THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05/10/2018, PASSED IN MVC NO.140/2017, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE ADDITIONAL MACT, UDUPI BY ENHANCING THE COMEPNSATION TO Rs.33,69,568/- IN THE INTEREST OF JUSTICE.

THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI

&

HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL JUDGMENT

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

1. The present appeal seeks to challenge the Judgment and Award dated 05.10.2018 in MVC No.140/2017 passed by the II Addl. Senior Civil Judge & Addl. MACT, Udupi (hereinafter referred to as the “Impugned Award”). By the Impugned Award, learned Tribunal has awarded a compensation of Rs.10,38,088/- along with interest at 6% per annum from the date of petition till its realisation. The present appeal is filed by the appellants/claimants seeking enhancement.

2. We have heard the learned Senior Counsel for the appellants/claimants and the learned counsel for respondent No.2/Insurance Company. Notice to respondent No.1 has been dispensed with, by order dated 07.07.2023.

3. The brief facts of the case are that on 25.09.2016 at 04.30 p.m., the deceased was travelling as a pillion rider in a motorcycle bearing registration No.KA-20-ED-1689 along with her son from Pandukallu towards Hebri. At that time, and as a result of the rider of the motorcycle applying the brakes very suddenly, the motorcycle lost control, skid and the deceased fell on the road and the deceased sustained grievous injuries including on her head. The deceased was taken to KMC Hospital, Manipal in an ambulance. The deceased was admitted as an in-patient from 25.09.2016 to 29.09.2016 in KMC Hospital and on 29.09.2016 she succumbed to her injuries.

3.1 The claimants being the appellant No.1/husband and appellant Nos.2 and 3 /daughters of the deceased, filed a claim petition stating that they had spent Rs.88,000/- towards hospital expenses and medical expenses. In addition it was stated that the deceased was running a dairy farm having five milk giving cows and was selling milk to the Shivapura Milk Society of which she was a member, on a regular basis and she was also doing agricultural work apart from the work of cooking food and washing utensils etc. as a home maker. Based on these contentions, a petition was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’) seeking compensation in a sum of Rs.33,24,180/- with interest and costs before the MV Act Tribunal.

3.2 The petition was contested by the Respondent No.2/Insurance Company. Although the owner of the offending vehicle was served, he did not appear and was proceeded with ex parte.

3.3 Based on the pleadings between the parties, the following issues were framed:

“ISSUES

1. Whether petitioners prove that on 25.09.2016 at about 16:30 p.m. while the deceased was travelling as pillion rider in Motor Cycle bearing Reg.No.KA-20-ED-1689 along with her son Ashok Devadiga from Pandukallu towards Hebri side who was riding Motor Cycle in a rash and negligent manner and suddenly applied the brake and he lost the control over the bike and Smt. Lalitha Sherigarthi who was pillion rider of the Motor Cycle fell down on the road and as a result of the same, Smt. Lalitha Sherigarthi sustained grievous injuries and later succumbed to injuries at Hospital?

2. Whether petitioners prove that they are entitled for compensation, to what extent?

3. What order or award?”

4. The appellant No.1/claimant being the husband of the deceased examined himself as PW-1 and marked several documents as Exhibits P1 to P13 including 13 documents as Exhibits P3 (Post-mortem report), P4 (Mahazar), P5 (AIR report), P6 (charge-sheet), P8 (IMV report), P11 (Death Certificate of the deceased), P12 (Milk Producers Co-operative Society card of the deceased) and P13 (passbook of the deceased). No witness was pro