Though this appeal is posted for Admission, with the

consent of learned counsel for both the parties the same is

taken up for final disposal.

3

2.

This is an appeal by the petitioners seeking

enhancement of compensation granted by the Tribunal for

the death of their mother Smt. Hemavathi, in a road traffic

accident dated 22.02.2013 in MVC No.545/2013 which was

a petition filed under section 163A of MV Act under no fault

liability.

3.

For the sake of convenience the parties are

referred to by their rank before the Tribunal.

4.

It is the case of the petitioners that deceased

Hemavathi

and

respondent

No.1

Shivakumar

@

Shivakumaraswamy are their parents. On 22.02.2013, at

about 8.30 PM deceased Hemavathi along with respondent

No.1 was proceeding on motor cycle No.KA-15-S-1885

(hereinafter

referred

to

as

offending

vehicle)

from

Shikaripura towards Taralaghatta. When they were in front

of Kumudwathi College, S.S.Road, Shikaripura Town,

accident

occurred

due

to

unscientific

road

hump.

4

Hemavathi died while taking treatment at Nanjappa

hospital, Shivamogga.

5.

Respondent No.1 is the owner and respondent

No.2 is the insurer of the offending vehicle and as such they

are liable to pay the compensation.

6.

Respondent No.1 has filed written statement

contending that on political influence a criminal case is

registered against him and prays to dismiss the petition

against him.

7.

Respondent

No.2

filed

written

statement

contending that the petition is filed in collusion with

respondent No.1. Since deceased was not a third party it is

not liable to indemnify respondent No.1 and as such

petition is not maintainable.

8.

During enquiry on behalf of petitioners PWs-1 to

3 are examined including petitioner No.1 and Ex-P1 to 8 are

marked.

5

9.

On the other hand respondent No.1 was

examined himself as RW-1 and on behalf of respondent

No.2, RW-2 is examined. Ex. R1-5 are marked.

10.

Vide the impugned judgment and award, the

Tribunal has partly allowed the claim petition and granted

compensation in a sum of Rs.1,80,500/- with interest at 9%

p.a, which includes funeral expenses in a sum of Rs.2,000/-

and loss of estate in a sum of Rs.2,500/-.

11.

Not

being

satisfied

with

the

quantum

of

compensation granted by the Tribunal, petitioners have

come up with this appeal contending that the Tribunal has

considered the loss of income i.e., loss of service to the

family as 24,000/- instead of Rs.40,000/- and deducted 1/3

towards personal and living expenses of the deceased. The

compensation granted under the head funeral expenses and

loss to estate is meager and seeks enhancement.

6

12.

On

the

other

hand

learned

counsel

for

respondent No.2 supported the impugned judgment and

award and submitted that as per the 2^nd schedule to MV Act

the maximum income is taken into consideration and rightly

deducted 1/3 towards personal and living expenses of the

deceased and the compensation granted under the head

funeral expenses and loss to estate is also correct and

prays to dismiss the appeal.

13.

Even

though

the

Respondent

No.2

has

contended that deceased i.e., the wife of insured is not

third party and as such her risk is not covered by the

insurance policy, the finding of the Tribunal that it is only

the insured who can not be treated as third party and his

wife being the pillion rider is third party and as such

respondent No.2 is liable to cover her risk is not challenged

by respondent No.2. Consequently the said findings has

attend finality.

7

14.

Since the claim petition is filed under section

163A of MV Act, compensation is required to be calculated

as per second schedule to MV Act, 1988. As per this

schedule, a petition could be maintain only when the

income

of

the

deceased/injured

does

not

exceed

Rs.40,000/- per annum. In the present case also

petitioners claim that deceased was earning Rs.40,000/-

per annum by running a petty shop. Since, the petitioners

are major children of the deceased and petitioner No.2 is

married and living with her husband,