing No.KA-23/F-603 i.e. on the corporation and 40% on the three wheeler Tam Tam vehicle bearing registration No.KA-29/7354. In support of his contention, he places reliance on the decision of this Court in MFA No.103777/2018 passed on 06.01.2021, submits that arising out of the same accident, wherein, the co-ordinate Bench of this Court has fastened the entire liability on the corporation and seeks to modify the Judgment and award accordingly. It is submitted that, the tribunal has committed an error in assessing the income of the deceased at Rs.4,500/-, as he was working as driver and earning income from the agriculture and his income should have been assessed at Rs.10,000/- per month. It is further submitted that, the tribunal has committed an error in awarding compensation under the head of loss of consortium and also awarded lesser compensation on other heads.

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Per contra, Sri. S.C.Bhuti, learned counsel

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appearing for the respondent No.2-Insurance company supports the impugned Judgment and award and submits that there was no negligence on the part of the driver of the offending vehicle and the deceased Shashikant was totally negligent in driving his vehicle, which has resulted in accident. It is submitted that, the award of compensation under the different heads are inconsonance with the evidence on record and the appellants are not entitled for enhancement of the compensation. It is further submitted that, insofar as income of the deceased, the appellants have not produced any evidence to substantiate his income and the tribunal was justified in assessing the income of the deceased at Rs.4,500/-, per month, which does not call for any interference in this appeal. Hence, he seeks for dismissal of the appeal.

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Having heard the learned counsels for the

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parties, perused the memorandum of appeal and the

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tribunal records, the point that arises for consideration in this appeal is:

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“Whether the appellants-claimants are entitled

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for higher compensation?”

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The answer to the above point is in the affirmative for the following reasons:

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(a) We have gone through the reasoning assigned by the co-ordinate Bench in MFA No.103777/2018, disposed of on 06.01.2021, wherein, the entire liability is fastened on the corporation. It is not in dispute that, the accident is same in the aforementioned Judgment and the case on hand. Hence, this Court holds that, the respondent No.2-corporation is liable for payment of the entire compensation in view of the reasoning assigned by the coordinate Bench of this Court in the aforementioned Judgment.

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(b) The tribunal has assessed the income of the deceased Shashikant at Rs.4,500/- notionally as he was an agriculturist and income ought to have assessed at

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Rs.10,000/- per month. It is not in dispute that, the appellants have not placed any evidence before the tribunal to substantiate the claim for income. Normally this Court and the Lok Adalaths assess the income of the deceased notionally placing its reliance on the chart prepared by the Karnataka State Legal Services Authority. In the instant case, the accident is of the year 2012 and placing our reliance on the aforesaid chart, we assess notional the income of the deceased at Rs.6,500/- as against Rs.4,500/-.

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(c) The tribunal has committed a grave error in not awarding addition of 40% to the assessed income of the deceased under the head of loss of future prosepcts. Keeping in mind the ratio laid down by the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680 , the appellants who are the legal heirs of the deceased are entitled for the

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compensation under the head of loss of future prospects at

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the rate of 40% to the assessed income of the deceased.

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(d) The tribunal has committed an error in not

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awarding compensation under the head of loss of consortium to all the surviving legal heirs of the deceased. Keeping in mind, the ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram and others, reported in (2018) 18 SCC 130, the appellant Nos.2 to 6 are entitle for Rs.40,000/each under the head of loss of consortium. The tribunal has awarded 8% interest on the compensation amount. In our considered view, the award of interest should be at the rate of 6% on the compensation as well as on the enhanced compensation from the date of petition till realization.

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(e) The tribunal has not awarded any amount

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under the head of funeral expenses and loss of estate. Hence, we deem it appropriate to award a sum of

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Rs.15,000/- under the head of funeral expenses and

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Rs.15,000/- under the head of loss of estate.

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(f) The appellants/claimants are entitled for the

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following modified compensation with interest at the rate of 6%:

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The loss of dependency would be as under:

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Rs.6,500/minus 1/4^th deduction (Rs.1,625/-) towards personal expenses = Rs.4,875/-

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Rs.4,875/plus 40% addition (Rs.2,600/-) = Rs.6,825/-.

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1	Loss of dependency (Rs.6,825/- X 12 16)	Rs.13,10,400/-
2	Loss of consortium Rs.40,000/-X 5	Rs.2,00,000/-
3	Towards funeral expenses	Rs.15,000/-
4	Towards loss of estate	Rs.15,000/-
	Total	Rs.15,40,400/-
	Compensation awarded by the tribunal	Rs.7,86,200/-
	Enhanced compensation	Rs.7,54,200/-

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This Court vide order dated 25.11.2019 while

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issuing notice has recorded that, the appellants are not entitled for interest for the period of 424 days. In view of the said order, the appellants are not entitled for the interest for the aforesaid period.

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Hence, we pass the following order:

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ORDER

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i. The appeal is allowed in part;

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ii. The judgment and award dated 29.08.2016 passed in MVC No.115/2015 by the Senior Civil Judge and MACT, Kushtagi, is set aside and is modified to the extent that the claimants would be entitled to total compensation of Rs.15,40,400/- as against Rs.7,86,200/awarded by the tribunal;

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iii. The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of payment;

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iv. The apportionment among the claimants would be as per the order of the tribunal;

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v. Respondent-Corporation shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment;

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