The Divisional Manager vs Smt Suvaranawwa Kom Devappa ...
2021 Latest Caselaw 5820 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 09 T H DAY OF DECEMBER, 2021

                          BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                M.F.A.No.23232/2012(MV)
                          C/W
                M.F.A. CROB.No.703/2013

IN M.F.A.No.23232/2012(MV)

BETWEEN:

THE DIVISIONAL MANAGER,
ORIENTAL INS URA NCE COMPANY LTD ,
ENKAY COMPLEX, KESHWAPUR,
HUBLI , REPRESEN TED BY ITS REGI ONAL OFF CIE,
SUMANGALA COMPLEX, 2 N D FLOOR,
LAMINGTON ROAD , HUBLI ,
THROUGH ITS ASS ISTANT MANAGER.
                                                 ... APPELLANT
(BY SRI.N .R.K UPPELUR, ADV OCATE)

AND

1 .   SMT SUVARANAWWA KOM DEVA PPA ANGADI,
      AGE : 30 YEARS,
      OCC : HOUS EHOLD WORK ,
      R/O SAIDA PUR, T Q: NAVALGUND.

2 .   KUMAR PRABHU D EVAPPA ANGADI
      AGE : 12 YEARS,
      OCC : ST UDENT,

3 .   KUMAR SANJEEV D EVAPPA ANGADI
      AGE : 8 YEARS ,
      OCC : ST UDENT,
                               2




4 .   SANGAPPA FAKIRA PPA ANGADI
      AGE : 54 YEARS, OCC : A GRI.

      SINCE R4 REPORT ED TO BE DIED
      ON 06.09.2018 AN D ONLY ONE LR
      OF R4 IS RES PON DENT NO.5, R-5 IS
      TREATED AS LR OF DECEAS ED R4.

5 .   SMT.PARVATEVVA KOM SANGAPPA A NGADI
      AGE : 52 YEARS, OCC : HOUS EHOLD WORK

      RESPOND ENT NOS .2 AND 3 A RE MIN ORS
      REPREENTED BY PETITIONER N O.1- MOTHER.

      ALL ARE RESIDING AT SAIDAPUR,
      TQ : NAVA LGUND, DIST : DHARWAD

                                                 ... RES PONDENTS

(BY SRI.SIDDA PPA SAJJAN, ADVOCATE FOR R1 AND R5)
( R2 AND R3 MINORS REPTD BY R1)
(APPEA L AS AGAIN ST R4 STANDS ABATES)

      THIS   MISC.FIRST   APPEAL   IS   FI LED   UNDER   S ECT ION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING TO CALL FOR
THE RECORDS CONNECTED WITH M VC No.388/ 2010 ON THE
FILE OF THE DISTRICT JUDGE AN D MACT, GADAG, EXAMINE
THE SAME AND MODIFY THE AWARD DATED 12.04.2012 AS
AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE.

IN M.F.A. CROB.No.703/2013

BETWEEN

1 .   SUVARNAWWA W/ O DEVA PPA ANGA DI,
      AGE: 31 YEARS , OCC: HOUS EHOLD,

2 .   PRABHU S/ O DEVA PPA ANGADI ,
      AGE: 13 YEARS , OCC: STUD ENT,
                              3




3 .   SANJEEV S/ O DEV APPA ANGADI ,
      AGE: 08 YEARS , OCC: STUD ENT,

      (APPELLANT NO.2 AND 3 ARE MINORS REPRESENTED
      BY THEIR M/G AN D N/M APPELLANT NO.1)

4 .   PARVATEVVA W/ O SANGAPPA ANGAD I,
      AGE: 53 YEARS , OCC: HOUS EHOLD WORK,

     ALL ARE R/AT: SAI DAPUR, T Q: NAVA LGUND ,
     DIST: GADAG.
                                       ... CROSS OBJECT ORS
(BY SRI.SIDDA PPA SAJJAN, ADVOCATE)

AND

1 .   K.CHANDRASHEKAR S/O. K UMARSWAMY,
      AGE:MAJOR, OCC: BUSINESS,
      R/O. MUSKAM, B-BLOCK , ANDARS ON PET,
      K.G.F.

2 .   THE ORI ENTAL INS URANCE CO.LTD
      BY ITS DIVISIONA L MANAGER,
      ENKAY COMPLEX, KESHWAPUR,
      HUBLI .
                                            ... RES PONDENTS
(BY SRI.N .R. KUPPELUR, ADV OCATE FOR R2)
(R1 N OTICE DISPENSED WITH)

      THIS MFA CROB. I S FILED UNDER ORDER 41 RULE 22 OF
CPC AGAISNT THE JUDGMENT AND AWARD DATED 12.04.2012
PASSED IN MVC NO.388/ 2010 ON THE RFILE OF THE DISTRICT
JDUGE AND MEMBER, MACT, GAD AG PA RTLY ALLOWING THE
CLAIM    PETITIN    FOR    COMPEN SATION      AND   SEEKING
ENHANCEMENT OF COMPESNATION .

      THIS APPEAL AN D THIS MFA CROB. COMING ON F OR
HEARING      THIS   DAY,   THE   COURT ,    DELIV ERED   THE
FOLLOWING:
                                        4




                                   JUDGMENT

Challenging judgment and award dated 12.04.2012

passed by District Judge and MACT, Gadag (for short, 'the

Tribunal') in MVC No.388/2010, this appeal and cross-

objection is filed. While appeal is filed by insurer

challenging judgment and award on quantum, claimants

have filed cross-objection seeking enhancement of

compensation.

2. Sri.N.R.Kuppelur, learned counsel for

appellant/insurer submitted that in an accident that

occurred on 06.12.2010, when Devappa Sangappa Angadi

and his brother were traveling in tractor-trailer in Gadag,

tipper lorry bearing registration No.KA-27/7604 driven by

its driver in rash and negligent manner dashed against

tractor resulting in death of Devappa. Claiming

compensation for his untimely death, his wife, two minor

children have filed claim petition against Insurer of tipper

lorry bearing no.KA-27/7604.

3. On contest, Tribunal held that accident occurred

due to rash and negligent driving of tipper lorry by its

driver, it determined age of deceased as 35 years and his

occupation as agriculturist, after taking his monthly

income as Rs.10,000/- per month, deducting 1/4th

towards personal expenses and applying multiplier of 16,

awarded compensation of Rs.15,00,000/- with interest at

6% per annum. Assailing same, insurer is in appeal.

4. It was submitted that though legal heirs of

deceased have merely produced record of right with

regard to land holding without any evidence to establish

income derived from said land and expenses towards cost

of cultivation, Tribunal considered excessive monthly

income of Rs.10,000/- per month and awarded exorbitant

compensation.

5. On the other hand, Sri.Siddappa Sajjan, learned

counsel for claimants/respondents and cross-objectors

submitted that Tribunal had erred in not adding future

prospects though, deceased was of 32 years of age,

opposing insurers appeal, it was submitted that deceased

was holding about 12 acres of land and total holding of

land is 80 acres as admitted by claimants by producing

record of rights as per exhibits P.7 to P.18.

6. Taking the same into account, Tribunal

determined monthly income at Rs.10,000/- and same was

fully justified. Learned counsel further submitted that

Tribunal did not award adequate compensation under

conventional head and sought for enhancement.

7. From above submissions, occurrence of accident

due to rash and negligent driving of insured vehicle by its

driver leading to death of Devappa is not in dispute.

Issuance of insurance policy and its validity as on date of

accident is also not in dispute. Tribunal determined age

of deceased as 32 years and occupation as agriculturist is

also not in dispute. Only dispute is regarding monthly

income, entitlement of future prospects and award under

conventional heads. In order to establish monthly

income, claimants have stated that he was earning

Rs.10,000/- per month and produced record of rights as

per Exhibits-P7 to P18 to establish his land holding.

However, on perusal of Exhibits P7 to P18, it is noted that

there is no description regarding nature of crops grown

and sources of irrigation.

8. Based on pleadings exact income of deceased

cannot be determined. Notional income for the period of

accident in respect of ordinary cooli is Rs.5,500/-.

Admittedly, deceased was holding lands and cannot be

equated with an ordinary coolie. Taking notional income

as bench mark, assessment of monthly income by Tribunal

at Rs.10,000/- would be without evidence and would be

excessive. In motor vehicle accident claim petitions,

some amount of reasonable guess work is inevitable.

Taking into account of land held by deceased as 12 acres,

it would be just and proper to consider monthly income of

deceased notionally at Rs.8,000/-, his age as 32 years

and multiplier applicable would be '16'. Claimants are

wife, two children and parents, as per decision of Hon'ble

Apex Court in the case of National Insurance Company

Limited Vs. Pranay Sethi and others, reported in AIR

2017 Supreme Court 5157, there has to be an addition

of 40% to the total income of deceased towards future

prospects, deduction for personal expenses at "1/4",

multiplier applicable would be '16', his loss of dependence

would be

Rs.8,000/- + 40% - ¼ X 12 X 16=Rs. 16,12,800/-

9. In addition, claimant No.1 would be entitled for

Rs.40,000/- towards spousal consortium, children-

claimant nos.2 and 3 are entitled for Rs.40,000/- each

towards 'parental consortium' and claimant nos.4 and 5

are entitled for 'filial consortium' of Rs.40,000/- each. In

addition they are entitled for Rs.15,000/- towards 'funeral

expenses' and Rs.15,000/- towards 'loss of estate'. As

more than 3 years have lapsed from the date of disposal

of Pranay Sethi case, 10% towards award under

conventional heads i.e. Rs.23,000/-. Thus, claimants

have entitled for total compensation of Rs.18,65,800/-

as against Rs.15,00,000/- awarded by Tribunal.

10. In the result, I pass the following:

ORDER

MFA No.23232/2012 filed by appellant /

insurer is allowed in part.

          MFA    Crob.     No.703/2013    filed     by

    claimants is allowed in part.


          Compensation       is     enhanced      from

Rs.15,00,000/- to Rs.18,65,800/- with 6%

interest per annum from date of petition till

deposit.

Amount in deposit in MFA

No.23232/2012 is ordered to be transmitted

to Tribunal for payment.

Insurer is directed to deposit enhanced

compensation with interest at 6% per annum

within six weeks from date of receipt of this

order.

Directions issued by Tribunal regarding

apportionment, deposit and release would

apply to enhanced compensation also.

Sd/-

JUDGE

HMB