SMT NARASAMMA v. SRI KALYAN RAMAN RAJU

Judgment

7. SMT NARASAMMA W/O LATE GANGAPPA AGED ABOUT 43 YEARS SMT GANGARATHNAMMA W/O THIPPANNA D/O LATE GANGAPPA AGED ABOUT 26 YEARS SRI RAMAPPA S/O LATE GANGAPPA AGED ABOUT 24 YEARS SMT ADILAKSHMI W/O NARAYANASWAMY D/O LATE GANGAPPA AGED ABOUT 22 YEARS SMT VARALAKSHMAMMA ALIAS VARALAKSHMI D/O LATE GANGAPPA AGED ABOUT 20 YEARS N GAYATHRI D/O LATE NARAYANASWAMY AGED ABOUT 5 YEARS N MEENA D/O LATE NARAYANASWAMY, AGED ABOUT 3 YEARS, APPELLANTS 6 & 7 ARE MINORS

PRAJWAL A Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 REP. BY THEIR NATURAL MOTHER-CUM GUARDIAN-4TH APPELLANT R/AT PUTTAPARTHI VILLAGE BAGEPALLI TALUK APPELLANTS 2 TO 5 ARE R/AT SOMAREDDY HALLI GANGATI APLLI POST LEPAKSHI MANDALAM HINDUPUR TALUK ANDHRA PRADESH (BY SMT. SUGUNA R REDDY, ADV.) AND:

2. SRI KALYAN RAMAN RAJU S/O RAJU, AGED ABOUT 63 YEARS R/AT NO.7-1-54, PLOT NO.501 PAVANI HERITAGE, D.K ROAD NEAR M.C.H.PLAY GROUND AMEERPET, HYDERBAD ANDRAPRADESH - 500 001 THE BRANCH MANAGER ICICI LOMBARD GENERAL INSURANCE CO.LTD. ICICI LOMBARD HOUSE NO.414, VEERASAVARAKAR MARG NEAR SIDDI VINAYAKA TEMPLE PRABHADEVI, MUMBAI (BY SRI.B.PRADEEP, ADV. FOR R2; VIDE ORDER DATED 23.09.2021 NOTICE TO R1 IS DISPENSED WITH) …APPELLANTS …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.10.2016 PASSED IN MVC NO.18/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKABALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE DELIVERED J., T.G.SHIVASHANKARE GOWDA FOLLOWING: - 3 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 JUDGMENT In this appeal, the petitioners have challenged the judgment and award dated 20.10.2016 in M.V.C.No.18/2014 passed by the Principal Senior Civil Judge and CJM., Chikkaballapur ('the Tribunal' for short).

2. The appellants were the petitioners and the respondents were the respondents before the Tribunal. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are, Gangappa is the husband of petitioner No.1, father of petitioner Nos.2 to 5 and grand-father of petitioner Nos.6 and 7. On

08.08.2013, while Gangappa was riding TVS Moped bearing registration No.KA-40/R-8453 in front of Green Park Hotel near Gantamvaripalli within the outskirts of Bagepalli town, car bearing No.AP- 09/CD-8744 came from the opposite direction and - 4 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 dashed against the TVS Moped of Gangappa, killing him at the spot and damaging the Moped.

3.1. The petitioners approached the Tribunal for grant of compensation of Rs.23,00,000/-. Claiming that the deceased was an agriculturist- cum-mason by avocation earning Rs.500/- per day and maintaining the family consists of wife, children and grand-children.

3.2. The Insurance Company though admitted the policy of insurance contended that the driver of the car did not possess valid driving licence, there was violation of terms and conditions of the policy, the petitioner Nos.2 to 5 being major are not dependants and they are not entitled to claim compensation.

3.3. The Tribunal on recording the evidence and hearing the parties, by the impugned judgment and award allowed the claim petition granting - 5 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 compensation of Rs.4,54,400/- with interest at 6% per annum. Pleading inadequacy and seeking enhancement, the petitioners have filed this appeal on various grounds.

4. Heard the arguments of Smt.Suguna R.Reddy, learned counsel for the petitioners and Sri.B.Pradeep, learned counsel for the Insurance Company.

5. It is the contention of the learned counsel for the petitioners that the deceased was aged 45 years, but the Tribunal has taken at 50, meager income of Rs.6,000/- per month is taken, future prospects was not considered, 50% is deducted towards personal expenses instead of 1/4th, 20% of contributory negligence is attributed against the deceased, the compensation towards loss of dependency and the conventional heads is inadequate and sought for enhancement. - 6 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017

6. Per contra, learned counsel for the Insurance Company while supporting the impugned judgment submits that the deceased was not holding driving licence to ride the Moped, there was head-on collision, the deceased has contributed equally for the accident but Tribunal has erred in attributing only 20% of contributory negligence and it has to be 50%. Two of the daughters of the deceased were married and two others are major, hence, they are not the dependants of the deceased, so also the grand-children. The Tribunal has rightly deducted 50% towards personal expenses as the wife is only the dependant.

7. We have given our anxious consideration to the arguments addressed on both sides and also perused the materials on record.

8. The material on record did point out that on

08.08.2013 at about 8.15 p.m., there was an accident involving TVS Moped ridden by - 7 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 deceased and the car in question in front of Green Park Hotel near Gantamvaripalli village on N.H.7 at the outskirts of Bagepalli Town. Consequent to the injuries sustained, the victim died at the spot. On the complaint filed by one G.Suresha, Bagepalli Police have registered a case in Crime No.171/2013 against the driver of the car for the offences under Sections 279, 304A of IPC read with Section 187 of the Motor Vehicles Act, 1988. Upon investigation, charge sheet was also filed against the driver of the car in C.C.No.246/2014 before the learned Civil Judge & J.M.F.C., Bagepalli.

9. Ex.P9 is the I.M.V. report indicating the damages on the Moped and no damages on the car. The spot mahazar and the statement of the witnesses point out that the deceased was riding the Moped towards Bagepalli and the car came and hit from behind. There is no evidence placed by the Insurance Company to show plying of two-wheeler - 8 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 was prohibited at the accident spot. Therefore, the Tribunal in attributing contributory negligence at 20% against the deceased and we are not inclined to differ with the findings recorded by the Tribunal and attribute complete negligence to the driver of the car.

10. The petitioner claims that the deceased was agriculturist-cum-mason, earning Rs.15,000/- per month; in proof of the income, the petitioners have not produced any evidence. The Tribunal arrived at a notional income at Rs.6,000/- per month. The accident is of the year 2013. In the absence of proof of income, having regard to his avocation, we are of the opinion that Rs.8,000/- per month would be the just notional income of the deceased.

11. As seen from the records, the age of the deceased is 50 years and the Tribunal has rightly taken the age of the deceased at 50 years. The material on record also points out that the deceased - 9 - NC: 2024:KHC:11639-DB MFA No. 292 of 2017 left behind his wife, young son, one unmarried daughter and two married daughters. Petitioner Nos.2 and 4 are married daughters, petitioner Nos.6 and 7 are grand-children. They cannot be treated as dependants. Hence, considering three dependants, personal expenses has to be deducted at 1/3rd of the total income.

12. In a case of this nature, determination of compensation settled the Hon'ble Apex Court in National Insurance Co. Ltd. -Vs- Pranay Sethi and Others1, multiplier in Sarla Varma (Smt.) and Others -Vs- Delhi Transport Corporation and Another2 and conventional heads has been settled in Magma General Insurance Company Ltd. v. Nanu Ram3. Since the deceased was aged 50 years, 10% of future prospects has to be added and the multiplier applicable is '13'. The loss of dependency shall be : ORDER i) The appeal is partly allowed. The impugned judgment and award is modified as follows: a) The appellants are entitled to enhanced compensation of Rs.6,25,852/-. The said amount shall carry interest at 6% p.a. from the date of petition till its realization excluding 553 days delay in filing the *I.A.No.1/2019. b) Respondent No.2/Insurer shall deposit the aforesaid amount before the Tribunal within four weeks from the date of receipt of copy of this order. c) The impugned award with regard apportionment and investment is maintained. d) The registry shall transmit the trial court records to the Tribunal forthwith. Sd/- JUDGE Sd/- JUDGE KNM CT:HS List No.: 1 Sl No.: 23 *Corrected v/o dt. 30-08-2024.