Neelamma and Ors. Vs Udaykumar and Anr.

THE LEGAL MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., DIVISIONAL OFFICE, BLOCK NO.VIII, NEAR S.V. PATEL CHOWK, ASIAN PLAZA COMPLEX, KALABURAGI – 585 101.

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…RESPONDENTS

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,

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PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 29.09.2022 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND MACT AT CHITTAPUR IN MVC NO.1242/2019 BY ENHANCING THE COMPENSATION AMOUNT AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MFA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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HC-KAR

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ORAL JUDGMENT

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Challenging judgment and award dated 29.09.2022 passed by Senior Civil Judge and MACT, Chittapur (for short, 'tribunal') in MVC no.1242/2019, this appeal is filed.

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Miss Tabassum Sultana, learned counsel submitted appeal was by claimant for enhancement of compensation. It was submitted, on 02.04.2015, when Gollalappa was walking by side of Shahapur-Surpur road, at 10:30 p.m., driver of car no.KA-32/N-0860 drove it in a rash and negligent manner and dashed against Gollalappa, causing accident. Due to severity of injuries sustained, Gollalappa died on spot. Alleging loss of dependency on account of untimely death, his wife and parents filed claim petition under Section 166 of Motor Vehicles Act against owner and insurer of offending car.

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On contest, owner did not appear and was placed ex-parte while insurer filed objections, denying negligence on part of car driver and alleging that accident occurred due to negligence of deceased, even age, occupation and income of deceased was also disputed. Based on pleadings, tribunal framed issues and recorded evidence. Claimant no.1 examined

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HC-KAR

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as PW.1. Exs.P.1 to P.9 were got marked. Insurer examined its official as RW1 and got marked Exs.R1 to R6.

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On consideration, Tribunal held accident had occurred due to rash and negligent driving of insured car by its driver leading to death of Gollalappa and claimants were entitled for compensation from insurer assessed as follows :-

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1.	Loss of dependency	`16,12,872/-
2.	Loss of estate	`15,000/-
3.	Towards spousal consortium (for petitioner no.1)	`40,000/-
4.	Towards parental consortium (for petitioner no.2 and 3)	`2,22,300/-
5.	Transportation of dead body and funeral expenses	`15,000/-
	Total Rounded off to	`17,62,872/-<br>`17,63,000/-

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Dissatisfied with same, claimants are in appeal.

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Though claimants had stated that Gollalappa was

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aged 35 years old, working as JCB operator and earning 20,000/- per month as salary + 500/- per day as bhata, tribunal assessed monthly income at `8,000/-, which was on lower side. It was submitted, compensation awarded under other heads were also inadequate and sought enhancement.

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HC-KAR

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On other hand, Sri Manjunath Mallayya Shetty,

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learned counsel for respondent–insurer opposed appeal.

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Heard learned counsel and perused impugned judgment and award.

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From above and since only claimants are in appeal for enhancement of compensation, while insurer has accepted award, point that would require consideration is :

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“Whether claimants are entitled for enhancement of compensation as sought for ?”

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Same is answered partly in affirmative, for following reasons :

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Insofar as monthly income though claimants stated

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that deceased Gollalappa was working as JCB operator earning more than `20,000/- per month, same was not substantiated with any specific evidence. Neither his employer nor his driving licence in respect of JCB or bank pass book etc. to substantiate his income. In absence, tribunal would be justified in assessing monthly income notionally. Notional income for year 2015 i.e., date of accident as adopted by KSLSA for settlement of cases

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HC-KAR

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before Lok-adalat is 8,000/-. Therefore, there would be no scope for variation. Taking note of fact that deceased was 24 years of age and self employed while claimants are wife and parents, tribunal rightly added 40% towards future prospects and deducted 1/3<sup>rd</sup> towards personal expenses and applied multiplier of ‘18’, to arrive at total amount of 16,12,872/towards loss of dependency. Apart from above, claimant awarded 15,000/- towards loss of estate and 15,000/towards funeral expenses. Tribunal also awarded 40,000/towards spousal consortium and parental consortium respectively. However, tribunal did not add 10% escalation for every three years as per decision of Hon’ble Court in case of National Insurance Company Limited v. Pranay Sethi and Ors.<sup>1</sup> .Since more than six years have elapsed after decision of Pranay Sethi’s case (supra), 20% has to be added to award under conventional heads. Total compensation towards conventional heads is 1,50,000/-, 20% of same would be `30,000/-. Thus, point for consideration is answered partly in affirmative as above. Consequently, following :

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1 (2017) 16 SCC 680

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NC: 2025:KHC-K:3679 MFA No. 200513 of 2023

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HC-KAR

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ORDER

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i. Appeal is allowed in part, judgment and award dated 29.09.2022 passed in MVC no.1242/2019 by Court of Senior Civil Judge and MACT, Chittapur is modified, claimants are held entitled for further amount of `30,000/with interest at rate opf 6% per annum from date of claim petition till realization.

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ii. Respondent is held liable to pay same and is directed to deposit it before Tribunal within six weeks.

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iii. On deposit, same to be released to claimants.

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Sd/(RAVI V HOSMANI) JUDGE

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SN

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List No.: 1 Sl No.: 43

Neelamma and Ors. v. Udaykumar and Anr.

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Neelamma and Ors. v. Udaykumar and Anr.

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