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2015 DIGILAW 773 (KAR)

Sharadamma P. v. Harisha

2015-07-17

S.N.SATYANARAYANA

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JUDGMENT S.N. Satyanarayana, J. 1. Claimant Nos. 1, 3 and 4 in MVC No. 101/1999 on the file of MACT, Tiptur, have come up in this appeal seeking enhancement of compensation for the death of their father Basavaraju in the road traffic accident dated 14.01.1999, at about 9.00 p.m. involving a Matador bearing registration No. KA-30-5055. The claim petition was filed by the wife and three minor children and also the parents of the deceased Basavaraju. Admittedly, the accident is dated 14.01.1999 and it was stated that Basavaraju was doing Bangle and stationery business. The Court below on appreciation of oral and documentary evidence available on record, allowed the claim petition in M.V.C. No. 101/1999 awarding a total compensation in a sum of Rs. 2,13,000/- payable with interest @ 6% per annum from the date of the judgment and award till the date of deposit, which was accepted by the claimants. The compensation was also received by them immediately. 2. Subsequently, the present appeal is filed on 02.04.2012 by claimant Nos. 1, 3 and 4, seeking enhancement of compensation on the ground that the compensation awarded for the death of Basavaraju is on lower side and the same is required to be enhanced. Hence, an application in I.A. 1/2012 is filed seeking condonation of delay of 2805 days, which works out to about nearly 7 years, 8 months. 3. Heard the learned Counsel for the appellants and perused the Affidavit filed in support thereof. 4. On going through the same, the reasons stated therein is that the compensation which is awarded by the judgment and award dated 29.04.2004 was deposited by the Insurance Company in the year 2006. It is only when the claimants approached their Advocate seeking release of fixed deposit amount in the month of February' 2012, their Advocate after going through the judgment, noticed that MACT has taken the income of the deceased Basavaraju at Rs. 50/- per day instead of Rs. 5,250/- per month and that there is also an error in taking the personal expenses at 1/3rd instead of 1/6th and the compensation awarded under the 'Conventional Heads' are also on lower side. Therefore, the Advocate advised the claimants to file an appeal seeking enhancement of the compensation. 50/- per day instead of Rs. 5,250/- per month and that there is also an error in taking the personal expenses at 1/3rd instead of 1/6th and the compensation awarded under the 'Conventional Heads' are also on lower side. Therefore, the Advocate advised the claimants to file an appeal seeking enhancement of the compensation. It is also stated that the appellants being minor at the time of passing of judgment, they could not contact their Advocate at Bengaluru for filing of the appeal and therefore there is some delay in filing the appeal and that the same is due to bona fide reasons and accordingly the same is required to be condoned. 5. On going through the Affidavit, it is seen that the first appellant herein who was contesting the claim petition on behalf of other two appellants was major as on the date of the filing of the claim petition and also as on the date of claim petition was allowed and the compensation was disbursed in their favour. Therefore, nothing prevented the first appellant to file the appeal on behalf of herself and also on behalf of the second and third claimants who were minors then. It is further seen the claimants have filed the appeal not because the compensation is on lower side. According to them, when they approached their Advocate seeking release of the amount deposited in fixed deposit, the Counsel appearing for them advised them to file an appeal contending that the compensation awarded is on lower side. It is seen that thereafter, the claimants have approached the present Advocate to file the appeal. 6. In the appeal, there is nothing on record to demonstrate why their appeal was not filed immediately after the judgment and decree. Admittedly, the first appellant herein was major and was in a position to take appropriate decision to file the appeal as she had taken the decision to file the claim petition in the year 1999 immediately, after the death of her husband. The said explanation is not forthcoming in the Affidavit. In the Affidavit, the name of the Counsel who advised them to file the appeal does not appear and it is on the basis of the advise of the said Advocate they preferred the said appeal in the year 2012 by filing an application seeking condonation of delay. 7. The said explanation is not forthcoming in the Affidavit. In the Affidavit, the name of the Counsel who advised them to file the appeal does not appear and it is on the basis of the advise of the said Advocate they preferred the said appeal in the year 2012 by filing an application seeking condonation of delay. 7. There is also an attempt to demonstrate that the third appellant being minor as on the date of the judgment and having attained majority, the appeal is filed the within three years. This Court is not in agreement with the said stand taken by them. For the reason that the interest of the third appellant was rightly represented by the first appellant while filing the claim petition as well as receiving the compensation which is awarded. 8. Even otherwise, if the merits of the case is looked into, for the accident which has taken place in the year 1999, the then prevailing income was rightly taken and compensation was awarded. The opinion of the Advocate that a sum of Rs. 5,250/- was required to be taken for a person for the period 1999, who did not have proof of avocation and income is not supported by any documents. In that view of the matter, this Court is of the view that there is no justifiable grounds made out to condone the inordinate delay of 2085 days in filing the appeal seeking enhancement of compensation, by the first appellant who was admittedly a major and was aged 24 years as on the date and she was also representing second, third and fourth respondents and their interest was rightly taken care of by the first appellant at the time of filing the claim petition and when the claim petition was disposed off, compensation was received by her on behalf of the third appellant in the present case. In that view of the matter, the application filed seeking condonation of inordinate delay of 2805 days is dismissed. Consequently, the appeal also stands dismissed.