Karnataka High Court
Vandana W/O. Pandurang Hubale And ... vs Purushottam S/O. Moreshwar Kale ... on 25 November, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.200222/2017 (MV)
BETWEEN
1. VANDANA W/O. PANDURANG HUBALE
AGE:37 YEARS, OCC:HH WORK
2. SHOBHA D/O. PANDURANG HUBALE
AGE:21 YEARS, OCC:STUDENT
3. ARJUN S/O. PANDURANG HUBALE
AGE:20 YEARS, OCC:STUDENT
4. BHIMARAO S/O. PANDURANG HUBALE
AGE:18 YEARS, OCC:STUDENT
5. SAYAPPA S/O. DNYANU HUBALE
AGE:70 YEARS, OCC:NIL
ALL R/O. TIKOTA, TQ & DIST:VIJAYPUR
...APPELLANTS
(BY SRI SHIVASHANKAR H. MANUR, ADVOCATE)
AND
1. PURUSHOTTAM S/O. MORESHWAR KALE
AGE:47 YEARS, OCC:BUSINESS
R/O.C/O SAMBAJI SAMPAT MULIK
2
NANA PATIL COLONY, WANLESSWADI
WANLESSWADI P.O NO. 416414
MAHARASHTRA
2. THE MANAGER LEGAL
NEW INDIA ASSURANCE COMPANY LTD.,
S.S.ROAD, HANAMSHETTI BUILDING
VIJAYPUR-586101
...RESPONDENTS
(BY SRI S. S. ASPALLI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING
THAT THIS HON'BLE COURT TO, ENHANCE THE
COMPENSATION AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 06.10.2016 PASSED BY
THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VII,
VIJAYPUR, IN MVC NO.914/2015, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the claimants under Section
173(1) of the Motor Vehicles Act, 1988 (for short 'M.V.Act')
aggrieved by the judgment and order dated 06.10.2016
passed in MVC No.914/2015 on the file of the Motor
Accident Claims Tribunal-VII at Vijayapur (for short
'Tribunal').
2. Brief facts leading up to filing of the present
appeal are that, on 01.05.2015, at about 11.50 hours, one
Pandurang was travelling on his motorcycle bearing
registration No.MH-13/AL-1755 towards Nagole, on the
way of K.Mahankal-Jath road. When he came near the
accident spot, a Mahindra Jeep bearing registration No.MH-
10/AW-4100 (henceforth referred to as 'offending vehicle)
driven by its driver in high speed, rash and negligent
manner, came from opposite direction and dashed to the
motorcycle ridden by the deceased, causing the accident.
In which, the deceased sustained grievous injuries and
succumbed to the same on the spot.
3. Thereupon, the claimants being the wife,
children and father of the deceased filed a claim petition
under Section 166 of the M.V.Act seeking compensation on
the premise that the deceased was aged about 45 years
and was earning `12,000/- per month from his agricultural
work; that the deceased was the only earning member of
the family and was contributing his earning to the
maintenance of the family and that untimely death of the
deceased has caused financial and emotional distress to
the family. Hence, the claimants have filed a claim
petition seeking compensation.
appeared thorough their counsel and filed their separate
written statement. Respondent No.1 contended that the
offending vehicle was insured with respondent No.2. It
was contended that the alleged accident had taken place
due to rash and negligent driving by the driver of the jeep.
It is also contended that in collusion with the police
authorities a false case has been registered and the claim
made by the claimants was imaginary. Hence, sought for
dismissal of the claim petition.
5. Respondent No.2 - insurance company filed its
written statement denying the mode and manner of the
accident and also age, income and occupation of the
deceased. It is further contended that the deceased, who
was riding the motorcycle had equally contributed to the
accident and hence, the entire liability could not be
saddled only on the owner and insurer of the offending
vehicle. Hence, sought for dismissal of the claim petition.
6. Based on the pleadings of the parties, the
Tribunal framed issues and recorded evidence. The
claimant No.1 being the wife of the deceased examined
herself as PW.1 and one Gundappa Baburao Phonde has
been examined as PW.2. On behalf of the claimants, ten
documents have been exhibited and marked as Exs.P1 to
P10. No witness has been examined on behalf of the
respondents except marking the policy of insurance as
Ex.R1.
7. On evaluation of evidence, the Tribunal held
that the accident in question had occurred due to rash and
negligent driving by the driver of the offending vehicle
resulting in the death of the deceased. Consequently, held
that the claimants being the wife, children and father of
the deceased are entitled for total compensation of
`8,66,000/- together with interest at 6% per annum and
directed the respondent No.2 - insurance company to
deposit the compensation amount within a period of thirty
days from the date of the order. Aggrieved by the same,
the claimants are before this Court seeking enhancement
of the compensation.
8. The learned counsel for the
appellants/claimants reiterating the grounds urged in the
appeal memorandum submitted that though the deceased
was earning `12,000/- per month from his agricultural
work, the Tribunal has erred in assessing the notional
income of the deceased at `6,000/- per month. He further
submitting that the deceased was aged about 45 years and
the Tribunal has not awarded any compensation towards
loss of future prospects. He also submits that grant of
compensation under conventional heads is on the lower
side considering the number of dependents. Hence, he
seeks for allowing of the appeal by enhancing the
compensation.
9. On the other hand, the learned counsel for the
insurance company submits that the award of
compensation in the absence of any material evidence with
regard to notional income of the deceased assessing at
`.6,000/- is just and proper. He further submits that the
claim of the claimants under the conventional heads viz.,
consortium cannot be granted. Referring to the decision of
the Hon'ble Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi, (2017)
16 SCC 680., he submits that the Hon'ble Supreme Court
had considered the grant of consortium only to the wife.
He further submits that the said decision having been
rendered by the constitution bench is binding and no other
judgments in this regard can be looked into.
10. Further referring to the subsequent judgments
of the Apex Court in the cases of Magma General
Insurance Company Limited vs Nanu Ram Alias
Chuhru Ram and others reported in (2018) 18 SCC
130, United India Insurance Company Limited vs.
Satinder Kaur @ Satwinder Kaur and others reported
in 2020 SCC Online SC 410 and The New India
Assurance Company Limited vs. Smt. Somwati and
Others, (2020)9 SCC 644., he submits that the said
judgments cannot be considered as the same have been
rendered by the Bench of three judges. Therefore, he
submits that in the absence of any provision made in the
Pranay Sethi's case for award of compensation under the
head of consortium except to the wife, no consortium can
be granted.
11. He further referring to II-Schedule of the M.V.
Act under the head of General Damages, he submits that
loss of consortium is only beneficiary as spousal and no
body else can be considered. He further submits that the
said schedule has been taken note of by the Apex Court in
the case of Pranay Sethi's at Para No.51 of the
judgment. Hence, he submits that subsequent judgments
with regard to consortium to any one other than wife
cannot be looked into. Hence, sought for dismissal of the
appeal.
12. The only point that would arise for
consideration is:
"Whether the claimants have made out a
case for enhancement of compensation?"
13. The accident in question involving the
motorcycle of the deceased and the offending vehicle
resulting in the death of the deceased is not in dispute.
Though the claimants have contended that the deceased
was earning `.12,000/- per month from his agricultural
work, no material evidence has been produced in this
regard. The Tribunal in the absence of the material
evidence has assessed the notional income of the
deceased at `.6,000/- per month.
14. This Court, in the absence of any material
evidence with regard to income of the victims of road
traffic takes into consideration the chart prepared by
Karnataka State Legal Services Authority. According to
which the notional income of the victims of road traffic
accident for the year 2015 is fixed at `.8,000/- per month.
In the instant case the accident was occurred on
01.05.2015. Therefore, the notional income of the
deceased has to be taken into consideration at `.8,000/-
per month.
15. In view of the law laid down by the Hon'ble
Supreme Court in the case of Pranay Sethi, the deceased
being aged about 45 years is entitled for 25% addition of
the income under the head of future prospects.
Considering the number of dependency at five, 1/4th needs
to be deducted towards his personal and living expenses.
Applying the multiplier is '14', the claimants are entitled
for compensation towards loss of depdency at
`.12,60,000/- (`.8,000 + 25% (`.2,000/-) = `.10,000/-
minus 1/4 (`.2,500) = `.7,500 x 12 x 14).
16. As regards the grant of compensation under
the head of consortium, the learned counsel for the
insurance company strenuously argued that the law laid
down by the Hon'ble Supreme Court in the case of Pranay
Sethi, alone has to be looked into, wherein there is no
provision made with regard to award of compensation
under the head of consortium to any dependent other than
the spouse. He points out to schedule-II of the M.V. Act
under the head of general consortium referring to
beneficiary being the spousal wife at `.5,000/- is
mentioned. Referring to Para No.51 in the judgment of
Pranay Sethi's case, he submits that the Constitution
Bench of Hon'ble Supreme Court had indeed taken the
note of this aspect of matter and further submits that since
there is no provision made in the Pranay Sethi's case for
award of compensation to other dependents, the same
cannot be awarded. Referring to the judgment of the
Hon'ble Supreme Court in the cases of Magma, Satinder
Kaur and Somwati, the learned counsel submits that the
said judgments are not binding as they have passed by the
Three Judges Bench.
17. The aforesaid arguments of the learned
counsel for the insurance company taken only to be
rejected. The Hon'ble Supreme Court in the cases of
Magma, Satinder Kaur and Somwati (Supra), has relied
upon the principles laid down by its Constitution Bench in
the case of Pranay Sethi. The Hon'ble Supreme Court in
the aforesaid judgments has clarified the concept of
compensation with regard to ambit of consortium (loss of
love and affection). It is pertinent to refer the judgment of
the Hon'ble Supreme Court in the case of Somwati, in
which the arguments that are being canvassed by the
learned counsel for the respondent - insurance company,
was the precise point in issue. At Para No.13 of the
Somwati's case the Hon'ble Supreme Court has taken
note of the issue that arose therein for consideration,
which is extracted as under:-
"13. In all the appeals, only issue to be
considered is with regard to award of
compensation to the claimant under two heads
i.e., (a) "loss of consortium" and (b) "loss of
love and affection". With regard to
"consortium", the question is as to whether it
is only the wife who is entitled for consortium
or the consortium can be awarded to children
and parents also."
18. The Hon'ble Supreme Court while answering
the said issue raised in the said matter, has taken into
consideration the law laid down by the Constitution Bench
in Pranay Sheti's case and having analyzed the issues
and arguments raised by the parties therein at Para No.35
has concluded as under:-
"35. On behalf of the claimants, emphasis is
laid on the concept of "just compensation" and
what should be included within the ambit of
"just compensation". The learned counsel have
emphasized on Davies method and urged that
the grant of pecuniary advantage is bound to
be included in the future pecuniary benefit. It
has also been put forth that in right to receive
just compensation under the statute, when the
method of standardization has been conceived
and applied, there cannot be any
discrimination between the person salaried or
self-employed. It is highlighted that if evidence
is not required to be adduced in one category
of cases, there is no necessity to compel the
other category to adduce evidence to establish
the foundation for addition of future
prospects."
19. The Hon'ble Supreme Court in the process has
also taken into consideration the law laid down by three
judges Bench in the cases of Magma and Satinder Kaur
(supra). This being the position of law, the insistence of
the learned counsel for the respondent - insurance
company not look into the judgments in the case of
Magma, Satinder Kaur and Somwati cannot be
countenanced.
20. The claimants who are wife, children and
father of the deceased are held entitled for compensation
at `.40,000/- each i.e., `.40,000 x 5 = `.2,00,000/- under
the heads of spousal, filial and parental consortium. In
addition the claimants are held entitled for compensation
of `.5,000/- towards loss of estate and `.15,000/- towards
funeral expenses. Thus, totally the claimants are entitled
for compensation at `.14,90,000/- instead of `.8,66,000/-
as awarded by the Tribunal. Therefore, the compensation
awarded by the Tribunal deserves to be re-determined and
re-calculated as follows:-
Sl. Awarded by the Enhanced by this
Heads
No. Tribunal Court
01. Loss of dependency `.7,56,000/- `.12,60,000/-
02. Transportation of dead `.0,05,000/- -
body
03. Loss of consortium `.0,20,000/- `.02,00,000/-
04. Loss of love and affection `s.0,30,000/- -
05. Loss of estate `.0,30,000/- `.00,05,000/-
Funeral and other `.0,25,000/- `.00,15,000/-
ceremonies
Total `.08,66,000/- `.14,80,000/-
21. Hence, the point raised for consideration is
answered accordingly.
22. In the result, the following;
ORDER
(i) The MFA.No.200222/2017 filed by the appellants -
claimants are partly allowed.
(ii) The judgment and award dated 06.10.2016 passed
in MVC.No.914/2015 by the Motor Accident Claims
Tribunal No.VII, Vijaypur, is modified.
(iii) The claimants are held entitled for a total
compensation of `..14,80,000/- together interest at
the rate of 6% p.a. from the date of claim petition till
payment.
(iv) The respondent No.2 - insurance company is
directed to pay compensation with interest at the
rate of 6% p.a. from the date of claim petition till the
date of payment, within a period of three months
from the date of receipt of certified copy of this
judgment.
Sd/-
JUDGE
Srt/KJJ
