M. PRABAKAR RAO vs MAKRUD ALI

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HC-KAR
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MFA No. 5513 of 2017


CNR: KAHC010350452017



IN THE HIGH COURT OF KARNATAKA AT BENGALURU


TH
DATED THIS THE 16 DAY OF OCTOBER, 2026

BEFORE


THE HON'BLE MR. JUSTICE RAVI V HOSMANI

MISCELLANEOUS FIRST APPEAL NO.5513 OF 2017(MV-D)

BETWEEN:





1.
M. PRABAKAR RAO
S/O. M. SURYANARAYANA RAO,
SINCE DEAD BY LRS.,

VEENA P RAO,
AGED ABOUT 48 YEARS,
W/O. M. PRABHAKAR RAO,

2. VARUNI P RAO
AGED ABOUT 22 YEARS,

3. SEETHAMMA
AGED ABOUT 101 YEARS (PRESENT AGE),
W/O. LATE SURYANARAYANA RAO,

ALL ARE R/A "VIPRA",
RD
3 MAIN, "C" BLOCK,
J.P. NAGAR, MYSORE - 570 001.
…APPELLANTS










SIGN

[BY SRI GURUPRASAD HEGDE, ADVOCATE FOR
SRI S V PRAKASH, ADVOCATE (PH)]
AND:
1. MAKRUD ALI
AGED ABOUT 59 YEARS,
S/O ABDUL RASHID,
DEVASTHANA ROAD,
GANGESHWARI VILLAGE,
T. NARASIPURA TALUK - 563 133,
(DRIVER OF BUS NO. TN-18-L-7788).

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2. ARUL JOTHI
S/O RATHNAVELU,
TH
NO.230, 6 MAIN,
ALANAHALLI LAYOUT,
MYSORE - 570 001.
(OWNER OF THE BUS)

3. THE NEW INDIA INSURANCE
COMPANY LTD.,
NO.12, NEW HOSPITAL ROAD,
GOOBI - 638 452.
…RESPONDENTS
[BY SRI O.MAHESH, ADVOCATE FOR R3 (VC);
NOTICE TO R1 - SERVED & UNREPRESENTED;
V/O DATED 24.02.2022 NOTICE TO R2 IS D/W]

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC
NO.88/2007 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE
(SENIOR DIVISION) & M.A.C.T., AT MYSORE PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

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

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

ORAL JUDGMENT

Challenging judgment and award dated 31.01.2017
passed by III Addl. Civil Judge (Sr.Dn.) & MACT, Mysuru in MVC
no.88/2007, this appeal is filed.

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2. Sri Guruprasad Hegde, learned counsel appearing
for Sri SV Prakash, learned counsel for appellants submitted
that this appeal was by claimants for enhancement of
compensation.


3. Brief facts leading to this appeal as per claimants
are that at 10:15 p.m. on 31.12.2005, Prabakara Rao was
riding his motorcycle on BN Road, Mysuru, when driver of
private Bus no.TN-28-L-7788 drove it in rash and negligent
manner and it dashed against his motorcycle. In accident, he
sustained grievous injuries and despite treatment at JSS
Hospital and BGS Apollo Hospital at Mysuru, he did not recover
fully. He was in comatose state. As on date of accident, he was
working as Agricultural Assistant in Bank of Baroda, Mysuru and
earning Rs.19,220/-. He filed claim petition under Section 166
of Motor Vehicles Act, 1988 ( MV Act ) against owner, driver and
insurer of Bus. Despite service of notice, owner and driver did
not appear and were placed ex-parte . Only insurer appeared
and opposed claim petition on all grounds.


4. Based on pleadings, Tribunal framed following
issues:

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"1. Whether the petitioners prove that on
31-12-2005 at about 10:15 A.M. when the
st
1 petitioner M.Prabhakar Rao was moving in
his T V S Victor vehicle bearing Registration
No. KA-09-EE-3326 for attending the office,
on B.N.Road, a private bus bearing
st
Registration No. TN-28-L-7788 driven by 1
respondent came in a rash and negligent
st
manner and hit the motor bike of the 1
petitioner, as a result of which he sustained
grievous injuries?

2. Whether the petitioners are entitled to
compensation, if so at what quantum and
from whom?

3. What order or decree?"


5. Tribunal passed award on 12.04.2010 granting
compensation of Rs.19,20,200/-. Dissatisfied with same,
claimants had filed MFA no.1437/2014. During pendency of
appeal, Prabakar Rao died on 07.06.2015. Since death was due
to injuries sustained in accident and while he was totally
bedridden, claim petition was sought to be converted from a
personal injury claimed to a death claim. Accordingly, this
Court on 08.12.2015, remanded matter for fresh consideration
as a death claim petition. Legal representatives of Prabakar Rao

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i.e., his wife, daughter and mother were impleaded as
claimants no.2 to 4. To establish a nexus between injuries
sustained in accident and death, claimants led evidence. 2
witnesses were examined. One Sri Naveen Subrahmanya as
PW.5 and Dr.Prahlad Rao CG on commission as CW.6. Exhibits
P1 to P130 were got marked. Insurer did not lead any further
evidence. On consideration, Tribunal held nexus between
accidental injuries and death as established and claimants were
entitled for attendant charges of Rs.3,00,000/-, medical
expenses at Rs.2,58,210/-, compensation of Rs.25,98,544/-
towards loss of dependency, Rs.1,00,000/- each towards loss of
love & affection and consortium, Rs.20,000/- towards loss of
estate and Rs.15,000/- towards funeral expenses. Dissatisfied
with same, this appeal was filed.


6. It was submitted, there was no dispute about fact
that Prabakar Rao sustained severe injuries in accident due to
rash and negligent driving of insured vehicle by its driver due to
which he remained in comatose state till his death and required
attendant/nursing care. To establish that claimants had
hired/availed services, claimants examined Proprietor of a Firm

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providing such services as PW.5, who had issued Ex.P108 - bill
towards nursing care and deposed in terms of same. When
amount mentioned in Exhibit P108 was Rs.8,26,000/-, Tribunal
was not justified in awarding only Rs.3,00,000/- towards
attendant charges.


7. Apart from above, it was submitted that claimants
were wife, daughter and mother of Prabakar Rao, each of them
would be entitled for compensation towards loss of consortium
and Tribunal was not justified in granting inadequate
compensation under conventional heads. On above two
grounds, learned counsel sought for allowing appeal.


8. Sri O Mahesh, learned counsel for insurer on other
hand opposed appeal. It was submitted, Tribunal had weighed
material on record in an appropriate manner and granted just
compensation and there was no scope for enhancement.


9. Heard learned counsel, perused judgment, award
and record.


10. From above and since claimants are in appeal for
enhancement, sole point that arise for consideration is:

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"Whether claimants are entitled for enhancement of
compensation, as prayed?"

Same is answered partly in affirmative for following
reasons:


11. Occurrence of accident due to rash and negligent
driving of insured vehicle, Prabakar Rao - victim sustaining
grievous injuries, being in vegetative/comatose state till his
death i.e., on 07.06.2015 due to accidental injuries and being
entitled for compensation for personal injuries/death claim are
not in dispute.


12. Appeal is filed for enhancement under specific
heads. Firstly about attendant charges. Admittedly, victim died
on 07.06.2015. To substantiate that claimants had availed
nursing care for attending to needs of victim, claimants relied
on Exhibit P108 - bill issued towards provision of said services
and also examined its author as PW.5. Nothing contrary is
elicited in cross-examination of PW.5. Under above
circumstances, amount mentioned in Ex.P108 i.e.,
Rs.8,26,000/- would required to be considered.

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13. Insofar as compensation awarded towards
conventional heads, however it is seen that claimants were
three in number i.e., wife, daughter and mother and as per
decision of Hon'ble Supreme Court in National Insurance Co.
Ltd v. Pranay Sethi reported in 2017 (16) SCC 680, they
would be entitled for spousal consortium, filial consortium and
parental consortium at Rs.40,000/- each i.e., Rs.1,20,000/- .


14. Apart from above, they would be entitled for
Rs.15,000/- towards funeral expenses and to Rs.15,000/-
towards loss of estate. As observed in Pranay Sethi 's case
(surpa), they would also be entitled for escalation at 10% every
3 years. Since more than 6 years have lapsed, 20% has to be
added. Therefore, total award under conventional heads would
be Rs.1,80,000/-. Since Tribunal has awarded Rs.1,00,000/-
towards loss of love and affection, Rs.1,00,000/- towards
consortium, Rs.20,000/- towards loss of estate and Rs.15,000/-
towards funeral expenses i.e. Rs.2,35,000/- same would
require to be reduced to Rs.1,80,000/- . Thus, compensation
towards attendant charges would see an enhancement of
Rs.5,26,000/- (Rs.8,26,000/- - Rs.3,00,000/-) and

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compensation towards conventional heads would see reduction
by Rs.55,000/- (Rs.2,35,000/- - Rs.1,80,000/-). Claimants
would be entitled for additional compensation of
Rs.4,71,000/- (Rs.5,26,000/- - Rs.55,000/-). Point for
consideration answered accordingly.


15. Consequently, following:
ORDER

i) Appeal is allowed in part ;

ii) Judgment and award dated
31.01.2017 passed by III Addl.
Civil Judge (Sr.Dn.) & MACT,
Mysuru in MVC no.88/2007 is
modified ;

iii) Claimants are entitled for additional
compensation of Rs.4,71,000/-
with interest at 6% p.a. from date
of claim petition till its deposit;

iv) Insurer is directed to deposit
enhanced compensation before
Tribunal within six weeks;

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v) On deposit, entire enhanced
compensation with interest is
ordered to be released in favour of
claimants and apportionment shall
be in same ratio as awarded by
Tribunal.

Sd/-
(RAVI V HOSMANI)
JUDGE




AV
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