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2023 Supreme(Online)(Kar) 28835
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2023 BEFORE THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA MISCELLANEOUS FIRST APPEAL NO. 4565 OF 2013 (MV)
BETWEEN:
DHARMAPPA M KARKERA S/O MUDURA T.MENDON, R/AT S.C.COMPLEX, BHASKAR NAGAR POST UCHILA, UDUPI TALUK UDUPI DISTRICT 576 105 …APPELLANT (BY SRI. V S HEGDE .,ADV.)
AND:
1. STM KALYANI S TINGALAYA W/O LATE SOMAPPA TINGALAYA AGE 69 YEARS, 2. DIKSHITH S/O LATE NALINAKSHI ASHRAF, AGE 21 YEARS Digitally signed by MALA K N Location: HIGH COURT 3. MINOR DISHA OF KARNATAKA D/O LATE NALINAKSHI, AGE 16 YEARS, RESPONDENT NOS. 2 AND 3 ARE MINORS REP. BY HER MATERNAL GRAND MOTHER RESPONDENT NO.1 RESPONDENT NOS. 1 TO 3 ARE R/AT RAJA HOUSE, KNANGI POST, KODAVURU, UDUPI TALUK, UDUPI DISTRICT 576101
4. C NARSIMHA MURTHY, MAJOR, S/O LATE CHIKKANNA, NO 732-A-3, GOKUL BUILDING, PEENYA, BANGALORE-560 058.
5. THE ORIENTAL INSURANCE CO LTD BO-7-PENYA, NO.44, ANANTHA COMPLEX, N.H.4, PEENYA 1ST STAGE, TUMKUR ROAD, BANGALORE-58 …RESPONDENTS (R1, R2, R3 AND R4 - SERVED;
BY SRI. M.S.M.S.SRIRAM, ADV. FOR R5)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2012 PASSED IN MVC NO.80/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE(SR.DN), ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the third respondent has challenged the judgment dated 31.10.2012 passed in M.V.C.No.80/2009 by the Principal Civil Judge (Sr.Dn.)
and Addl.MACT, Udupi ('the Tribunal' in short).
2. 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 that, on 27.09.2008 at
4.45 p.m., the wife of third respondent, daughter of first petitioner and mother of petitioner Nos.2 and 3 by name Nalinakshi, the deceased while riding her T.V.S. Moped bearing Reg.No.KA-14/L-5492 on Dodderi-Hejjala road, Hejjala Village, met with an accident, hit by a tractor bearing Reg.No.KA-02/T-1753, killing her at the spot. The petitioners being the mother and minor children, have approached the Tribunal seeking compensation of Rs.25,00,000/-. Claim was opposed by the Insurance Company. Respondent No.3 has opposed the claim on the ground that he is the natural guardian of petitioner Nos.2 and 3 being their father, petitioner No.1 is not a dependant on the deceased, she has no legal right to claim compensation. The Tribunal after taking the evidence on record passed the impugned judgment awarding compensation of Rs.19,82,000/- with interest @ 6% per annum. Being aggrieved by the same, third respondent has filed this appeal on various grounds.
4. I have heard the arguments of Sri.V.S.Hegde, learned counsel for the third respondent and Sri.M.S.Sriram, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for the third respondent that claiming compensation, he had also filed a claim in M.V.C. No.277/2009 before the Tribunal. In view of the earlier claim petition filed by the petitioners, his claim was dismissed by the Tribunal. The third respondent being the husband is dependant on the deceased wife and he is entitled to claim compensation. But the Tribunal though allowed the claim petition, erroneously not apportioned any compensation to third respondent. Hence, he sought for apportionment of compensation.
6. Per contra, learned counsel for the Insurance Company has contended that the third respondent is a major person, he is not dependant on his wife, he was not residing with the deceased and therefore, the Tribunal is right in considering the claim of the petitioners as the dependants and therefore, dismissal of M.V.C. No.277/2009 is proper and not apportioning any compensation to the third respondent in this claim petition is in accordance with law and supported the impugned judgment.
7. I have given my anxious consideration to the arguments advanced on behalf of both parties and also perused the materials on record.
8. There is no dispute with regard to relationship between the parties, death of deceased in the accident and the petitioners being the mother and minor children are entitled to claim compensation. The ground urged by the third respondent is that he being the husband of the deceased was also a dependant on the income of the deceased is not taken into consideration by the Tribunal; he is a fisherman, his income was not sufficient to maintain himself and therefore, assessment towards loss of dependency with minimum apportionment of Rs.5,00,000/- may be made to him.
9. It is pertinent to note that on the date of the accident, the third respondent was a resident of Udupi whereas, deceased was a resident of Ramanagar District. The material on record did point out that the third respondent is a fisherman and has his own earnings. The children are minors, now under the care and custody of their maternal grand-mother and the Tribunal considered that the third respondent though husband of the deceased is independent and not a dependant on the deceased. The material on record did point out that the third respondent has enjoyed all the benefits of his wife, who was a teacher in Government School and therefore, he cannot claim that he is dependant on the deceased. Utmost, in the circumstances of the case, he may be entitled
