Smt. Rukmavva W/O Basappa ... vs Maheboob S/O. Khajesab Bagawan
2021 Latest Caselaw 6062 Kant

                                 1

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH
           DATED THIS THE 14TH DAY OF DECEMBER, 2021
                             PRESENT

           THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                              AND
               THE HON'BLE MR.JUSTICE S. RACHAIAH
                   M.F.A. No. 100282/2018 (MV)
BETWEEN:

1.    SMT. RUKMAVVA W/O BASAPPA BELAGALI,
      AGE-42 YEARS, OCC-HOUSEHOLD WORK.

2.    SRI. VENKANNA S/O BASAPPA BELAGALI,
      AGE-21 YEARS, OCC-NIL.

3.    SMT. SUNITA W/O HANMANTH @ RAJU MALALI,
      AGE-25 YEARS, OCC-HOUSEHOLD WORK.

4.    SMT. SUDHA W/O PANDAPPA YARAGURDI,
      AGE-23 YEARS, OCC-HOUSEHOLD WORK.

5.    SMT. PARVATEWWA W/O HANAMAPPA BELAGALI,
      AGE-62 YEAS, OCC-HOUSEHOLD WORK.

ALL ARE R/O JAMBAGI KD-587 122, TQ: MUDHOL, DIST: BAGALKOT.
                                                     -    APPELLANTS
(BY SRI HARISH S. MAIGUR, ADVOCATE)


1.    MAHEBOOB S/O KHAJESAB BAGAWAN,
      AGE-52 YEARS, OCC: OWNER OF LORRY,
      R/O BAGAWAN GALLI, GUDUR VILLAGE-587 154,
      TQ: HUNGUND, DIST: BAGALKOT.

2.    THE DIVISIONAL MANAGER,
      HDFC ERGO GENERAL INSURANCE COMPANY LTD.,
      NO.25/1, II FLOOR, SHANKAR NARAYAN BUILDING,
      M.G. ROAD, BENGALURU-560 001.
                                                     -   RESPONDENTS
(BY SRI SHIVARAJ P. MUDHOL, ADVOCATE FOR R1,
SRI S.K. KAYAKMATH, ADVOCATE FOR R2)
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD PASSED BY
THE LEARNED MEMBER, MACT, XIV, MUDHOL DATED 01.07.2017 IN
M.V.C. NO. 44/2016 & ETC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, S.SUNIL DUTT YADAV J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

Appellants are the claimants before the Tribunal and

have preferred the appeal challenging the award of the

Tribunal in M.V.C. No. 44/2016 whereby the claim petition

came to be partly allowed granting compensation of

`10,54,256/- with interest at the rate of 9% p.a. from the

date of petition till depositing the compensation.

2. The parties are referred to as per their ranks before the

Tribunal.

3. It is stated that on 17.07.2015 at about 07.00 p.m.

when Basappa (deceased) was walking by the side of Mudhol-

Lokapur PWD road and when he had come near Ballur RC, a

lorry bearing registration No. KA-01-AA-646 came from the

rear side traveling in high speed and in a rash and negligent

manner and ran over Basappa. It is stated that the said

Basappa sustained injuries over his chest, head, neck and

other parts of the body and died at the spot. The claim

petition came to be filed asserting that the said Basappa was

44 years at the time of the accident and was earning

`15,000/- per month by doing agricultural coolie work. The

said petition came to be allowed by granting compensation as

noticed above. The award has been challenged by the

claimants and the claimants have sought for enhancement of

compensation contending that the income taken for the

purpose of calculating dependency by the Tribunal of `7,000/-

was on the conservative side and as the accident was of the

year 2015, the Tribunal ought to have taken note of the

Lokadalath accepted notional income guideline, according to

which the notional income ought to have been taken at

`8,000/-. It is fairly submitted that though the Tribunal has

taken future prospects at 30%, it has to be taken at 25% in

the light of the observations made in the case of National

Insurance Company Limited V. Pranay Sethi and Others

reported in AIR 2017 SC 5157.

4. Insofar as the deduction is concerned, counsel for the

claimants submits that 1/4th ought to have deducted towards

personal expenses instead of 1/3 as the wife of the deceased

had stated in her evidence that claimants no.3 and 4 were

daughters given in marriage but had come back and were

residing with the parents as their husbands have deserted

them.

5. Insofar as the grant of compensation regarding loss of

consortium it is submitted that each of the claimants is

entitled for consortium at `40,000/- in the light of the

observation made in the case of Magma General Insurance

Co.,Ltd., Vs. Nanu Ram @ Chuhru Ram & Ors. Reported in

(2018) 18 SCC 130 at paragraph no. 8.7.

6. It is submitted that the dependents, claimant no.1-wife

would be entitled to spousal consortium, children-claimants

no.2 to 4 would be entitled to parental consortium and

claimant no.5-mother of the deceased would be entitled to

filial consortium and accordingly the award needs to be

modified.

7. It is further submitted that on conventional heads the

award of compensation being on the conservative side, the

amount of `15,000/- under the head of loss of estate and

`15,000/- under the head of funeral expenses require to be

granted.

8. Though counsel for the respondents would contend that

the answer in the cross-examination by the wife of the

deceased is not sufficiently clear, however, on an entirety of

the stand that comes out in the evidence, the contention of

the appellants as regards to the number of dependents and

accordingly lower deduction requires to be accepted. The

notional income as per Lokadalath guidelines being `8,000/-

ought to be taken note of with 25% to be added towards

future prospects instead of 30% as granted by the Tribunal.

9. Insofar as the loss of consortium, the contentions of the

appellants require acceptance in the light of the law laid down

in Magma's case supra and each of the claimants are entitled

for `40,000/- towards loss of consortium so also on the

ground of loss of estate and funeral expenses which are the

conventional heads, the same must be granted at `15,000/-

each. Accordingly, the compensation has to be reworked as

follows:

Sl. No.   Particulars                         Amount
1.        Towards loss of dependency            `12,60,000.00
          (`8000x12x1/4x25%/100)
2.        Loss of consortium
          Appellant no.1 - spousal consortium      `40,000.00
          Appellant Nos.2 to 4 - parental        `1,20,000.00
          consortium
          Appellant No. 5 - filial consortium      `40,000.00
3.        Towards loss of estate                   `15,000.00
4.        Towards funeral expenses                 `15,000.00
          Total                                 `14,90,000.00

Accordingly the amount is enhanced by `4,35,744/- and the

enhanced amount will carry interest at 6% p.a. from the date

of petition. Accordingly, the appeal is partly allowed.

The insurer to deposit the compensation within a period

of six weeks from the date of release of this order.

The other terms regarding apportionment as by the

Tribunal would be applicable.

Sd/-

JUDGE

Sd/-

JUDGE

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