Smt. Yashoda W/O Kiran Talawar vs Shri. Shrikant S/O Anandrao Kadam
2021 Latest Caselaw 12 Kant

                              -1-

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 4TH DAY OF JANUARY 2021

                           PRESENT

           THE HON'BLE MR. JUSTICE G.NARENDAR

                              AND

     THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

                 MFA NO.101458/2017 (MV-D)
BETWEEN:

1.    SMT. YASHODA
      W/O KIRAN TALAWAR
      AGE: 23 YEARS,
      OCC: HOUSEHOLD,
      R/O: DATTAWADI, MAPSA GOA,
      NOW R/O: MATTIKOPPA,
      TQ: BAILHONGAL,
      DIST: BELAGAVI.

2.    PARASHURAM
      S/O FAKIRAPPA TALAWAR
      AGE: 57 YEARS, OCC: SERVICE,
      R/O: DATTAWADI MAPSE GOA,
      NOW R/O: MATTIKOPPA,
      TQ: BAILHONGAL,
      DIST: BELAGLAVI.

3.    SATTEWWA
      W/O PARASHURAM TALAWAR
      AGE: 52 YEARS, OCC: HOUSEHOLD,
      R/O: DATTAWADI MAPSE GOA,
      NOW R/O: MATTIKOPPA,
      TQ: BAILHONGAL,
      DIST: BELAGLAVI.
                                              ...APPELLANTS
(BY SRI.HANAMANT R LATUR, ADVOCATE)
                                -2-

AND

1.    SHRI. SHRIKANT
      S/O ANANDRAO KADAM
      AGE: 50 YEARS,
      OCC: BUSINESS,
      R/O: 75 ANANDVAN,
      3RD CROSS,
      SHAHU NAGAR,
      BELAGAVI-590003,
      TQ AND DIST: BELAGAVI.

2.    THE SBI GENERAL INSURANCE CO.LTD.,
      2ND FLOOR, KALBURGI HALMARK,
      PINTO ROAD,
      DESAI CROSS,
      DESHPANDE NAGAR,
      HUBBALLI,
      DIST: DHARWAD-580010.
                                               .....RESPONDENTS


(BY SRI.SUBHASH J BADDI, ADV. FOR R2
 NOTICE TO R1 DISPENSED WITH)


      THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES

ACT, AGAINST THE JUDGMENT AND AWARD DATED 22.09.2016 PASSED

IN MVC NO.1135/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND

MEMBER ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, BAILHONGAL,

PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND

SEEKING ENHANCEMENT OF COMPENSATION.


      THIS APPEAL COMING ON FOR ORDERS, THIS DAY, HANCHATE
SANJEEVKUMAR J., DELIVERED THE FOLLOWING:
                                  -3-

                              JUDGMENT

The present appeal is filed under Section 173(1) of Motor

Vehicles Act, (for short 'the MV Act') challenging the judgment and

award dated 22.09.2016 passed in MVC No.1135/2015 by the Court

of the Senior Civil Judge & Addl. MACT, Bailhongal (for short

'Tribunal') seeking enhancement of compensation. As a short point

is involved, the appeal is taken up for disposal with the consent of

counsels.

2. Brief facts of the case are:

It is stated that the husband of appellant No.1 and son of

appellant Nos.2 and 3 namely Kiran Parashuram Talawar

(deceased) along with other relatives were proceeding in a Maruti

Alto Car bearing registration No.GA-07/C-2708 from Mapasa and at

that time, Kiran Parashuram Talawar was driving the said car in a

moderate speed and when they reached near the place called

Belagavi-Chorla road near Kanakumbi I.B., at about 4.30 a.m. at

that time, the driver of one Trolley Truck bearing registration

No.KA-22/B-6582 which was being driven by its driver at a high

speed and in a rash and negligent manner coming from Belagavi

side dashed against the car and caused the accident. Due to the

said accident, the inmates of the car sustained grievous injuries and

deceased who was driving the car also sustained grievous injuries

on his vital parts of the body and immediately he was shifted to KLE

Hospital, Belagavi and on the same day at about 11.00 a.m., he

succumbed to the injuries. Therefore, the appellants being the wife

and parents of the deceased have filed the claim petition under

Section 166 of M.V.Act claiming compensation on account of death

of deceased. The tribunal after considering the evidence on record,

has awarded a compensation of Rs.11,76,200/- with interest at 9%

p.a. from the date of petition till realization.

3. Heard the learned counsel for the appellants and

learned counsel for the respondent No.2.

4. The counsel for the appellants submitted that the

deceased was doing transport business in Mapasa, Goa State and

was having driving license and owned goods vehicles and thereby

was earning income of Rs.30,000/- per month. However, the

tribunal had only considered the monthly income of the deceased at

Rs.7,000/- per month notionally, resulting into awarding the lesser

amount of compensation. Further it is submitted that the tribunal

has not awarded compensation under the head loss of future

prospects. Hence, prays for enhancement of compensation.

5. On the other hand, learned counsel appearing for the

respondent-Insurance Company submits that the quantum of

compensation awarded by the tribunal is correct and proper and

justifies the quantum awarded by the tribunal. Thus, prayed for

dismissal of the appeal.

6. In the present case, the tribunal has adopted the

notional monthly income at Rs.7,000/- and accordingly granted

compensation of Rs.10,15,200/- under the head loss of

dependency. Even though the appellants have stated that the

deceased was doing transport business and he was earning an

income of Rs.30,000/- p.m., to substantiate the said claim, the

appellants have not produced any evidence in that regard.

Therefore, in the absence of proof of income, notional income has

been correctly adopted. The tribunal has taken notional income of

the deceased at Rs.7,000/- p.m. However, the accident has

occurred in the year 2014. Therefore, considering the factum that

accident is of the year 2014 and prevailing living expenditure in the

year 2014 and also considering the notional income as

determined/considered by the Legal Services Authorities, hence,

notional income of Rs.7,500/- ought to have been taken into

consideration. Therefore, monthly notional income is adopted at

Rs.7,500/- in the absence of other evidence to prove the income of

the deceased.

7. Further, as per the principles laid down by the Hon'ble

Supreme Court in the case of National Insurance Co. Ltd. Vs.

Pranay Sethi, reported in (2017) 16 SCC 680 at paragraph

Nos.59.3 and 59.4 held as under;

59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 to 50

years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

8. In the present case the deceased was self employed

person was aged 24 years as his date of birth is 24.01.1991 as per

the driving license extract (Ex.P19) and accordingly, 40% of income

is to be added to the notional income of Rs.7,500/- and thus after

adding 40% of income the total income would be at Rs.10,500/-

[Rs.7,500/- + 3000 (40%)] while awarding the compensation under

the head loss of dependency including loss of future prospects to

the appellants-claimants. Further, as the age of deceased is 24

years, hence, the appropriate multiplier would be 18 as per the

judgment of Hon'ble Supreme Court in the case Sarla Verma

(Smt) and Others Vs Delhi Transport Corporation and

Another, reported in (2009) 6 SCC 121. Further, 1/3 of the

amount would have to be deducted towards personal and living

expenses of the deceased as the dependants are only 3 in numbers.

Hence, the loss of dependency is recalculated and quantified as

follows;

Rs.10,500/- x 2/3 x 18 x 12 = 15,12,000/-

9. Accordingly, the compensation of Rs.15,12,000/- is

awarded under the head loss of dependency.

10. The amount of compensation under the other heads

including medical expenses is found to be correct and proper which

needs no interference by this Court. Therefore, the same is kept

intact.

11. The Tribunal has awarded a compensation of

Rs.11,76,200/- and after deducting this amount, the appellants are

entitled to an additional amount of Rs.3,35,800/- (Rs.15,12,000 -

11,76,200), which is rounded up to Rs.3,36,000/-.

12. Accordingly, the appellant succeeds in part. Hence, we

proceed to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award dated 22.09.2016 passed in MVC

No.1135/2015 on the file of the Senior Civil Judge & Addl. MACT,

Bailhongal is hereby modified to the extent that the appellants are

entitled to an additional compensation of Rs.3,36,000/- in addition

to what has been awarded by the tribunal.

The other terms and observations made by the tribunal are

kept intact.

No order as to costs.

Draw award accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

RM