Karnataka High Court
Savita W/O Sadashiv Hatakar vs Dadaso S/O Bhivaji Bhusnar on 30 July, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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NC: 2024:KHC-D:10711-DB
MFA No.100125 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.100125 OF 2020 (MV-D)
BETWEEN:
1. SAVITA,
W/O SADASHIV HATAKAR,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.42, 2ND CROSS,
MAHAVEER NAGAR,
UDYAMBAG,
BELAGAVI-590008.
2. SANOJ,
Digitally signed S/O SADASHIV HATAKAR,
by JAGADISH T R
Location: High AGE: 11 YEARS, OCC: STUDENT,
Court of
Karnataka R/O: H.NO.42, 2ND CROSS,
Dharwad Bench MAHAVEER NAGAR, UDYAMBAG,
BELAGAVI-590008.
3. SANVI,
D/O SADASHIV HATAKAR
AGE: 9 YEARS, OCC: STUDENT,
R/O: H.NO.42, 2ND CROSS,
MAHAVEER NAGAR, UDYAMBAG,
BELAGAVI-590008.
(SINCE APPELLANT NO.2 & 3 ARE
MINORS, THEY ARE REP. BY THEIR MOTHER
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NC: 2024:KHC-D:10711-DB
MFA No.100125 of 2020
I.E. APPELLANT NO.1)
4. SHANTA, W/O YASHWANT HATAKAR
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.42, 2ND CROSS,
MAHAVEER NAGAR, UDYAMBAG,
BELAGAVI-590008.
...APPELLANTS
(BY SRI. YASH R. NADKANI, ADVOCATE FOR SRI. VITTHAL S. TELI,
ADVOCATE)
AND:
1. DADASO, S/O BHIVAJI BHUSNAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: A/P: HATKAR MANGEWADI,
TQ: SANGOLA, DIST: SOLAPUR,
MAHARASHTRA STATE-413307.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
HAVING ITS DIVISIONAL OFFICE
AT 3933/B2, MOODALAGI BUILDING,
2ND FLOOR, CLUB ROAD,
BELAGAVI-590008.
...RESPONDENTS
(BY SRI. SUBHASH J. BADDI, ADVOCATE FOR R2)
(NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 17.08.2019
PASSED IN MVC NO.1524/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-II, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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NC: 2024:KHC-D:10711-DB
MFA No.100125 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: HON'BLE VIJAYKUMAR A.PATIL) Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
2. This appeal is filed by the claimants seeking enhancement of compensation being aggrieved by compensation awarded under the judgment and award, dated 17.08.2019, in M.V.C. No.1524/2018 passed by the I Additional District Judge and Motor Accident Claims Tribunal-II, Belagavi, (for short, 'Tribunal').
3. Brief facts of the case leading to filing of this appeal are:
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NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020
(a) On 18.04.2018, one Sri. Sadashiv, along with his brother, was proceeding on a motorcycle bearing registration No.MH-10/CS-8564 from Jath to Kumbhari; the deceased was riding the said motorcycle at a moderate speed and, at that time, another motorcycle bearing registration No.MH-45/AG-
1619 came from opposite direction, dashed to the motorcycle of the deceased and caused the accident. Due to the impact, the said Sadashiv fell on the road and sustained fatal injuries. Thereafter, said Sadashiv was shifted to hospital and despite treatment, Sadashiv succumbed to the injuries. The wife, children and mother of the deceased Sadashiv filed claim petition seeking compensation for the death of Sadashiv. They claimed that the deceased was aged 36 years, he was working as a crane driver earning Rs.20,000/- per month and also he was doing agriculture work thereby earning more than Rs.2,00,000/- per annum.
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(b) On issuance of notice, Respondents No.1 and 2 appeared through their counsel and filed their written statement. Respondent No.2-insurance company, in its written statement, denied the claim petition averments and contended that, two vehicles were involved in the accident, and since the owners and insurers of other motorcycle were not made parties, the claim petition was bad for non-joinder of parties. Respondent No.2-insurance company further submitted that its liability was subject to terms and condition, and limitations of. Hence, it sought for dismissal of the claim petition.
(c) In support of their claim, claimant No.1 - wife of the deceased Sadashiv, got examined herself as P.W.1, and one Beeru Saragar, the employer of the deceased, was examined as P.W.2, and got marked the documents as Ex.P.1 to P.16. No witness was examined on behalf of the respondents. However, copy of the insurance policy was got marked as -6- NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020 Ex.R.1. The Tribunal on scrutiny of entire material available on record, allowed the claim petition in part and awarded total compensation of Rs.14,76,300/- with interest at 9% per annum from the date of petition till realization, and directed Respondent No.2- insurance company to deposit the amount within 30 days.
4. The claimants being aggrieved by the quantum of compensation awarded by the Tribunal are before this Court in this appeal.
5. Heard Sri. Vitthal S. Teli, learned counsel for the appellants/claimants, and Sri. Subhash J. Baddi, learned counsel for the respondent No.2-insurance company. Perused the material on record.
6. Learned counsel for the appellants submits that the Tribunal committed a grave error in assessing the income of the deceased at Rs.8,500/- per month, which is contrary to the evidence available on record. He submits that the deceased was working as a crane driver and -7- NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020 drawing a sum of Rs.20,000/- per month as is evident from the salary certificate at Ex.P.11 and driving licence at Ex.P.19. He submits that, the claimants, in support of their claim, have examined the employer of the deceased as P.W.2, who has also supported the claim of the claimants regarding avocation and income of the deceased. Learned counsel inviting the attention of this Court to the Notification No.KAE 18 LMW, dated 30.12.2017, submits that the income of the deceased is required to be assessed at Rs.14,948.90/- per month based on the minimum wages fixed under the said notification.
7. Learned counsel for the appellants submitted that the Tribunal has not awarded any compensation under the head 'future prospects' and in view of the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others1 as the deceased was aged about 36 years, the claimants are entitled for addition of 40% of the assessed income 1 (2017) 16 SCC 680 -8- NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020 towards 'future prospects'. It is submitted that the Tribunal has not awarded proper compensation on the conventional heads. Therefore, he seeks for modification of the award by allowing the appeal and enhancing the compensation.
8. Per Contra Sri. Subhash J.Baddi the learned counsel for Respondent No.2-insurance company supports the impugned judgement and award of the Tribunal and submits that the claimants have failed to establish the income of the deceased before the Tribunal by producing cogent and acceptable evidence, and hence the Tribunal has rightly assessed the income of the deceased at Rs.8,500/- per month and seeks to maintain the same. He submits that the notification, which is relied in this appeal for assessing the income for the deceased on the basis of the minimum wages fixed under the said notification, was not placed before the Tribunal and hence, considering the same would not arise in this appeal. He further submits that though the claimants are entitled for compensation towards future prospects, however there cannot be grant -9- NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020 of any interest on the said component in view of the decision of a Coordinate Bench of this Court Chandrakala and another vs. Dilipkumar & Another2. Therefore, learned counsel for the insurance company prays to dismiss the appeal.
9. We have heard the learned counsel for the appellants/claimants and the learned counsel for Respondent No.2-insurance company. Perused the material available on record.
10. It is not in dispute that in a road traffic accident that took place on 18.04.2018, Sri. Sadashiv met with an accident, sustained grievous injuries, and later succumbed to the same. His legal heirs filed claim petition under Section 166 of the Motor Vehicles Act, 1988. As stated above, Claimant No.1 examined herself as P.W.1, and Sri.Beeru Saragar, employer of the deceased, was examined P.W.2 and got marked Ex.P.1 to Ex.P.16. The Tribunal considering the same awarded total compensation 2 M.F.A. No.1662/2023, disposed of on 02.07.2024
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NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020 of Rs.14,76,300/-. The material available on record indicates that the claimants have produced Ex.P.11-salary certificate issued by P.W.2. The salary certificate would indicate that the deceased was earning a sum of Rs.20,000 per month. Exhibit P.19 is the Driving licence that was issued to the deceased licensing him to drive the crane vehicle. These documents clearly indicates that the deceased was working under P.W.2 as a crane driver and drawing salary of Rs.20,000. However, the oral testimony of P.W.2 would indicate that the deceased was working from 08.02.2018. However, the salary certificate at Ex.P.11 would indicate that it is of the year 2013 i.e., date of issuance of licence. Hence, same cannot be looked into. However taking note of the Notification placed by the appellants' counsel with regard to the minimum wages fixed by the wage board fixing minimum wages for the drivers of heavy vehicles, tractors, multi axel and earth movers, crane vehicles, road roller and construction of road related vehicles, at Rs.14,948.90/-, we assess the income of the deceased at Rs.14,948.90/-.
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11. The Tribunal has not awarded any compensation towards 'future prospects'. In view of the decision of Hon'ble Apex Court in Pranay Sethi's case supra, as the deceased was aged 36 years as on the date of the accident, the claimants herein are entitled for an addition of 40% of the assessed income towards 'future prospects.
12. There is no dispute with regard to deduction of 1/4th of the assessed income towards personal and living expenses of the deceased and multiplier '15' adopted by the Tribunal considering age of the deceased as 36 years. Having assessed the income of the deceased at Rs.14,948.90/- per month, the claimants would be entitled for modified compensation on the head 'loss of dependency' as under:
Rs.14,948.90/- x 12 x 15 x 3/4 + 40% = Rs.28,25,342/-
It is made clear that, in the light of the decision in Chandrakala's case supra, the amount towards 'future
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NC: 2024:KHC-D:10711-DB MFA No.100125 of 2020 prospects' in a sum of Rs.8,07,240/-, (being 40% of the assessed income) shall not carry any interest.
13. The Tribunal also committed an error in awarding compensation towards 'loss of love and affection', 'loss of consortium' and towards 'loss of estate and funeral expenses, which are on the higher side. In light of decision of Hon'ble Apex Court in Pranay Sethi's case supra, the claimants would be entitled to a sum of Rs.15,000/- towards 'loss of estate' and Rs.15,000/- towards 'funeral expenses'. In terms of decision of Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram & Others3, appellants/claimants being wife children and mother of the deceased, they would be entitled a sum of Rs.40,000/-each towards spousal, parental and filial consortium.
14. The Tribunal has awarded a sum of Rs.1,08,822/- towards medical expenses which is not interfere with.
3 (2018) 18 SCC 130
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15. Thus, the claimants would be entitled to modified compensation on the following heads:
Particulars Amount
(in Rs.)
Loss of dependency 28,25,342/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
Loss of consortium (to claimants No.1 to 1,60,000/-
4 = Rs.40,000/- x 4)
Medical expenses 1,08,822/-
Total 31,24,164/-
Thus, the claimant shall be entitled to a total compensation of Rs.31,24,164/- as against Rs.14,74,300/- awarded by the Tribunal.
16. In the result, we proceed to pass the following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant would be entitled to total compensation Rs.31,24,164/- as against Rs.14,74,300/-
awarded by the Tribunal.
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c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.
d) As observed above, the amount of Rs.8,07,240/-, being 40% of the assessed income awarded towards 'future prospects' shall not carry any interest.
e) The Respondent No.2-insurance company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from today.
f) The apportionment, deposit and disbursement of enhanced compensation shall be made as per award of the Tribunal.
Draw modified award accordingly.
Sd/-
(KRISHNA S.DIXIT) JUDGE Sd/-
(VIJAYKUMAR A.PATIL) JUDGE KMS, CT:VP LIST NO.: 1 SL NO.: 37