Smt.Sharada W/O. Late M.Basavaraj Vs Hanumantha S/O. Gangappa

MINOR KAVYA SHREE D/O. LATE. M. BASAVARAJ, AGED ABOUT 02 YEARS 08 MONTHS, SINCE MINOR REPRESENTED BY HER NEXT FRIEND AND GUARDIAN SMT. SHARADA W/O. M. BASAVARAJ, AGED ABOUT 22 YEARS,

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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HOUSE WIFE,

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DHANUNJAYA S/O. KATTEBASAVANNA @ KATTE BASAPPA, AGED ABOUT 43 YEARS, DRIVER

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SMT. SHANTHAMMA W/O. M. DHANUNJAYA, AGED ABOUT 39 YEARS, HOUSEWIFE,

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M. NAGARAJA S/O. M. DHANUNJAYA, AGED 21 YEARS, STUDENT,

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ALL ARE R/O: SIDDA RAMPURA VILLAGE, POST: KURUVALLI,

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HC-KAR

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BOMMANAHAL MANDALAM, DISTRICT: ANANTHAPURA.

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… APPELLANTS

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(BY SRI. M. AMAREGOUDA, ADVOCATE)

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AND:

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HANUMANTHA S/O. GANGAPPA, AGED ABOUT 40 YEARS, DRIVER OF THE LORRY BEARING NO.KA-34/B-7353, BOMMANAHAL MANDAL VILLAGE, DISTRICT: ANANTAPUR, NOW AT DEVI NAGAR, BALLARI-583 101.

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G. GOVINDRAJULU S/O. G. KONDAPPA, AGED ABOUT 46 YEARS, OWNER OF THE LORRY BEARING NO.KA-34/B-7353, RESIDING AT: D.NO.33/126, W.NO.33, SHIVALING NAGAR, CONTONMENT, BALLARI-583 101.

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M/S ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD., BY ITS MANAGER, BALLARI-583 101.

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… RESPONDENTS

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(BY SRI. G.N. RAICHUR, ADVOCATE FOR R3; R1 AND R2-DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AND MODIFY THE JUDGMENT AND AWARD DATED 25.10.2019 PASSED IN M.V.C. NO.1170/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-V, AT BALLARI.

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IN MFA NO.100742 OF 2020:

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BETWEEN:

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SRI. L. RAJU S/O AMBANNA @ L. HAMPANNA, AGED ABOUT 36 YEARS, LORRY DRIVER,

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HC-KAR

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R/O: UNTHAKAL VILLAGE, BOMMANAHAL MANDALAM, DIST: ANANTAPUR, A.P.

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… APPELLANT

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(BY SRI. M. AMAREGOUDA, ADVOCATE)

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AND:

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HANUMANTHA S/O GANGAPPA, AGED ABOUT 40 YEARS, DRIVER OF THE LORRY BEARING NO.KA-34/B-7353, BOMMANAHAL MANDAL VILLAGE, DISTRICT: ANANTAPUR, NOW AT DEVI NAGAR, BALLARI-583 101.

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G. GOVINDRAJULU S/O G. KONDAPPA, AGED ABOUT 46 YEARS, OWNER OF THE LORRY BEARING NO.KA-34/B-7353, RESIDING AT: D.NO.33/126, W.NO.33, SHIVALING NAGAR, CONTONMENT, BALLARI-583 101.

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M/S ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD., BY ITS MANAGER, BALLARI-583 101.

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… RESPONDENTS

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(BY SRI. G.N. RAICHUR, ADVOCATE FOR R3; R1 AND R2-DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AND MODIFY THE JUDGMENT AND AWARD DATED 25.10.2019 PASSED IN M.V.C. NO.1169/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BALLARI.

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THESE APPEALS ARE COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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Though these appeals are listed for admission, but with consent of both the learned counsel appearing for the parties, the matters are taken up for final disposal.

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MFA No.100713/2020 is filed by the claimants being legal heirs of the deceased Basavaraj challenging the judgment and award dated 25.10.2019 passed in MVC No.1170/2018 on the file of I Additional Senior Civil Judge and Member, MACT-V, Ballari¹ , seeking enhancement of compensation and MFA No.100742/2020 is filed by the claimant/spare driver challenging the judgment and award dated 25.10.2019 passed in MVC No.1169/2018 on the file of I Additional Senior Civil Judge and Member, MACT-V, Ballari, seeking enhancement of compensation.

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1 (hereinafter referred to as ‘the Tribunal’ for short)

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HC-KAR

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Heard arguments addressed by the learned

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counsels appearing for the respective parties and perused the Trial Court records and the appeal papers.

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For the sake of convenience and easy

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reference, the parties are referred to as per their rankings before the Tribunal.

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BRIEF FACTS OF THE CASES ARE:

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On 25.07.2018 at about 10.00 p.m., the

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claimant in MVC No.1169/2018 was proceeding in the lorry bearing Reg.No.KA-34/B-7353 and one Basavaraj was cleaner in the lorry, who is deceased in MVC No.1170/2018 and respondent No.1 was driving the said lorry at the time of accident. On the date of accident, the lorry was loaded with iron coil from Jindal, Thorangal to Tamil Nadu, Chennai for unloading the material and the distance between Jindal to Chennai is more than 1200 Kms. Hence, the owner of the vehicle has engaged two drivers for long distance. When the said vehicle reached

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HC-KAR

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near Petrol Bunk, on Muddanur-Tadipatri main road, Muddanur village, Kadapa A.P., respondent No.1Hanumantha drove the same with high speed and in a rash and negligent manner and lost control over the vehicle as a result, the lorry was turtled down. Due to the said impact, the claimant/spare driver has sustained injuries and one Basavaraj also sustained grievous injuries and succumbed to the injuries on the spot.

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Upon the claim petitions filed by the claimant and legal heirs of the deceased, the Tribunal has awarded compensation of Rs.2,68,870/and Rs.10,02,000/respectively. Being aggrieved by quantum of compensation, these appeals are preferred by the claimant as well as legal heirs of the deceased seeking enhancement of compensation.

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HC-KAR

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REGARDING QUANTUM OF COMPENSATION: IN MFA NO.100713/2020 (MVC No.1170/2018):

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In this case, the Tribunal has awarded

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compensation under various heads as follows:

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Sl.	Heads	Amount
No.
1.	Towards loss of dependency.	Rs.9,72,000/-
2.	Towards loss of estate.	Rs.10,000/-
3.	Towards loss of consortium.	Rs.10,000/-
4.	Towards loss of funeral expenses.	Rs.10,000/-
5.	Future prospectus.	---
	Total:	10,02,000/-

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The Tribunal awarded lesser amount of

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compensation contrary to the principles of law decided by the Hon’ble Supreme Court. Therefore, the same is required to be enhanced by modifying the judgment and award of the Tribunal.

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The deceased was aged 24 years as on the date of accident and was a cleaner by profession. The accident is caused on 25.07.2018. Hence, in the absence of proof of income, notional income is to be taken at Rs.11,750/- for the year 2018, as recognized by the Karnataka State Legal

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HC-KAR

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Services Authority. In view of the decision of the Hon’ble Apex Court in case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS² (Pranay Sethi case), considering the age of the deceased, 40% of the income is to be added towards loss of future prospects in life. There are five dependents, hence, 1/4^th of income is to be deducted towards personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 18. Therefore loss of dependency is re-assessed and quantified at Rs.26,64,900/- (Rs.11,750/- + 40% minus 3/4^th x 12 x 18).

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In view of the decision of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LIMITED V. NANU RAM & OTHERS³ , and in the case of Pranay Sethi (supra), the claimants are entitled to Rs.40,000/- each under the head ‘loss of consortium’,

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2 (2017) 16 Supreme Court Cases 680

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3 2018 ACJ 2782

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HC-KAR

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along with 10% escalation. There are five dependents who are father, mother, wife, minor daughter and brother of the deceased. Accordingly, Rs.2,20,000/- (Rs.40,000 x 5 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’.

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Further, a compensation of Rs.15,000/- each is

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awarded under the head ‘loss of estate’ and ‘funeral and transportation’ respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded.

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Thus, the claimants would be entitled for total

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compensation under various heads as under:

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Sl. No.	Heads.	Amount in (Rs.)
1.	Towards loss of dependency	26,64,900/-
2.	Towards loss of consortium (40,000 x 2+10%)	2,20,000/-
3.	Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2+10%)	33,000/-
	Total:	29,17,900/-

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HC-KAR

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Therefore, the claimants are entitled for total compensation of Rs.29,17,900/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.10,02,000/- awarded by the Tribunal. The insurance company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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IN MFA NO.100742/2020 (MVC NO.1169/2018):

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In the present case, from the medical evidence on records, it is proved that the claimant had suffered the following injuries:

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“Fracture of Mal-United super condylar fracture

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of left femur with united fracture of patella.”

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The Tribunal has awarded compensation under

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various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards pain and suffering.	20,000/-
2.	Towards medical expenses.	31,150/-
3.	Towards loss of amenities.	---
4.	Towards loss of income during	---

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HC-KAR

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	treatment period.
5.	Towards attendant charges.	---
6.	Towards loss of future earnings.	2,07,360/-
7.	Towards other expenses i.e., food, nourishment.	10,000/-
	Total:	2,68,510/-

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Considering the nature of injuries sustained,

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compensation awarded by Tribunal on the heads pain and suffering, other expenses i.e., food, nourishment and etc., is lesser side. Therefore, the same is required to be enhanced by modifying the judgment and award.

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Considering the injuries sustained, a

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compensation of Rs.30,000/- towards pain and suffering, Rs.25,000/- towards loss of amenities are awarded. The compensation awarded towards medical expenses and hospital charges of Rs.31,150/- is as per the actual bills and receipts produced; therefore, the same is kept intact. Further, the Tribunal has awarded compensation of Rs.10,000/towards incidental expenses like food, nourishment, traveling, attendant charges, etc., which is just and proper hence, the same is kept intact and

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HC-KAR

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Rs.23,500/- towards loss of income during laid up period

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for a period of 2 months, is awarded.

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The doctor has stated that the claimant had suffered 38% of physical disability to the whole body, but the Tribunal has considered permanent physical disability at 12%, which is on lower side. Therefore, considering the

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evidence of the doctor, 16% functional disability is taken into consideration as the claimant had suffered fracture of Mal-United super condylar fracture of left femur with united fracture of patella.

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The accident is caused in the year 2018. Therefore, notional income of Rs.11,750/- per month is taken into consideration, which is recognized by the Karnataka State Legal Service Authority. The claimant was aged 34 years at the time of accident. Therefore appropriate applicable multiplier is 16. Hence, loss of future income due to disability is hereby reassessed and

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HC-KAR

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quantified as Rs.4,06,080/- (Rs.11,750/- x 16% x 12 x

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16).

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Thus, the claimant is entitled for total

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compensation under various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards injuries, pain and suffering.	30,000/-
2.	Towards medical expenses.	31,150/-
3.	Towards loss of amenities.	25,000/-
4.	Towards loss of income during laid up period and medical treatment period.	23,500/-
5.	Towards incidental charges like attendant charges, food, nourishment, conveyance, etc.,.	10,000/-
6.	Towards loss of future earning capacity.	4,06,080/-
	Total:	5,25,730/-

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Therefore, the claimant is entitled for total

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compensation of Rs.5,25,730/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,68,510/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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HC-KAR

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In the result, I proceed to pass the following:

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ORDER

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i. The appeals are allowed-in-part.

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ii. The judgment and award dated 25.10.2019 passed in MVC Nos.1169 and 1170 of 2018 on the file of I Additional Senior Civil Judge and Member, MACT-V, Ballari stand modified.

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iii. The claimants in MFA No.100713/2020 are entitled for total compensation of Rs.29,17,900/- along with interest at the rate of 6% p.a. from the date of petition till its realization.

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iv. The claimant in MFA No.100742/2020 is entitled for total compensation of Rs.5,25,730/- along with interest at the rate of 6% p.a. from the date of petition till its realization.

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