Partly allowed

Smt. Sushila v. P. Koushik Rao

Karnataka HC24 Jan 2024MFA/5835/2022

Case brief

AI extract

What is this about?

The court allowed this miscellaneous first appeal filed by claimants challenging the compensation awarded in a motor accident case. The High Court enhanced the total compensation from Rs.15,66,208/- to Rs.24,78,000/- considering notional income, loss of consortium, and escalation factors.

What did the court decide?

The judgment and award dated 30.11.2021 modified; total compensation enhanced to Rs.24,78,000/- with interest at 6% p.a.; payment due within four weeks.

Smt. Sushila Vs P. Koushik Rao — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:3312 MFA No. 5835 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF JANUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 5835 OF 2022 (MV-D)

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BETWEEN:

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SMT. SUSHILA, W/O LATE DASAPPA, AGED ABOUT 41 YEARS,

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GOVINDARAJU D, S/O LATE DASAPPA, AGED ABOUT 21 YEARS,

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DARSHAN D, S/O LATE DASAPPA, AGED ABOUT 19 YEARS,

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BASAMMA, W/O LATE THIMMAIAH, AGED ABOUT 67 YEARS,

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APPELLANTS 1 TO 4 ALL ARE R/AT BELADHARA VILLAGE

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Digitally signed by USHA N S Location: HIGH COURT OF KARNATAKA

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AT POST KORA HOBLI, KENCHAIAHNAPALYA, TUMKURU TALUK AND TUMAKURU DISTRICT - 572 101.

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YASHODHA, D/O DASAPPA W/O SHIVU, AGED ABOUT 22 YEARS, R/AT HOLAVANAHALLI HOBLI, JAYAPURA SOMPURA, KORATAGERE TALUK - 572 137, TUMKURU DISTRICT.

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…APPELLANTS

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(BY SRI. M.D. RYAKHA, ADVOCATE)

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2 - NC: 2024:KHC:3312 MFA No. 5835 of 2022

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AND:

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P. KOUSHIK RAO, AGED ABOUT 59 YEARS, PROPRIETOR OF MY JHOME CONSTRUCTION , COMPANY DOOR NO. 10-76 OPP: LAKSHMI PRASANNA THEATRE, RYTHUPETA, NANDIGHAMA, NANDIGAMA KRISHNA, ANDHRA PRADESH - 521 185.

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THE MANAGER, HDFC ERGO GENERAL INSURANCE CO. LTD., 2^ND TO 4^TH FLOOR, BEING OFFICE NOS. 401 AND 402, KUCHKULA HOUSE IN HIMAYATNAGAR, HYDERABAD - 500 057. BRANCH OFFICE: THE MANAGER HDFC-ERGO GENERAL INSURANCE CO. LTD., NO. 25/1, 2ND FLOOR, BUILDING NO. 02, SHANKARANAYARANA BUILDING, M.G. ROAD, BANGALORE - 560 001.

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…RESPONDENTS (BY SRI. H.S. LINGARAJ, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED 24.01.2024)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.11.2021 PASSED IN MVC NO. 1442/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., MACT-XI, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC:3312 MFA No. 5835 of 2022

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JUDGMENT

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This appeal is preferred by the claimants challenging the judgment and award dated 30.11.2021 passed by the Principal Senior Civil Judge and MACT, Tumkur (for short 'the Tribunal') in MVC No.1442/2019. This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal. Hence, the appellants seek enhancement of compensation.

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Parties to the appeal shall be referred to as per their status before the Tribunal.

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Brief facts of the case is as under:

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That on 09.11.2019 at about 9:50 a.m., one Dasappa.K.T being the driver of the tractor bearing registration No.KA-06-AA-7878/7879 was travelling on KoratagereTumakuru road. When he reached near Ganesha Hotel and Mahadev Petrol Bunk, as he was parking the said tractor on the extreme left side of the road, the driver of the lorry bearing registration No.AP-16-TE-5055 drove the same in a rash and negligent manner with high speed and dashed against the tractor of the deceased Dasappa.K.T. Due to the occurrence of the accident, Dasappa.K.T sustained fatal injuries. He was

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NC: 2024:KHC:3312 MFA No. 5835 of 2022

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immediately shifted to Koratagere Government Hospital. Later he was shifted to the District Government Hospital, Tumakuru for further treatment. On the advice of the doctor, he was shifting to Victoria Hospital, Bengaluru for better treatment. Despite the valiant efforts, the said Dasappa.K.T. succumbed to the injuries on the way to Bengaluru.

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3.1. It is stated that the deceased Dasappa.K.T. was aged about 42 years and was coolie and driver by profession and he was earning Rs.35,000/- per month. Due to the untimely and unfortunate death of the deceased, the claimants who were totally dependent on the finance of the deceased having lost love and affection, filed the claim petition seeking compensation.

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3.2. On service of notice, respondent No.1 did not appear

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before the Court and he was placed ex-parte . Respondent No.2 - Insurance Company appeared through its counsel and filed statement of objections denying the claim made by the claimants including age, avocation, income and also the negligence that was attributed against the driver of the offending vehicle/lorry. It also pleaded that delay in lodging the complaint and the driver of the offending vehicle was not

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5 - NC: 2024:KHC:3312 MFA No. 5835 of 2022

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possessing valid and effective driving license as on the date of occurrence of the accident and there is violation of terms and conditions of the policy. Hence, sought for dismissal of the claim petition.

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3.3. On the basis of pleadings, the Tribunal framed relevant issues for consideration.

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3.4. In order to substantiate the issues and prove the case, claimant No.1 got examined herself as PW.1 and got marked documents as Exs.P.1 to P.31 whereas respondent No.2 - Insurance Company examined its officer as RW.1 and got marked the policy as Ex.R.1.

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3.5. On the basis of material on record both oral and documentary, the Tribunal awarded total compensation of Rs.15,66,208/- with interest @ 6% per annum and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and directed respondent No.2 - Insurance Company to deposit the compensation amount within two months from that date.

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3.6. Being aggrieved by the meager compensation awarded by the Tribunal, the claimants are before this Court challenging the judgment and award passed by the Tribunal.

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NC: 2024:KHC:3312 MFA No. 5835 of 2022

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It is the vehement contention of the learned counsel for the claimants that the Tribunal has committed error in not awarding suitable compensation including assessment of income of the deceased and failed to grant compensation under the head of loss of consortium. On these grounds, he seeks to allow the appeal and consequently enhance the compensation.

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Per contra , learned counsel for respondent No.2 - Insurance Company vehemently contends that the Tribunal has awarded just and reasonable compensation taking into consideration the age, avocation, income and since there is no proof of income, notional income has been rightly taken which does not call for interference. He sustains the order of the Tribunal.

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I have heard learned counsel for the claimant and learned counsel for the Insurance Company. It is not in dispute that the accident occurred on 09.11.2019 between the vehicle of the deceased Dasappa.K.T and the offending vehicle. In order to establish this aspect of occurrence of accident and involvement of the vehicle, the claimant produced Exs.P.1 to P.31. The Police records are file as Exs.P.1 to P.8 which discloses FIR being lodged against the driver of the offending

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NC: 2024:KHC:3312 MFA No. 5835 of 2022

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vehicle and the charge sheet having been laid against him. There is no challenge or dispute with regard to the same. Hence, negligence is rightly attributed against the driver of the offending vehicle. Exs.P.9 to P.31 are additional documents produced to show the age, income and relationship with the deceased.

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Now coming to the question of age, avocation, income, though it is claimed that the age of the deceased is 42 years, the Tribunal has assessed the same as 44 years and adopted the multiplier of 14 which does not call for interference. The Tribunal has also added 25% towards future prospects which is correct and deducted 1/4^th towards personal and living expenses while calculating the compensation which does not call for interference. What requires to be appreciated is the arguments put forth by the learned counsel for the appellants - claimants for the income assessed by the Tribunal at Rs.9,500/- per month is on the lower side. In the case where there is no proof of income, the Tribunal and this Court will have to rely upon the notional income chart prescribed by the Legal Services Authority. For the accident of the year 2019, income is prescribed at Rs.14,000/- per month. The

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8 - NC: 2024:KHC:3312 MFA No. 5835 of 2022

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same requires to be taken in the present case on hand by applying the multiplier of 14. Accordingly, Rs.13,125/- would be the income for calculation. Therefore, loss of dependency would be Rs.22,05,000/- (Rs.13,125x12x14) as against Rs.14,96,208/- awarded by the Tribunal.

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Towards consortium, the Tribunal has awarded Rs.40,000/-. As there are five dependents, each one would be entitled for Rs.40,000/- per head, in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680 followed by Magma General Insurance Co.Ltd. vs. Nanu Ram and others, reported in (2018) 18 SCC 130 and United India Insurance Co. Ltd. v. Satinder Kaur Alias Satwinder Kaur reported in AIR 2020 SC 3076 . They would be entitled to escalation of 20% towards two block periods of three years each. Therefore, Rs.2,00,000/- (Rs.40,000x5) + Rs.40,000/- = Rs.2,40,000/- is awarded under this head.

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Towards funeral expenses Rs.15,000/- and towards loss of estate Rs.15,000/- is awarded. The same is correct however, this also would require escalation of 10%. Hence,

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9 - NC: 2024:KHC:3312 MFA No. 5835 of 2022

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Rs.30,000/- + Rs.3,000/- = Rs.33,000/- is awarded under this head.

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In view of the discussion made hereinabove, the claimants would be entitled to a total compensation of Rs.24,78,000/- as against Rs.15,66,208/- as mentioned in

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the table below:

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SL. No.	Heads	Amount in Rs.
1.	Loss of dependency	22,05,000-00
2.	Loss of consortium	2,40,000-00
	+ 20% escalation towards two block periods
3.	Loss of Estate and funeral expenses	33,000-00
	+ 10% escalation
	TOTAL	24,78,000-00

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Accordingly, I 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 judgment and award dated 30.11.2021 passed by the Principal Senior Civil Judge and MACT, Tumkur in MVC.No.1442/2019 is modified;

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10 -

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NC: 2024:KHC:3312 MFA No. 5835 of 2022

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iii) The claimants would be entitled to a sum of Rs.24,78,000/- as against Rs.15,66,208/with interest @ 6% p.a. from the date of petition till realization;

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iv) The enhanced compensation shall carry interest at 6% per annum which shall be paid within a period of four weeks from the date of receipt of copy of the order.

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v) All other terms and conditions stipulated by the Tribunal shall stand intact with regard to deposit;

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vi) Registry is directed to transmit the original records to the jurisdictional Tribunal.

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Sd/JUDGE

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MEG List No.: 1 Sl No.: 9 CT: BHK

Smt. Sushila v. P. Koushik Rao

Case brief

What is this about?

What did the court decide?

Smt. Sushila v. P. Koushik Rao

Case brief

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