Smt.Nagu W/O Shashi Desai vs The Managing Director
2021 Latest Caselaw 2875 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

          DATED THIS THE 20 T H DAY OF JULY, 2021

                          BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                M.F.A.No.101400/2019 (MV)

BETWEEN:

1.     SMT.NAGU W/ O S HASHI DESAI ,
       AGE: 62 YEARS , OCC: HOUS EHOLD,
       R/O RAM NA GAR, TQ: JOIDA ,
       DISTRICT: NORTH CANARA,
       PRESENT AT PEERANWADI MAIN ROAD,
       BELAGAVI .

2.     BABU S/ O S HASHI DESAI,
       AGE: 40 YEARS , HANDICAPPED,
       R/O RAM NA GAR, TQ: JOIDA ,
       DISTRICT: NORTH CANARA.
                                            ... APPELLANTS
(BY SRI ASHOK A .NAIK, ADVOCATE)

AND

THE MANAGING DI RECTOR,
KADAMBA TRANSPORT CORPORATION LIMITED,
PARAISO DE-GOA, ALTO PORVORIAM BARDEZ,
GOA .
                                            ... RES PONDENT
(BY SRI VINOD S .PAWAR, ADVOCAT E)

     THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOT OR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 10.01.2019 PASSED IN MVC
NO.2157/2017 ON THE FILE OF THE I ADDL. DISTRICT JUDGE
AND MACT-II, BELAGAVI , PART LY ALLOWIN G THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATI ON.
                                         2




    THIS APPEAL COMI NG ON F OR ADMISSION THIS DAY, T HE
COURT , D ELIVERED THE F OLLOWING:

                                JUDGMENT

Challenging the judgment and award dated

10.01.2019 passed by I Addl.District Judge and M.A.C.T-

II, Belagavi (for short, 'the Tribunal') in MVC

No.2157/2017, this appeal is filed under Section 173 of

Motor Vehicles Act, 1988 (for short, 'the M.V.Act') by the

claimants seeking for enhancement of compensation.

2. Though this appeal is listed for admission, with

the consent of learned counsel for parties, it is taken up

for final disposal.

3. For the sake of convenience, the parties will be

referred to as per their respective ranks before the

tribunal.

4. Brief facts as stated are that on 06.09.2017,

Prakash Desai was driving Maruthi Omni Car bearing

registration No.GA-03/C-5663 from Ramnagar towards

Anmod. When the vehicle was near Akrali Cross at about

8.45 a.m., one bus bearing registration No.GA-03/X-0223

came from opposite direction in a rash and negligent

manner and dashed against Omni car. Said accident

resulted in death of one Prakash Desai and injuries to

other occupants of the car. They filed separate claim

petitions against owner and insurer of the offending bus.

The mother and brother of deceased Prakash Desai filed

MVC No.2157/2017.

5. On receipt of summons, respondent-Corporation

owner of the bus entered appearance and filed objections

denying the claim petition and alleging negligence against

the deceased and contending that driver of car was not

holding effective driving licence and was driving the car in

drunken state of mind.

6. Based on pleadings, Tribunal framed following

issues and additional issues:

Issues:

1. Whether the petitioners prove that deceased Shri Prakash Shashi Desai died

due to injuries sustained in accident occurred on 06.09.2017 at about 8.45 a.m. on Near Akrali Cross, on Ram Nagar Goa Road, due to rash and negligent driving of the Kadamba bus bearing No.GA-03/X-0223 is owned by its driver?

2. Whether the respondent proves that the accident in question occurred only due to rash and negligent riding of Omni car bearing No.GA-03/C-5663?

3. As petitioners entitled for compensation. If so how much and from whom?

4. What order?

Addl.Issue:

1. Whether the petitioners proved that they were dependents on the income of deceased?

7. In support of the claim petition, claimant No.1

was examined as PW1. Exhibits P1 to P9 were marked. On

behalf of respondent, driver of bus was examined as RW1

and three photographs with C.D. were marked as Ex.R1.

8. On consideration, the Tribunal answered Issue

No.1, Addl.Issue No.2, Issue No.2 in the affirmative;

Issue No.3 partly in the affirmative and Issue No.4 by

awarding compensation of Rs.12,72,400/- with interest at

9% per annum, against the respondent. Not satisfied with

the quantum of compensation, claimants are in appeal.

9. Sri Ashok A.Naik, learned counsel for claimants-

appellants submitted that the award passed by the

Tribunal was not commensurate to facts and evidence on

record. The deceased was 29 year old driver working at

Goa. His monthly income was Rs.15,000/-. However, the

Tribunal without taking the same into account, considered

his income on notional basis at Rs.8,000/-. Only on the

ground of lower income, sought for enhancement of

compensation.

10. On the other hand, Sri Vinod S.Pawar, learned

counsel for respondent-Corporation submitted that

considering the age of deceased and date of accident, the

Tribunal had rightly taken income of deceased on notional

basis and no enhancement is called for.

11. From the above submissions, the occurrence of

accident involving the insured vehicle due to rash and

negligent driving by the offending vehicle resulting in

death of Prakash Desai is not in dispute. As the insurer

has not filed any appeal against the award on liability to

pay the compensation is also not in dispute. Therefore,

the only point arises for consideration in this appeal is:

"Whether the claimants are entitled for enhancement of compensation as sought for?"

12. Admittedly the deceased was 29 years of age

driver by occupation. Though his income was claimed at

Rs.15,000/-, there is no specific evidence led by claimants

to support the same. The Tribunal considered his income

on notional basis at Rs.8,000/-. However, claimants have

produced driving licence of deceased marked as Ex.P9.

The Tribunal at the time of passing award, has note of the

same and held that deceased was working as driver of

light motor vehicle. In view of the fact that there was

evidence regarding occupation of the deceased, the

Tribunal ought not to have taken the income on notional

basis at Rs.8,000/-. The accident admittedly occurred

during the year 2017. As per norms adopted for

settlement of cases before Lok Adalath, the monthly

income of a ordinary coolie for the year 2017, is

Rs.10,250/-. As there is specific evidence led by claimants

with regard to occupation of deceased, his income has to

be considered at more than that of a ordinary coolie. In

the considered opinion of this Court, it would be

appropriate to take it at Rs.12,500/-. As per law laid down

by the constitutional bench in the case of National

Insurance Company Limited V/s Pranay Sethi and

others reported in AIR 2017 SC 5157, the multiplier

applicable would be '17' and adding of future prospects

has to be at 40%. As the claimants are mother of

deceased and major brother, the Tribunal has deducted

50% towards personal expenses. Thus, the compensation

towards loss of dependency would be Rs.17,85,000/-.

Hence, point for consideration is answered in the

affirmative as above.

13. The claimants are mother and brother of

deceased. As per the decision of the Hon'ble Supreme

Court in the case of Magma General Insurance

Company Limited V/s Nanu Ram @ Chuhru Ram and

others reported in (2018) 18 SCC 130, claimants would

be entitled to compensation of Rs.40,000/- each towards

filial consortium and sibling consortium. They would also

be entitled to a sum of Rs.15,000/- each towards funeral

expenses and loss of estate. Since more than three years

have been lapsed after the decision of the Hon'ble

Supreme Court in the case of National Insurance

Company Limited V/s Pranay Sethi and others

reported in (2017) 6 SCC 680, 10% has to be added to

the award under conventional heads. Therefore, they

would be entitled to a sum of Rs.1,21,000/- (40,000 +

40,000 + 15,000 + 15,000 + 10%).

14. In the result, appeal is allowed in part with

costs. The claimants are entitled for a compensation of

Rs.17,85,000 + Rs.1,21,000 = Rs.19,06,000/- as against

Rs.12,72,400/- awarded by the Tribunal. As per law laid

down by this Court in the case of Shriram General

Insurance Company Ltd., Rajasthan V/s Smt.Laxmi

and others reported in 2018 (4) AKR 808, the claimants

would be entitled to interest at 6% per annum on the

enhanced compensation.

The respondent-insurer is directed to deposit balance

compensation with interest within six weeks from the date

of receipt of certified copy of this judgment.

SD JUDGE

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