Smt.Droupathi W/O Krishnappa ... vs Basavaraj S/O Chanabasappa ...
2021 Latest Caselaw 5817 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH


           DATED THIS THE 9TH DAY OF DECEMBER, 2021


                           BEFORE

           THE HON'BLE MR.JUSTICE RAVI V. HOSMANI


                  M.F.A.NO.102875/2015 (MV)


BETWEEN:

1 . SMT.DROUPATHI
    W/O KRISHNAPPA RAIKAR
    AGE:51 YEARS
    OCC:HOUSEHOLD WORK
    R/O:SANGOOR, TQ/DIST: HAVERI

2 . MANJAPPA
    S/O KRISHNAPPA RAIKAR
    AGE:31 YEARS, OCC:NIL
    R/O:SANGOOR, TQ/DIST:HAVERI

3 . CHANDRAPPA
    S/O KRISHNAPPA RAIKAR
    AGE:29 YEARS, OCC:NIL
    R/O:SANGOOR, TQ/DIST:HAVERI

4 . SUBHAS S/O KRISHNAPPA RAIKAR
    AGE:27 YEARS, OCC:NIL
    R/O:SANGOOR, TQ/DIST:HAVERI

5 . RAJU S/O KRISHNAPPA RAIKAR
    AGE:25 YEARS, OCC:NIL
    R/O:SANGOOR, TQ/DIST:HAVERI
                                  2




6 . RAGHAVENDRA
    S/O KRISHNAPPA RAIKAR
    AGE:23 YEARS, OCC:NIL(STUDENT)
    R/O:SANGOOR, TQ/DIST:HAVERI

7 . RAMACHANDRA
    S/O KRISHNAPPA RAIKAR
    AGE:22 YEARS, OCC:STUDENT
    R/O:SANGOOR, TQ/DIST:HAVERI

                                           ...APPELLANTS.

(BY SHRI PATIL M H, ADVOCATE.)


AND:

1.   BASAVARAJ
     S/O CHANABASAPPA BANKAPUR
     AGE: MAJOR, OCC: BUSINESS
     R/O: KOLUR, TQ/DIST:HAVERI
     (OWNER OF AUTO RICKSHAW
     BEARING REG NO.KA-27/3859)

2.   THE DIVISIONAL MANAGER
     THE NEW INDIA ASSURANCE CO. LTD.,
     A.M.ARCADE, C.G.HOSPITAL ROAD
     DAVANGERE.

                                          ...RESPONDENTS.

(BY SHRI R.R.MANE, ADVOCATE FOR R.2;
R.1 - NOTICE SERVED.)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 16.2.2012, PASSED IN
MVC NO.141/2011, ON THE FILE OF THE DISTRICT JUDGE (FAST
TRACK) AND ADDL. MACT, HAVERI, BY ENHANCING THE
COMPENSATION, ETC.,.
                                       3




     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                              JUDGMENT

This appeal is filed by claimants challenging judgment and

award dated 16.2.2012, passed by District Judge (Fast Track)

and Addl. MACT, Haveri, in MVC No.141/2011, seeking

enhancement of compensation.

2. With consent of learned counsel for parties, matter

is taken up for disposal.

3. Shri M.H.Patil, learned counsel for appellants stated

that in an accident that occurred on 29.6.1998 when Krishnappa

boarded an auto rickshaw, it dashed against KSRTC bus, due to

rash and negligent driving by its driver. Consequently

Krishnappa sustained grievous injuries and died during

treatment. Claiming compensation for the same, his wife and six

children filed claim petition against owner and insurer of auto

rickshaw as well as KSRTC bus.

4. On contest, tribunal held that accident occurred due

to rash and negligent driving of auto rickshaw by its driver and

assessed compensation after determining age of deceased

Krishnappa as 50 years, taking his income as Rs.3,000/- per

month, deducting 1/5th towards personal expenses awarded

compensation of Rs.4,49,000/-. Not satisfied with the quantum

of compensation, claimants are in appeal.

5. It was submitted that tribunal committed an error in

not awarding future prospects to the income of deceased. It was

further submitted that award under conventional heads was also

on lower side. Learned counsel further submitted that though

tribunal held that deceased was bed ridden for 11 years from

date of accident till his death, tribunal awarded a lump sum

compensation of Rs.50,000/- towards medical and incidental

expenses which was also on lower side.

6. On the other hand Shri R.R.Mane, learned counsel

for respondent insurer supported the award and opposed

enhancement. It was submitted that though accident occurred

during the year 1998, tribunal had considered income of

deceased at Rs.3,000/- per month which is on higher side and

considering entire evidence on record, tribunal had awarded just

and fair compensation. It was specifically submitted that

tribunal considered medical evidence on record and awarded

appropriate amount towards treatment and other expenses and

no enhancement was called for.

7. From above submission, occurrence of accident due

to rash and negligent driving of auto rickshaw by its driver and

Krishnappa sustaining grievous injuries in the said accident and

succumbing to the same on 25.10.2009 being a paraplegic till

then is not in dispute. Tribunal assessed compensation and

passed award against respondent insurer. Insurer has not

challenged award. Liability of insurer is also not in dispute.

Claimants are in appeal seeking for enhancement. Therefore

point that arises for consideration in this appeal is:

"Whether claimants are entitled for

enhancement of compensation as sought for?"

8. In order to establish age, occupation and income,

claimants produced wound certificate discharge card, MLC

report, Bapuji Hospital report, visiting card, medical certificate

and medical bills marked as Exs.P.2 to P.145 respectively. They

also examined Dr.G.Shivappa and Dr.Umesh as PW.2 and PW.3.

From Ex.P.2 and other medical records, tribunal determined age

of deceased as 50 years. Though claimants stated that deceased

was a goldsmith and was earning Rs.4,000/- per month, there is

no evidence led to substantiate the same. Therefore, tribunal

would be justified in assessing it on notional basis. The tribunal

determined his income at Rs.3,000/- per month which is just

and proper. Deceased was self employed and claimants are wife

and children of deceased. As on the date of accident all six

children would have been minors. There are a total on 7

dependents. As per decision in National Insurance Company

Limited vs. Pranay Sethi and others, reported in (2017)

16 Supreme Court Cases 680, addition of future prospects

would be at 10%, deduction towards personal expenses would

be '1/5th' and multiplier applicable would be '13'. Therefore loss

of dependency would be Rs.3,000/- + 10% minus 1/5th x 12 x

13 = Rs.4,11,840/-.

9. In addition, claimant no.1(a) would be entitled to

Rs.40,000/- towards loss of spousal consortium and claimants

no.1(b) to (g) would be entitled to Rs.40,000/- each towards

loss of parental consortium. They would also entitled for

Rs.15,000/- towards funeral expenses and Rs.15,000/- towards

loss of estate. Since more than three years have lapsed after

rendering the decision in Pranay Sethi case (supra), 10% has

to be added towards award under conventional heads i.e., a

sum of Rs.31,000/-. Thus, claimants would be entitled for

compensation under the conventional heads at Rs.3,41,000/-

(40,000 x 7 + 15,000 + 15,000 + 31,000).

10. Deceased Krishnappa was in the state of paraplegia

from date of accident i.e., from 29.6.1998 to till his death on

26.10.2009 as held established by tribunal. Claimants produced

medical bills for a sum of Rs.30,000/-. Tribunal has awarded an

amount of Rs.50,000/- towards medical and other incidental

expenses. From the evidence available on record, it is seen that,

claimant no.1 is an illiterate. Claimants are from rural area and

deceased Krishnappa was in paraplegic state for no less than 11

years. Claimants cannot be expected to save each and every

medical bills for this extremely long duration. Deceased being in

paraplegia state until death, would have required continuous

attendant and medical care. Hence, award of Rs.50,000/-

towards the same would be grossly inadequate. In the absence

of evidence, by some reasonable guess work it would be

appropriate to award a sum of Rs.1,000/- per month, which for

the said period, would be Rs.1,32,000/-. Hence, claimants are

awarded a lump sum of Rs.1,32,000/- towards the same.

11. Thus, total compensation would be Rs.8,84,840/- as

against Rs.4,49,000/- awarded by tribunal. Point No.2 is

answered partly in the affirmative as above.

12. In the result, I pass the following:

ORDER

i) Appeal is allowed in part with cost.

ii) Judgment and award dated 16.2.2012,

passed by District Judge (Fast Track) and

Addl. MACT, Haveri, in MVC No.141/2011 is

modified.

iii) Claimants are held entitled for a

compensation of Rs.8,84,840/- as against

Rs.4,49,000/- awarded by tribunal.

iv) Tribunal awarded interest at 6% from

24.9.2009 i.e., the date of impleading of

respondent no.2 insurer herein. Therefore

claimants would be entitled to interest at 6%

p.a. from 24.9.2009 on the enhanced

compensation also excluding the period of

1228 days delay in filing the appeal, till date

of deposit.

v) Directions issued by tribunal regarding

apportionment, release and deposit would

apply proportionately to enhanced

compensation also.

vi) Respondent insurer is directed to deposit

enhanced compensation within a period of six

weeks from the date of receipt of a certified

copy of this judgment.

Sd/-

JUDGE

Mrk/-