Dismissed

Geetha v. Sathish

Karnataka HC10 Jun 2024MFA/26/2021

Case brief

AI extract

What is this about?

The High Court dismissed the Motor Vehicle Accident Appeals filed by the wife and daughters of a deceased victim. The Court held that the compensation awarded by the Tribunal was not unsustainable and could not be enhanced, while clarifying the calculation of dependency for married daughters.

What did the court decide?

The appeal filed by the petitioners is dismissed and the judgment and award dated 07.12.2019 is confirmed.

Geetha Vs Sathish — Motor Accident Claims | Karnataka HC (2024)

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M.F.A NO.26 OF 2021 1

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JUNE, 2024

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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.26 OF 2021 (MV-D)

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BETWEEN:

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GEETHA AGED ABOUT 59 YEARS W/O LATE K.BABU RAO

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JYOTHI AGED ABOUT 33 YEARS D/O LATE K.BABU RAO W/O NAGARAJA

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SWATHI AGED ABOUT 30 YEARS D/O LATE K.BABU RAO W/O SUBRAHMANYA

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SOUMYA U.S AGED ABOUT 30 YEARS D/O LATE K.BABU RAO W/O UDAYA SHEREIGAR

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ALL ARE RESIDING AT H.NO.3-53, CHIKKANSAL ROAD KUNDAPURA TALUK - 576 201 UDUPI TALUK AND DISTRICT - 576 101

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……APPELLANTS

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(BY KUM. SWATHI G HEGDE, ADVOCATE FOR SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)

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AND:

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SATHISH AGED ABOUT 26 YEARS S/O GOVINDA R/O DURGAPARAMESHWARI NILAYA

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M.F.A NO.26 OF 2021 2

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2^ND CROSS, BANTWADI HAKLADI VILLAGE KUNDAPURA TALUK - 576 201

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RAGHAVENDRA BHAT AGED MAJOR S/O SUBRAMANYA BHAT R/O BHARATHI MOTORS NEAR MAHALINGESHWARA TEMPLE ROAD, BANNANJE UDUPI TALUK AND DISTRICT - 576 201

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THE ORIENTAL INSURANCE CO. LTD., KUNDAPURA BRANCH 2^ND FLOOR, SAI DEPARTMENTAL STORE BUILDING MAIN ROAD, NEAR SHASTRI CIRCLE KUNDAPURA - 576 201 REP. BY ITS BRANCH MANAGER

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…..RESPONDENTS

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(BY SRI. O.MAHESH, ADVOCATE FOR R3; VIDE ORDER DATED 22.09.2022, NOTICE TO R1 & R2 ARE DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 07.12.2019 PASSED BY THE ADDITIONAL DISTRICT JUDGE AND ADDL. MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA IN MVC NO.827/2018 TO THE EXTENT OF DISALLOWED CLAIM AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION, IN THE INTEREST OF JUSTICE.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 29.05.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Not being satisfied with the quantum of

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compensation granted by the Tribunal for the death of K

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M.F.A NO.26 OF 2021 3

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Babu Rao, the husband of petitioner No.1 and father of petitioner Nos.2 to 4, in a motor vehicle accident dated 24.06.2018, they have filed the present appeal under Section 173 (1) of Motor Vehicles Act.

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For the sake of convenience, the parties are

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referred to by their ranks before the Tribunal.

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Facts: It is the case of petitioners that they are the wife and daughters of K. Babu Rao. On 24.06.2018, at 9:45 p.m, K.Babu Rao was proceeding on bicycle on NH-66. When he was near Shastri Circle, Vadera Hobli village, bus bearing registration No.KA–20–C–4949 (for

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short 'offending vehicle') coming from Koteshwara side and proceeding towards Kundapura side, being driven by respondent No.1 in a high speed in a rash or negligent manner and dashed against the deceased from his backside. As a result of the impact, K Babu Rao sustained injuries. Immediately he was shifted to Government Hospital, Kundapura and from there to Chinmayi Hospital, Kundapura and ultimately to KMC hospital, Manipal. While undergoing treatment, he died on

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M.F.A NO.26 OF 2021 4

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02.07.2018. At the time of accident deceased was aged 63 years. He was working as an operator at Vinayaka Talkies, Kundapura, and earning not less than Rs.18,000/- p.m. Petitioners were dependent on him. As the driver, owner and insurer, all the respondents are jointly and severally liable to pay the compensation and hence the petition.

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Despite appearing through counsel,

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respondent No.1 has not filed written statement. Respondent No.2 remained absent and as such placed ex-parte.

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Respondent No.3 filed written statement

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admitting the coverage of the offending vehicle, but its liability is subject to the terms and conditions of the policy. However, it has disputed the age, occupation, income of the deceased and that he sustained injuries on account of rash or negligent driving of the offending vehicle by respondent No.1. It has also disputed that being major and married daughters respondent Nos.2 to 4 were dependent on the earnings of the deceased. The

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M.F.A NO.26 OF 2021 5

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compensation claimed is highly exorbitant, fanciful, and without any basis and sought for dismissal of the petition.

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Based on the pleadings, Tribunal framed

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necessary issues.

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In support of the petition, petitioner No.1

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and one witness are examined as PW-1 and 2. Ex.P1 to 14 are marked.

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Respondent No.3 did not lead any oral and documentary evidence.

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Vide the impugned judgment and award, the Tribunal partly allowed the claim petition granting compensation in a sum of Rs.8,19,000/- with interest at 6% p.a and directed respondent No.3 to pay the same with accrued interest.

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Respondents have not challenged the

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judgment and award.

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M.F.A NO.26 OF 2021 6

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Not being satisfied with the quantum of compensation, the petitioners have filed this appeal contending that the petitioners have spent Rs.1,20,000/for transportation of the body and funeral expenses, but the Tribunal has granted only Rs.15,000/- under the head funeral expenses and Rs.5,000/- under the head transportation of dead body. It requires reconsideration. Similarly, the compensation granted in a sum of Rs.15,000/- under the head loss of estate is also on the lower side. The income ought to have been taken at Rs.18,000/- p.m, but the Tribunal has considered Rs.12,000/- p.m and consequently, the compensation granted under the head loss of dependency is on the lower side. Viewed from any angle, the impugned judgment and award are not sustainable and pray to allow the appeal and enhance the compensation.

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On the other hand, learned counsel for respondent No.3 has supported the impugned judgment and award and sought for dismissal of the appeal.

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M.F.A NO.26 OF 2021 7

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Having regard to the fact that respondents have not challenged the impugned judgment and award, the findings of the Tribunal that accident occurred due to the rash or negligent driving of offending vehicle by the respondent No.1 and in the said accident, K Babu Rao, sustained injuries and succumbed to the same while undergoing treatment has attained finality.

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The petitioners have claimed that at the time of accident, deceased was aged 63 years. In the medical records, the age of the deceased is given as 60 years. However, in the Aadhaar card, the year of birth of deceased is noted as 1955. Consequently, at the time of accident, he was aged 63 years and therefore the multiplier '7' considered by the Tribunal is correct. Petitioners claim that at the time of accident, petitioner was still employed as a film operator in Vinayaka Talkies, Kundapur and earning Rs.18,000/- p.m. But, no concrete evidence is produced to prove the same. Ex.P11 is the ID card issued by the Manager of Geethanjali Theatre, Kundapura. Ex.P12 is the certificate issued on behalf of

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M.F.A NO.26 OF 2021 8

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Vinayaka Theatre, Kundapura. In the petition, petitioners have not pleaded that earlier deceased was working at Geethanjali Theatre and subsequently, at Vinayaka Theatre. From the very perusal of Ex.P11 indicate that it was issued several decades back. The photograph of the deceased found in Ex.P11 show that he was quite young. Ex.P12 is dated 10.10.2018. However, the petitioners have not examined the concerned person to prove this document. Therefore, the Tribunal has rightly held that petitioners failed to prove that deceased was still working and getting monthly income of Rs.18,000/-. Therefore, the Tribunal is justified in taking the income of deceased on notional basis. Since the accident is of the year 2018, based on the minimum wages, the notional income ought to have been taken Rs.11,750/- and the Tribunal has taken the same at Rs.12,000/-, which is on the higher side. Since the deceased was above the age group of 60 years, petitioners are not entitled for any compensation under the head of loss of future prospects.

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M.F.A NO.26 OF 2021 9

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It is pertinent to note that petitioner Nos.2 to 4 are the married daughters of deceased. It has come in the evidence that they are staying in their respective husband's house. Consequently, they were not dependent on the deceased. Therefore, for calculating loss of dependency, they cannot be taken into account. Hence, only petitioner No.1 is to be held as the dependent of deceased. As per the decision of the Hon'ble Supreme Court in Sarla Verma and Ors. Vs.Delhi Transport Corporation and Anr. ( Sarla Verma )¹ , when the deceased is having less than two dependents i.e., having only one dependent, then the deduction towards personal and living expenses of the deceased is to be at 50%. The balance of 50% is required to be taken into account for calculating loss of dependency. With the notional income at Rs.11,750/- multiplier '7' and taking 50% of the income, the loss of dependency is Rs.11750x12x7x50% = Rs.4,93,500/-, whereas the Tribunal has granted a sum of Rs.6,72,000/- under this head, which is on the higher side.

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1 (2009) 6 SCC 121

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M.F.A NO.26 OF 2021 10

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Though petitioner Nos.2 to 4 cannot be considered as dependent, on the death of their father, they have lost his love and affection. Therefore, along with petitioner No.1, they are also entitled for compensation in a sum of Rs.40,000/- each under the head loss of consortium, which comes to Rs.1,60,000/-. Therefore, the compensation granted in a sum of Rs.40,000/- under this head is on the lower side. When the compensation is granted under the head loss of consortium, no separate compensation is required to be granted under the head loss of love and affection. It appears since petitioner Nos.2 to 4 are not granted compensation under the head loss of filial consortium, the Tribunal has granted compensation in sum of Rs.25,000/- under the head loss of love and affection. The Tribunal has rightly granted compensation in a sum of Rs.15,000/- each under the head funeral expenses (which includes expenses for transportation of the dead body) and loss of estate. After the accident, the injured (deceased) was shifted to hospital and therefore the

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M.F.A NO.26 OF 2021 11

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Tribunal is justified in granting additional compensation

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in a sum of Rs.5,000/- under the head transportation charges. Based on medical bills, the Tribunal has rightly granted compensation in a sum of Rs.47,000/-.

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Thus, in all the petitioners are entitled for compensation in a sum of Rs.7,35,500/- as against Rs.8,19,000/- granted by the Tribunal as detailed below:

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Heads	Amount granted by the Tribunal In Rs.	The just and reasonable compensation which petitioners are entitled in Rs.
Loss of dependency	6,72,000	4,93,500
Loss of consortium	40,000 (only for Petitioner No.1)	1,60,000 (for each petitioner
Loss of estate	15,000	15,000
Funeral expenses	15,000	15,000 (including expenses for transportation of dead body
Loss of love and affection	25,000	-
Transportation charges	5,000	5,000
Medical expenses	47,000	47,000
TOTAL	8,19,000	7,35,500

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Perusal of the impugned judgment and award

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indicate that though the Tribunal has not granted the

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compensation in a sum of Rs.40,000/- each in favour of

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M.F.A NO.26 OF 2021 12

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petitioner Nos.2 to 4, the total compensation granted is more than what the petitioners are entitled. Respondent No.3 has not challenged the impugned judgment and award and therefore the compensation granted by the Tribunal cannot be reduced. Of course, for the reasons forthcoming in the judgment, there is no scope for enhancement of the compensation. In the result, the appeal fails and accordingly, the following:

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ORDER

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(i) Appeal filed by the petitioners is dismissed.

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(ii) The impugned judgment and award dated 07.12.2019 in MVC.No.827/2018 on the file

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of MACT, Udupi (sitting at Kundapura), is confirmed.

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(iii) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith.

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Sd/JUDGE

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Geetha v. Sathish

Case brief

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Geetha v. Sathish

Case brief

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