IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT DHARWAD

DATED THIS THE 12TH DAY OF FEBRUARY 2009

PRESENT

THE HON'BLE MR. JUSTICE N.K. PATIL

AND.

THE HON'BLE MR. JUSTICE ARALI NAGARAJ

MFA. No.2032/2004 c/w MFA No. 7743/2003 (MV)

BETWEEN:

• 1. Smt. B. Seetha W/o Late B. Vishnu Thirthachar, Aged about 42 years, R/o Sandur Taluk, Bellary - 583 119
• 2. Smt. B. Raghamma W/o Late B. Narasimha Murthy, Aged about 66 years, R/o Sandur Taluk, Bellary - 583 119. ....Appellants.
• (By Sri.Y.Lakshmikant Reddy and Smt. Y. Malathi Reddy, Advs.)

$\sim$

AND:

1. Sri. Yellappa, Major,

S/o Sangappa Madareddy. Owner of Maxi Cab. Reg.No.KA-37/2203, R/o No.E-16-A, Near Government Hospital. Munirabad. Raichur- 583 233.

2. United India Insurance Co., Ltd., By its Manager, I Floor. Umashankeshwara Building, Station Road. Hospet $-583201$ . ...Respondents

(By Sri.S.S. Koliwad for Sri. B.C. Seetharama Rao, Adv.for R.2. $R.1$ and $R.3$ – notice dispensed with

This Misc. First Appeal is filed under Section 173(1) of M.V.Act against the judgment and award dated 27.09.2003, passed in M.V.C.No.39/1997 on the file of the Additional District Judge and Member, M.A.C.T-II, Bellary, allowing the claim petition for compensation and seeking enhancement $\sigma$ f compensation and etc.,

IN M.F.A.No.7743/2003(MV)

BETWEEN:

1. United India Insurance Company Limited, Hospet Branch. Through its Regional Office, #25, Shankaranarayana Building, M.G.Road.

Bangalore – 560 001.

Represented by its Deputy Manager, Smt. K.S. Vaijayanthi. .......Appellant

(By Sri.S.S. Koliwad for Sri. B.C. Seetharama Rao, $Adv.)$

AND:

$\ddot{\phantom{a}}$

• 1. Smt. B. Seetha W/o Late B. Vishnu Thirthachar, Aged about 42 years, R/o Sandur Taluk, Vittal Mandir, Bellary - 583 119
• 2. Smt. B. Raghamma W/o Late B. Narasimha Murthy, Aged about 66 years, R/o Sandur Taluk, Vittal Mandir, Bellary - 583 119. ....Appellants.

(By Sri.Y.Lakshmikant Reddy and Smt. Y. Malathi Reddy, Advs.)

This Misc. First Appeal is filed under Section 173(1) of M.V.Act against the judgment and award dated 27.09.2003, passed in M.V.C.No.39/1997 on the file of the Additional District Judge and Member, M.A.C.T-II, Bellary, awarding a compensation of Rs. $11,59,360/$ with interest at 8% per annum. and etc.,

These Misc. First Appeals coming on for orders this day, ARALI NAGARAJ, J., delivered the following : -

Ľ

COMMON JUDGMENT

These two Miscellaneous First Appeals have arisen from the same common judgment and award dated 27.09.2003 passed by the in MVC.No.39/1997 and other connected case by the learned Addl. District Judge & Member, MACT-II, Bellary, (hereinafter referred to as the " $MACT'$ for short). Therefore, both these appeals are disposed of by this common judgment.

2. MFA.No.2032/04 is filed by the claimant Nos.1 and 2 in MVC No.39/07 seeking enhancement of compensation over and above Rs.11,59,360/- awarded by the MACT. MFA.No.7743/03 is filed by the Insurance Company with which the vehicle involved in the accident in question was insured, aggrieved by the very same judgment and award in MVC 39/07 seeking reduction in the said amount of compensation awarded in favour of the claimants in the said case.

$\overline{\phantom{0}}$

سيت

$\overline{4}$

3. Though these appeals are listed today for admission, they are taken for final disposal by consent of the learned counsel for the respective parties in both the appeals, and their arguments on merits are heard. We have perused the impugned judgment and award insofar as it relates to MVC.No.39/1997 and also the entire material on record.

4. The following findings recorded by the MACT in the impugned judgment, insofar as it relates to the claim petition of the petitioners in MVC.No.39/1997 are not disputed.

• (a) The deceased B. Vishnu Thirthachar, the husband of appellant No.1 and the son of appellant No.2 died as a result of the motor vehicle accident which occurred on 22.8.1996 at about 9.15 p.m. at Kodligi Sondur Road near Hirekerenahalli Cross.
• (b) As on the date of the said accident the deceased was aged 42 years and was a practicing advocate with 16 years of

$\ddot{\phantom{0}}$

practice. As such the appellant Nos.1 and 2 respectively being the wife and mother of the deceased are the claimants entitled to receive compensation in respect of the death of the deceased.

5. Sri. Lakshmikant Reddy, the learned counsel for the claimant - appellant in MFA.No.2032/04 submitted that the MACT was not justified in awarding $\text{Rs.}5,000$ /- towards funeral expenses, $\text{Rs.}5,000$ /towards loss of consortium in favour of the 1^st appellant $-$ wife and Rs.5,000/ $-$ towards loss to the estate and therefore, the amounts awarded under these heads deserve to be enhanced. He further submitted that the MACT has not awarded any amount of compensation towards loss of love and affection to $2^nd$ appellant mother of the deceased. He also submitted that the MACT was not justified in taking Rs.6,000/- as monthly income of the deceased despite recording its findings

that he had a lucrative practice with experience of about 16 years as an advocate.

6. Per contra, Sri.S.S. Koliwad, the learned counsel for the appellant - Insurance Company in MFA.No.7743/03 strongly contended that the Tribunal committed error in accepting the evidence of the claimants that the deceased husband was earning Rs.6,000/-p.m., from his profession as an advocate and was getting Rs.50,000/- p.a., as agricultural income from the lands.

7. On careful reading of the evidence of PW.2 Smt.P. Seetha, the wife of the deceased, it could be seen that she has stated in her evidence that her deceased husband was earning Rs.6,000/- p.m. from his profession as an advocate. Therefore, the submission of the learned counsel for the appellant-claimants that the MACT committed error in taking monthly income of the deceased as Rs.6,000/- only from his profession as an

$\overline{7}$

advocate, cannot be accepted. On perusal of the impugned judgment, it could be seen that the family of the deceased was owing totally 8 acres 72 cents of agricultural land and the MACT has taken 3 acres 60 cents of land as the share of the deceased and has arrived at conclusion that the evidence of PW.2, that the deceased was earning a sum of Rs.50,000/- per annum as agricultural income from the said land. We do not find any reasons to interfere with these findings. Therefore, the amount of Rs. $11,44,360/$ - awarded by the MACT under the head loss of dependency' to the claimants do not call for any interference in these appeals.

8. However, as rightly submitted by the learned counsel for the claimant-appellants in MFA 2032/04 the MACT was not justified in awarding only Rs.5,000/under each of the heads viz., funeral expenses', floss to the estate' and 'loss of consortium' to the wife of the

$\overline{\phantom{0}}$

Therefore, we hereby award a sum of deceased. $\text{Rs.}5,000/-$ , $\text{Rs.}15,000/$ and another $SIM$ οf Rs.15,000/- respectively under the said heads as additional compensation which the claimants are. entitled to. Further, the MACT has not awarded any compensation towards loss of love and affection in favour of the appellant No.2 the mother of the deceased. Therefore we hereby award a sum of Rs. 10,000/- under this head. Thus. total amount $of$ additional compensation awarded by us in MFA.No.2032/04 comes to $\text{Rs.}45,000/$ - with interest thereon at the same rate of 8% per annum from the date of petition till the date of actual payment.

9. For the reasons aforesaid, MFA.No.2032/04 filed by the claimants in MVC.No.39/1997 is hereby allowed in part. MFA.No.7743/03 filed by the insurer of the vehicle involved in the said accident is hereby dismissed. The Insurance Company which is

∽ $\subset$

$\mathbf Q$

respondent No.3 in MVC 39/97 shall deposit with MACT in the said case the aforesaid enhanced compensation with interest thereon within eight weeks from the date of receipt of copy of this judgment. Award shall be modified accordingly.

Original of this judgment shall be placed in MFA No.2032/04 and a copy thereof in the other MFA.

$NG^{\star}$