Karnataka High Court

Smt. Narasamma W/O Late Pani @ ... vs Mohd. Abdulla Adil S/O M.A. ... on 2 December, 2021

Bench: M.G.S.Kamal

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 02ND DAY OF DECEMBER, 2021

                      BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             MFA No.33068/2013 (MV)
                       C/W
             MFA No.200045/2014 (MV)

MFA 33068/2013

BETWEEN

THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, BILGUNDI MANSION,
STATION ROAD, OPP. MINI VIDHAN SOUDHA,
GULBARGA
                                         ...APPELLANT

(BY SRI SANJAY M. JOSHI, ADVOCATE)

AND

1.     SMT. NARASAMMA W/O LATE PANI @ CHAKRAPANI
       AGE: 41 YEARS, OCC: HOUSE HOLD

2.     KUM. ANURADHA D/O LATE PANI @ CHAKRAPANI
       AGE: 18 YEARS, OCC: STUDENT

3.     KUM. ASHWINI D/O LATE PANI @ CHAKRAPANI
       AGE: 10 YEARS, OCC: STUDENT
                              2




4.    KUM. MAHADEV S/O LATE PANI @ CHAKRAPANI
      AGE: 8 YEARS, OCC: STUDENT

5.    KUM/ RAJANI D/O LATE PANI @ CHAKRAPANI
      AGE: 6 YEARS, OCC: STUDENT

6.    SMT. RANGAMMA W/O LATE HULLAPPA AKAR
      AGE: 61 YEARS, OCC: NIL

      THE RESPONDENT NO. 3 TO 5 ARE MINORS,
      U/G OF RESPONDENT NO.1

      ALL ARE R/O VILLAGE SRINIVAS SARADAGI,
      TQ. & DIST. GULBARGA

7.    MOHD. ABDULLA ADIL S/O M.A. RASHEED
      AGE: MAJOR, OCC: BUSINESS OWNER
      OF TIPPER BEARING REG. NO. CG-04/J-4179,
      R/O H.NO. 21, KHB COLONY, BEHIND
      COURT, GULBARGA
                                     ...RESPONDENTS

(BY SRI SANJEEV PATIL, ADVOCATE FOR R1 TO R6;
R3 TO R5 ARE MINOR R/P BY R1;
NOTICE TO R7 IS D/W. V/O. DTD 03.02.2014)

     THIS MFA FILED U/S 173(1) OF MV ACT PRAYING TO
ALLOW    THE    APPEAL    AND     MODIFY   THE    IMPUGNED
JUDGMENT AND AWARD DATED 21.09.2013 IN MVC
NO.935/2012 PASSED THE PRL. SENIOR CIVIL JUDGE AND
MACT,    GULBARGA,       PARTLY   ALLOWING       THE   CLAIM
PETITION       BY   AWARDING         COMPENSATION        OF
RS.10,31,000/- WTIH INTEREST AT 6% P.A AND REDUCE
THE SAME BY RS.2,19,000/- AND REDETERMINE THE
SAME AT RS.8,12,000/-.
                           3




MFA No.200045/2014

BETWEEN

1.    SMT. NARASAMMA W/O LATE PANI @ CHAKRAPANI
      AGE: 42 YEARS, OCC. HOUSEHOLD

2.    KUM. ANURADHA D./O LATE PANI @ CHAKRAPANI
      AGE: 19 YEARS, OCC. STUDENT

3.    KUM. ASHWINI D/O LATE PANI @ CHAKRAPANI
      AGE: 10 YEARS, OCC. STUDENT

4.    KUM. MAHADEVI D/O LATE PANI @ CHAKRAPANI
      AGE: 8 YEARS, OCC. STUDENT

5.    KUM. RAJANI D/O LATE PANI @ CHAKRAPANI
      AGE: 6 YEARS, OCC. STUDENT

6.    SMT. RANGAMMA W/O LATE HULLAPPA AKAR
      AGE: 61 YEARS, OCC. NIL

      APPELLANT NOS. 2 TO 5 ARE MINORS
      U/G OF APPELLANT NO.1,
      ALL R/O VILLAGE SRILNIVAS SARADAGI
      TQ & DIST. GULBARGA
                                       ...APPELLANTS

(BY SRI SANJEEV PATIL, ADVOCATE)

AND

1.    MOHD. ABDULLA ADIL S/O M.A. RASHEED
      AGE: MAJOR, OCC. BUSINESS OWNER
      OF TIPPER, R/O H. NO. 21, KHB COLONY
      BEHIND COURT, GULBARGA

2.    THE DIVISIONAL MANAGER,
      NATIONAL INSURANCE CO.LTD.,
                              4




     DIVISIONAL OFFICE, BILGUNDI MANSION
     STATION ROAD, OPP. MINI VILDHANA
     SOUDHA, GULBARGA
                                    ...RESPONDENTS

(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
NOTICE TO R1 IS D/W. V/O. DTD 03.02.2014)


   THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DT. 21.09.2013 PASSED IN
MVC NO.935/2012 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND M.A.C.T GULBAGA, PARTLY ALLOWING
THE CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.


     THESE    APPEALS     ARE        COMING    ON     FOR      FINAL
HEARING    THIS    DAY,   THE        COURT     DELIVERED          THE
FOLLOWING:-


                        JUDGMENT

MFA No.33068/2013 is filed by the insurance

company and MFA No.200045/2014 is filed by the

claimants under Section 173(1) of the Motor Vehicles Act,

1988 (for short 'M. V. Act') against the judgment and order

dated 21.09.2013 passed in MVC No.935/2012 on the file

of the Principal Senior Civil Judge and MACT at Kalaburagi

(for short 'Tribunal').

2. The parties shall be referred to as per their

rankings before the Tribunal.

3. Brief facts leading up to filing of these appeals

are that on 07.06.2012, one Pani @ Chakrapani was

unloading the stones at the concrete crushing unit within

the limits of Srinivas Saradagi, Pala Road, Kalaburagi from

a Tipper bearing registration No.CG-04/J-4179. At that

time, the driver of the said Tipper had parked the said

vehicle in an engine running condition. At about 1.00

p.m., after unloading the stones from the said Tipper,

while said Pani @ Chakrapani was alighting from the said

vehicle, the driver of the said vehicle drove the same in a

rash and negligent manner. Due to which, Pani @

Chakrapani fell down and sustained grievous injuries and

he became unconscious. Immediately, he was shifted to

Basaveshwara Hospital, Kalaburagi and thereafter he was

shifted to Yashodhara Hospital, Solapur for further

treatment, where he took treatment as an inpatient from

07.06.2012 to 21.06.2012 and again he was shifted to

Yashodhara Hospital, Kalaburagi for further treatment.

During the course of treatment, said Pani @ Chakrapani

succumbed to the injuries at about 8.15 a.m. on

22.06.2012.

4. Thereupon, the claimants being the wife,

children and mother of the deceased filed a claim petition

under Section 166 of the M. V. Act claiming compensation

of `23,00,000/- on the premise that the deceased was

aged about 45 years, was earning `10,000/- per month by

working as a loader and unloader and out of the said

income, he was maintaining his family. The untimely

death of the deceased on account of the accident in

question, has caused financial and emotional distress to

the claimants. Hence, sought for compensation.

5. Despite service of notice, respondent No.1

remained absent and was placed exparte. Respondent

No.2 appeared through its counsel and filed written

statement. Respondent No.2 denied the averments of the

claim petition. It also denied the age, occupation and

income of the deceased. It is contended that the vehicle in

question is not insured with it and as such, risk of the

deceased was not covered under the policy and no extra

premium had been paid to cover the risk of the deceased.

Hence, it is contended that insurance company is not liable

to pay any compensation as there was violation of terms

and conditions of the policy and thus sought for dismissal

of the claim petition.

6. Based on the pleadings, the Tribunal framed

issues and recorded evidence. Claimant No.1 being the

wife of the deceased examined herself as PW.1 and

exhibited 7 documents as Exs.P1 to P7. On behalf of the

respondents, one Sambha Murthy has been examined as

RW.1 and exhibited the copy of the insurance policy as

Ex.R1.

7. On appreciation of the evidence, the Tribunal

held that the death of the deceased was on account of the

accident, which occurred due to rash and negligent driving

by the driver of the Tipper. Consequently, held that the

claimants are entitled for total compensation of

`10,31,000/- together with interest at 6% per annum from

the date of petition till its realization and directed the

respondent No.2 - insurance company to pay the

compensation within 30 days from the date of the award.

Aggrieved by the same, the appellant - insurance company

has filed MFA No.33068/2013 seeking reduction of the

compensation while the appellants/claimants have filed

MFA No.200045/2014 seeking enhancement of the

compensation.

8. Heard the learned counsel for the parties and

perused the records.

9. The learned counsel for the

appellants/claimants reiterating the grounds urged in the

appeal memorandum submits that though the deceased

was earning `10,000/- per month from loading and

unloading the goods, the Tribunal has erred in assessing

the meager income of the deceased at `6,000/- per

month. He further submitted that the Tribunal has erred

in not awarding future prospects as per the law laid down

by the Apex Court in the case of NATIONAL INSURANCE

COMPANY LTD. VS. PRANAY SETHI [(2017) 16 SCC

680] and the compensation awarded under conventional

heads is also on the lower side. Hence, sought for

enhancement of the compensation.

10. On the other hand, the learned counsel for the

appellant - insurance company contended that the income

of the deceased assessed by the Tribunal at Rs.6,000/- per

month is on the higher side, as the claimants have not

produced any documents to justify the said claim. He

further contended that as per Ex.P5, the postmortem

report, the deceased was aged about 49 years and proper

multiplier applicable is '13' instead of '14' as taken by the

Tribunal. Hence, sought for reduction of the compensation

awarded by the Tribunal.

11. On a thoughtful consideration of the arguments

made by the learned counsel for the parties, the following

points would arise for consideration:

"Whether the claimants have made out a case of enhancement of the compensation and whether the appellant - insurance company has made out a case for reduction of the compensation?"

12. The accident in question resulting in the death

of the deceased is not in dispute. The death of the

deceased on account of the accident is also not in dispute.

As rightly submitted by the learned counsel for the

appellant - insurance company, the age of the deceased as

per Ex.P5, the postmortem report is 49 years. Though, it

is contended on behalf of the claimants that the deceased

was earning `10,000/- per month from his loading and

unloading work, no acceptable evidence has been placed

on record. This Court in the absence of any acceptable

evidence takes into consideration the chart prepared by

the Karnataka State Legal Services Authority, wherein, the

income of the victims of the road traffic accident for the

year 2012 is fixed at `6,500/- per month. In the instant

case, the accident had occurred on 07.06.2012 and the

claimants have not produced any acceptable evidence with

regard to the income of the deceased. As such, taking into

consideration the said chart, the income of the deceased

needs to be notionally assessed at `6,500/- per month

instead of `6,000/- per month assessed by the Tribunal.

The deceased was 49 years old at the time of the accident

and in view of the law laid down by the Apex Court in the

case of PRANAY SETHI (Supra), 25% of the assessed

income needs to be added towards future prospects.

Considering the age of the deceased, the proper multiplier

applicable is '13'. There are six dependents, as such 1/4 th

needs to be deducted towards personal and living

expenses of the deceased. Thus, the compensation

towards loss of dependency computed would be

`9,50,664/-. [`6,500/- + 25% (1,625) = `8,125/-.

`8,125/- - 1/4th (towards personal expenses) = `6,094 x

12 x 13 (multiplier) = `9,50,664/-].

13. In view of the law laid down by the Apex Court

in the case of MAGMA GENERAL INSURANCE COMPANY

LIMITED VERSUS NANU RAM ALIAS CHUHRU RAM

AND OTHERS [2018) 18 SCC 130] which clarified in the

subsequent judgment of the Apex Court in the case of

UNITED INDIA INSURANCE CO. LTD., VS. SATINDER

KAUR @ SATWINDER KAUR & ORS. [2020 SCC

ONLINE SC 410], the claimants being the dependents of

the deceased are entitled for `40,000/- each under the

heads of loss of spousal, filial and parental consortium. In

addition, the claimants are entitled for compensation of

`15,000/- towards loss of estate and `15,000/- towards

funeral expenses. The Apex Court in the case of PRANAY

SETHI (Supra) at paragraph No.52 of its judgment held

that in a span of every three years, there shall be

enhancement of compensation at 10% under conventional

heads. In the case on hand, the appeal is of the year

2014, if thus calculated, the enhancement under

conventional is to be taken at 20%. The compensation

towards loss of estate and towards funeral expenses is

calculated at `30,000/- and 20% of the same is `6,000/-.

As also, the compensation towards loss of consortium is

calculated at `2,40,000/- and 20% of the same is

`48,000/-. Thus, the enhancement under the conventional

heads for six years is `54,000/-

14. The deceased in this case before his demise

has taken treatment in several hospitals from 07.06.2012

to 21.06.2012 and the claimants have produced the

medical bills, which are marked as Ex.P7 amounts

`50,000/- and the same has been awarded by the Tribunal

towards medical expenses. The same is maintained as

just and proper.

15. In view of the above, the claimants would be

entitled for the following modified compensation as under:

        Heads           By Tribunal    By this Court

Loss of Dependency      `7,56,000/-    `9,50,664/-

Towards loss of filial, `50,000/-      `2,40,000/-
spousal and parental
consortium
(40,000x6)
Loss of estate          `50,000/-      `15,000/-

Funeral expenses        `25,000/-      `15,000/-

As per the judgment                    `54,000/-
of the Apex Court in
the case of PRANAY
SETHI (Supra), 10%
of the conventional
heads
Towards medical bills `50,000/-        `50,000/-

Pain and suffering      `50,000/-

Loss of consortium      `50,000/-

Total                   `10,31,000/-   `13,24,664/-

16. Thus, the claimants are entitled for total

compensation of `13,24,664/- instead of `10,31,000/-

awarded by the Tribunal. In view of the above, the points

above raised are answered accordingly and following order

is passed:

ORDER

i. The appeal filed by the

appellants/claimants in MFA

No.200045/2014 and the appeal filed by

the insurance company in MFA

No.33068/2013 are allowed in part. The

judgment and award passed by the