BALLARI v. NOTICE TO R1 DISPENSED WITH)

6. SMT. JAYAMMA W/O. SUNKA NAYAK, AGED ABOUT 59 YEARS, OCC. HOUSE WIFE, ALL ARE R/O. 2ND WARD, BARIKARA STREET, - 2 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 NEAR ANGANAWADI SCHOOL, SIRIWAR VILLAGE, BALLARI TALUK AND DISTRICT 583102. …APPELLANTS (BY SRI. MANJUNATHA G. PATIL, ADVOCATE) AND:

1. SUNKAYYA S/O. ADIBASAPPA, AGED ABOUT 37 YEARS, OWNER CUM RIDER OF THE HERO HOND SPLENDER MOTOR CYCLE, R/O. #207, DONEKAL SOMANNA STREET, NEAR ESHWARA TEMPLE, SIRIWARA-VILLAGE, BALLARI TALUK AND DISTRICT-583102.

2. THE MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, 1ST FLOOR, KALABURGI SQUARE DESAI CROSS, DESHPANDE NAGAR, HUBBALLI 580029. (BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R2; NOTICE TO R1 DISPENSED WITH) …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR THE LOWER COURT RECORDS IN MVC NO.749/2020 DATED 18.08.2022 ON FILE OF 1ST ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT-VTH AT BALLARI AND MODIFIED AND ENHANCE THE COMPENSATION IN MVC NO.749/2020 DATED 18.08.2022 ON FILE OF 1ST ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT-VTH AT BALLARI IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T - 3 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) This appeal is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (for short ‘MV Act’), challenging the judgment and award dated 18.08.2022 passed in MVC No.749/2020 on the file of the learned I Additional Senior Civil Judge and Member MACT-V, Ballari (for short ‘Tribunal’), whereby, the Tribunal awarded a sum of Rs.10,45,944/- as compensation.

2. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

3. Brief facts of the claimants’ case before the Tribunal are as under: The claimants filed a claim petition under Section 166 of the MV Act before the Tribunal seeking compensation on account of death of Sunkamma W/o. Basava in a road traffic accident. On 11.11.2020 at about 4.00 p.m., when the deceased along with respondent No.1 were proceeding in motorcycle bearing registration No.KA-34/X-3097 from her field, when they reached near B.D. Halli cross on Ballari-Moka - 4 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 road, at that time respondent No.1 rode the said motorcycle in a rash and negligent manner with great speed and fell in ditch, as a result of which deceased fell down from the motorcycle and sustained severe injuries. After the accident, the injured was shifted to VIMS Hospital, Ballari for treatment, where she declared to be dead.

4. The Tribunal considering the evidence on record at Ex.P1 to P15, oral evidence of PW1 and Ex.R1 & R2, granted total compensation of Rs.10,45,944/- with interest at 6% per annum from the date of petition till the date of deposit. Being aggrieved by the same, the appellants/claimants have preferred this appeal.

5. Learned counsel the appellants/claimants contended that the claimants are the husband, children, father and mother of the deceased. The deceased was aged about 40 years at the time of accident and was working as coolie and agriculturist and earning Rs.18,000/- per month. But the Tribunal has considered the income of the deceased at Rs.8,000/- per month which is on lower side. He further contended that the Tribunal has not considered 40% of the - 5 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 future prospects to the income of the deceased. Further, the Tribunal has deducted the personal expenses of the deceased to the extent of 1/3rd instead of 1/5th, since there are six dependents of the deceased. Hence, he prayed to allow the appeal.

6. Per contra, learned counsel for the Insurance Company vehemently contended the Tribunal has considered oral and documentary evidence on record and granted fair and reasonable compensation on all heads. Hence, he prayed to dismiss the appeal.

7. As there is no dispute with regard to the occurrence of the accident on 11.11.2020 at about 4.00 p.m., when the deceased along with respondent No.1 were proceedings in the motorcycle bearing registration No.KA-34/X-3097 from her field, when they reached near B.D.Halli cross on Ballari-Moka road, at that time respondent No.1 rode the said motorcycle in a rash and negligent manner with high speed, as a result of which the deceased fell down from the motorcycle and sustained severe injuries and succumbed to the accidental injuries. - 6 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023

8. From the perusal of the judgment and award, the Tribunal considered the notional income of the deceased at Rs.8,000/- per month. As per the Circular issued by the Karnataka State Legal Services Authority as well as High Court Legal Services Committee, Dharwad, for the accident of the year 2020 the notional income would be assessed at Rs.13,750/- per month. Hence, the income of the deceased considered by the Tribunal at Rs.8,000/- is on lower side.

9. At the time of accident, the deceased was aged about 41 years as per the postmortem report. But, the Tribunal has not considered future prospects at 25%. In view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others1, claimants are entitle for future prospects.

10. Admittedly, claimants are the dependents of the deceased. But the Tribunal has not considered the parents of the deceased as dependents and hence, deducted 1/3rd of the personal expenses of the deceased, which is not fair. The parents of the deceased also considered as the dependents of 1 (2017) 16 SCC 680 - 7 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 the deceased and therefore, 1/4th of the personal expenses of the deceased shall be taken into consideration.

11. The deceased was aged about 41 years at the time of the accident. As per decision of the Hon’ble Apex Court in the case of Sarala Verma & Others Vs. Delhi Transport Corporation & Another2, multiplier applicable to the age of the deceased is ‘14’. Thus, loss of dependency is reckoned as under: Rs.13,750 + 25% (Rs.3,438/-) = 17,188/- x ¼ = Rs.4,297/- Rs.17,188-Rs.4,297=Rs.12,891 x 12 x 14 = Rs.21,65,688/-

12. The Tribunal has committed an error in not awarding fair compensation under the head of loss of consortium, loss of estate and funeral expenses. As per the judgment rendered by the Hon’ble Apex Court in the case of Magma General Insurance Company Limited Vs Nanu Ram @ Churu Ram & Others3, the claimants are entitled to Rs.44,000/- each towards loss of consortium and also entitled to Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses (including 10% escalation). Thus, in 2 2009 ACJ 1298 3 2018 (18) SCC 130 - 8 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 all, the claimants are entitled to modified compensation as under: Heads Amount in Rs. Loss of dependency 21,65,688/- Loss of consortium (Rs.44,000x6) 2,64,000/- Funeral expenses Loss of estate Total 16,500/- 16,500/- 24,62,688/-

13. Thus, claimants are entitled compensation of Rs.24,62,688/- as against Rs.10,45,944/- awarded by the Tribunal.

14. In the result, we pass the following: ORDER a) The appeal filed by the claimants is allowed in part. b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants are entitled to total compensation Rs.24,62,688/- against Rs.10,45,944/- awarded by the Tribunal. c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realization. - 9 - NC: 2024:KHC-D:16608-DB MFA No. 101748 of 2023 d) Insurance Company shall deposit modified compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of copy of this judgment. e) The apportionment, disbursement and deposit shall be made in terms of the award of the Tribunal. f) The amount in deposit, if any, shall be transmitted to the Tribunal. g) Draw modified award accordingly. h) Registry is directed to send a copy of this judgment to the Tribunal forthwith. i) No order as to costs. Sd/- (H.T.NARENDRA PRASAD) JUDGE Sd/- (VENKATESH NAIK T) JUDGE SMM/ct-an List No.: 1 Sl No.: 39