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MFA No. 2643 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2023 BEFORE THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY MISCELLANEOUS FIRST APPEAL NO. 2643 OF 2020 (MV-D)
Between:
Smt. Susheela V, W/o Late Srirama K.N. Now aged about 34 years,
Kum. Chethana K.S, D/o Late Srirama K.N @ Sriramappa, Now aged about 12 years
Smt. Lakshmamma, W/o Late Nanjappa, Now aged about 74 years
2nd Minor Appellant is represented by natural guardian/mother 1st appellant herein.
All are residing at Kamandahalli Village, Mavalli Post, Bangarapet Taluk, Kolar District. …Appellants (By Sri. Gopal Krishna N., Advocate)
Digitally signed by BHARATHIDEVI K KORLAHALLI Location: High Court of Karnataka
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And:
Sri. Devaraj M.K. S/o Krishnappa, major by age, Residing at Mittamalahalli Village, Hunukunda Post, Bangarapet Taluk, Kolar District-563114.
The National Insurance Company Ltd., Regional Office, Shubaram Complex, M.G.Road, Bengaluru-560001 Rep: by its Manager. …Respondents (By Sri. Ashok N. Patil, Advocate for R-2; Notice to R-1 is dispensed with vide order dated 22.03.2022)
This Miscellaneous First Appeal is filed under Section 173(1) of M.V.Act praying to modify the judgment and award dated 14.11.2018 in M.V.C.No.4190/2016, passed by the Motor Accident Claims Tribunal at Bangalore (SCCH-11) and enhance the compensation awarded from Rs.17,77,940/- to Rs.30,00,000/- along with cost and interest and to pass any such further order or orders as this court may deem fit and proper in the interest of justice.
This Miscellaneous First Appeal coming on for Admission through Physical Hearing/Video Conferencing, this day, the Court delivered the following:
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MFA No. 2643 of 2020
JUDGMENT
The present appeal is filed by the appellants under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned I Addl.Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-11), (hereinafter referred to as `the Tribunal’, for short), in its judgment and award dated 14.11.2018 in M.V.C.No.4190/2016. 2. The summary of the case of the claimants before the Tribunal was that, deceased K.N.Sriram @ Sriramappa, who is said to be the husband of claimant No.1, father of claimant No.2 and son of claimant No.3, while going on his motorcycle bearing registration No.KA-08-K-2958, on the date 23.02.2016, from his village Kamandahalli, Bangarapet Taluk, at about 6.30 p.m., near overhead tank at Nayakarahalli Village, on Nayakarahalli-Hudukula road, a Hero Honda Splendor plus motorcycle bearing registration No.KA-08-L-0147, coming from Hudukula side, being ridden by its rider in a rash
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MFA No. 2643 of 2020
and negligent manner, coming from wrong side, dashed to the motorcycle upon which the deceased was going. Due to the said road traffic accident, the deceased fell down and sustained multiple injuries. Immediately, he was taken to R.L.Jalappa Hospital, Kolar. After first-aid treatment, he was shifted to Abhaya Hospital, Bengaluru and after one day treatment i.e., on 24.02.2016, when he was again being shifted to R.L.Jalappa Hospital, he succumbed to the injuries on the way. The claimants also stated that the deceased was aged 38 years and apart from doing agricultural work, was also running a poultry farm in the name and style of `Chethana Poultry Farm’ in his village and was also a owner-cum-driver of TATA ACE light motor vehicle bearing registration No.KA-08-4427. From out of these, he was earning a sum of `50,000/- per month. The claimants were wholly dependant upon his income. With this, arraying owner and insurer of the alleged offending motorcycle as respondent Nos.1 and 2, the claimants in total have claimed compensation of a sum of `1,50,00,000/- from them.
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Though notice was served, respondent No.1 did not appear before the Tribunal, as such, he was placed ex parte. The respondent No.2-Insurance Company, appearing through its counsel filed its statement of objections wherein it has denied the averments made by the claimants in their claim petition. It also denied the manner of occurrence of the accident, age, income and occupation of the deceased. Before the Tribunal, the claimant No.1 got herself examined as PW-1 and got marked documents from Exs.P-1 to P-26. On behalf of the respondents, neither any witness was examined nor any documents were produced. 4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
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MFA No. 2643 of 2020
Sl.No. Particulars Amount in ` 1 Loss of estate 15,000/- 2 Loss of consortium 40,000/- 3 Funeral expenses 15,000/- 4 Medical expenses 28,000/- 5 Loss of dependency 16,79,940 Total 17,77,940/-
The Tribunal awarded compensation of a sum of `17,77,940/- with interest at the rate of `9% per annum from the date of the petition till realisation of the award amount and directed the respondent No.2 - Insurer to deposit the award amount. Aggrieved by the same, contending that the compensation awarded by the Tribunal is on the lower side, the claimants before the Tribunal have filed the present appeal, seeking enhancement of the compensation on account of death of deceased Sriram K.N. @ Sriramappa in the road traffic accident in question. 6. In the present appeal, notice to respondent No.1 is dispensed with vide order dated 22.03.2022. The
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second respondent - Insurance Company is represented by its learned counsel. 7. Records from the Tribunal pertaining to the matter were called for and the same are placed before the Court. 8. Though this matter is listed for admission, with the consent from both parties, the matter was taken up for arguments on main on merits.
Heard the arguments of learned counsels from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the records of the Tribunal. 10. The present appeal being the claimants’ appeal and the respondent No.2 (Insurer) having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimants and also the alleged rash and negligent driving on the part of the driver of the offending
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vehicle is not in dispute. Further the fastening of the liability upon the respondents has not been challenged by the respondents. As such, the occurrence of the road traffic accident as alleged in the claim petition and the death of Sriram K.N. @ Sriramappa in the said accident need not have to be reanalysed.
Furthermore, the claimant No.1 Smt.Susheela, who is said to be the wife of the deceased, has in her evidence reiterated the contentions taken by them in their claim petition and contended that the accident in question has occurred solely due to the rash and negligent driving of the offending motorcycle by its rider. The evidence of PW-1 is further corroborated from the documents produced from the claimants’ side from Exs.P-1 to P-26, which inter alia includes copies of FIR, complaint, scene of offence panchanama, rough sketch, Motor Vehicle Inspector’s report, inquest panchanama, post mortem report and the charge sheet. The charge sheet at Ex.P-8 shows that police after investigation have filed the charge
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MFA No. 2643 of 2020
sheet against the rider of the offending motorcycle for the offences punishable under Sections 279 and 304-A of Indian Penal Code, 1860.
Thus, the evidence of PW-1 corroborated by Exs.P-1 to P-8 would go to show that the accident in question has occurred on the date, time and place alleged in the claim petition and due to the rash and negligent driving of the offending motorcycle bearing registration No.KA-08-L- 0147 by its rider. As such, the respondent No.2 being the insurer of the said offending vehicle was held to be liable to pay the compensation to the claimants by the Tribunal. The said finding of the Tribunal cannot be found fault with. As such, the only the question that remains for consideration is about correctness of computation of the compensation awarded by the Tribunal.
Learned counsel for the appellants, who is appearing through Video Conference, in his argument submitted that the income of the deceased which is taken at `10,000/- per month by the Tribunal is on the lower
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MFA No. 2643 of 2020
side. He submitted that the evidence of PW-1 that deceased was not only an agriculturist, but, also was running a Poultry Farm and was owning and running a TATA ACE light goods vehicle, stands corroborated by the documents produced by the claimants at Exs.P-9 to P-14. Despite the Tribunal taking note of the same, since it has taken the income of the deceased only at `10,000/- per month, the same warrants a revisit. He also submitted that the Tribunal ought to have awarded compensation under conventional heads to the claimants.
Per contra, learned counsel for respondent No.2- Insurance Company in his arguments submitted that even though the claimants have contended that the deceased was owning an agricultural land, Poultry Farm and a light goods vehicle, however, no document about the income which the deceased said to have been getting from those activities have not at all been produced by the claimants. He submitted that three alleged payment vouchers would be of no help to prove the income of the deceased.
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MFA No. 2643 of 2020
Further, no distributor or any customer of the Poultry Farm have been examined, as such, there is nothing on record to show that the deceased had the income as claimed by the claimants. With this, he submitted that the compensation awarded by the Tribunal is just and reasonable which does not warrant any interference.
The claimant as PW-1, in her examination-in- chief filed in the form of affidavit evidence has reiterated the contentions taken by the claimants in their claim petition. To show that her husband was an agriculturist, she has produced three copies of RTC at Ex.P-9 and to show that her husband i.e., the deceased Sriram was running a Poultry Farm also, she has produced Poultry Farm licence shown to have been issued by the local Panchayath at Ex.P-10 and Training Certificate at Ex.P-11, three slips stated to be the payment vouchers at Ex.P-12 and she has also produced a `B’ Register Extract at Ex.P- 13, to show that deceased was owning a land and goods vehicle also.
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MFA No. 2643 of 2020
The above documents produced by the claimants in the form of RTC, Poultry Farm licence and `B’ Extract of the goods vehicle though at the maximum would go to show that the deceased had some extent of agricultural land and said to have been running a poultry farm in a village and owning a light goods vehicle, but, that itself would not show that he had a particular income from out of the above alleged activities. Merely because it is shown that he had some agricultural land and a Poultry Farm, by that itself, any specific amount cannot be inferred as his income. The three slips which are alleged to be the payment vouchers at Ex.P-12 though shown to be the slips about supply of some items to the Poultry Farm, but, by that itself, the business transaction or the turn over of the Poultry Farm cannot be anticipated or expected. Had really the deceased had sufficient income as contended by the claimants and if he had really involved in multifarious activities, then, naturally he was expected to maintain certain basic Books regarding his business transactions.
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When he was running a commercial vehicle, he was expected to maintain some accounts in that regard. Similarly, when the deceased was claimed to be a licenced Poultry Farm owner, it was expected of him to maintain some business accounts. As such, when the claimants claimed that the deceased had income of `50,000/- per month in variables, he should have been an Income-tax assessee and should have filed the Income-tax returns. However, admittedly no such Income-tax returns have been produced by them nor even any whisper of he being an Income-tax assessee has been made by the claimants either in the claim petition or in the evidence of PW-1. Even to show that he was getting any considerable profit and had a considerable business turnover with his Poultry Farm also, no documents, including the Books of Accounts or bank statements about the commercial transaction which he has made, have been produced. Nothing had prevented the claimants to produce the Books of Accounts to show the
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business turnover and the profit which he has gained from the alleged business. As such, mere possession of some licence about some business like a Poultry Farm or a mere owning of a light motor goods vehicle itself would not lead to any inference that the deceased had considerable income, much less, as agitated by the claimants in their claim petition or in their evidence. Thus, it is considering the same, the Tribunal has not believed the contention of the claimant about the quantum of income of the deceased, but, on the other hand, it has on own assessed the income of the deceased at `10,000/- per month. Even the said taking of income at `10,000/- per month also is slightly higher than the notional income prevailing for the relevant year 2016, in which year, the road traffic accident has taken place. Thus, I do not find any reason to enhance the income of the deceased at `10,000/- per month which is taken by the Tribunal. 15. Since the Tribunal taking the said income at `10,000/- as monthly income of the deceased, has after
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adding 40% towards future prospects of the income of the deceased and giving the standard deduction of one-third and also applying the standard multiplier of `15’ considering the age of the deceased, which was 37 years at the time of his death, has rightly computed the compensation towards loss of dependency at `16,79,940/- the same does not warrant any interference at the hands of this Court. 16. It is after assessing and taking into consideration of the medical bills produced by the claimants at Ex.P-23 and prescriptions at Ex.P-24, since the Tribunal has awarded a sum of `28,000/- towards medical expenses, the same does not warrant any interference at the hands of this Court. 17. Under the conventional heads, which includes compensation towards loss of consortium, funeral expenses and loss of estate, since the Tribunal has awarded compensation of a sum of `40,000/-, `15,000/-
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MFA No. 2643 of 2020
and `15,000/-, the same does not warrant any interference at the hands of this Court.
Thus, the Tribunal though has awarded compensation of a sum of `17,77,940/-, however, it has not considered awarding of parental and filial consortium to claimant Nos.2 and 3 respectively. As such, the only enhancement which the claimants/appellants deserves through this appeal is the parental consortium and filial consortium of a sum of `40,000/- each to appellant Nos.2 and 3 (claimant Nos.2 and 3 before the Tribunal) respectively. 18. Barring the above, the claimants are not entitled for compensation under any other heads or enhancement or modification of compensation under the existing heads. Thus, in total the appellants are entitled for the modified compensation as below :
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Sl.No. Particulars Amount in ` 1 Loss of estate 15,000/- 2 Loss of consortium 40,000/- 3 Funeral expenses 15,000/- 4 Medical expenses 28,000/- 5 Loss of dependency 16,79,940 6 Filial and parental consortium to appellant Nos.2 and 3 respectively - 40,000/- each 80,000/- Total 18,57,940/-
Thus, from out of the total compensation of a sum of `18,57,940/-, after deducting the compensation awarded by Tribunal which is at `17,77,940/-, the enhancement to which the claimants/appellants are entitled to would be a sum of `80,000/-. It is only to this extent, the impugned judgment and award deserves interference and modification at the hands of this Court.
Accordingly, I proceed to pass the following : ORDER [i] The appeal filed by the claimants stands allowed in part;
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[ii] The impugned judgment and award dated 14.11.2018, passed by the learned I Addl.Small Causes Judge and Motor Accident Claims Tribunal at Bengaluru (SCCH-11), in M.V.C.No.4190/2016, awarding a total compensation of `17,77,940/- to the petitioners (appellants herein) is modified and enhanced by a sum of `80,000/- (Rupees Eighty Thousand only), thus, bringing the total entitlement of compensation by the appellants/petitioners at a sum of `18,57,940/- (Rupees Eighteen Lakhs Fiftyseven Thousand Nine Hundred and Fourty only), which includes compensation of a sum of `40,000/- each payable to claimant Nos.2 and 3 before the Tribunal respectively. [iii] Since the enhanced amount is not a huge amount, the entire enhanced amount be released to appellants Nos.2 and 3 respectively, who are claimant Nos.2 and 3 before the Tribunal, in
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accordance with law and after their due identification. [iv] The rest of the terms of the impugned judgment and award regarding the rate of interest awarded by the Tribunal which is at 9% per annum and fixing the liability upon the respondent No.2 -Insurance Company, apportionment and disbursement shall remain unaltered.
[v) However, as per the order dated 22.03.2022, the delay of 381 days in filing the appeal was condoned, subject to denying the interest on the enhanced amount, the appellants/claimants are not entitled for interest on the enhanced amount for the delayed period of 381 days in filing the present appeal. Draw modified award accordingly.
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The Registry to transmit a copy of this judgment to the concerned Tribunal along with its records without delay.
Sd/- JUDGE
bk/ List No.: 1 Sl No.: 44