Smt Chikkathayamma Vs United India Insurance Co.Ltd

KUMARI USHA AGED ABOUT 17 YEARS D/O NANJUNDASWAMY C/O CHIKKATHAYAMMA R/AT NO. 211,/1, ALANAHALLI, MYSORE TALUK & DISTRICT- 570026 SINCE MINOR REP BY APPELLANT NO. 1 SMT. CHIKKATAHAYAMMA

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…APPELLANTS

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(BY SRI. V.B SIDDARAMAIAH, ADVOCATE)

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HC-KAR

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CNR: KAHC010425272022

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AND:

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UNITED INDIA INSURANCE CO. LTD., NO. 1872, 20^TH MAIN, MARENAHALLI MAIN ROAD, VIJAYANAGARA BENGALURU-560 040 REP BY ITS BRANCH MANAGER,

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SRI. JAGADISH S/O SIDDAPPA AGED ABOUT 32 YEARS, R/AT NO. 72, KAGALAHALLI VILLAGE RAMANGARA DISTRICT 562 109

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SRI. NEELAKANTA S/O BASAVARAJAPPA AGED ABOUT 43 YEARS R/AT NO. 105, 7^TH CROSS, K.B. NAGAR EAST, MYSORE ROAD, BENGALURU 560 062

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…RESPONDENTS

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(BY SRI. RAVISH BENNI, ADVOCATE FOR R1, VIDE ORDER DATED 01/02/2024, NOTICE TO R2 & R3 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2022 PASSED IN MVC NO.3298/2017 ON THE FILE OF THE VII ADDITIONAL SCJ AND ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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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 RAJESH RAI K

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HC-KAR

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NC: 2026:KHC:35994 MFA No. 6472 of 2022

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CNR: KAHC010425272022

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ORAL JUDGMENT

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The claimants, being dissatisfied with the

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compensation of Rs.3,40,000/- awarded in MVC No.3298/2017 dated 01.01.2022 by the VII Addl. SCJ & MACT-III, Bengaluru (for short 'the Tribunal'), are before this Court seeking enhancement of compensation.

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It is not in dispute that, as a result of the motor vehicle accident which occurred on 25.01.2017, Sri Rachaiah, a 69 year old died.

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It is not in dispute that the offending vehicle was insured with respondent No.1-Insurance Company.

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The Tribunal, on assessment of the evidence adduced before it, has come to the conclusion that the driver of the offending vehicle was responsible for the accident, which has resulted in the death of Rachaiah. The Tribunal has thereafter proceeded to award the following sums as compensation:

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Sl. No.	Particulars	Amount in(Rs.)

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HC-KAR

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NC: 2026:KHC:35994 MFA No. 6472 of 2022

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CNR: KAHC010425272022

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1.	Loss of Dependency	2,70,000
2.	Loss of Estate	15,000
3.	Funeral expenses	15,000
4.	Loss of Spousal consortium	40,000
	Total	3,40,000

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It is the primary contention of learned counsel for the claimants that the Tribunal has grossly erred by attributing 20% contributory negligence on the part of deceased, who was pedestrian. According to him, as per Ex.P6-sketch, the accident had caused in a two way road just 18 ft. away from the permitted parking lot. While the deceased after crossing the parking lot, suddenly the driver of offending vehicle-canter came and hit the deceased, as such, the accident caused. In such circumstance, the Tribunal has erred in attributing 20% negligence on the part of deceased. He also contended that the Tribunal has erred in considering the age and avocation of the deceased and assessed income at Rs.9,000/- per month. Since the accident is of the year 2017, as per the chart of Karnataka State Legal Services Authority, the income of the deceased has to be taken as Rs.11,000/- and the Tribunal has also erred in granting compensation on the head of loss of consortium and

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HC-KAR

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NC: 2026:KHC:35994 MFA No. 6472 of 2022

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CNR: KAHC010425272022

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conventional heads. With these submissions, he prays to allow the appeal.

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Per contra , learned counsel for the Insurance

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Company contended that as per Ex.P6-sketch, the deceased suddenly crossed the road in a place where there was no zebra crossing, as such, the accident occurred. He also contended that the pedestrian shall not enter the road, where there is no zebra crossing. In such circumstance, the Tribunal has rightly considered that the deceased also contributed 20% negligence for the accident. He further contended that the Tribunal also

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erred by directing the Insurance Company to pay the compensation, despite the driver of the offending vehicle was not possessing valid driving license at the time of accident. As such, according to him, the Tribunal ought to have ordered for pay and recovery. He also contended that the Tribunal has awarded just compensation, which does not call for any interference at the hands of this Court. Accordingly, he prays to dismiss the appeal.

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I have given my anxious consideration to submissions made by the learned counsel for the respective

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HC-KAR

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NC: 2026:KHC:35994 MFA No. 6472 of 2022

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CNR: KAHC010425272022

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parties and perused the impugned judgment and other documents made available before this court.

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As could be gathered from records, the accident in question and coverage of insurance policy to the offending vehicle are not in dispute. The contention raised by the learned counsel for the claimants that the Tribunal has erred by attributing 20% negligence on the part of deceased is concerned, on careful perusal of FIR, complaint, charge sheet and sketch, admittedly the complainant i.e., son of deceased, who accompanied the deceased at the time of accident has stated that while the deceased after crossing parking lot on the main road, the offending vehicle suddenly came and hit against him. The jurisdictional Police registered FIR against the driver of the offending vehicle and subsequently, laid charge sheet against him. On careful examination of Ex.P6, it could be seen that the place of the accident is National Highway comprising of two lanes. No doubt, there is a parking lot near the place of accident, however, the sketch depicts that the deceased entered the road after crossing the parking lot. Admittedly, he made an attempt to cross the road, where there was no zebra

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HC-KAR

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CNR: KAHC010425272022

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crossing. In such circumstance, the deceased also contributed some negligence for the accident, however, the same cannot be assessed at 20%. On perusal of sketch and evidence of PW.1, I am of the considered view that the negligence of the deceased would be assessed at 10% instead of 20%.

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As far as the compensation awarded by the Tribunal is concerned, in order to arrive at the loss of dependency, the Tribunal has determined the monthly income, notionally at Rs.9,000/-. As there is no credible evidence to ascertain the actual monthly income, it would be appropriate and prudent to adopt the monthly income determined by Karnataka State Legal Services Authority, which, for the accident of the year 17, would be Rs.11,000/- .

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As the deceased was aged 69 years, a multiplier of ' 5' would have to be applied and 1/3^rd has to be deducted towards personal expenses. Thus, the claimants would be entitled to a sum of Rs.4,40,000/- (11,000 X 12 X 5 X 2/3) towards “ loss of dependency” .

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HC-KAR

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CNR: KAHC010425272022

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The claimant, being the wife of deceased, she would be entitled to a sum of Rs.48,400/- towards “loss of consortium” and she would also be entitled to a sum of Rs.36,300/- under the “conventional heads” .

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Thus, the claimants, in modification of the impugned award, would be entitled to the following sums:

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Sl. No.	Compensation under different Heads	(Rs.)
1.	Loss of Dependency	4,40,000
2.	Loss of consortium	48,400
3.	Conventional heads	36,300
	Sub-total	5,24,700
	(-) 10% towards contributory negligence of the deceased	52,470
	Total	4,72,230

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Thus, the claimants would be entitled for total compensation of Rs.4,72,230/- as against Rs.3,40,000/awarded by the Tribunal, along with interest at the rate of 6% per annum from the date of petition till its realization.

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The Insurance Company is directed to deposit the amount of compensation awarded within a period of six weeks from the date of receipt of a certified copy of this judgment.

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