RAJU SHERIGARA v. ASHOK DEVADIGA

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI & HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL JUDGMENT (PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

1. The present appeal seeks to challenge the Judgment and Award dated 05.10.2018 in MVC No.140/2017 passed 2 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR by the II Addl. Senior Civil Judge & Addl. MACT, Udupi (hereinafter referred to as the “Impugned Award”). By the Impugned Award, learned Tribunal has awarded a compensation of Rs.10,38,088/- along with interest at 6% per annum from the date of petition till its realisation. The present appeal is filed by the appellants/claimants seeking enhancement.

2. We have heard the learned Senior Counsel for the appellants/claimants and learned counsel respondent No.2/Insurance Company. Notice respondent No.1 has been dispensed with, by order dated

07.07.2023.

3. The brief facts of the case are that on 25.09.2016 at

04.30 p.m., the deceased was travelling as a pillion rider in a motorcycle bearing registration No.KA-20-ED-1689 along with her son from Pandukallu towards Hebri. At that time, and as a result of the rider of the motorcycle applying the brakes very suddenly, the motorcycle lost control, skid and the deceased fell on the road and the 3 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR deceased sustained grievous injuries including on her head. The deceased was taken to KMC Hospital, Manipal in an ambulance. The deceased was admitted as an in- patient from 25.09.2016 to 29.09.2016 in KMC Hospital and on 29.09.2016 she succumbed to her injuries.

3.1 The claimants being the appellant No.1/husband and appellant Nos.2 and 3 /daughters of the deceased, filed a claim petition stating that they had spent Rs.88,000/- towards hospital expenses and medical expenses. In addition it was stated that the deceased was running a dairy farm having five milk giving cows and was selling milk to the Shivapura Milk Society of which she was a member, on a regular basis and she was also doing agricultural work apart from the work of cooking food and washing utensils etc. as a home maker. Based on these contentions, a petition was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’) seeking compensation in a sum of Rs.33,24,180/- with interest and costs before the MV Act Tribunal. 4 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR

3.2 The petition was contested by the Respondent No.2/Insurance Company. Although the owner of the offending vehicle was served, he did not appear and was proceeded with ex parte.

3.3 Based on the pleadings between the parties, the following issues were framed: “ISSUES

1. Whether petitioners prove that on 25.09.2016 at about 16:30 p.m. while the deceased was travelling as pillion rider in Motor Cycle bearing Reg.No.KA-20- ED-1689 along with her son Ashok Devadiga from Pandukallu towards Hebri side who was riding Motor Cycle in a rash and negligent manner and suddenly applied the brake and he lost the control over the bike and Smt. Lalitha Sherigarthi who was pillion rider of the Motor Cycle fell down on the road and as a result of the same, Smt. Lalitha Sherigarthi sustained grievous injuries and later succumbed to injuries at Hospital?

2. Whether petitioners prove that they are entitled for compensation, to what extent?

3. What order or award?”

4. The appellant No.1/claimant being the husband of the deceased examined himself as PW-1 and marked several documents as Exhibits P1 to P13 including 13 documents as Exhibits P3 (Post-mortem report), P4 5 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR (Mahazar), P5 (AIR report), P6 (charge-sheet), P8 (IMV report), P11 (Death Certificate of the deceased), P12 (Milk Producers Co-operative Society card of the deceased) and P13 (passbook of the deceased). No witness was produced by the respondents. They filed two documents Exhibit R1 (Case-sheet) and Exhibit R2 (X-Ray).

4.1 On the basis of the evidence adduced by the parties, the learned Tribunal gave a finding that the rash and negligent riding of the motorcycle was proved. In addition, learned Tribunal although appellants/claimants had sought for medical and treatment expenses of Rs.88,000/-, no documents in this behalf were produced and thus did not award any amounts on this account. The learned Tribunal thus awarded compensation in an amount of Rs.10,38,088/- along with interest at 6% per annum under the following heads: Sl.No. i Heads Monthly income 25% of (i) above to be added towards future prospects Calculation Rs.10,000/- (Rs.10,000/- Rs.1,000/- Rs.11,000) + = 6 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR v Deduction of 1/3rd of income as personal expenses deceased. Compensation after multiplier 13 is applied Towards Loss of estate Towards loss of consortium Towards funeral expenses TOTAL AWARDED COMPENSATION - = Rs.11,000/- Rs.3,666/- Rs.7,334/- Rs.7,334/-x12x11 = Rs. 9,68,088/- Rs. 15,000/- Rs. 40,000/- Rs. 15,000/- Rs.10,38,088/-

5. The learned Senior Counsel appellants/claimants has raised three challenges to the present award. He submits firstly that the deceased was a home maker and that she should have been given compensation at a higher amount. In this behalf he seeks to rely upon a judgment of the Supreme Court in Kirti and another vs. Oriental Insurance Company Limited1 to submit that the monthly income adopted by the learned Tribunal to arrive at the compensation was less and at least Rs.15,000/- should have been adopted as the monthly income. Reliance on this behalf is also placed on Exhibit P.12 which is the Milk Producers Co-operative 1 (2021) 2 SCC 166 7 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR Society card of the deceased to submit that the deceased was regularly selling milk and earning approximately Rs.500/- per month and Rs.15,000/- per month by doing agricultural work. The learned Senior Counsel thus submits that the calculation of monthly income was wrongly undertaken by the learned Tribunal. Secondly, the learned Senior Counsel submits that no amounts have been awarded towards medical expenses despite evidence being produced in this behalf. Lastly, it is contented that the award of amounts on non-pecuniary heads is not in accordance with the judgment in the case of Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and another2 and National Insurance Co.Ltd. Vs. Pranay Sethi3.

6. Learned counsel for the respondent No.2/Insurance Company on the other hand submits that the Impugned Order does not suffer from any infirmity. He however ORDER (i) The appeal is allowed in part; (ii) The Impugned Judgment and Award dated

05.10.2018 in MVC No.140/2017 passed by the learned II Addl. Senior Civil Judge & Addl. MACT, Udupi, is modified, to the extent that the claimants are entitled to enhanced compensation of Rs.1,64,000/- along with interest at the rate of 6% per annum in addition to Rs.10,38,088/- as awarded by the learned Tribunal. (iii) The remaining portion of the Impugned Award learned Tribunal remains undisturbed. (iv) The respondent No.2/Insurance Company shall deposit the enhanced compensation with interest applicable thereon, as awarded by the learned Tribunal, within a period of eight weeks 17 NC: 2026:KHC:25831-DB MFA No. 1434 of 2019 HC-KAR from the date of receipt of a copy of this judgment; (v) On such deposit of compensation, the same released favour appellants/claimants, on filing of an appropriate application by the appellants/claimants withdrawal of the enhanced amount. (vi) The Registry is directed to draw the modified Award accordingly. (vii) The Registry is directed to transmit a copy of this judgment to the concerned Tribunal along with its records. (viii) No order as to costs. Sd/- (JAYANT BANERJI) JUDGE Sd/- (TARA VITASTA GANJU) JUDGE KS List No.: 1 Sl No.: 33 18