The appeal and Cross objection are arising out of

judgment

and

award

dated

30.08.2017

in

MVC.No.1679/2015 on the file of III Addl. Sr. Civil Judge &

MACT-12, Vijayapura.

2.

While MFA.No.202241/2017 is filed by the

Insurance Company seeking dismissal of the claim petition

on the ground that deceased was a gratuitous passenger

traveling in a transport vehicle and the driver of the

offending vehicle was not holding a valid driving license,

MFA.Crob.No.200077/2018 is filed by the petitioners

seeking enhancement of the compensation.

3.

For the sake of convenience the parties are

referred to by their rank before the Tribunal.

4.

FACTS: It is the case of the petitioners that they

are the children and husband of deceased-Hanamawwa. On

21.08.2015, at about 5.00 p.m, after coolie work, deceased

5

Hanamawwa came to Mukihal Cross. In order to go to her

village, she stopped a Bolero Jeep bearing registration

No.KA-28/A-5198 (for short ‘offending vehicle’), which was

going to Shivapur. Before she could step into the vehicle

i.e., while she was trying to board the offending vehicle, the

driver of the offending vehicle, took the vehicle in reverse

negligently, as a result of which deceased fell down on the

road and the offending vehicle passed over her body. She

died at the spot. At the time of accident, she was aged 35

years earning Rs.10,000/- p.m. As the children and

husband

of

deceased,

petitioners

are

entitled

for

compensation. As the owner and insurer respondent Nos.1

and 2 are jointly and severally liable to pay the

compensation.

5.

Respondent Nos.1 and 2 have filed separate

written statement disputing the age and income of the

deceased and that the accident occurred due to the rash or

negligent driving by the driver of the offending vehicle.

Respondent No.2 has specifically contended that driver of

6

the offending vehicle never allowed any passengers to

travel in the said vehicle.

6.

On the other hand, respondent No.2 has further

pleaded that since deceased was a gratuitous passenger

and the driver of the offending vehicle was not holding a

valid driving license, respondent No.2 is not liable to

indemnify respondent No.1 and has sought for dismissal of

the petition.

7.

Based on these pleadings, the Tribunal has

framed necessary issues.

8.

In support of their case, petitioner No.1 is

examined as PW-1 and Ex.P1 to 8 are marked.

9.

On behalf of respondent No.2, RW-1 and 2 are

examined and Ex.R1 to 3 are marked.

10.

Vide

impugned

judgment

and

award,

the

Tribunal

has

partly

allowed

the

petition

granting

compensation in a sum of Rs.11,08,000/- with interest at

7

9% p.a and directed respondent No.2 to pay the same with

interest as detailed below:

Sl.No.

Heads

Amount

awarded

1.

Loss of dependency

Rs.10,08,000/-

2.

Towards love and

affection

Rs.25,000/-

3.

Loss of estate

Rs.20,000/-

4.

Loss of consortium

Rs.30,000/-

5.

Towards funeral and

transportation expenses

Rs.25,000/-

Total

Rs.11,08,000/-

11.

During the course of argument, learned counsel

for respondent No.2/Insurance Company submitted that the

Tribunal has failed to appreciate the fact that at the time of

accident, deceased was traveling as gratuitous passenger

and since the driver of the offending vehicle was not

holding a valid driving license, respondent No.2 is not liable

to pay the compensation. He would further submit that

since petitioner No.4 is the husband of the deceased, he

cannot be considered as dependent and therefore 1/3^rd

income is required to be deducted towards personal and

living expenses of the deceased. The interest granted

8

at 9% p.a. is on the higher side and sought for dismissal of

the

petition

or

in

the

alternative

to

reduce

the

compensation.

12.

On the other hand, petitioners have filed cross

objection contending that the notional income is on the

lower side and consequently the compensation granted is

on the lower side. The compensation granted for loss of

consortium requires enhancement and prays to enhance the

compensation

13.

Heard arguments and perused