SAKUBAI AND ORS vs. SUNIL AND ANR

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 6TH DAY OF JULY, 2021 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI MFA No.200033/2018 (MV) BETWEEN: 1. SAKUBAI W/O LATE RAMESH @ ARJUN RATHOD AGED: 37 YEARS, OCC: HOUSEHOLD NOW NIL 2. NARESH S/O LATE RAMESH@ ARJUN RATHOD AGED: 18 YEARS, OCC: STUDENT 3. KOMAL D/O LATE RAMESH @ ARJUN RATHOD AGED: 16 YEARS, OCC: STUDENT 4. ROHIT S/O LATE RAMESH@ ARJUN RATHOD AGED: 14 YEARS, OCC: STUDENT 5. HEERABAI W/O LATE KISHAN RATHOD, AGED: 71 YEARS, OCC: HOUSEHOLD APPELLANT NOS. 3 AND 4 ARE UNDER GUARDIANSHIP OF THEIR NATURAL MOTHER i.e, APPELLANT NO.1 ALL R/O SHAMPUR HALLI TANDA TQ. CHITTAPUR, DIST: KALABURAGI NOW AT H.NO.1/10 NEAR ALAND NAKA KALABURAGI ... APPELLANTS (BY SRI SANJEEV PATIL, ADVOCATE)

2 AND: 1. SUNIL S/O RAMA CHAVAN AGED: 41 YEARS, OCC: OWNER OF TANKER NO.KA.32.B.0721 R/O WADI (JN) KERI TANDA, TQ. CHITTAPUR DIST: KALABURAGI 2. THE DIVISIONAL MANAGER DIVISION OFFICE SRIRAM GENERAL INSURANCE COMPANY LTD., E-8-EPIP SITAPURA INDUSTRIAL AREA JAIPUR RAJASTHAN STATE-302022 ... RESPONDENTS (BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/O DATED 19.03.2018) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MV ACT PRAYING TO ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION TO RS.15,00,000/- ALONG WITH INTEREST BY MODIFYING THE JUDGMENT AND AWARD OF THE SENIOR CIVIL JUDGE AND MACT CHITTAPUR, DATED 25.04.2017 IN MVC NO.239/2016.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

3 JUDGMENT This appeal is filed under section 173(1) of the Motor Vehicles Act (hereinafter referred to as ‘the Act’ for short) by the claimants challenging the judgment and award dated 25.04.2017 passed in MVC No.239/2016 by the Senior Civil Judge and MACT at Chittapur. 2. The parties are referred as per their ranking before the Tribunal. 3. The facts leading to filing of this appeal are that on 16.09.2015, at about 11.30 p.m., deceased Ramesh @ Arjun after stopping his Ash Tanker lorry bearing registration No.KA.32/A-9359 at ACC, New Plant, Wadi, was coming towards his house, which is situated near Railway Gate, at that time, another Tanker lorry bearing registration No.KA-32/B-0721 being driven by its driver, came in rash and negligent

4 manner with high speed endangering human life and having lost control over it, dashed to Ramesh @ Arjun. Due to impact of the accident, he suffered head injuries and succumbed to the injuries on the spot itself. The claimants being legal representatives of deceased have filed claim petition under section 166 of the Act claiming compensation on the death of deceased Ramesh @ Arjun in road traffic accident. 4. The respondent No.1 has not filed written statement. The respondent No.2 has filed written statement denying the averments made in the petition and also denied age, avocation, income of the deceased and also denied place of accident and manner of accident. It was contended that the driver of the offending lorry was not holding valid and effective driving licence and therefore respondent No.2 prayed to dismiss the claim petition against the respondents.

5 5. The Tribunal on the basis of pleadings of the parties framed the following issues: 1. “ Whether the petitioners prove that, on 16.09.2015 at about 11.30 p.m., the deceased Ramesh @ Arjun after stopping his Ash Tanker Lorry bearing No. KA- 32/A-9359 at ACC New Plant, Wadi was coming towards his house, which is situated near Railway Gate, at that time, the driver of another Tanker Lorry bearing No. KA-32/B-0721 came in a rash and negligent manner, with high speed and endangering to the human life and lost control over the lorry and dashed to deceased, due to which the deceased Ramesh @ Arjun sustained grievous injuries and succumbed to the injuries on the spot itself? 2. Whether the petitioners are entitle for the compensation? If yes, what is the quantum and from whom? 3. What Order or Award?”

6 6. The claimant No.1 in order to prove the claim petition examined herself as PW.1 and one witness as PW.2 and got marked documents Exs.P1 to P10. The respondent No.2 has not led either oral or documentary evidence. The Tribunal, after recording the evidence and considering the material on record, held that the claimants have proved that on 16.09.2015, the accident was occurred due to rash and negligent driving of the driver of the offending vehicle and also held that the deceased died on the spot due to grievous injuries sustained and held that the claimants are entitled to compensation and awarded compensation of Rs.12,65,000/- with interest at the rate of 6% per annum and also held that the respondents are jointly and severally liable to pay compensation to the claimants.

7 7. The claimants being dissatisfied with the compensation awarded by the Tribunal has filed this appeal seeking for enhancement of compensation. 8. Heard learned counsel for the appellants/claimants and learned counsel for respondent No.2/insurance company. 9. Learned counsel for the claimants submits that the deceased was working as driver of Tanker and was earning Rs.25,000/- per month and in order to prove the same, the claimants have produced the salary certificate as per Ex.P7 and also to show that he was an income tax assessee, produced pan card marked as Ex.P10. Further in order to prove the contents of Ex.P7, claimants have examined PW.2 who is the employer of the deceased. He further submits that the Tribunal has not awarded any sum under the head future prospects, hence, prayed to allow the appeal.

8 10. Per contra, learned counsel for respondent No.2 supports the impugned judgment and award and submits that the compensation awarded by the Tribunal is just and proper, hence prayed to dismiss the claim petition. 11. I have considered the submissions of the learned counsel for both the parties. The point that arises for consideration is with regard to quantum of compensation. 12. It is not in dispute that deceased died in a road traffic accident and accident occurred due to rash and negligent driving by the driver of the offending vehicle. In order to substantiate their claim, the claimants have produced the police papers which are marked as Exs.P1 to P3. Ex.P3 discloses that accident was occurred due to rash and negligent driving of the driver of the offending vehicle.

9 13. Insofar as quantum of compensation is concerned, the deceased was aged about 40 years as on the date of the accident. The accident occurred in the year 2015. in order to prove the income of the deceased, claimants have produced salary certificate as per Ex.P7 which discloses that he was drawing salary of Rs.14,000/- to 16,000/-. In order to prove the contents of Ex.P7, the claimants have examined the employer as PW.2 who has stated that deceased was working as driver of tanker Lorry bearing Reg. No.KA-32/A-9359 and was drawing salary of Rs.14,000/- to 16,000/- per month. The Tribunal has taken the income of the deceased at Rs.9,000/- which is on the lower side. This Court considering Exs.P7, P10, and evidence of PW.2, reassess the income of the deceased at Rs.12,000/- per month. As per post mortem report, the deceased was aged about 40 years. In view of the law laid down by the

10 Constitutional bench of the Hon'ble Apex Court in the case of National Insurance Co., Ltd., vs. Pranay Sethi and others reported in AIR 2017 SC 5157, 25% is to be added as future prospects to the income of the deceased, which comes to Rs.3,000/- the monthly income of the deceased would be Rs.15,000/- (Rs.12,000+3,000). There are five claimants hence, 1/4th is to be deducted towards personal expenses of the deceased which comes to Rs.3,750/- Hence, after deducting personal expenses, the income of the deceased would be Rs.11,250/-. The deceased was aged about 40 years, therefore, the multiplier applied to his age group is ‘15’ as per ruling of the Hon'ble Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121. Thus, the claimants are entitled for compensation to a sum of Rs.20,25,000/-

11 (Rs.11,250x12x15) under the head loss of dependency. 14. Further, in view of the law laid down by the Hon’ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC 130, which has been subsequently clarified by the Hon’ble Apex Court in United India Insurance Co. Ltd. Vs. Satinder Kaur alias Satwinder Kaur and Others reported in AIR 2020 SC 3076, each of the claimants are entitled to a sum of Rs.40,000/- towards loss of consortium. The claimants are five in number, hence the compensation towards loss of consortium would be Rs.2,00,000/-. In addition, the claimants/appellants are entitled to a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- under the head of loss of estate. Thus, in all, the claimants/appellants are entitled for total

12 compensation of Rs.22,55,000/- as against Rs.12,65,000/- awarded by the Tribunal. 15. In view of the above discussion, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The impugned judgment and award passed by the Tribunal is modified. The claimants are entitled to enhanced compensation of Rs.9,90,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization. However, the claimants are not entitled for interest for the delayed period as per order dated 19.03.2018.

13 iii. The second respondent/insurance company is directed to deposit the compensation amount before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment. Sd/- JUDGE VNR