Smt. Lalitabai and Anr. Vs Prahaladrao and Anr.

AGE: 59 YEARS, OCC: NIL, BOTH OF R/O: H.NO.9/337, SHAHABAZAR ROAD, VADDAR GALLI, NEAR LAL HANUMAN TEMPLE KALABURAGI, NOW AT ARANAKAL, TQ. CHITTAPUR, DIST. KALABURAGI-585102.

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…APPELLANTS

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(BY SRI. BABU H. METAGUDDA, ADVOCATE)

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AND:

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PRAHALADRAO

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S/O HANUMANTHRAO KAKADE, AGE: MAJOR, OCC: BUSINESS, R/O: H.NO.4-3-35/4, VIGNAPURI COLONY, TANDUR, RANGAREDDY, DIST. TELANGANA STATE.

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2 -

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NC: 2025:KHC-K:2280-DB MFA No. 201370 of 2022

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THE LEGAL MANAGER, HDFC ERGO GENERAL INSURANCE CO. LTD., 1^ST FLOOR, VIRUPAX KRUPA PP; KIMS MAIN GATE, R.D. ROAD, VIDYA NAGAAR, HUBLI-580021.

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…RESPONDENTS

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(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R-2; V/O DATED 03.01.2024 NOTICE TO R-1 IS HELD SUFFICIENT)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT, PRAYING TO CALL FOR THE RECORDS IN M.V.C.NO.914/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT-XV, AT CHITTAPUR. B) ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 30.07.2021 PASSED IN M.V.C.NO.914/2018 BY THE SENIOR CIVIL JUDGE AND MACT-XV, AT-CHITTAPUR AND ENHANCING THE COMPENSATION FROM Rs.15,82,600/WITH 6% INTEREST TO Rs.35,00,000/- WITH 12% INTEREST. C) ALLOW THIS APPEAL AND DIRECT THE 2^ND RESPONDENT INSURANCE COMPANY TO PAY THE ENTIRE COMPENSATION TO THE CLAIMANTS AND ETC.,

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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 MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K NATARAJAN)

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This appeal is filed by the appellants - claimants against the judgment and award passed in MVC.No.914/2018 dated 30.07.2021, by the Senior Civil Judge and MACT-XV, Chittapur for enhancing the amount of compensation.

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Heard the learned counsel for the appellant and the respondent No.2 – insurance company. Even though notice has been served on respondent No.1, but he remained absent.

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The case of the claimants before the Tribunal is that the claimants have filed a claim petition under Section 166 of M.V. Act for claiming compensation of Rs.35,00,000/- with 18% p.a. interest for the death of their son Sunil, who died in the road traffic accident. It is alleged that on 21.02.2018 the deceased - Sunil was

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returning to Kalaburagi by riding the Motorbike Reg.No.KA-32-EJ-8617 on Sedam - Kalaburagi road at about 8:45 p.m. near Huda (K) Gate, a lorry bearing Reg.No.AP-37-X-6669 driven by the driver of the lorry in a rash and negligent, due to over speed, he has lost control over the vehicle and dashed to the motorbike. Due to which the deceased has sustained multiple injuries and died on the spot. Hence, the claimants have filed the claim petition claiming compensation on various heads.

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The respondent No.1 – the owner of the vehicle who has appeared through the learned counsel and filed the written statement by denying the rash and negligent driving of the driver of the lorry. The accident was occurred due to the contributory negligence on the part of the driver of the lorry as well as the rider. He has also denied the age, occupation and income of the deceased. It is also contended that the driver of the vehicle is having driving license to drive the offending vehicle and the vehicle was duly insured with the respondent No.2. Hence, prayed for fixing the liability on the insurance company.

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The respondent No.2 – insurance company appeared and filed the written statement denying all the averments made in the claim petition as false and contended that on the date of accident, the driver of the vehicle was not holding any effective driving license and also contended that there is no insurance policy issued by the respondent No.2 in the name of the respondent No.1 for the offending Lorry. Hence, denying the liability prayed for dismissing the petition.

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Based upon the above pleadings, the Tribunal has framed the following issue:-

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i) Whether the petitioners proves that, deceased – Sunil died due to injuries sustained in RTA near Huda-K gate on Sedam-Kalaburagi road on 21.02.2018 at about 08.45 p.m. on account of actionable negligence by the driver of Lorry bearing Reg.No.AP-37-X-6669.?

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ii) Whether the respondent No.2 proves that the driver of offending vehicle was not having valid and effective driving license at the time of accident.?

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iii) Whether the petitioners are entitled for compensation.? If so, what amount and from whom.?

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iv) What award or order.?

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On behalf of the claimants, the claimant No.1 examined as PW.1 and got marked 09 documents as per Ex.P.1 to Ex.P.9. The respondent No.1 not led any evidence. The respondent No.2 - insurance company examined witness as RW.1 and they have got marked 06 documents as per Ex.R.1 to Ex.R.6.

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After the hearing the arguments, the Tribunal answered the issue No.1 in the formative Issue No.2 in the negative and issue No.3 partly in the affirmative and allowed the petition in part by awarding compensation of Rs.16,52,600/- together 6% p.a. interest by fixing the liability on the respondent No.1 and dismissed the claim petition against the respondent No.2 - insurance company.

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Feeling aggrieved by the same, the claimants have filed the appeal before this Court only for enhancement of compensation without disputing liability fixed on the respondent No.1.

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The learned counsel for the claimants

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contended that the Tribunal has committed an error in considering the income of the deceased at Rs.10,500/- per month, even though as per the Karnataka Legal Services Authority Chart, the Tribunal used to consider Rs.11,750/per month as the notional income for the accident is of the year 2018. The compensation towards the consortium is also not properly awarded as per the judgment of the Hon’ble Supreme in the case of Magma General Insurance Co. Ltd vs. Nanu Ram @ Chuhru Ram¹ . Hence, prayed for enhancing the same.

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The learned counsel for the respondent No.2 – insurance company submits that as there is no claim over the respondent No.2 and the Tribunal already exonerated the liability on the respondent No.2 as there is no insurance policy issued by the respondent No.2 in favour of the respondent No.1 as on the date of accident. Hence, prayed for dismissal of the appeal.

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1 (2018) 18 SCC 130

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Having heard the arguments and perused the

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records, the point that would arise for our consideration as under:-

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Whether the claimants are entitled for enhancement of compensation.? If so to what extent.?

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As regards to the factum of accident i.e., on 21.02.2018 occurred due to the rash and negligent driving of the driver of the lorry bearing Reg.No.AP-37-X-6669 at about 08.45 p.m. near Huda (K) Gate, dashed to the deceased’s motorcycle, due to which the deceased - Sunil was died in the accident, is not seriously disputed by the respondents. The police documents i.e., Complaint, FIR and Charge-Sheet, clearly reveal that the accident was occurred due to rash and negligent driving of the driver of the lorry in question. The Tribunal answered the issue No.1 in the affirmative as against the driver of the lorry, which attained finality. There is no appeal filed by the driver or owner of the lorry before this Court.

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The only consideration is that the claimants

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have filed an appeal only for enhancement of compensation without disputing the liability fixing on the owner of the lorry and exonerating the insurance company.

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On perusal of the quantum of compensation, the Tribunal considered the income of the deceased at Rs.10,500/- per month for the accident is of the year 2018. In the absence of any income proof, the Court required to consider the Chart of the Karnataka Legal Services Authority. For the accident of the year 2018, normally the Court used to consider the income at Rs.11,750/- per month. Therefore, the Tribunal has committed an error in considering the income at Rs.10,500/- per month, which required to be enhanced to Rs.11,750/-. If Rs.11,750/- per month taken as income of the deceased, 40% future prospects as per the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and

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others² , is to be considered, which comes to Rs.4,700/-. The same is added to considered income, it comes to Rs.16,450/-. The deceased was unmarried son and the claimants are the parents. Therefore, 50% of the income should be deducted towards the personal expenditures as per the judgment of the Hon’ble Supreme Court in the case of Sarla Varma & Others vs. Delhi Transport Corporation and Another³ . If 50% is deducted, it comes to Rs.8,225/- as net income per month. The same is multiplied into 12 and multiplied by 18, it comes to Rs.17,76,600/- (Rs.8,225 x 12 x 18). This should be the actual loss of dependency as against Rs.15,87,600/- as awarded by the Tribunal.

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The Tribunal has awarded Rs.20,000/- towards

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the loss of estate and Rs.15,000/- towards the funeral expenses and Rs.30,000/- towards the loss of love and affection. We are of the considered opinion that the

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2 (2017) 16 SCC 680

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3 2009 ACJ 1298

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Tribunal committed an error in considering the

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compensation under the conventional heads and not considering the consortium. Therefore, we proposed to award Rs.30,000/- towards conventional heads and Rs.80,000/- towards the filial consortium. Totally, it comes to Rs.18,86,600/-. Accordingly, this Court re-assessed the

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compensation as under:-

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Description	Amount
Loss of dependency	Rs.17,76,600.00
Conventional heads	Rs.00,30,000.00
Loss of filial consortium	Rs.00,80,000.00
Total	Rs.18,86,600.00
Award of the Tribunal	Rs.16,52,600.00
Enhanced Compensation	Rs.02,34,000.00

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For the above said reasons, we proceed to pass

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the following;

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O R D E R

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i. The appeal is allowed in part.

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ii. The judgment and award dated 30.07.2021 passed in MVC.No.914/2018 by the Senior Civil Judge and MACT-XV, Chittapur, is modified.

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iii. The claimants are entitled for an enhanced compensation of Rs.2,34,000/- over and above the compensation awarded by the Tribunal which shall carry interest at the rate of 6% per annum from the date of petition till the date of realization.

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