Partly allowed

Krishna Moolya v. Shivaraj J.K.

Karnataka HC15 Nov 2024MFA/9725/2017

Case brief

AI extract

What is this about?

The Krishna also aka S/o deceased filed an appeal to enhance compensation awarded by the Tribunal in a motor vehicle accident resulting in death of one Dayananda. The court held that the Tribunal underestimated the deceased's income and loss of prospect and reassessed the compensation.

What did the court decide?

Compensation enhanced from Rs. 15,10,410 to Rs. 19,09,075 with an additional sum of Rs. 4,00,000 and interest at 6% p.a.

Krishna Moolya Vs Shivaraj J.K. — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:46443-DB MFA No.9725/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF NOVEMBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.9725/2017 (MV-D)

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BETWEEN:

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KRISHNA MOOLYA S/O LATE PADMA MOOLYA AGED ABOUT 73 YEARS.

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SUNDARI MOOLYA W/O KRISHNA MOOLYA AGED ABOUT 63 YEARS.

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Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA

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SOWMYA W/O LATE DAYANANDA AGED ABOUT 22 YEARS.

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ALL ARE R/AT DARKAS HOUSE KADARI, MALA VILLAGE AND POST KARKALA TALUK, UDUPI DISTRICT 576101.

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…APPELLANTS

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(BY SMT. SWATI G. HEGDE, ADV., FOR SRI. H. PAVANA CHANDRA SHETTY, ADV.,)

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AND:

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SHIVARAJ J.K. S/O K. JAYARAMA SHETTY AGED ABOUT 36 YEARS R/AT ASHWIJA BAILUR POST AND VILLAGE KARKALA TALUK UDUPI DISTRICT 576101.

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NC: 2024:KHC:46443-DB MFA No.9725/2017

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THE BRANCH MANAGER

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THE UNITED INDIA INSURANCE CO. LTD., KARKALA BRANCH A.S.ROAD, KARKALA UDUPI DISTRICT 576101.

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…RESPONDENTS

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(BY SRI. RAVISH BENNI, ADV., FOR R2 V/O/DTD:30.07.21 NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.03.2017 PASSED BY THE SENIOR CIVIL JUDGE AND AMACT AT KARKALA IN MVC NO.402/2016 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, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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Though the appeal is coming on for admission, with the

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consent of both side the same is taken for final disposal.

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Challenging the judgment and award in MVC

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No.402/2016 passed by the Court of Senior Civil Judge, and Additional MACT, Karkala, claimants have filed this appeal.

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The appellants were the claimants and respondents

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before this Court were respondents before the Tribunal. For

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3 - NC: 2024:KHC:46443-DB MFA No.9725/2017

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the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The claimants filed MVC No.402/2016 before the Tribunal, seeking compensation of Rs.35,55,666/- with interest at 12% from respondents for the death of Sri.Dayananda in a road accident that occurred on 20.11.2015 at 10.00a.m. near Pejathaguri Crossroad, Mudar Village, Karkala Taluk. It was contended that when Dayananda was proceeding on the motorcycle bearing Reg.No.KA-20-Y-2185 from Bajagoli towards Kadari on National Highway No.169 along with his friend Ganesh Bhandari, Ashok Leyland Tipper Lorry bearing Reg.No.KA-20-D-4903 came from Kervashe side towards Pejathaguri Crossroad in rash and negligent manner, dashed against the two wheeler, resultantly Dayananda and pillion rider sustained grievous injuries. It was further contended that Dayanand was shifted to Nitte Gajria Hospital, Karkala and after first aid treatment, he was shifted to Justice K.S.Hegde Charitable Hospital, Deralakatte, Mangalore and he was inpatient from 20.11.2015 to 02.12.2015 and on 02.12.2015 he succumbed to the injuries in the hospital. It was also contended that the deceased was working as Mason and earning

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Rs.18,000/- p.m. and claimants have spent substantial amount towards his treatment, cremation, etc. It is pleaded that the claimants are parents and wife of deceased, and due to untimely death of Dayananda, they have lost the love and affection and financial dependency, hence, they filed claim petition seeking compensation.

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Respondent No.1 remained exparte. Respondent No.2 - insurance company filed objections denying the age, avocation and income of the deceased. It was contended that the driver of offending lorry was not holding valid and effective driving licence to drive the vehicle which is a breach of policy conditions and therefore, they are not liable to pay the compensation. Hence, sought for dismissal of the claim petition.

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The Tribunal recorded the evidence. Claimant No.3 was examined as PW-1 and another witness as PW-2 and got marked Exs.P-1 to P-17. The respondents did not adduce oral evidence, but with consent got marked Ex.R-1. The Tribunal considering the income of the deceased at Rs.8,000/- p.m., adding 30% under the head of loss of future prospects and

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awarded compensation of Rs.13,31,136/- under the head of loss of dependency and in total awarded compensation of Rs.15,10,410/-. Being aggrieved, the claimants are in appeal seeking for higher compensation.

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Sri.Pavan Chandra Shetty, learned counsel for the appellants submits that the Tribunal committed grave error in assessing the income of the deceased at Rs.8,000/- p.m. and adding only 30% under the head of loss of future prospects as the deceased was coolie and earning Rs.18000/- p.m. and aged about 33 years at the time of accident. Hence, he seeks to reasses the compensation under the head of loss of dependency and other conventional heads.

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Per contra, Sri.Ravish Benni, learned counsel for the respondent-insurance company supports the impugned judgment and award of the Tribunal and submits that the claimants have not produced any evidence to prove the income of the deceased, hence the Tribunal was justified in assessing the income at Rs.8,000/- p.m. It is submitted that the Tribunal considering the age and dependency has awarded just

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compensation under the head of loss of consortium. Hence, he seeks to dismiss the appeal.

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Considering the rival submissions of the parties and examining the materials on record, the point that arises for consideration is “ Whether the impugned judgment and award of the Tribunal calls for any interference”?

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ANALYSIS

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It is not in dispute that in the road traffic accident that occurred on 20.11.2015, Sri.Dayananda, son of claimant Nos.1 & 2 and husband of claimant No.3 sustained grievous injuries and he was hospitalised in Justice K.S.Hegde Charitable Hospital, Mangalore, from 20.11.2015 to 02.12.2015, and on 02.12.2015 he succumbed to the injuries in the said hospital. It is also not in dispute that the jurisdictional police have registered the FIR against the driver of the offending lorry bearing Reg.No.KA-20-D-4903 and on completion of investigation filed the charge sheet. The Tribunal considering the pleading and evidence on record, held that the driver of offending lorry bearing Reg.No.KA-20-D-4903 was negligent and caused the accident in question and respondent No.2,

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NC: 2024:KHC:46443-DB MFA No.9725/2017

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being the indemnifier of the risk in question, is liable to pay compensation. The said finding has attained finality as the insurance company has not filed any appeal challenging the impugned judgment and award.

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Sofar as quantum of compensation, the Tribunal assessed the income of the deceased at Rs.8000/- p.m. In our considered view the notional income assessed by the Tribunal is on the lower side and the same requires to be re-assessed appropriately by taking into account the prevailing wage rates and cost of living in 2015. Considering the aforesaid factors, we are of the considered view that interest of justice would be met, if we re-assess the income of the deceased at Rs.9,000/p.m. notionally. The evidence available on record, more particularly, the driving licence at Ex.P-13 indicates that the deceased was aged about 33 years at the time of accident, hence, the claimants are entitled to seek addition of 40% to the assessed income of the deceased under the head of loss of future prospects as per the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company

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NC: 2024:KHC:46443-DB MFA No.9725/2017

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Limited Vs . Pranay Sethi and Others¹ . The compensation

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under the head of loss of dependency is re-assessed as under:

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Rs.9,000 + 3600 (40%)= Rs.12,600 - Rs.4,200 (1/3 towards personal and living expenses of deceased) X 12 X 16= Rs.16,12,800/-.

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The claimants being the parents and wife of the deceased are entitled to consortium at the rate of Rs.40,000/each with 10% escalation as per the law laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram & Ors.²

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The claimants are also entitled to compensation of Rs.15,000/+ 15,000/- on the head of loss of estate and transportation of dead body and funeral expenses with escalation at 10%. The Tribunal has awarded Rs.1,19,275/- towards medical expenses incurred by the claimants as the deceased was inpatient for the period from 20.11.2015 to 02.12.2015 in Justice K.S.Hegde Charitable Hospital, Deralakatte, Mangalore. The same is unaltered. The pleading and evidence on record indicate that the appellants have incurred substantial amount towards food,

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1 (2017) 16 SCC 680

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2 (2018) 18 SCC 130

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nourishment and conveyance charges as the deceased was inpatient in the hospital for a period of 12 days. Hence, the claimants are entitled to compensation under the head of food, nourishment, conveyance and attendant charges. Interest of justice would be met if we award Rs.12,000/- under the said

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head. Hence, the compensation is re-assessed as follows:

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Sl.No.	Particulars	Amount (Rs.)
1	Loss of dependency	16,12,800
2	Loss of consortium	1,32,000
3	Loss of estate	16,500
4	Medical expenses	1,19,275
5	Food, nourishment, conveyance and attendant charges	12,000
6	Funeral expense	16,500
	Total	19,09,075
	Awarded by Tribunal	15,10,410
En	hanced compensation	3,98,665
	Rounded off to	4,00,000

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The compensation amount carries interest at the rate of

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6% p.a. from the date of petition till realisation.

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For the aforementioned reasons, we pass the following:

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10 -

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NC: 2024:KHC:46443-DB MFA No.9725/2017

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ORDER

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i. The appeal is partly allowed.

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ii. Compensation awarded by the Tribunal is enhanced by Rs.4,00,000/- with interest thereon at 6% p.a. from the date of petition till its realization.

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iii. Respondent No.2 - insurer shall deposit the enhanced compensation before the Tribunal within four weeks from the date of receipt of copy of this order.

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iv. Out of the compensation amount, Rs.1,00,000/- each shall be paid to claimant Nos.1 and 2 and Rs.2,00,000/- shall be paid to claimant No.3.

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v. On deposit of the amount, enhanced compensation shall be released to claimant Nos.1 to 3 digitally according to their shares as aforesaid.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR

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List No.: 1 Sl No.: 26

Krishna Moolya v. Shivaraj J.K.

Case brief

What is this about?

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Krishna Moolya v. Shivaraj J.K.

Case brief

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