IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 21 ST DAY OF JULY 2017

BEFORE

THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

M.F.A.No.6361/2010 (MV)

BETWEEN

MRS.JAYANTHI AGED ABOUT 48 YEARS W/O NAGAPPA POOJARY R/O VIKAS NAGARA BADAGA ULIPADY VILLAGE KINNINKAMBLA POST KAIKAMBA MANGALURU TALUK. …APPELLANT

(BY SRI P.B.UMESH, FOR SRI R.B.DESHPANDE, ADVOCATE)

AND

1. MR.K B BALAKRISHNA RAI S/O K BHANDARY RAI AGE:MAJOR R/O NAVADURGA PRASAD M.B.ROAD, KANNUR, MANGALURU.

2. THE ORIENTAL INSURANCE CO. LTD., CITY BRANCH KULYADI BUILDING K S RAO RAOD, HAMPANKATTA MANGALURU. …RESPONDENTS

(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R-2 R-1 SERVED)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.03.2010 2

PASSED IN MVC No.194/2008 ON THE FILE OF MEMBER, MACT- IV & III ADDITIONAL DISTRICT JUDGE, , MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal by the claimant/appellant is directed against the judgment and award dated 30 th March 2010

passed in M.V.C.No.194/2008 by the III Additional District

Judge and MACT-IV, D.K. , wherein the Tribunal

allowed the claim petition in part and awarded the

compensation of Rs.2,67,000/- with interest at 6% p.a.

from the date of petition till deposit.

2. In order to avoid confusion and overlappings,

parties are referred to with reference to their respective

rankings as stood before the Tribunal.

3. Claim petition is initiated by one Mrs.Jayanthi

under Section 163-A of M.V. Act.

4. It is stated that on 22.12.2007 at about 12.45

p.m. one Dinesh was riding motor cycle bearing

Registration No.KA.19.S.8132 from Kudupu to Gurupura 3

along with his friend Mr. Nanda Kishore, who was a pillion rider. When they reached a place near Parari, Thiruvail village, Mangalore, a bus by name Selina that was ahead of them was stopped suddenly, Dinesh was applied the brake and slowly took his motor cycle to the right. At that time, motor cycle fell down. As a result, deceased was thrown to the road with his friend. Suddenly, pillion rider got up and ran away to stop the vehicles moving on the road. At that time, SNDP bus bearing Registration

No.KA.19-AD-2727 came from Moodbidri towards

Mangalore in a rash and negligent manner and passed on

Dinesh by neglecting the signal given by Nanda Kishore.

Due to which, Dinesh sustained grievous injury on his head, right hand and other parts of the body and died on the spot. Hence, she claimed compensation of

Rs.10,00,000/-.

5. 2nd Respondent appeared before the Tribunal and contended that the petition is not maintainable and it is not liable to pay compensation of Rs.10,00,000/- as 4

claimed and the accident happened purely due to the negligence of the rider of the motor cycle.

6. The Tribunal adjudicated the matter raising issues on the accident, negligence, injury leading to death, contributory negligence and entitlement for compensation and an amount of Rs.2,67,000/- was awarded together with interest at 6% p.a. from the date of petition till its deposit that shall be contributed by the

Insurance Company. The petitioner therein is the mother of said Dinesh, who succumbed because of injuries which he suffered at the time of accident. The said petition is filed under Section 163-A of M.V. Act. There are no dispute regarding other aspects, except the quantum of compensation.

7. Learned counsel for Insurance Company would submit that having filed the petition under Section 163-A of the M.V. Act, petitioner wants to play safe from accepting negligence by raising compensation. However, the fact remains that 163-A petition is filed. 5

8. The bone of contention is regarding quantum.

The monthly income is considered at Rs.3,000/- before the

Tribunal. However, with all calculations in the context and circumstance, it proves to be on the lower side. Regard being had to the fact, that the mother has lost her son whom she claims to be the care taker and bread earner.

Thus, if the income is taken at Rs.3,300/- per month, considering the application of II Schedule to Section 163-A of M.V. Act, 1/3 rd is to be deducted. Rs.3,300/- -

Rs.1,1,00/- (1/3 rd ) = Rs.2,200/- per month. The multiplier applicable is ‘17’ since he was aged about 24 years. Thus, the loss of dependency comes to Rs.4,48,800/-

(Rs.2,200/- x 12 x 17) instead of Rs.2,67,00/- as awarded by the Tribunal. In the facts and circumstances of the case, there does not appears any justification for enhancement of compensation beyond it.

9. Thus, the appellant/claimant is entitled to a modified compensation as under:

Loss of dependency `4,48,800 /- Funeral and obsequies ceremonies ` 03,000/- Total `4,51,800/- 6

10. In the result, the appeal filed by the appellant is allowed in part.

Judgment and award dated 30.03.2010 passed in

MVC No.194/2008 by the XIII Additional District Judge and

Member MACT-IV, D.K. Mangalore, is set aside and modified awarding the compensation of Rs.4,51,800/- as against Rs.2,67,000/-. The enhanced compensation of

Rs.1,84,800/- shall carry interest at 6% p.a. from the date of petition till the date of deposit.

The 2nd respondent is directed to deposit the compensation amount including the enhanced compensation with interest before the jurisdictional

Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.

Sd/- JUDGE

tsn*