Nebis vs Mahesh Shenoy
2021 Latest Caselaw 5361 Kant

   IN THE HIGH COURT OF KARNATAKA, BENGALURU

      DATED THIS THE 3rd DAY OF DECEMBER, 2021

                       BEFORE

THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

MISCELLANEOUS FIRST APPEAL NO.701 OF 2016 (MVC)


BETWEEN

NEBIS
AGED ABOUT 55 YEARS,
W/O. LATE ABDUL KHADAR
RESIDING AT PARANEERU
BANGLEGUDDE,
KUKKUNDOOR POST,
KARKALA KASBA VILLAGE
KARKALA TALUK-575 201.
                                        ... APPELLANT

(BY SRI. NAZEEFA M. MULLA FOR SRI. PAVANA CHANDRA
SHETTY, ADVOCATES)


AND

1. MAHESH SHENOY
AGED ABOUT 33 YEARS
S/O. NARAYANA SHENOY
RESIDING AT GURUKRIPA NIVAS
NEEREKUDRU, NEERE VILLAGE,
BAILOOR POST, KARKALA TALUK-575 201.

2. THE BRANCH MANAGER,
SBI GENERAL INSURANCE CO. LTD.,
MANGALORE BRANCH, KODIABAILU
MANGALORE - 575 101.

3. GANESH SHETTY
AGED ABOUT 33 YEARS,
S/O. GUDDA SHETTY,
RESIDING AT
GURUPRASAD NILAYA
                            2

MURADAMANE, BAILOOR
VILLAGE AND POST,
KARKALA TALUK-575 201.

4. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
KARKALA BRANCH,
SRINIVAS COMPLEX,
A.S. ROAD, KARKALA-575 201.
                                        ... RESPONDENTS

(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2,
    SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R4,
    NOTICE TO R1 AND R3 DISPENSED WITH.)

      THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 02.07.2015
PASSED IN MVC NO.229/2015 ON THE FILE OF SENIOR CIVIL
JUDGE AND AMACT, KARKALA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This miscellaneous first appeal is filed by the

claimants seeking enhancement of compensation.

2. It is stated at the bar that the compensation

determined by the Tribunal is satisfied by both the

Insurance Companies. Therefore, the present appeal is

purely on quantum.

3. The appellant - widow of the deceased, has

filed the claim petition for having lost one Abdul khadar

in a road traffic accident dated 30.01.2015. The

appellant contended that the deceased was earning

Rs.15,000/- per month and was contributing his entire

income for maintenance of the family. Hence, filed claim

petition seeking compensation.

4. The appellant, to substantiate her case,

examined herself as PW1 and produced documentary

evidence vide at Exs.P1 to P13. The 4th respondent -

Insurance Company examined its official as RW1 and

relied on the rebuttal documentary evidence vide Exs.R1

to R5.

5. The Tribunal having assessed the oral and

documentary evidence, in absence of income proof,

assessed the income of the deceased at Rs.5,000/- per

month and by adding 30% towards future prospects, has

assessed the income of the deceased at Rs.6,500/- and

awarded a sum of Rs.4,67,960/- under the head 'Loss of

dependancy', after deducting 1/3rd towards his personal

expenditure. A sum of Rs.50,000/- has been awarded by

the Tribunal under the 'conventional heads'. In all,

awarded a total compensation of Rs.5,17,960/- with

interest at 8% per annum, from the date of petition till

the date of realization.

6. Heard the learned counsel for the appellant

and the counsel appearing for the respondents-

Insurance Companies. Perused the records.

7. On re-appreciation of oral and documentary

evidence, though this court cannot find fault with the

findings of the Tribunal, which has assessed the income

of the deceased notionally at Rs.5,000/- in absence of

proof of income of the deceased, however, this court is of

the view that the notional income of the deceased

assessed by the Tribunal appears to be on the lower side.

In absence of proof of income of the deceased, having

regard to the fact that the accident is of the year 2015,

by placing reliance on the chart prepared by the

Karnataka Legal Services Authorities, the income of the

deceased is notionally assessed at Rs.9,000/-. The

deceased was aged about 50 years as on the date of

accident. Therefore, by following the principles laid down

by the Hon'ble Supreme Court in the case of National

Insurance Co. Ltd., vs Pranay Sethi and others, reported

in 2017 ACJ 2700, 10% has to be added towards future

prospects. Therefore, the income of the deceased is

assessed at Rs.9,900/- per month.

8. Learned Counsel Sri. Ravi S. Samprathi,

appearing for R-2 would strenuously argue and contend

that the present claim petition is filed by the widow and

since there is a sole claimant, there has to be 50%

deduction towards personal expenditure. To buttress his

arguments, he placed reliance on the judgment of the

coordinate bench of this court in the case of New India

Assurance Company Limited rep. by Sr. Divisional

Manager vs. Sri. David T. and another, reported in ILR

2012 KAR 2859. However, this submission is countered

by the counsel appearing for appellant by placing

reliance on the decision of the Apex Court. Perused the

judgments of the Apex Court. This court is bound by the

dictum laid down by the Hon'ble Apex Court in the case

of Sarla Verma and others vs. Delhi Transport Corporation

and another reported in 2009 ACJ 1298 and judgment of

the Apex Court in Pranay Sethi's case of The Apex court.

In both judgments, the Apex Court was of the view that if

the deceased is married, there cannot be 50% deduction

on the ground that there is a sole claimant. The

principles laid down by the Hon'ble Apex Court is fairly

applicable to the present case on hand. Therefore, this

court is of the view that there is no need to rely on the

judgment of coordinate bench of this court in the case of

New India Assurance Company Limited rep. by Sr.

Divisional Manager vs. Sri. David T. and another, reported

in ILR 2012 KAR 2859.

9. Therefore, by assessing the income of the

deceased at Rs.9,900/- and by deducting 1/3rd towards

his personal expenditure, the income of the deceased is

assessed at Rs.6,600/- and by applying multiplier of 9,

the compensation payable under the head 'loss of

dependancy' works out to Rs.7,12,800/-

(Rs.6,600x12x9). Under Conventional heads, the

appellant is entitled for a sum of Rs.70,000/-. In all,

appellant is entitled for a total compensation of

Rs.7,82,800/- as against Rs.5,17,960/- awarded by the

Tribunal. Hence, the following :

ORDER

The appeal is allowed in part.

The judgment and award dated 02.07.2017 passed

by the Senior Civil Judge and AMACT, Karkala, in MVC

No.229/2015, is modified.

The appellant is entitled for an enhanced

compensation of Rs.2,64,840/- with interest at 6% per

annum.

The enhanced compensation shall be apportioned

in the ratio of 50:50 on respondent No.2 and respondent

No.4.

Sd/-

JUDGE

snc