Partly allowed

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

Karnataka HC6 Nov 2023MFA/100624/2018

Case brief

AI extract

What is this about?

In a motor vehicle accident involving the death of a three-wheeler operator, this Court enhanced compensation by holding the corporation liable for 100% of damages, correcting the income assessment, and awarding heads of claim previously missed, including future prospects and consortium.

What did the court decide?

Compensation enhanced to Rs. 16,22,300 with interest at 6% p.a. from date of petition; corporation to deposit amount within six weeks.

Mallavva W/O Mylareppa Vs Veerupakshappa S/O Titappa — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12922-DB MFA No. 100624 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. 100624 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 THE 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: 2023.11.24 12:38:59 +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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NC: 2023:KHC-D:12922-DB MFA No. 100624 of 2018

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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 & DIST: 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.116/2015 DT: 29/08/2016 BY THE LEARNED SENIOR CIVIL JUDGE, M.A.C.T, AT: KUSHTAGI BY ENHANCING THE COMPENSATION TO RS. 25,00,000/- ALONG WITH COST AND ENHANCED INTEREST IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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

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the deceased Shashikala W/o. Shashikanth Ganavari, seeking enhancement of the compensation amount awarded in MVC No.116/2015 dated 29.08.2016 by the

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

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The brief facts giving rise to filing of this appeal are that, on 12.03.2012 at about 7.30 p.m., the deceased Shashikala along with Mallavva and Shashikant 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 came with a high speed in a rash and negligent manner, dashed against the said three wheeler Tam Tam, resultantly, the deceased Shashikala sustained grievous injuries and succumbed to the injures on the spot. It is averred that, the deceased Shashikala was doing coolie work and earning Rs.9,000/- per month along with household work and due to untimely death of Shashikala the father-in-law, mother-in-law and the children have suffered great mental agony. 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 excess and exorbitant. It is submitted that there was no negligence on the part of the driver of the offending vehicle and the deceased Shashikant who was the driver of the three wheeler Tam Tam vehicle bearing No.KA-29/7454 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 material evidence on record, tribunal has awarded compensation of Rs.7,04,400/- 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 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 hence he 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.4,000/-, as she was doing coolie work and earning Rs.9,000/- 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, the driver of three wheeler Tam Tam vehicle 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, hence the tribunal has justified in assessing the income of the deceased Shashikala at Rs.4,000/-, per month, which does not call for any interference in this appeal. Hence, he seeks to dismiss 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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NC: 2023:KHC-D:12922-DB MFA No. 100624 of 2018

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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 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 incorrectly assessed the income of the deceased Shashikala at Rs.4,000/-. It is not in dispute that, the appellants have not placed any

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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 income of the deceased at Rs.6,500/- as against Rs.4,000/-.

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(c) It is not in dispute that, the deceased was aged about 30 years, as on the date of the accident and hence, the appropriate multiplier would be ‘16’. The tribunal has rightly taken the multiplier of ’16’.

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(d) The tribunal has committed a grave error in not awarding compensation under the head of loss of future prospects. 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 the rate of 40% to the assessed income of the deceased, as the deceased was self employed and was aged about 30 years as on the date of accident.

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(e) 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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(f) The tribunal has not awarded any amount

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under the head of funeral expenses and loss of estate.

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Hence, we deem it appropriate to award a sum of Rs.15,000/- under the head of funeral expenses and Rs.15,000/- under the head of loss of estate.

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(g) 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 17)	Rs.13,92,300/-
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.16,22,300/-
	Compensation awarded by the tribunal	Rs.7,04,400/-
	Enhanced compensation	Rs.9,17,900/-

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This Court vide order dated 11.11.2019 while

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issuing notice has recorded that, the appellants are not

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entitled for interest for the period of 421 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.116/2015 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.16,22,300/- as against Rs.7,04,400/awarded by the tribunal;

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